United States v. 2005-04-05 | 03-35408 | HUDSON VCRAVEN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 BARBARA V. HUDSON,
Plaintiff-Appellant, No. 03-35408
v. D.C. No.
 JAMES CRAVEN; YVETTE JACKSON; CV-02-05070-FDB
PATRICIA SERRANO; KATRINA OPINION
GOLDER; DAVID DUBACK,
Defendants-Appellees. 
Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Argued and Submitted
December 7, 2004—Seattle, Washington
Filed April 6, 2005
Before: Michael Daly Hawkins, Sidney R. Thomas, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
4013

-- 1 of 19 --

COUNSEL
Donald B. Potter, Portland, Oregon, for the plaintiff-appellant.
Talis M. Abolins, Assistant Attorney General, Olympia,
Washington, for the defendants-appellees.
OPINION
McKEOWN, Circuit Judge:
The World Trade Organization (“WTO”) is the interna-
tional organization charged with dealing with the rules of
trade between nations. In late November 1999, top trade offi-
cials from WTO-member countries met in Seattle. The Seattle
gathering gained national attention, not just for the policy
debate on international trade issues but also because of the
demonstrations and violence that occurred.
4016 HUDSON v. CRAVEN

-- 2 of 19 --

This civil rights case stems from a community college
instructor’s claim that the college retaliated against her after
she attended WTO protests with some of her students. Her
claim is a hybrid one—it involves both speech and associa-
tional rights under the First Amendment. We are presented
with an issue of first impression, namely the appropriate test
for benchmarking this hybrid right. We conclude that this case
should be evaluated under the balancing test established in
Pickering v. Board of Education, 391 U.S. 563, 568 (1968),
and that under Pickering, the college’s legitimate safety and
pedagogical concerns outweighed the instructor’s rights. We
affirm the district court’s grant of summary judgment in favor
of the college.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1997, Clark College, a community college in Vancouver,
Washington, hired Barbara Hudson as an adjunct instructor to
teach Economics 101, Introduction to Economics. In the fall
of 1999, a few of Hudson’s students suggested that the class
attend a public rally and march opposing the WTO. Hudson
thought that her students’ attendance at the rally organized by
the AFL-CIO on behalf of the labor movement would be a
good idea, and that the speakers would expose the students to
points of view not widely disseminated in the mainstream
media.
When Dr. James Craven, the lead tenured professor in
Clark College’s Economics Department, became aware of
Hudson’s plan to attend the rally with her students, he was
“absolutely opposed” to it. The Internet and news accounts
warned about the potential for violence during the demonstra-
tions and the Seattle Police Department was undertaking prep-
arations in anticipation of rioting. The event was cast as the
“Battle for Seattle.” Craven told Hudson that attending the
rally would put the students in danger and threatened to have
her “terminated” if she went ahead with her plan.
4017 HUDSON v. CRAVEN

-- 3 of 19 --

Although these concerns did not stop Craven from attend-
ing the WTO protests himself, he was worried about the “po-
tential risk to students and potential liability for the college.”
Craven communicated to Hudson that the students who
attended the rally would have access to their teacher for
“schmoozing” and “networking” in a way that other students
would not; that a teacher should not mix her professional
responsibilities with her politics; and that there was only
“marginal [educational] benefit” in attending the demonstra-
tion. Nonetheless, Craven said that it was “fine” if Hudson or
the students attended the WTO rally independently, without
any affiliation with Clark College.
Patti Serrano, head of the Business Division at the College,
also was troubled that Hudson wanted to attend the WTO as
part of a field trip. Serrano felt that Hudson was not “com-
pletely forthright” about her plans, and eventually learned that
Hudson and the students planned to participate in a demon-
stration explicitly opposing the objectives of the WTO. Ser-
rano recommended to Yvette Jackson, Vice-President of the
College, that Hudson “not be permitted to attend the demon-
strations with students in a manner that suggested association
in any manner with [the] College.”
Two days before the protests in question, Jackson wrote a
letter to “Faculty Members” that voiced “grave concerns
about any involvement by Clark College students and faculty”
in the WTO rallies. Her “major concerns” were the safety of
students and faculty, and she laid down the following guide-
lines for faculty:
• Your participation in this event, as well as the
participation of any Clark College student is as
an individual, and not as a representative of Clark
College.
• The participation of students must be entirely
voluntary.
4018 HUDSON v. CRAVEN

