DocketNumber： 73-1609
Citation Numbers： 501 F.2d 1090
Judges： Lewis, Hill, Seth, Holloway, McWil-liams, Barrett, Doyle
Filed Date： 9/25/1974
Status： Precedential
Modified Date： 10/19/2024
The 14 appellants, plaintiffs in the district court, seek reversal of a judgment denying relief for alleged violations of civil rights. The claims were brought pursuant to 28 U.S.C. §§ 2201 and 2202, together with 42 U.S.C. § 1983. The complaint sought injunctive relief together with a declaratory judg-. ment (no damages) determining the termination of the plaintiffs’ employment to be null and void and violative of their rights to freedom of expression and due process under the First and Fourteenth Amendments of the Constitution of the United States. Eleven of the plaintiffs were faculty members and three were administrative officers of the Oklahoma College of Liberal Arts, a statutorily created Oklahoma state institution located at Chickasha.
On April 26, 1973 the defendant Bruce Carter, President of the college, recommended to the members of the Board of Regents that the employment of the 14 plaintiffs be terminated. A majority of the Board (five to two) accepted this recommendation, and in carrying it out gave no reasons for their action. The complaint alleged that the terminations were the result of the exercise by the plaintiffs of their constitutional rights of freedom of expression guaranteed by the First Amendment.
According to further allegations, the plaintiffs held a press conference and issued a release to the media on April 24, 1973, just prior to their termination. At the. press conference they criticized the policies of Carter and some members of the Board of Regents.
Originally the plaintiffs apparently believed that the press conference had been the cause of their having been fired since the terminations were related in time, but the record does not support this. The trial court also focused on the press conference, but the evidence at trial goes far beyond this.
At the trial (which commenced May 30, 1973), testimony was given by many of the plaintiffs and by President Carter. The district court ruled in favor of the defendants and against the plaintiffs, holding that the nonrenewal of the contracts was unconnected with the plaintiffs’ exercise of their right of free speech under the First and Fourteenth Amendments. Extensive oral findings were made, and the testimony which was emphasized was the statement of President Carter that it was the divisiveness of the plaintiffs which caused their discharge and not the holding of the press conference. The court considered the plaintiffs’ divisiveness to be the sole reason for the firing.
As we have indicated, it appears from the record that the decision to terminate the plaintiffs had been made, with one exception (Professor Ward), prior to the date of the press conference. Because of his years of service the plaintiff Rampey was held to have been entitled to a hearing for the purpose of determining whether sufficient cause existed for his separation.
The trial court recognized that the three administrative employees would normally have been entitled to a hearing but that the conditions at the institution were not normal so that the rule providing for a hearing was necessarily suspended.
The issue for our determination is whether the evidence is sufficient to support the trial court’s findings that the firings were unrelated to plaintiffs’ right to freely express themselves. If the evidence supports these findings, the judgment would have to be affirmed. We conclude, however, that the evidence fails in this regard and that the judgment of the district court must be reversed.
The service background of the several plaintiffs differs. Rampey, á professor in the English department, was 46 years of age at the time of trial and had been employed at the college for more than ten years. At the time of Rampey’s hiring there was a tenure policy which required a new faculty member to be on probation for three years and, following the completion of the three-year period, tenure was granted. On this basis Ram-pey was notified in 1965 that he had achieved tenure and had the rank of assistant professor. This was accomplished without the express approval of the Board of Regents. But in May 1972, just prior to the employment of President Carter, the Board of Regents abolished the tenure system. About a year later Rampey was terminated without notice or any kind of hearing. There had been no complaint made to Rampey or to anyone else that his work was unsatisfactory. He explained that the reason for his speaking out at the press conference and prior thereto to his colleagues was because of his concern about the future of the college, which had been placed on probation by the North-Central Accrediting Association. Rampey was unaware that President Carter was then engaged in the preparation of a list of people to be hired the following year, which list omitted the names of the plaintiffs.
Bryan Ledgerwood testified that he was Dean of the college and had first been employed in 1967 as director of institutional research and development. Subsequently, he became assistant to the then president. Thereafter, he was appointed acting Dean and finally academic Dean. Ledgerwood’s immediate concerns were the decrease in student enrollment, the accreditation policy and the failure of those in authority to remedy these and other problems. He also sought to research the tenure issue and discovered, according to his testimony, that the Board of Regents had never specifically granted tenure to individual members of the faculty. He had learned prior to April 24, 1973 that certain of the faculty members with contracts would not be rehired. He also testified that he had expressed his concern about the institution to President Carter and also to members of the Board. In his opinion, if a faculty member were not terminated at the end of the three-year probationary period, he automatically acquired tenure. According to Ledger-wood, this was borne out by the faculty handbook.
Dr. Leon Cherrington testified that he was age 46 and that his teaching field was history, geography and interdisciplinary studies. His employment at the Oklahoma College of Liberal Arts commenced in September 1966 and his contract had been renewed each year since then for a total of six years. I^hen rehired for the fourth year there had been no criticism of his teaching ability. The same is true when he was rehired for the fifth year. He had been selected teacher of the year in 1968 and had had other honors and was not apprehensive about being rehired. Prior to the press conference there was no indication given that he would not be rehired and he believed that he would be. He spoke out only because he felt that it was necessary since the college was in danger, as he phrased it, of “going down the drain.” The reason he did not speak to Dr. Carter during the year 1972-73 was because it was impossible to see him and the faculty members were told that they were to report directly to Dr. Feree who was Carter’s assistant.
