David E. Roth, for Himself and for All Others Similarly Situated v. The Board of Regents of State Colleges and Roger E. Guiles

FAIRCHILD, Circuit Judge.

In this case (involving an official decision at a state university not to reemploy a non-tenured professor) the parties each made motions for summary judgment. The district court decision is reported at 310 F.Supp. 972. Defendants’ motion was denied, and plaintiff’s motion was granted in part. The order appears on pages 983 and 984. Defendants have appealed from the judgment accordingly entered. Although such judgment did not finally dispose of all issues, and no'direction was made under Rule 54(b) F.R.Civ.P., it amounted to an injunction and was appealable as such under 28 U.S.C. § 1292(a) (1).

The facts, the disposition of the motions, and the reasoning employed are well stated in the opinion of the district court, and we shall avoid unnecessary repetition. It suffices, now, to say that during the school year ’68-’69, plaintiff was a non-tenured professor at a state university who claimed (1) that the reason for defendants’ decision not to retain him for the school year ’69-’70 was to retaliate for plaintiff’s constitutionally protected expression of opinion and (2) that even as a non-tenured member of the faculty he was constitutionally entitled either to be retained or to be given a hearing on the merits of the decision not to retain him.

With respect to issue (1), which may be termed substantive, the district court decided there were issues of fact. Such issues have not been determined and the respective claims concerning them are before us only as background. With respect to issue (2), which may be called procedural, the district court decided that plaintiff had been entitled at the administrative level to be offered a statement of the reasons why he was not to be retained and a hearing at which he could respond. Accordingly, the court ordered defendants to deliver the statement and provide for the hearing, or, in the alternative, to offer a contract for the ensuing school year. By the time of the decision the upcoming school year was ’70-’71. The district court stayed its order pending appeal, and the upcoming school year is now ’71-’72.

The district court made it clear that the prescribed procedure was designed to safeguard a due process right that “the decision not to retain a professor employed by a state university may not rest on a basis wholly unsupported in fact, or on a basis wholly without reason,” and that the “standard is intended to be considerably less severe than the standard of ‘cause’ as the latter has been applied to professors with tenure.” (p. 979.)

Defendants do not question the proposition, documented by the district court at page 976, that the “employment of a teacher in a public school cannot be terminated because he has exercised that freedom secured to him by the Constitution of the United States.” They would say that the proposition (which they deny) that reemployment was denied plaintiff because of his exercise of protected rights is for him to prove, if he is able, in the branch of this case which is not now before us.

The contest on this appeal is whether the state university, in deciding not to retain a non-tenured professor, must initially shoulder the burden of exposing to the limited test ordered by the district court the reasons on which its decision is predicated, and to that extent demonstrate that its reasons are not impermissible, or whether the first recourse of the professor is to attempt to establish in the judicial forum that the reasons are impermissible.

Defendants rely on the traditional principle “that government employment, in the absence of legislation, can be revoked at the will of the appointing officer.” ¹

Cafeteria Workers,² involved denial by government of an individual’s access to a government facility, resulting in inability to continue private employment at that facility. Although the Supreme Court suggested that the individual’s interest in access to her job was closely analogous to the interest of a government employee in retaining his job, and in that connection stated the principle relied on by defendants, the Court also held that “consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” This was the balancing formula which the district court applied in the instant case, reaching a result different from the result in Cafeteria Workers.^2a

The opinion in Cafeteria Workers itself suggests that if the government action jeopardized a right to follow a chosen trade or profession, that fact would weigh upon the side of the individual. In Goldberg v. Kelly³ the Supreme Court referred generally to relevant constitutional restraints applying to discharge from public employment, among other types of government action, and after stating that “The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be ‘condemned to suffer grievous loss,’ * * * and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication,” quoted the balancing language from Cafeteria Workers. The Supreme Court has held that one who applies for a license to practice a profession is entitled to procedural safeguards not required in Cafeteria Workers “where only ‘the opportunity to work at one isolated and specific military installation’ was involved.”⁴ Several courts have found a due process right where dismissal or non-retention of a public employee jeopardized an interest in practicing a profession, or in preserving a professional reputation.⁵ We think the district court properly considered the substantial adverse effect non-retention is likely to have upon the career interests of an individual professor and concluded, after balancing it against the governmental interest in unembarrassed exercise of discretion in pruning a faculty, that affording the professor a glimpse at the reasons and a minimal opportunity to test them is an appropriate protection.