-- 4 of 19 --

• There cannot be any connection or participation
in this event to any grade or activity in the class.
• Students must be made aware that they are partic-
ipating in this activity as individuals, and not as
students at Clark College.
• Students who do not participate in this activity
cannot in any way be penalized in terms of grade
or be required to do any extra activity to “make
up” for their lack of involvement.
• You will be responsible for the safety [of] the
students accompanying you, and are charged with
making prudent decisions as to the safety of par-
ticipation in certain activities.
(emphasis in original).
Hudson backed off from her idea of organizing a field trip
under the auspices of the College, and she wrote to Jackson
that she would “tell the students planning to go to Seattle that
we are not an official Clark [College] field trip.” She stressed
that “[t]he students will not be carrying placards in the parade
identifying them as Clark College students.”
Although she disclaimed any official role for herself as the
instructor of students who would be in attendance, Hudson
emphasized the educational value of observing the protests
and the “caliber of the organizations cosponsoring” the WTO
literature that she distributed in class to her students. She told
students attending the rally to “observe information” as “it
might be on the test.” Hudson claimed that no students were
pressured to attend, and that her role was confined to finding
transportation because private vehicles would be unable to
reach downtown Seattle on the day of the rally. In the materi-
als setting out trip details, she wrote:
4019 HUDSON v. CRAVEN

-- 5 of 19 --

This will be the political Mardi Gras of the century
in Washington state. (Of course, there are just a few
more days in the century . . . )
Take care of one another. Stick with your buddy and
your group. Make lots of noise. Dress warmly. Slick-
ers will be provided if necessary. Take along a pea-
nut butter or other sturdy sandwich that will not spoil
just in case no vendors are available when you are
hungry. Smile, laugh, tell jokes, observe information
(it might be on the test) . . . .
The prediction of rioting and mass demonstrations erupted
into reality. On November 30, 1999, the mayor of Seattle
declared a civil emergency and imposed a dusk-to-dawn cur-
few over a large portion of the city. That same day, Hudson
took a bus with some of her students, her husband, and others
from churches and unions. Their participation in the rally was
without incident. Although Hudson attempted to circumvent
the clear directive that she could not sponsor a field trip on
behalf of the College, the trip was, in effect, a de facto class
field trip. As structured, from Hudson’s organization of the
trip to her integration of the trip into the final examination, it
was impossible to separate the trip from the College.
Shortly after the WTO protests, Craven recommended non-
renewal of Hudson’s contract. He wrote to Hudson that her
“services in teaching Economics 101 [would] not be required
for the winter,” and that Dr. Wambalaba, the tenured faculty
member who was on leave, indicated a desire to return to the
college to teach Economics 101. Craven also advised her that
he would be assuming responsibility for Economics 101
classes in order to establish course content and scope consis-
tent with the College’s needs.
Hudson then filed suit against Craven and four other
administrators of Clark College (collectively “the College” or
“Clark College”). She alleged a cause of action under 42
4020 HUDSON v. CRAVEN

