JANE P. HELM, Plaintiff v. APPALACHIAN STATE UNIVERSITY, and KENNETH E. PEACOCK, in his official capacity as Chancellor of Appalachian State University, Defendants

DR. ALVIS L. CORUM v. UNIVERSITY OF NORTH CAROLINA through its Board of Governors; C. D. SPANGLER, President of the UNIVERSITY OF NORTH CAROLINA in his official capacity; APPALACHIAN STATE UNIVERSITY; and JOHN THOMAS, Chancellor of Appalachian State University, and HARVEY DURHAM No. 163PA90 (Filed 31 January 1992) 1. Constitutional Law § 86 (NCI4th)— § 1983 claims —UNC, ASU and university officials — official capacities — damages claims barred Plaintiff was barred from seeking damages under 42 U.S.C. § 1983 from the University of North Carolina, Appalachian State University, the president of the University of North Carolina in his official capacity, and the chancellor and a vice chancellor of Appalachian State University in their official capacities because .neither a state nor its officials acting in their official capacities are “persons” under § 1983 when the remedy sought is monetary damages. Am Jur 2d, Civil Rights §§ 17, 264. Public institutions of higher learning as “persons” subject to suit under 42 USCS sec. 1983. 65 ALR Fed 490. 2. Constitutional Law § 86 (NCI4th) — § 1983 claims — UNC, ASU and university officials — official capacities — injunctive relief permissible Plaintiff could properly bring actions under 42 U.S.C. § 1983 for injunctive relief against UNC, ASU, and the individual defendants in their official capacities because state institutions or employees acting in their official capacities are “persons” reachable under § 1983 when sued for prospective equitable relief. Am Jur 2d, Civil Rights §§ 17, 264. Public institutions of higher learning as “persons” subject to suit under 42 USCS sec. 1983. 65 ALR Fed 490. 3. Constitutional Law § 86 (NCI4th)— § 1983 claims — official capacities — sovereign and qualified immunity inapplicable Sovereign immunity alleged under state law is not a permissible defense to § 1983 actions. Nor is the defense of qualified immunity available under § 1983 to one sued in his official capacity. Insofar as Truesdale v. University of North Carolina, 91 N.C. App. 186, 371 S.E.2d 503, states that § 1983 claims against state institutions are barred by the doctrine of sovereign immunity, it is overruled. Am Jur 2d, Constitutional Law §§ 283, 713, 717. 4. Constitutional Law § 86 |NCI4th)— § 1983 claims — individual capacities — damages—qualified immunity State government officials may be sued in their individual capacities for damages under 42 U.S.C. § 1983, but officials sued as individuals may raise a defense of qualified immunity. Am Jur 2d, Civil Rights §§ 268, 269. 5. Constitutional Law § 86 (NCI4th)— § 1983 claims — individual capacities — objective test for qualified immunity — motivation State officials sued for constitutional violations under 42 U.S.C. § 1983 will be protected from liability by qualified immunity where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Where the existence of a constitutional violation depends on proof of motivation, proof of the official’s intent is required to determine whether the qualified immunity defense is appropriate. Am Jur 2d, Civil Rights §§ 268, 269. 6. Constitutional Law § 115 (NCI4th)— public official — free speech limitations A public employee’s right to free speech is limited by the government’s need to preserve efficient governmental functions. Furthermore, only speech on a matter of “public concern” is constitutionally protected, and in determining whether speech fits in this category, the court must examine the content, form and context of the public employee’s speech. Am Jur 2d, Constitutional Law §§ 496, 497. 7. Constitutional Law § 115 (NCI4th)— free speech — relocation of Appalachian Collection — matter of public concern Speech by plaintiff, the Dean of Learning Resources at ASU, concerning the relocation of the Appalachian Collection at ASU addressed a matter of public concern for free speech purposes. Am Jur 2d, Constitutional Law §§ 496, 497. 8. Constitutional Law § 115 (NCI4th)— relocation of Appalachian Collection — free speech right of plaintiff Plaintiff, the Dean of Learning Resources at ASU, had a constitutionally protected right to speak out in 1984 about a vice chancellor’s directive for relocation of the Appalachian Collection which would separate the artifacts from the written materials and to propose an alternate plan which would keep the entire Collection intact when it was moved, since such speech did not impede plaintiff’s duties or interfere with the regular operation of ASU; the speech did not affect the vice chancellor’s decision to relocate the Appalachian Collection and its danger to the organization was de minimus-, and plaintiff’s interest in speaking out on this public issue thus outweighed any negative effect it might have had on the efficient functioning of ASU. Am Jur 2d, Constitutional Law §§ 496, 497. 