We note that the Supreme Court has denied certiorari in several cases where a court of appeals has declined to recognize similar due process rights of an elementary or secondary public school teacher who has been dismissed or not re-employed.⁶ On the other hand, the Supreme Court has emphasized the importance of vigilant protection of constitutional freedoms in the academic community.⁷ “Moreover, in the case of teachers, the government’s interest goes beyond the promotion of fairness to the encouragement of an academic atmosphere free from the threat of arbitrary treatment.” ⁸

The instant case arose after serious disturbance on that particular campus, and public expressions by plaintiff of his opinions, critical of the administrators. It appeared, after discovery in this action, that these expressions were considered by defendants, albeit in a context of supposed relevancy to his performance of his duties. Although the principle announced by the district court applies by its terms to all non-retention decisions, an additional reason for sustaining application in the instant case, and others with a background of controversy and unwelcome expressions of opinion, is that it serves as a prophylactic against non-retention decisions improperly motivated by exercise of protected rights.⁹

The judgment appealed from is affirmed.¹⁰ Necessarily our affirmance does not deprive the district court of power to modify the judgment so as to make adjustments for the passage of time or circumstances which have arisen since its entry.

1 . Cafeteria and Restaurant Workers, etc. v. McElroy (1961), 367 U.S. 886, 896, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230, citing Vitarelli v. Seaton (1959), 359 U.S. 535, 539, 79 S.Ct. 968, 3 L.Ed.2d 1012. Those decisions did not involve teachers, but the principle was assumed in Shelton v. Tucker (1960), 364 U.S. 479, 486, 81 S.Ct. 247, 5 L.Ed.2d 231, involving state university as well as public school teachers, and has been followed in other decisions involving non-tenured teachers. Jones v. Hopper (10th Cir., 1969), 410 F.2d 1323, 1329, cert. den. 397 U.S. 991, 90 S.Ct. 1111, 25 L.Ed.2d 399; Freeman v. Gould Special Sch. Dist. of Lincoln County, Ark. (8th Cir. 1969), 405 F.2d 1153, 1159, cert. den. 396 U.S. 843, 90 S.Ct. 61, 24 L.Ed.2d 93; Williams v. School District of Springfield R-12 (Mo., 1969), 447 S.W.2d 256, 270; Henry v. Coahoma County Board of Education (N.D.Miss., 1963), 246 F.Supp. 517, 521, aff’d 5th Cir., 353 F.2d 648, cert. den. 384 U.S. 962, 86 S.Ct. 1586, 16 L.Ed.2d 674; Hopkins v. Wasson (E.D.Tenn., 1962), 227 F.Supp. 278, aff’d, 6th Cir., 329 F.2d 67, cert. den. 379 U.S. 854, 85 S.Ct. 102, 13 L.Ed.2d 57.

2 . Supra, fn. 1.

2a . See Kiiskila v. Nichols (7th Cir., 1970), 433 F.2d 745.

3 . (1970), 397 U.S. 254, 262, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287.

4 . Willner v. Committee on Character & Fitness (1963), 373 U.S. 96, 103, footnote 2, 83 S.Ct. 1175, 1180, 10 L.Ed.2d 224.

5 . Birnbaum v. Trussell (2d Cir., 1966), 371 F.2d 672, physician employed at a municipal hospital; Meredith v. Allen County War Memorial Hospital Com’n (6th Cir., 1968), 397 F.2d 33, physician on staff of county hospital; Lucia v. Dugpn (D.Mass., 1969), 303 F.Supp. 112, public school teacher; Orr v. Trinter, 318 F.Supp. 1041 (S.D.Ohio, 1970), public school teacher. See also, the dissenting opinion of Judge Lay in Freeman, supra n. 1, 405 F.2d pages 1161, 1164.

6 . Jones, Freeman, Henry, and Hopkins, supra, fn. 1. The Court has however, recently granted certiorari in a case in this field: Sindermann v. Perry (5th Cir., 1970), 430 F.2d 939, cert. granted 1971, 403 U.S. 917, 91 S.Ct. 2226, 29 L.Ed.2d 694.

7 . Shelton v. Tucker (1960), 364 U.S. 479, 487, 81 S.Ct. 247, 5 L.Ed.2d 231, quoting from Wieman v. Updegraff (1952), 344 U.S. 183, 195, 73 S.Ct. 215, 97 L.Ed. 216, and Sweezy v. New Hampshire by Wyman (1957), 354 U.S. 234, 250, 77 S.Ct. 1203, 1 L.Ed.2d 1311.

8 . Developments-Academic Freedom (1968), 81 Harvard Law Rev. 1045, 1082.

9 . See Van Alstyne, Right-Privilege Distinction (1968), 81 Harvard Law Rev. 1439, 1453.

10 . Since this opinion adopts a position concerning which a conflict appears to exist between the circuits, the majority. and dissenting opinions have been circulated, before filing, to all the judges of this court in regular active service. The proposition that the appeal be reheard en banc failed to receive the support of a majority, four voting in favor and four opposed.