-- 6 of 19 --

U.S.C. § 1983 for violations of the First Amendment and a
state law theory of tortious interference with a business
expectancy.
The district court granted the College’s motion for sum-
mary judgment. The court found that under the Pickering test,
the interests of Clark College outweighed those of Hudson in
associating with her students at the rally. In the alternative,
under the test in Mt. Healthy City School District Board of
Educ. v. Doyle, 429 U.S. 274, 287 (1977), the district court
found that Hudson’s contract with the College would have
been discontinued anyway, and that the administrators
enjoyed qualified immunity. The court also dismissed her
state law claim.
II. DISCUSSION
A. THE PICKERING STANDARD AND HYBRID FIRST
AMENDMENT CLAIMS
The essence of Hudson’s claim is that Clark College retali-
ated against her because she exercised her First Amendment
rights. In a prototypical retaliation scenario, to establish a
prima facie case under the First Amendment, a public
employee like Hudson “must show that (1) she engaged in
protected speech; (2) the defendants took an adverse employ-
ment action against her; and (3) her speech was a substantial
or motivating factor for the adverse employment action.”
Thomas v. City of Beaverton, 379 F.3d 802, 808 (9th Cir.
2004) (internal quotations and citations omitted). Once that
showing has been made, the burden shifts to the employer
who must
demonstrate either that, under the balancing test
established by Pickering[,] the employer’s legitimate
administrative interests outweigh the employee’s
First Amendment rights or that, under the mixed
motive analysis established by Mt. Healthy[,] the
4021 HUDSON v. CRAVEN

-- 7 of 19 --

employer would have reached the same decision
even in the absence of the employee’s protected con-
duct.
Id. (internal alterations, quotations, and citations omitted).
Hudson’s claim, however, is not prototypical. As the dis-
trict court explained, her claim is “more one involving free-
dom of association than freedom of speech.” Hudson does not
claim that Clark College terminated her employment because
of any statements she made to her students or to anyone else.
She was free to express her views about the WTO, which her
supervisor in fact shared, both inside and outside the class-
room. She also was free to participate in the anti-WTO rally
as an expression of her views. Nor does Hudson claim that the
College curtailed her right to associate with other anti-WTO
protesters unconnected to the College. Hudson concedes in
her brief that “[i]t was fine with Craven if Hudson went or if
individuals who happened to be students at the College went
to the WTO rally; he just objected to them going together.”
[1] The deprivation of First Amendment rights that Hudson
asserts is thus very narrow—essentially, the right to associate
with a small group of students during a specific time frame
for the particular purpose of attending an anti-WTO rally.
Yet, while Hudson’s claim revolves around a right to asso-
ciate with students, it is not purely associational. The very
purpose of the rally was to speak out against the WTO, an
exercise that implicates core speech rights. Even though asso-
ciational aspects predominate, the speech rights are inextrica-
ble from the claim. Her claim is best characterized as a hybrid
speech/association claim.1
1Hudson argues that Clark College’s alleged infringement of her associ-
ational freedoms must be subject to the “closest scrutiny” and is “unjusti-
fied except upon a showing of a valid interest of a State.” See NAACP v.
Alabama, 357 U.S. 449, 460-61(1958). Her invocation of the highest stan-
dard of scrutiny sidesteps the critical fact that she is a public employee.
4022 HUDSON v. CRAVEN

-- 8 of 19 --

[2] We have not directly addressed the question of whether
Pickering applies where the associational freedoms claimed to
be infringed predominate over the freedom of speech per se.
The now-entrenched Pickering balancing test stems from the
proposition that “the State has interests as an employer in reg-
ulating the speech of its employees that differ significantly
from those it possesses in connection with regulation of the
speech of the citizenry in general.” 391 U.S. at 568. The test,
stated simply by the Supreme Court, requires courts “to arrive
at a balance between the interests of the teacher, as a citizen,
in commenting upon matters of public concern and the inter-
est of the state, as an employer, in promoting the efficiency
of the public services it performs through its employees.” Id.
The Pickering analysis involves a two-pronged inquiry:
1) whether the speech that led to the adverse employment
action relates to a matter of “public concern”; and 2) whether,
under the balancing test, the public employer can demonstrate
that its legitimate interests outweigh the employee’s First
Amendment rights.
A review of our sister circuits’ consideration of Pickering,
hybrid rights and related issues is instructive. In a case that
closely parallels our own, the Second Circuit recently consid-
ered the relationship between First Amendment speech and
associational rights. Melzer v. Bd. of Educ., 336 F.3d 185 (2d
Cir. 2003). Melzer, a public high school teacher, was fired
when it came to light that he was an active member of the
North American Man/Boy Love Association, an organization
that promotes pedophilia. The court noted that the case was
unusual in that “the activity which prompted the [School]
Board to fire Melzer was not a specific instance of speech, or
As the Supreme Court emphasized in Waters v. Churchill, 511 U.S. 661,
671 (1994), there is no conflict between the application of heightened
scrutiny to restrictions on the speech of private citizens and the Pickering
balancing test to the speech of government employees: the government as
employer indeed has broader powers to regulate speech than does the gov-
ernment as sovereign.
4023 HUDSON v. CRAVEN