9.Constitutional Law § 115 (NCI4th)~ § 1983 claim —ASU vice chancellor — demotion of plaintiff — free speech — evidence of motive —summary judgment improper In plaintiff’s 42 U.S.C. § 1983 action against a vice chancellor of ASU in his individual capacity based on plaintiff’s claim that his right to free speech was violated when he was removed as Dean of Learning Resources of ASU because of statements he made at a staff meeting concérning the vice chancellor’s plan for relocation of the Appalachian Collection, plaintiff presented sufficient evidence of improper motive to raise a material question as to whether a reasonable vice chancellor would have believed that demoting plaintiff was lawful where the vice chancellor’s evidence indicates that his motive for demoting plaintiff was to promote discipline and efficient administration and to punish insubordination, but plaintiff presented specific evidence indicating that defendant’s motive was to stifle debate about where to relocate the Appalachian Collection, to carry out his decision to split the Collection quickly, and to punish plaintiff. Therefore, defendant vice chancellor’s motion for summary judgment based upon the defense of qualified immunity was properly denied by the trial judge. Am Jur 2d, Civil Rights §§ 19, 20. 10. Constitutional Law § 86 (NCI4th>- § 1983 claims-UNC, ASU and university officials — summary judgment proper Summary judgment should have been entered in favor of UNC, ASU, the president of UNC, and the chancellor of ASU on all of plaintiff’s 42 U.S.C. § 1983 claims based on his removal as the Dean of Learning Resources at ASU where plaintiff failed to present a forecast of evidence as to any improper action or motive by these defendants. Am Jur 2d, Civil Rights § 287. 11. Constitutional Law § 115 (NCI4th)— free speech violation by state official — direct claim under N.C. Constitution A plaintiff has a direct cause of action under the N.C. Constitution against state officials in their official capacities for alleged violations of plaintiff’s right of free speech, and the common law will provide the appropriate remedy for the adequate redress of a violation of that right. Therefore, plaintiff had a direct cause of action under the N.C. Constitution against a vice chancellor of ASU for an alleged violation of his free speech rights based on his removal as Dean of Learning Resources at ASU. Am Jur 2d, Civil Rights § 261; Constitutional Law § 496. 12. Constitutional Law § 115 (NCI4th); Courts § 3 (NCI4th)~ violation of free speech right — common law remedy — limitations on judiciary It will be a matter for the trial judge to craft the necessary relief for a violation of a plaintiff’s free speech right under the N.C. Constitution. When called upon to exercise its inherent constitutional power to fashion a common law remedy for a violation of a particular constitutional right, however, the judiciary must recognize two critical limitations: (1) it must bow to established claims and remedies where those provide an alternative to the extraordinary exercise of its inherent constitutional power, and (2) in exercising that power, it must minimize the encroachment upon other branches of government — in appearance and in fact — by seeking the least intrusive remedy available and necessary to right the wrong. Am Jur 2d, Constitutional Law § 316. 13. Constitutional Law § 115 (NCI4th); State § 4.2 |NCI3d)— free speech violation —sovereign immunity inapplicable The doctrine of sovereign immunity is inapplicable to a plaintiff’s claim for violation of his free speech rights or other rights protected by the Declaration of Rights of the N.C. Constitution. When there is a clash between these constitutional rights and judge-made sovereign immunity, the constitutional rights must prevail. Art. I, § 14 of the N.C. Constitution. Am Jur 2d, Civil Rights § 261; Constitutional Law § 496. 14. Constitutional Law § 115 (NCI4th)— free speech violation —no direct claim under N.C. Constitution against individual A plaintiff has no direct cause of action for monetary damages under the N.C. Constitution against persons sued in their individual capacities for violations of plaintiff’s free speech rights. Am Jur 2d, Civil Rights § 261; Constitutional Law § 496. 15. Constitutional Law § 115 (NCI4th) — free speech claims under N.C. Constitution —UNC, ASU and university officials — summary judgment proper Plaintiff failed to present a forecast of evidence sufficient to defeat the motion for summary judgment on behalf of UNC, ASU, the president of UNC, and the chancellor of ASU as to plaintiff’s claims under the N.C. Constitution for violation of his free speech rights based on his removal as Dean of Learning Resources at ASU. Am Jur 2d, Civil Rights § 261; Constitutional Law § 496. Justice WEBB dissents. On appeal and discretionary review of an opinion by the Court of Appeals, 97 N.C. App. 527, 389 S.E.2d 596 (1990), reversing an order entered 21 October 1988 by Gray, J., which denied defendants’ motion for summary judgment. Heard