The only plaintiffs (teachers) who had completed four years at the college prior to the abolition of tenure were Rampey, Cherrington, Richardson and Wimbish. Plaintiffs Poole, Holt and Maness had completed their fourth year in May 1972, subsequent to the abolition of tenure.
OTHER BACKGROUND FACTS
Some of the plaintiffs had never been notified that tenure had been abolished.
The Oklahoma statute which created the subject institution contemplated that the Regents would maintain a tenure system. However, just prior to the appointment of Dr. Carter on May 3, 1972, as we h^ive previously noted, the tenure system was abolished. We do not regard as irrelevant the fact that the plaintiffs who were members of the teaching staff had been led to believe when they were hired that they would receive tenure if they successfully completed the probationary period. It is further to be noted that the Governor’s office had secured the resignations of several of the former members of the Board of Regents just prior to the appointment of President Carter. Following the appointment of the new board members, President Carter was appointed.
The North-Central Association’s report, dated March 1, 1972, analyzes the condition of the school and indicates the need for it to correct deficiencies in the library and science laboratory facilities, to eliminate dissension within the faculty, to improve faculty-staff communications and to generally upgrade the curriculum. A subsequent meeting of the North-Central Association held July 28, 1972 recommended that the school be placed on probation.
Chancellor Klotsche of the University of Wisconsin was hired as a consultant to examine and appraise the major problems of the school and to recommend solutions. In the second of three reports, written on January 19, 1973, Klotsche recommended 1) establishing a faculty grievance committee; 2) clarifying the duties of the administrators; 3) setting up better channels of communication for informing the faculty of administrative decisions; and 4) establishing an interim system of faculty self-governance.
In a subsequent report dated April 3, 1973, Chancellor Klotsche concluded that “no really significant steps have been taken during this academic year to bring the institution back into some semblance of appropriate governance with the respective role of faculty, administration and Regents clearly defined.” He blamed the administration for its failure to take action to rectify the situation and for failing to follow out the guidelines which he had recommended. He also noted that there was an air of uneasiness on the campus caused by rumors of the imminent termination of some faculty members. He advised the administration against abrupt termination of faculty or staff members.
The Klotsche reports are of some importance in that they highlight the problems which were in existence at the college and show also that the administration made no effort to ameliorate the situation or to remove the problems which were creating dissension. The reports also show that there were conditions which produced the dissension on
Still another background fact was adduced from the meeting of the Regents held April 26, 1973, at which time the terminations of the appellants became official. Mr. Joel Carson, a board member who was a lawyer, objected strongly to the actions taken. He pointed out that the members accused of being “divisive” were merely seeking to exercise their right to disagree.
The most significant testimony bearing on the issue before us as to whether these plaintiffs were fired for exercise of First Amendment rights is the testimony of President Carter himself. He admitted that he had not tried to bridge the gap between himself and the dissenting faculty members. His position was that since the dissidents had not shown him “any signs of warmth,” he was justified in not wanting to talk with them or to discuss possible solutions to the problem.
THE TESTIMONY ON CROSS-EXAMINATION
President Carter throughout his testimony characterized the individual plaintiffs as being “divisive” and explained what he meant by the term “divisive.”
Carter considered Dean Ledgerwood “divisive” because on one occasion the Dean defended another faculty member’s right to criticize the administration.
He considered the appellant Rapplean “divisive” because he characterized Carter as being “a three time loser” following Carter’s having been outvoted by the majority of the students in three controversial campus issues.
Appellant Maness was “divisive” in the mind of President Carter because he had told Dr. Feree that the latter could not communicate.
Wimbish was “divisive” because he spent too much time during the final two weeks of the semester talking to students in the dining hall. Carter said that if Wimbish had not spent “hour after hour after hour talking with students” he would have been rehired.
Carter admitted that he found Cher-rington “divisive” because he allegedly criticized a chapel speech of Carter’s in the course of a class discussion. But this information came to Carter secondhand through a student whom Carter refused to identify. There was testimony from a student who had been in Cherrington’s class on the day of the alleged incident to the effect that Cher-rington had not criticized Carter at all but, rather, had led a class discussion concerning the advantages and disadvantages of a liberal arts education.
Carter testified that appellant Bolton was “divisive” because he had sought clarification as to the scope of his duties as director of personnel.
His appraisal of appellant Ingrid Poole was that she was “divisive” because “We live in different worlds; we live in different atmospheres; we have different philosophies.”
There is evidence to establish that Carter considered that the group as a whole was “divisive” because they associated together. This is particularly true with respect to Dr. Ward, the single individual who was not rehired on the basis that he participated in the controversial press conference.
There is attached hereto as an appendix to the opinion a more detailed account of Carter’s testimony. The only inference to be drawn from a reading of this testimony is that Dr. Carter demanded absolute loyalty, required faculty members to come in and visit with him, prohibited their discussing problems of the college among themselves and prohibited their having informal discussions with students, for if they did any of these things they were considered by Carter to be “divisive.” One has to conclude that his concept of being “divisive” was based on a person’s failure to agree with him or relate to him. If there had been no display of “divisiveness” he was prone to say that the individual faculty members lived in a different world or that their philosophies were fundamentally different from his. All this shows that the plaintiffs were fired for having failed to refrain from associating with their colleagues and for having failed to associate with President Carter. Thus, we conclude that, in exercising their right to freely associate with others and to criticize the administration of the school (notwithstanding that such criticism was justifiable) and in refusing to submit to the exercise of control over them, the plaintiffs were fired.