-- 9 of 19 --

a particular disruptive statement, but an associational activity
of which speech was an essential component.” Id. at 194.
Although it could be argued that, as with Hudson, Melzer
was free to articulate his views so long as he did not associate
in a way proscribed by his employer, the court stated that
“[t]he root of the disruption at Bronx Science cannot be iden-
tified discretely as either Melzer’s associational activities or
the attendant speech, for the two are dependent on one anoth-
er.” Id. at 195. The court observed that the Pickering test had
been applied by courts in other “hybrid” rights cases and then
analyzed Melzer’s claim under that standard. Id. at 195, 196-
200.
The most problematic aspect of applying the Pickering bal-
ancing test to associational claims is the “public concern”
component. Fifteen years after Pickering, in Connick v.
Myers, 461 U.S. 138 (1983), the Supreme Court fleshed out
the meaning of “public concern.” The Court drew a distinc-
tion between employee speech on “matters of public concern”
and “matters only of personal interest.” Id. at 147. The Court
recognized that an assistant district attorney’s speech related
to official pressure to work on a campaign was a matter of
public concern because it was “a matter of interest to the com-
munity upon which it is essential that public employees be
able to speak out freely without fear of retaliatory dismissal.”
Id. at 149.
As the Second Circuit noted in Melzer, “[a]pplication of the
public concern test is made awkward in [such a] case given
the hybrid speech/associational nature of the rights involved.”
336 F.3d at 196. In such circumstances, “an association
engaged in advocacy may deliver many different statements
at many different times and places and under many different
circumstances. What statements, at what locations and in what
context are the ones that should be analyzed is shrouded in
uncertainty.” Id. The Second Circuit ultimately sidestepped
the problem, assuming that Melzer’s association did involve
4024 HUDSON v. CRAVEN

-- 10 of 19 --

a matter of public concern and deciding that his claim failed
anyway in the second step of the Pickering analysis. Id. at
196, 200.
Although Connick was a pure speech case, the Sixth Circuit
has invoked the Supreme Court’s line-drawing framework in
an associational freedom claim. Boals v. Gray, 775 F.2d 686
(6th Cir. 1985). In Boals, the court zeroed in on Connick’s
statement that:
In all of these cases, the precedents in which Picker-
ing is rooted, the invalidated statutes and actions
sought to suppress the rights of public employees to
participate in public affairs. The issue was whether
government employees could be prevented or
“chilled” by the fear of discharge from joining politi-
cal parties or other associations that certain public
officials might find “subversive.”
Id. at 692 (quoting Connick, 461 U.S. at 144-45) (emphasis in
Boals). Recognizing that although Pickering and Connick
both involved freedom of speech, the court underscored that
both cases “are based upon freedom of association cases.” Id.
Consequently, in Boals, the court “perceive[d] no logical rea-
son for differentiating between speech and association in
applying Connick to first amendment claims . . . .” Id.
Two circuits—the Seventh and Eleventh Circuits—have
expressed concern that the Connick test does not adequately
protect associational claims that do not fit neatly within the
bounds of “public concern.” Although the Seventh Circuit is
“firmly in the camp of those circuits that [apply] Connick to
associational claims,” Balton v. City of Milwaukee, 133 F.3d
1036, 1040 (7th Cir. 1998), one panel expressed misgivings
that the Connick public concern test may not adequately pro-
tect freedom of association for public employees “because
some associational choices—for instance, whom to marry—
are purely private matters.” Id. at 1039. These private associa-
4025 HUDSON v. CRAVEN