in the Supreme Court 11 February 1991. Ferguson, Stein, Watt, Wallas, Adkins & Gresham, P.A., by John W. Gresham, for plaintiff-appellant/appellee. Lacy H. Thornburg, Attorney General, by Thomas J. Ziko, Special Deputy Attorney General, and Laura E. Crumpler, Assistant Attorney General, for defendant-appellants/appellees. William G. Simpson, Jr., John Vail, Travis Payne, J. Michael McGuinness, for amicus curiae North Carolina Civil Liberties Union Legal Foundation; and M. Jackson Nichols, for amicus curiae North Carolina Association of Educators. MARTIN, Justice. For the reasons stated below, we reverse in part and affirm in part the decision of the Court of Appeals. Plaintiff filed this action on 20 February 1987 seeking injunctive relief and damages' for the defendants’ alleged retaliation against plaintiff for his exercise of certain free speech rights. Plaintiff’s claims were brought under the North Carolina Constitution Article I, Sections 14, 19, and 35 and 42 U.S.C. § 1983. After filing an answer containing defenses, which included sovereign immunity and qualified immunity, defendants moved for summary judgment. Defendants’ motion for summary judgment was denied on 21 October 1988. Defendants appealed the denial of their motion for summary judgment to the Court of Appeals. The Court of Appeals properly reasoned that a denial of a summary judgment motion is normally not immediately appealable; however, under the case of Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411 (1985), when a motion for summary judgment based on immunity defenses to a section 1983 claim is denied, such an interlocutory order is immediately appealable before final judgment. The Court of Appeals went on to hold that the trial court erred in denying defendants’ summary judgment motion with respect to plaintiff’s 42 U.S.C. § 1983 claims, except for the motion pertaining to plaintiff’s claims against individual defendants Spangler, Thomas, and Durham in their official capacities only for prospective injunctive relief. The Court of Appeals further held that the trial court erred in failing to grant defendants’ motion for summary judgment with respect to plaintiff’s claims brought under the State Constitution regarding the University of North Carolina, Appalachian State University, and the three individual defendants in their official capacities. The Court of Appeals also held that the defendants’ motion was properly denied insofar as it concerned plaintiff’s claims for monetary damages against the two individually named defendants for violation of plaintiff’s state constitutional rights. Viewing the record in the light most favorable to plaintiff, as we must when evaluating a summary judgment motion, the following facts arise upon the record. In early summer 1984, the plaintiff, a tenured faculty member at Appalachian State University, was the Dean of Learning Resources, a position he had held for approximately fourteen years. As Dean, Dr. Corum’s responsibilities included supervising Appalachian State University’s academic support units, including the library, the audiovisual services, and the Appalachian Collection. The Appalachian Collection, a diversified collection of books, research reports, music, and artifacts, represents the mountain culture of the Southern Appalachian Region. Until mid-summer 1984 the Appalachian Collection was housed in the Daughtery Library. Beginning in September 1983 and continuing for several months, various administrators at Appalachian State University (“ASU”) discussed the possibility of moving the Appalachian Collection out of the Daughtery Library into different facilities. The plaintiff’s chief concern regarding this move was that the Appalachian Collection remain intact so that the artifacts would not be split off from the books, manuscripts, and other materials. In the administrative chain of command at ASU the person responsible for deciding where the Appalachian Collection would be moved and whether it would be broken up was defendant, Dr. Harvey Durham. Dr. Durham was the Vice Chancellor for Academic Affairs and Dr. Corum’s immediate supervisor. In December 1983 Dr. Durham decided to split up the Collection and move the artifacts to University Hall, a building on the campus where the artifacts would form the basis of a new museum. The decision to split the artifacts off from the rest of the Collection was not communicated to Dr. Corum at this time; however, the decision was documented by a memorandum written at or near the time of the decision. On 21 June 1984 Dr. Durham informed Dr. Corum that the Appalachian Collection would be moved to University Hall and that the move would need to be completed within a two-week period. On that same day, Dr. Durham informed Dr. Corum that the relocation of the Collection also entailed removing the personnel and budget supporting the Collection from Dr. Corum’s purview to a new administrative home. While Dr. Corum expressed concern over this transfer, he accepted the