THE TRIAL COURT’S FINDINGS
The trial court adopted the conclusion of President Carter that the plaintiffs were “divisive” and that this was the cause of the conflict and the firings. The court mentioned in its oral findings that the plaintiffs might have been responsible for the college’s having been put on probation.
There is a lack of evidence to support this observation. The report of the North-Central Association, an impartial source, did not attribute the problems to the plaintiffs. It did mention dissension within the faculty and a lack of communication between faculty and staff, but it did not identify the plaintiffs with it.
Nor did Chancellor Klotsche of the University of Wisconsin at Milwaukee attribute the trouble to the plaintiffs. He found fundamental administrative difficulties. In fact, the Klotsche report actually placed blame on the administration for its failure to take steps to solve the problems which an earlier report had pointed out.
The trial court’s findings ignore the most important testimony in the case, that of Dr. Carter, which is appended hereto and which, on its face, reveals
Bearing in mind that the thrust of the court’s ruling in favor of the defendants is that the plaintiffs were “divisive” and thus not in agreement with the administration, the question is whether the court’s findings or conclusion that the plaintiffs were “divisive” are to be sustained in the light of the explanations given by Dr. Carter as to what he meant by “divisiveness.”
SUMMARY OF APPLICABLE LAW
The First Amendment guarantees freedom of expression in a wide variety of relationships and conditions. But a fundamental area in which this constitutional freedom is recognized is in the right of association. Some of the numerous cases recognizing this are collected in Healy v. James, 408 U.S. 169, 181, 92 S.Ct. 2338, 2346, 33 L.Ed.2d 266 (1972). In that case the Court said:
Among the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition. See, e. g., Baird v. State Bar of Arizona, 401 U.S. 1, 6, 91 S.Ct. 702, 705, 27 L.Ed.2d 639 (1971); NAACP v. Button, 371 U.S. 415, 430, 83 S.Ct. 328, 336, 9 L.Ed.2d 405 (1963); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 81 S.Ct. 1333, 1335, 6 L.Ed.2d 301 (1961); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).
Apparently the only factor counterbalancing this right is prevention of disruption. See Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
In Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960), the Supreme Court noted the sensitiveness of the academic community and the importance of upholding the rights of freedom of expression in this atmosphere. In that case the court said: “ . . . the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”
Also, in Keyishian v. Board of Regents, 385 U.S. 589, 604, 87 S.Ct. 675, 684, 17 L.Ed.2d 629 (1967), the right as it exists in the school setting was discussed. It was there pointed out that the school is a marketplace for exchange of ideas in American society and that the limitations on free speech can chill this free exchange. The Court said at p. 604, 87 S.Ct. at p. 684:
When one must guess what conduct or utterance may lose him his position, one necessarily will “steer far wider of the unlawful zone * * *.” Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. For “[t]he threat of sanctions may deter * * * almost as potently as the actual application of sanctions.” NAACP v. Button, supra, 371 U.S. at 433, 83 S.Ct., at 338.
Thus, present and future freedom of expression as well as prior freedom is protected.
There is some authority that limits criticism. See, for example, Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972), cert. denied, 411 U.S. 972, 93 S.Ct. 2148, 36 L.Ed.2d 695 (1973). There the instructor was guilty of frequent criticisms and belittling of other staff members. He was engaged in frequent disputes with his superiors over course content and counseling. It was not surprising that the Seventh Circuit refused to protect these excesses. Nothing like these instances are present here. The evidence in our case does not establish that plaintiffs as a group or individually were troublemakers.
Our case is indistinguishable on its facts from Smith v. Losee, 485 F.2d 334 (10th Cir. 1973), wherein we held that a faculty member’s rights had been violated when his contract was not renewed because of his anti-administration atti
In Pickering, supra, the Supreme Court recognized the importance of allowing a teacher to speak out freely on matters of public concern without fear of retaliatory dismissal. The Court held that the review standard calls for a balancing of the teacher’s interests in commenting on controversial issues against the state’s interests in promoting the efficient operation of the service it performs for the public. The Court held that the teacher’s right to express his criticism of the administration was paramount, noting that the relationship between the school board and the teacher was not one which called for personal loyalty and confidence.
Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), which followed Pickering, is a case in which the Supreme Court condemned the action of the college in not renewing the plaintiff’s contract on account of his public criticism of the policies of the administration even though the plaintiff did not have tenure. The Court said that his allegations presented a bona fide constitutional claim.
Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) recognized the breadth of the right here involved, holding that it extended to the wearing of black arm bands.
At bar the appellants have made a very substantial showing that they were exercising First Amendment rights, and the record fails to disclose that their activities were in any way excessive or unduly burdensome to the school.
In the last analysis, it was the plaintiffs-appellants’ refusal to conform to President Carter’s patterns and molds, all of which were personal and subjective on his part, which was the cause of their being fired. Surely the right to be free from this kind of personality control is a constitutionally protected right under the First Amendment since it is a species of expression. One had to become a person who was in his image and likeness if he or she wished to serve as a member of the faculty at OCLA. By his own testimony Carter is shown to have been jealous of his power and insecure in his position as well as unable to tolerate any dissent, criticism or disagreement, all of which he called “divisiveness.” Yet there is no evidence that the appellants constituted any threat to the operation of the college- — -to Carter personally, perhaps, but not the college.