-- 11 of 19 --

tional matters often would not qualify as matters of public
concern and, therefore, would not be protected from retalia-
tory action under the Connick test.
The Eleventh Circuit explicitly rejected the application of
the Pickering/Connick approach in Hatcher v. Board of Pub-
lic Education, 809 F.2d 1546 (11th Cir. 1987). In Hatcher, a
former school principal argued that she had been reassigned
in part because of her association with parents and others who
opposed the school closing plan that had eliminated her posi-
tion as principal, and because “she brought her minister and
a school board member to her meeting with the assistant
superintendent.” Id. at 1557.
The court declared that it did
not view Connick as a retreat from NAACP v. Ala-
bama, [357 U.S. at 460-61], in which Justice Harlan
wrote for the Court: “it is immaterial whether the
beliefs sought to be advanced by association pertains
to political, economic, religious or cultural matters
. . . state action which may have the effect of curtail-
ing the freedom to associate is subject to the closest
scrutiny.”
Id. at 1558. Without offering a rationale for distinguishing
between speech and associational claims, the Eleventh Circuit
nonetheless concluded that Connick “is inapplicable to free-
dom of association claims.” Id.
[3] Bearing in mind the Supreme Court’s seminal public
employee speech cases and their application in cases from the
other circuits, we conclude that Pickering should be applied
in this hybrid rights case. The speech and associational rights
at issue here are so intertwined that we see no reason to distin-
guish this hybrid circumstance from a case involving only
speech rights.
4026 HUDSON v. CRAVEN

-- 12 of 19 --

Hudson’s claim does not pose the difficulty identified in
Melzer—the diffuse nature of some associations and some
associational claims. Melzer, 336 F.3d at 196. Unlike Melzer,
where the activity was ongoing membership in an organiza-
tion, the associational right that was allegedly infringed by the
College was easily identifiable in scope. Hudson’s targeted
association with her students is unlike belonging to an advo-
cacy organization that may issue “many different statements
at many different times and places and under many different
circumstances.” Id. Rather, Hudson and her students sought to
participate together (association) in a single event that was
clearly political in nature (speech). Thus, the application of
the Connick public concern test is much easier here because
the association in question involves a discrete event with a
political orientation.
B. APPLICATION OF PICKERING TO HUDSON’S FIRST
AMENDMENT CLAIM
1. PUBLIC CONCERN
[4] The threshold issue we address is whether Hudson’s
WTO protest activity involved a matter of public concern.
The Supreme Court provided guidance on this point in United
States v. National Treasury Employees Union, explaining that
it had
applied Pickering’s balancing test only when the
employee spoke as a citizen upon matters of public
concern rather than as an employee upon matters
only of personal interest. Thus, private speech that
involves nothing more than a complaint about a
change in the employee’s own duties may give rise
to discipline without imposing any special burden of
justification on the government employer.
513 U.S. 454, 466 (1995) (internal alterations, quotations, and
citations omitted) (emphasis in original).
4027 HUDSON v. CRAVEN

-- 13 of 19 --

[5] Although the Court recently acknowledged that “the
boundaries of the public concern test are not well-defined,”
City of San Diego v. Roe, 125 S.Ct. 521, 525 (2004), this case
does not require us to explore the outer perimeters of the defi-
nition: “the standard for determining whether expression is of
public concern is the same standard used to determine
whether a common-law action for invasion of privacy is pres-
ent.” Id. Thus, a “public concern is something that is a subject
of legitimate news interest.” Id. at 525-26.
[6] The WTO meeting and the issues surrounding it were
quintessentially matters of public concern. That this event was
newsworthy and had quite literally excited widespread public
interest was not in dispute. Nothing in the record suggests that
Hudson sought to associate with her students at the rally to
voice any particular personal or private concerns. Instead, her
stated purpose in participating in the demonstration was to
express, in association with some of her students, her opinions
about the role of the WTO in the global economy. Hudson’s
speech and associational activities meet the public concern
test.
2. BALANCING TEST
[7] Hudson’s claim fails because her associational interests
in this context are strongly outweighed by the legitimate
administrative interests of Clark College. While Hudson’s
freedom to participate in discussion about the WTO surely
implicates core political speech, the actual curtailment of her
First Amendment rights was minimal. Hudson was free to
attend the anti-WTO rally on her own. She was free to com-
municate her views on the WTO to her students or to anyone
else. She was free to associate with her students in the class-
room on this matter. The only claimed abridgement of her
First Amendment rights was that she was not permitted, under
the de facto auspices of the College, to associate with a hand-
ful of students during a discrete event for a limited duration.
4028 HUDSON v. CRAVEN