decision as one which was workable because, in his understanding, it would at least maintain the physical integrity of the Collection. Dr. Durham did not inform Dr. Corum at this time that the artifacts would be separate from the rest of the Collection. Dr. Corum proceeded to set up a subsequent meeting with relevant administrators in order to work out the details of the moving of the Collection; the next meeting was scheduled for 25 June 1984. At the 25 June meeting, Dr. Corum met with Dr. Barker, ASU’s Librarian; Ms. Ball, the library staff member associated with the Appalachian Collection; and Dr. Clinton Parker, an Associate Vice Chancellor of Academic Affairs. Dr. Parker attended the meeting as Dr. Durham’s representative because Dr. Durham had gone out of town. At the outset of the meeting on 25 June, Dr. Parker announced to those assembled that the written materials in the Appalachian Collection would be moved to University Hall, while the artifacts would be stored in Belk Library. Dr. Corum later testified that he saw this announcement as a dramatic shift from the directions previously given to him by defendant Durham. The day after this meeting, plaintiff sought to present an alternative plan for the relocation of the Appalachian Collection, a plan that would keep the Collection secure and physically intact. Dr. Corum read aloud his proposal for an alternate location during a meeting held 26 June 1984 that was attended by Dr. Parker and Dr. William Strickland, Dean of Arts and Sciences at ASU. In the memorandum that he read to those assembled, Dr. Corum claimed that Dr. Durham’s decision to move the Collection to University Hall presented many problems. Dr. Corum proposed instead to move the Collection into Belk Library and intershelve the holdings with the regular university library. To this proposal Dr. Parker responded that he had no authority to change Dr. Durham’s decision. However, Dr. Parker volunteered to try to contact Dr. Durham to let him know of Dr. Corum’s concerns. Dr. Parker did contact Dr. Durham later in the evening regarding Dr. Corum’s concerns. There is a material issue of fact in dispute as to whether at the 26 June meeting Dr. Corum refused to implement the move as per Dr. Durham’s 21 June directive or whether he encouraged his staff to go ahead with the move. The defendants’ position is that Dr. Corum announced at the meeting that he would not go through with the move until he could talk to Dr. Durham. Dr. Corum’s account is that he did not resist the move and cooperated fully despite his misgivings about the decision. Dr. Corum actually physically helped in the packing and moving. When Dr. Parker called Dr. Durham after the 26 June meeting, Dr. Durham responded by immediately returning to ASU. Dr. Durham met at 6:30 a.m. on 27 June with defendant Dr. Thomas, the Chancellor of ASU. At 8:30 a.m. Dr. Durham met with Dr. Corum and informed him that he was being removed from his deanship. There is no evidence that Dr. Durham gave Dr. Corum an opportunity to explain his proposal or to comment on the events of the previous day. Chancellor Thomas subsequently affirmed Dr. Durham’s decision to remove Dr. Corum from his duties as Dean of Learning Resources. Dr. Corum has, however, retained his position as a tenured faculty member. Plaintiff contends that defendants discharged him from his deanship in retaliation for his speaking freely about the moving of the Appalachian Collection. Plaintiff contends that Dr. Durham’s concealment of the fact that the Collection was to be split was intended to make the move administratively easier by preventing vocal opposition to the decision. When this “ruse” was discovered and exposed by Dr. Corum in his speaking out, defendants improperly removed him in retaliation for his speech. Plaintiff seeks damages and, among other things, reinstatement as Dean of Learning Resources as a result of this impermissible retaliatory removal. It is defendants’ position that the sole reason Dr. Corum was removed from his deanship was because he refused to carry out the move, and this insubordination justified his demotion. Plaintiff filed a grievance proceeding with the University of North Carolina (“UNC”) which resulted in a decision that Dr. Corum had failed to prove that his removal from the deanship was impermissibly based on his exercise of his right to freedom of speech. After this proceeding was completed Dr. Corum filed the instant case on 20 February 1987. I. 42 U.S.C. § 1983 Claims Plaintiff’s complaint alleges: 24. In relieving plaintiff of his duties as Dean and in denying plaintiff salary increases in retaliation for plaintiff having exercised his First Amendment rights, defendants violated plaintiff’s rights protected by the First and Fourteenth Amendments of the Constitution of the United States. Such acts are in violation of 42 U.S.C. § 1983. Under 42 U.S.C. § 1983, plaintiff sought a preliminary and permanent injunction, additional equitable relief including reinstatem