The evidence supported the view that the appellants’ classes were well regarded by the students. Consider, for example, the classes of appellant Holt about whom Carter stated “He would not and could not do his job” and he “didn’t fit into the atmosphere of the college at all.” At the same time, the students voted him the outstanding teacher of the year in 1969 and requested that he be the commencement speaker that year.
While a college president is entitled to respect and authority within his sphere, this does not extend to the exercise of absolute control over the associations and expressions of the faculty members. Whether they demonstrate loyalty to him personally, whether they relate to him personally and whether they have a similar philosophy is not, as we view it, a requisite and he cannot demand such attitudes at the expense of the individual rights of the faculty members and there can be little question but that such demands infringe the rights of the faculty members to express legitimate views in the course of formulating ideas in an academic atmosphere. There is not the slightest suggestion in the evidence that the plaintiffs in exercising their rights constituted any threat to the valid authority of President Carter in the conduct of his duties. Nor does it appear that these plaintiffs were in a relationship with Dr. Carter which required personal loyalty or devotion. Cf. Pickering v. Board of Educa
Finally, the trial court’s determinations have ignored Dr. Carter’s explanations as to his concepts of “divisiveness.” These explanations were frivolous. Nor can the court’s finding that Dr. Carter had correctly appraised the general attitudes of the plaintiffs furnish any legal basis for a finding of “divisiveness” or antagonism. Also, the trial court’s emphasis on the press conference and its ignoring or putting to one side the stifling of their expressions was unjustified. The judgment of the court based upon these findings must be considered out of harmony with the evidence and clearly erroneous.
Since, therefore, the First Amendment rights of the plaintiffs, as enunciated in such decisions of the Supreme Court as Sindermann
APPENDIX — SUMMARY OF THE TESTIMONY OF DR. CARTER
I.
INTRODUCTION
Dr. Carter’s testimony consists mostly of generalizations and internal contradictions, most of which emerges as inconsequential, leaving the reader with the impression that he had no substantial reason for the firings. Carter does clearly acknowledge that the persons in question were not dismissed for financial or budgetary reasons. (R. 409). Nor were they dismissed because of their academic or professional qualifications or achievements, since Carter acknowledges that most of the plaintiffs were “excellent teachers” (R. 376); that in response to cross-examination about one teacher, Carter stated he didn’t “question his ability or talents” (R. 366); and in regard to questioning about a different teacher, he displayed a lack of awareness about the teacher’s specific achievements, and acknowledged that he had not looked at the teacher’s personnel file before reaching a decision to recommend his dismissal (R. 365). The absence of any other discussion about professional abilities in the record clearly indicated that, this factor was not a reason for the dismissals of the plaintiffs.
II.
Dr. Carter prefaced his testimony concerning the reason for dismissal of the fourteen plaintiffs by stating: “Well, I had been employed as President of the college by the Board of Regents to go into a sick college, to go into a situation that was devisive, that was very bad, very critical, a powder keg. . .” (R. 269-70). When asked to give his reason for dismissal of the plaintiffs, he stated: “I could answer that in one word really and that is devisiveness.” (R.
Dr. Carter elaborated on this concept of “divisiveness” at several points during his testimony. Referring to the five-week and ten-week summer teaching assignment lists, he stated: “We had determined that those who were devi-sive, those who would not cooperate, those who would not work with us, that we would not employ them during the ten weeks period of time.” (R. 277). He later stated: “I have been studying all year as to the ones that I felt we could live with and build a college with and during the course of the year, we had discussed, Dr. Feree and I had discussed certain ones and we had mutually arrived at a decision on some of them that we could not depend on. They were devisive.” (R. 287). (Other parts of the record reflect, however, that Carter made his decisions about who to eliminate quite early in the year.) He referred to “about half” of the teachers as having “very bad” attitudes (R. 292), and further stated: “. . . you go over them months and months and months and you live with them and you see their attitude and their atmosphere and their climate around which they build and surround themselves. . . ” (R. 294). In explaining why he never called any of the “dissidents” in to discuss their ■grievances, Carter stated: “I thought about doing it many times. I kept thinking, and by the way, a number of the faculty members did come in and, that are not among this group, and little by little, why they came in and visited with me and talked with me and said, what can we do to help and what can we do t'o cooperate.
“And so, these individuals did not, and there was hostility in every action and every movement and criticism in classes and working with students and the students in turn would reflect their answers.” (R. 354).
III.
Despite these broad generalizations about the dismissed group as a whole, Dr. Carter often found it impossible to specify what this “divisiveness” consisted of in individual cases or examples. He would either mouth more generalizations, give instances which appeared to represent misunderstanding or personality defects on his own part, or most importantly, refer to situations where he chose to condemn or categorize a teacher because of exercise of speech, or associating with someone who spoke out on an issue. A list of references which Carter made concerning various teachers and staff members who were dismissed will illustrate this better than comment:
A. Rampey — “Mr. Rampey was one of those who never entered my office. He never made any effort in the world to go along with me or to cooperate or to work with me in any way. So, he was one of the early ones that I figured was devisive and was working against the administration.” (R. 292).