-- 14 of 19 --

[8] The burden on Hudson’s First Amendment rights surely
would have been problematic were she barred from ongoing
participation in WTO advocacy or barred from general meet-
ings outside the classroom with students interested in WTO
issues. We acknowledge the Supreme Court’s admonition that
“[e]ffective advocacy of both public and private points of
view, particularly controversial ones, is undeniably enhanced
by group association, as this Court has more than once recog-
nized by remarking upon the close nexus between the free-
doms of speech and assembly.” NAACP v. Alabama, 357 U.S.
at 460. Nonetheless, it is unlikely that the efficacy of Hud-
son’s advocacy was undermined by the limited restriction on
associating with her students at the WTO rally.
[9] Clark College has identified compelling interests for
restricting Hudson’s association with her students at the anti-
WTO protest—the safety of students and pedagogical over-
sight. In weighing these interests, we must evaluate “any
injury the speech could cause to the interest of the State, as
an employer, in promoting the efficiency of the public ser-
vices it performs through its employees.” Waters, 511 U.S. at
668 (internal quotations and citations omitted). The Supreme
Court has “consistently given greater deference to govern-
ment predictions of harm used to justify restriction of
employee speech than to predictions of harm used to justify
restrictions on the speech of the public at large.” Id. at 673.
Thus, we give “substantial weight to government employers’
reasonable predictions of disruption, even when the speech
involved is on a matter of public concern, and even though
when the government is acting as sovereign our review of leg-
islative predictions of harm is considerably less deferential.”
Id.
[10] Craven identified four legitimate interests of Clark
College in imposing restrictions on Hudson’s right of associa-
tion:
4029 HUDSON v. CRAVEN

-- 15 of 19 --

(1) risks to students, particularly an underage
group, and potential liability for the college,
because of the reports of potential for violence;
(2) students who were not able to attend would not
have the benefit of access and networking with
teachers;
(3) mixing one’s politics with one’s professional
responsibility in the classroom, which is a spe-
cial trust; [and]
(4) marginal benefit from participating in the dem-
onstration.
This litany boils down to two reasons—student safety and
pedagogical oversight. While some of these justifications are
more significant than others, on balance the legitimate inter-
ests of Clark College as an employer and educational institu-
tion outweigh those of Hudson to participate in the de facto
field trip with her students.
SAFETY RISK TO STUDENTS
[11] Clark College has a strong argument that its safety
concerns were not the post hoc justifications for Hudson’s fir-
ing that she claims they were. The justification proffered by
the College was neither de minimis nor trumped up after the
fact. Before the protest, the Vice President advised the faculty
that her “major concern [was] the safety of students, as well
as your safety.” The College was aware of law enforcement’s
prediction about rioting and civil unrest, and a civil emer-
gency was declared on the day of the protests. This concrete
concern and cautionary approach, backed up by specifics, is
easily distinguished from a situation where an “undifferenti-
ated fear or apprehension of disturbance is not enough to
overcome the right to freedom of expression.” Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (1969).
4030 HUDSON v. CRAVEN

