The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Volunteer Yale Psych Prof's Nonrenewal for Publicly Diagnosing Trump & Dershowitz Doesn't Violate Conn. Law,
holds the Second Circuit.
From Lee v. Yale Univ., decided yesterday by the Second Circuit (Judges Rosemary Pooler, Richard Sullivan & Beth Robinson):
Bandy Lee appeals from the district court's order dismissing, pursuant to Federal Rule of Civil Procedure 12(b)(6), her complaint against Yale University following its 2020 decision to not reappoint Lee as a voluntary Assistant Clinical Professor of psychiatry at the Yale School of Medicine after she publicly suggested that a prominent supporter of former President Donald Trump [Alan Dershowitz] had a "shared psychosis" with the former president and had "wholly taken on [his] symptoms by contagion." …
The court rejected "Lee's claims for breach of contract and breach of the implied covenant of good faith and fair dealing":
[Lee] has not adequately alleged a promise that Yale would not decline to renew her appointment on account of her public statements. In her opening brief in this Court, Lee argues that an express or implied contract was formed, primarily through Yale's Faculty Handbook and a Yale committee report referenced therein (the "Woodward Report"), in which Yale promised it "would not consider or rely upon [Lee's] exercise of freedom of expression and academic freedom when deciding whether to … renew [her] faculty appointment."
But the statements that Lee relies on as the genesis for this alleged contract reduce merely to generalized support for academic freedom. Because those statements were not "sufficiently definite to manifest a present intention on the part of [Yale] to undertake immediate contractual obligations to [Lee]" concerning what it could or could not consider when making a reappointment decision, they are not adequate to plausibly allege the formation of a contract of the type Lee asserts.
And the court rejected her claim under the Connecticut statute (§ 31-51q) that protects private employees from being disciplined or discharged based on their First-Amendment-protected speech, because Lee was a volunteer, not an employee:
The term "employee" is not defined in section 31-51q, nor have Connecticut state courts directly addressed what it means to be an employee in the context of section 31-51q when the plaintiff may not have been compensated. That said, facing the exact same question in the context of an analogous statute—the Connecticut Fair Employment Practices Act (the "CFEPA"), Conn. Gen. Stat. § 46a-60 et seq.—the Connecticut Supreme Court has clearly explained that for a volunteer to be considered an employee, she must [have received remuneration as well as being under the defendant's control]. The same should therefore be true for section 31-51q….
Lee alleges that, in exchange for her services as an unpaid voluntary Assistant Clinical Professor, she received from Yale "office space, facilities, libraries, subscription-based access to research databases and journal articles, statisticians, laboratories, statistical programs and software, IT and technology services, computer programs and software, media studios (radio and television), and campus transportation, all of which she used for her research, writing, to assist with her speaking engagements, advocacy[,] and other professional obligations." But ultimately these forms of indirect remuneration are insufficient, as they amount to benefits that are "merely incidental" to the activities Lee was performing for Yale, rather than benefits that would have profited Lee independent of Yale, such as health insurance, life insurance, or a retirement pension….
Jonathan Freiman & Anjali Dalal (Wiggin and Dana LLP) represent Yale.