“Mr. Rampey was the one that made the talk and said, you cannot communicate. And Dr. Feree had met with this particular group, why, he is the one that spoke out and said, why you can’t even communicate.” (R. 354).
“General attitude, general feeling of hostility.”
Q. How was that general attitude and hostility expressed?
“Well, that would be difficult to say.” (R. 354-55).
B. Dr. Ledgerwood — (Academic Dean) —In response to a question as to when he had decided to terminate the Dean, “Yes sir, that was pretty early.”
Q. How early?
A. “As soon as I found out that too many leaks, too much association with the dissidents.”
Q. Who are the dissidents, or who were the dissidents?
A. “I read the list of them that I felt like, the earlier ones that I had felt like
Q. He was associating then with Ram-pey, Poole, Cherrington, Richardson and Tanton ?
A. “Yes, sir.”
Q. I assume he was also associating with other people on the faculty. Is that not true?
A. “It wasn’t just a question of his association with them. I lost my confidence in him earlier. . . ” (But Carter does not give further explanation at this point as to why he “lost confidence” in Ledgerwood.) (R. 307-08).
“Dr. Ledgerwood had been my friend for a long time and we had known each other and I think I made a recommendation to him when he got his job. And I needed help, I needed it, because this whole situation was volatile. It was very very bad to begin with and there were many many occasions when Dr. Ledgerwood could have helped me when I felt like he didn’t. And I talked to him as the dean of the college, as soon as Mr. Cherrington had been critical of what I had said in an assembly and I talked with Mr. Ledgerwood and this was early in my administration. And I asked him what he thought about it and he said, well, he thought it was all right, or words to that effect. He didn’t, he felt like maybe that Mr. Cherrington had a right to be critical of me in the class before his group. . .” (R. 355).
“. . . and I noticed that his committees would be selective. We appointed one or two committees and I a-sked him to appoint the committees and I felt like the students he appointed on the committees were hostile students, as far as I was concerned. . .” (R. 355-56).
“Well, as I said, there were many times during the course of the year when I felt like he could have assisted me and helped me when he did not do this.”
Q. And you consider that devisive?
A. “Yes, sir.” (R. 356).
C. Cherrington — “. . . the first meeting, for instance, that Mr. Cher-rington had with his class after my assembly that he ran me down considerably and had his students vote on me and was totally uncooperative the first weeks I was there.”
Q. Did you hear that personally ?
A. “No, sir, I did not. But several students came to me about it. No, I did not, I was not in the class.”
Q. Did you confront Mr. Cherrington with it?
A. “I talked to Gene. I talked to the Dean of the college about it and I told him that I felt like that it was not the place of- the teacher to criticize the president of the college and to disagree, publicly, in his classes with what I had said in the chapel assembly that particular morning. I did not talk to Mr. Cher-rington, but I did talk to Dr. Ledger-wood.” (R. 288-89).
(Dr. Carter could not identify who the students were who had informed him about this incident which allegedly occurred. (R. 388).)
D. Wimbish — “Well, I had hoped to reemploy Mr. Wimbish and had intended to until two weeks before, on, seems to me like he was cooperating reasonably well and had gone along fine and then the last few weeks he spent all his time talking with students and I thought, stirring up trouble. So, he was one of the very latest ones that I made my mind up on.”
Q. Dr. Carter, you are using the expression, he was talking with students, and I — do you have an opinion that every time a faculty member talks to students he is stirring up trouble ?
A. “Oh, no, no, no.”
Q. What do you mean ?
A. “Well, he was spending his time in the dining room talking to students, talking to them to get them to go along with the dissidents.”
Q. How do you know he was doing that?
E. Poole — “I had earlier decided that we could not build a college around Mrs. Poole.”
Q. When did you decide that ?
A. “Oh, probably by Christmas.” (R. 308).
Q. How about Ingrid Poole, how was she devisive?
A. “Well, Mrs. Poole came to my office three times. I can say that she did that.”
Q. In other words, she did attempt to communicate with you ?
A. “That is right, that is right.”
Q. All right, sir.
A. “and I would probably say that it was a matter of, we live in different worlds. We live in different atmospheres. Different philosophies.”
Q. Any other way she was devisive?
A. “Well, it is pretty difficult to bring in students and to discuss student situations that you know are happening and yet you can’t prove a situation like this.”
Q. You know it, but you can’t prove it?
A. “Well, you know it in your heart and mind and soul, but then you would have difficulty proving it, yes, sir, that is true.” (R. 357-58).
F. Holt — Q. How was he [Holt] de- . visive ?
A. “These are very personal matters.”
Q. Well, I am not asking about personal matters. I am asking about how he was devisive.
A. “He didn’t fit into the atmosphere of the college at all, according to my way of thinking as president of the college and my duties and responsibilities of the college, to protect it, and to recommend the people that I think you can build a college upon.” (R. 363-64).
G. Maness — Q. With respect to Mr. Maness, when had you decided on him?
A. “Well, reasonably early.”
Q. When?
A. “Oh, say by Christmas.”
Q. Earlier?
A. “When you’re in the process of making your mind up, you have got all year. So, you don’t come up with a definite particular time, but he had proven that he was not going to cooperate and work with us.”