-- 16 of 19 --

[12] Hudson’s argument that the College’s fears “proved to
be unfounded as none of the students who attended the rally
even witnessed any harm to any individuals there, much less
suffered any themselves” misses the point. The court is not
called upon to make a retrospective analysis of the College’s
position, but instead to assess whether the stated justification
for limiting Hudson’s association was reasonable at the time.
The Ninth Circuit has held that “courts should not require
government employers to demonstrate that an employee’s
speech actually disrupted efficient office operation; rather,
‘reasonable predictions of disruption’ are sufficient.” Moran
v. Washington, 147 F.3d 839, 846 (9th Cir. 1998) (citing
Waters, 511 U.S. at 673). The potential for violence at the ral-
lies was more than a wild card and the College was more than
reasonable in being apprehensive about its students and fac-
ulty together attending protests of such novelty and scale in
the face of warnings about rioting.
PEDAGOGICAL OVERSIGHT
[13] Clark College has a strong and recognized interest in
maintaining its political neutrality as an educational institu-
tion. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,
272 (1988) (“A school must also retain the authority to refuse
. . . to associate the school with any position other than neu-
trality on matters of political controversy.”). Hazelwood arose
in a high school and not a community college setting, but that
does not change the fact that the decision of a public institu-
tion of higher education to avoid sanctioned political entan-
glement is a judgment that is best left to the institution.
Although we draw from Hazelwood the principle that educa-
tional institutions have a strong pedagogical interest in avoid-
ing institutional association with potentially divisive political
issues, we need not consider whether a college necessarily has
the same leeway as a high school to preserve that neutrality.
The College’s concerns about political entanglement were
especially pronounced in Hudson’s case because of the close
4031 HUDSON v. CRAVEN

-- 17 of 19 --

connection between the subject matter of her teaching and the
political message of anti-WTO protesters. The field trip with
her students, even though not billed as an “official trip,” was
closely linked with her classroom teaching. Craven testified
that “those students who elect[ed] to go may [have] perc-
eive[d] that they [were] having [an] advantage in terms of
access to the teacher . . . [and] that others who elect[ed] not
to go might not have [an advantage] because of the power
relationship that teachers have.”
[14] As Craven feared, the students who accompanied Hud-
son to the rally probably did have an advantage on the final
examination. In one major essay question, Hudson offered
three options, two about union critiques of the WTO and one
about a video on the Asian financial crisis, a movie that she
apparently offered as an alternative to WTO subject matter.
Indeed, Hudson told students before the trip to pick up infor-
mation in Seattle as it “might be on the test.” Hudson’s con-
duct directly violated Jackson’s warning that “[t]here cannot
be any connection [or] participation in this event to any grade
or activity in the class” and “[s]tudents who do not participate
in this activity cannot in any way be penalized in terms of
grade or be required to do any extra activity to ‘make up’ for
their lack of involvement.”
As befitting a professor of economics, Craven testified that
he was concerned with “the marginal benefit to the marginal
cost” of the students taking a field trip to the anti-WTO rally.
Craven, as the senior member of the department, opposed
field trips for students in general because of the lost classroom
time. In fact, he had a legitimate pedagogical interest in dis-
puting Hudson’s conclusion about the educational value of
attending the rally. Although Hudson argues that she and her
students were not engaged in an official Clark College field
trip, it was apparent that regardless of the trip’s label, Hudson
viewed the experience as an educational opportunity for the
students, one that she promoted through her teaching.
4032 HUDSON v. CRAVEN

-- 18 of 19 --

[15] Clark College has met its burden by demonstrating
that its legitimate interests outweigh Hudson’s interest in
attending the anti-WTO rally with her students. The College
did not impermissibly infringe on Hudson’s First Amendment
rights, and thus we need not reach the question whether Hud-
son’s termination was otherwise justified under Mt. Healthy.
The district court properly dismissed Hudson’s § 1983 claim.2
AFFIRMED.
2The district court also was correct in dismissing Hudson’s Washington
law claim that the administrators “intentionally interfered with business
expectancy between [Hudson] and Clark College by inducing or causing
a termination of that business expectancy.” Under Washington law, “[a]
party cannot tortiously interfere with its own contract.” Reninger v. Dep’t.
of Corr., 951 P.2d 782, 788 (Wash. 1998).
4033 HUDSON v. CRAVEN

-- 19 of 19 --