Q. Devisive?
A. “I beg your pardon ?”
Q. Devisive ?
A. “Yes, sir.” (R. 312).
“ . . . We had a resignation, I believe Mr. Maness and Dean Ledgerwood appointed Mr. Bolton to fill this particular place in the corps curriculum program and I was president of the college and he never discussed it with me or never said a word to me about it at all, so as far as I am concerned the two of them got together and decided that Mr. Bolton would be appointed and I wasn’t even notified about it or didn’t even know about it until a week after it happened.”
Q. When you did find out about it, did you rescend [sic] it?
A. “No sir.” (R. 360).
Q. . . . With respect to Mr. Maness, how was he devisive ?
A. “Well, I mentioned a little bit ago that he was the one who said to Dr. Fer-ee, that you cannot communicate.”
Q. Any other way?
A. “General attitude, hostility.”
■Jf -X* X-
“I really don’t question his ability or talents. It is a question of his hostility and general attitude.” (R. 365-66).
(At page 366-67 of the Record, Dr. Carter goes through a long discussion about three different policy issues upon which he had taken one position which had turned out to be embarrassing. One issue involved the use of a particular college seal which created an uproar among the faculty and students. The two other issues, involving pay to student council members and a proposal for election of officers in each student class, were defeated after Carter submitted them to votes by the student body). “ . . . And so, Mr. Rapplean’ said, well, he lost three times. I wonder when he is ever going to learn anything. So, that was his general attitude.” (R. 367).
I. Richardson — “I didn’t come in contact too much with Mr. Richardson in the course of the year. I would say it is just a general attitude of hostility and a feeling that I have no overt action as far as he was concerned. But then there was just a general lack of communication and no rapport.” (R. 368).
J. Tanton — Q. How was he devi-sive?
A. “Oh, almost every action, everything he said or did.”
Q. Such as ?
A. “It would be a little bit hard to pinpoint any one particular idea, but you felt his hostility and his uncooperative attitude very very definitely.” (R. 369).
K. Bolton — “Well, I felt like that Mr. Bolton, several times, was pretty definitely devisive, sir. He was one who was complaining always about not knowing his job and not knowing what he ought to do and he talked to me sometimes about this and sometimes a good many times to Dr. Feree about it and I know we even gave him a North Central Report that had been approved showing that this is what a personnel director would do, or should do, and he would say, well, what do you want me to do, and I talked to him one time and I said, well, you have been here, you have been personnel director. Go ahead and do what you have been doing.”
Q. Well, he was one of those people you had not made up your mind on before March 31st isn’t he ?
A. “A great deal of this time, Mr. Bolton, to begin with, the early months we talked and worked together, and got along reasonably well.”
Q. Well, so then he did come in and he did talk to you about his problems and what you expected.
A. “Well, to, but then, as time went on, why you could very definitely feel he was getting away without any particular question at all and one thing I want to —that I do recall here in question with Mr. Bolton, and Dean Ledgerwood both, and this is just one of the other examples.” (Herein follows Carter’s account of Bolton’s advancement without Carter’s knowledge to a position in the core experimental program. This account is found above under the criticisms of Mr.’ Maness.)
* * * * * •»
Q. Well, now you’re familiar with Mr. Bolton’s career at O.C.L.A., were you not? I mean, he had been there for four years.
A. “I didn’t know how long he had been there but as I said, the further we went the further he got away. In the first place, we would ask him, we did specifically ask him to see one or two students. He said no, the student has got to come to see me in place of me going to see the student. And so, we would ask him to look into situations and he would say, I am not going to do that, they are going to have to come to me.”
Q. Excuse me, I thought these people were discharged because they were devi-sive. Now are you telling me this is de-visive or just poor administration?
A. “That is lack of cooperation, sir.” (R. 359-61).
A. “Mr. Ward’s name was stricken through on the morning that we had the board meeting.”
Q. Who did this?
A. “I did it. The fact of the matter is, I almost forgot it.”
Q. What was your reason for that, Dr. Carter ?
A. “Every man, every man makes his choices whether he smokes or doesn’t smoke, whether he drinks or doesn’t drink. The choice of a wife, the choice of a job and Dr. Ward made his choice along with the other thirteen and we had hoped we could save him. We had hoped that we could keep him with us and we had recommended him along with the others that had been recommended and when he determined that he did not want to have any part of us, that he wanted, went along with the dissidents, why then I said, if that is his choice, suits me all right.” (R. 272-73).
Q. All right. Dr. Carter, I will ask you to advise the Court to, the extent to which, if any, the press conference’s statement had on your recommendations to the Board on the 26th of April?
A. “Well, I would say with the exception of Dr. Ward, absolutely none.” (R. 282).
Q. My question is, do I understand that by April 23rd or I am sorry, April 22nd, that is Sunday afternoon, 1973, you had decided against recommending any of the fourteen Plaintiffs for reemployment with the exception of David Ward?
A. “Any of the thirteen, yes, sir, or the fourteen, with the exception of David Ward, yes.”
Q. And do I further understand that your testimony is today that you had decided to reemploy Dr. Ward, but because he participated with the other thirteen in the press conference, you struck his name on Monday morning?
A. “No, sir, no, sir, I did not say that at all.”
Q. What did you say? What did you mean?
A. “I said that each man chose his wife, his job, his occupation, whether he smokes or drinks and he chose to decide what group he would live with and he chose the dissidents in rather than choosing those who would cooperate and work with me.”
Q. How did he do that, or let me put it this way. What did he do between Sunday, April 22nd, 1973, and the morning of April 26th when you struck his name other than the appearance at the public press conference?
A. “He proved by doing this that he had chosen the dissidents to live with rather than the, to cooperate with me and with the rest of the school.”
Q. When you say he chose to do this, you mean he chose to be with them and to put his name on the statement that they read. Is that what you mean ?
The Court: He has answered your question.
A. “Probably so, probably so. He chose, he chose his way of life. He chose what he wanted to do. He chose which way he wanted to go.”
Q. Is there any other thing he did during that period of time other than that?
A. “I am sure that, I would say no.” (R. 290-92).
Questioning by the Court:
Q. My question is, did you line him [Ward] out because of the press conference?
A. “I lined him out, as I said, I did not see nor hear the press conference. I did read about it and he made his choice and his choice was to go with this particular group, Judge, and because he had made his choice I made my choice.”
Q. Well, my question is, did you line him out because he participated in the press conference?
A. “I would probably have to say that I probably did. Not because of any
Q. Well, this could make a difference. You can’t fail to renew an instructor’s contract if it is based on first amendment conduct.
A. “Judge, that didn’t enter into it as far as I was concerned, at all. We had worked with him off and on all year and it was a matter of whether or not he was going to cooperate with me or with the dissidents. Divided group. And when he placed himself in his own category, why he determined his choice and if he ever said a word in the speech deal or anything about it, I don’t know anything about it. I really don’t.” (R. 411-12).
IY.
As illustrated by the above testimonial examples, Dr. Carter had a good deal of difficulty in providing specifics as to why the individual plaintiffs were “divisive” in his eyes. This difficulty stemmed in large part from Carter’s tendency to think of the plaintiffs as a group rather than as individuals. Carter’s assessment of the college’s teachers and staff, his “grading” of them as he frequently referred to it (R. 270, 294-95), seemed to stem from an assumption that there were two polarized camps at the college, those that were “for” him personally, and those that were against him. He appears to have begun his job as president with this assumption rooted in his thinking, or to have reached' it quite early in the year:
“I had two faculty meetings. One in the summer and one in the fall and in the fall faculty meeting I had high hopes of pulling the faculty together. I did go in there with a statement and so help me, and I am under oath, as with the fact that I could weld the faculty together and that we could work together and I asked them to cooperate to pull together, to work together. I asked them to pray about it. I asked them as Oral Roberts would say, to, let’s have a miracle happen on this campus and one of the very first things that happens, which proves to me this whole set up is primarily these thirteen or fourteen people, is, there is a conspiracy or was a conspiracy. (Emphasis added.) I pleaded with these people and they will tell you so, in fact, one individual said that I threatened them even. I pleaded with them to join the Oklahoma Educational Association and the Higher Educational Alumni Council. These are two organizations that benefit higher education a tremendous lot in Oklahoma. And almost to a man, and I have this information over here if you need it. Almost to an individual, why this group said, no, we will not have any part of O.E.A. or Higher Education either one. And this was an indication earlier that to begin with, that they did not intend to cooperate and would not cooperate.”
Q. And that was a factor in their devisiveness which was a factor in your determination to, in your decision to terminate them ?
A. “During the course of the year, this was added to many, many times.”
Q. But it was a fact ?
A. “Oh, yes, yes.” (R. 292-94).
Having determined in his own mind that there was a core group of “dissidents” on campus which he could not “build a college around,” Carter’s efforts seem to have been directed to identifying members of the staff and faculty whom he could lump in with the vaguely defined group of “dissidents.” When directly questioned about this by the Court, Carter had difficulty articulating his reasons or methods of identifying members of the group:
The Court: I think you are getting off the question now. I would appreciate it if you would tell us how you identified this group. How you came to know that you had eleven out of 55 who were devisive, and identify them. How did you do this? How did you learn this? And then when you say*1106 that they were devisive, on what do you make this statement ?
A. “Well, as I said, we, I asked Dr. Feree to meet with the faculty group with this corps program group and he did meet with them, or tried to meet with them and one of the members spoke up and after he tried to get them to cooperate and work together, and he said, you cannot communicate tf
“And another illustration, for instance, as I mentioned, one of the faculty members that was on the stand yesterday said that we were great friends for thirty years and yet I have been there eleven months today and he has never been in my office. And most of these people have never been in my office and have never shown me any signs of warmth or nothing but hostility. And they have not been in my office or not talked to me except, we would meet in the hall. Now, I did not feel I could call them in and talk to them and single them out and say, now you have got to cooperate with me. You have got to help me. You have got to go along with the program. It looks to me like we would have isolated them and put them in an embarrassing position and they might have felt under coercion or threats or intimidation if I had done that. . .” (R. 352-53).
(It should be noted that, rather than put the teachers he referred to in an “embarrassing position,” he chose to terminate their jobs.)
Yet despite Carter’s tendency to view the “divisiveness” of individual plaintiffs in terms of hostility to himself, the record reveals a pattern of such categorization because of instances in which individuals exercised rights of speech or expression, or associated with others who did. Ward’s case seems the clearest, since he was undisputedly dismissed because of his choice to publicly express his sympathy with a group of teachers who would apparently soon be recommended for dismissal. The “chilling effect” of permitting his dismissal to stand is obvious, for the message would otherwise be clear to any other remaining member of the faculty or staff who might feel that the president had made the wrong decision in a matter which was obviously of vital concern to all persons associated with the college. Any disagreement with the president on this issue, or perhaps any other issue in the future, might cost them their jobs.
Wimbish’s dismissal also fits this pattern, since he was not considered for dismissal until the last two weeks of school, when Carter felt that Wimbish began spending too much time talking to students in the dining hall. Carter felt' such discussion represented opposition to himself, even though his knowledge of the content or subject of the discussion came to him only through hearsay rumor from a few students he could not identify. Wimbish lost his job as a consequence of these student discussions.
Cherrington’s situation also fits the pattern, since Carter’s only criticism of Cherrington was that he “ran me down considerably” in discussion with his students after an assembly Carter had held. Once again, Carter’s only knowledge of the substantive content of such criticism, if it in fact took place, came to him through hearsay reports of students he could not identify. This incident seems to have formed Carter's opinion of Cherrington and cost him his job. Any other faculty member concerned for his job would likely be reluctant to criticize the administration before his students, or indeed to say anything which might be interpreted and reported back to the administration as criticism.
It is to be noted, however, that the complaint broadly framed the issues for trial, alleging that the terminations resulted from plaintiffs’ exercise of their First Amendment rights. The complaint ■ does allege First Amendment violations stemming from reprisal for the press conference. The complaint also alleges in general that plaintiffs were fired “because they exercised their right to freedom of speech and expression in criticizing Defendants and disagreeing with their policies.” These criticisms of the administration referred to by the plaintiffs encompassed statements made prior to the press conference. Paragraph 13 of the complaint states:
Said conduct by Defendants in terminating the Plaintiffs was in violation of Plaintiffs’ rights under the First and Fourteenth Amendments to the United States Constitution in that Plaintiffs were terminated because they exercised their right to freedom of speech and expression in criticizing Defendants and disagreeing with their policies. Said termination of Plaintiffs for these reasons is a denial of a benefit to Plaintiffs in a manner which infringes upon Plaintiffs’ constitutional right*1092 to free speech. Criticism of Defendants’ policies are an impermissible basis for termination of Plaintiffs’ employment under the First and Fourteenth Amendments.
Further, the case was not tried on any narrow issue. The evidence embraced First Amendment violations generally.
Nor were the trial judge’s findings and conclusions restricted to the effect of the press conference on plaintiffs’ subsequent termination of employment. In its oral findings, the trial court delineated the First Amendment issue as follows:
The Plaintiffs’ complaints basically are that on or about April 26th of this year, their employments with the institution were not renewed by the Board of Regents and that this failure to renew their contracts of employment was because or as a reprisal for their having exercised their first amendment rights to speak critically of the president, the regents and the course of direction of the institution.
Finally, the trial judge specifically passed on all other First Amendment questions as well as the press conference when he said:
The Court finds and concludes as a factual matter from all the evidence and circumstances presented in this case, that the college president did not recommend * * * Did not recommend the non-renewal of the contracts of the fourteen Plaintiffs as a reprisal for their exercising their first amendment rights of free speech, either by reason of the press conference or anything uttered prior thereto.
He also explained as follows:
Q. What in general was the basis on which you decided, the negative basis upon which you decided that the fourteen plaintiffs in this case should not be included in your list: Just in general terms.
A. “I could answer that in one word really and that is divisiveness.”
. He added:
I write in this manner on these matters since these are critical questions as they relate to the present probationary status of the institution with the North Central Association. One of the factors in the decision to place OCLA on public probation was the matter of governance on the campus. Matters related to termination notices, tenure, and due process are critical in this regard and the necessity for clearly enunciated policy on these and related matters will be of great interest to the Association when OOLA will next be visited by a team to consider its probationary status.
(Yol. II, P. 59-60).
. He added:
Has it ever occurred to you, Dr. Carter, that what these people whom you recommended for firing are saying ... is “Give us some direction; give us some sense of direction, and if we disagree with you, we will tell you and we will see if between us we can modify it for the greater good of the college.”
(Vol. II, P. 91).
Another member of the Board stated at an earlier meeting of the Regents :
I would like to get up and walk out and resign off the J3oard. Why people . . . will come in here and lie and tell this Board old so-and-so said this and old so-and-so said that. And who are we to judge? That’s ridiculous. I would hate to teach where that was imposed on me. You couldn’t say what you wanted to. What’s happened to free speech?
(Yol. II, P. 170).
. On this Carter said:
Dr. Ward made his choice along with the other thirteen and we had hoped we could save him. We had hoped that we could keep him with us and we had recommended him (for reemployment) and when he determined that he did not want to have any part of us, that he wanted, went along with the dissidents, why then I said, if that is his choice, it suits me all right.
(Vol. Ill, P. 272-273).
. This was speculation. It was not borne out by the evidence.
. The Supreme Court said in part:
This Court lias also indicated, in more general ■ terms, that statements by public officials on matters of public concern mus.t be' accorded First Amendment protection despite the fact that the statements are directed at their nominal superior's. * * *
. The Supreme Court there said :
It [the government] may not deny a benefit to a person on a basis that infringes his constitutionally protected interests— especially, Ms interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly.” Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. Such interference with constitutional rights is impermissible.
408 U.S. 593, at 597, 92 S.Ct. 2694, at 2697.