310 F.Supp. 972 (W.D.Wis. 1970), 69-C-24, Roth v. Board of Regents of State Colleges
| Citation | 310 F.Supp. 972 |
| Party Name | David F. ROTH, for himself and for all others similarly situated, Plaintiff, v. The BOARD OF REGENTS OF STATE COLLEGES and Roger E. Guiles, Defendants. |
| Case Date | March 12, 1970 |
| Court | United States District Courts, 7th Circuit, U.S. District Court — Western District of Wisconsin |
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Charles D. Hoornstra, Madison, Wis., Steven Steinglass, Milwaukee, Wis., for plaintiff.
Charles R. Bleck, Asst. Atty. Gen., Madison, Wis., for defendants; E. L. Wingert, Madison, Wis., of counsel, for respondent.
MEMORANDUM AND ORDER
JAMES E. DOYLE, District Judge.
From the pleadings, depositions, and affidavits on file, I find that there is no genuine issue as to the following material facts:
Plaintiff was retained by the defendants as an assistant professor at Wisconsin State University-Oshkosh on a one-year contract for the school year 1968-1969. He had not attained tenured status under Wisconsin statutes. During the 1968-1969 school year at the university, there were disturbances and controversies concerning the university administration and the defendants. The plaintiff was vocal in his expressions of opinion with respect to such disturbances and controversies. Such expressions were critical of the university administrators and the defendant board of regents. The plaintiff was advised on January 30, 1969, by the defendant Guiles, the president of the university, purporting to act under due authority, that the plaintiff would not be offered an employment contract as a member of the university faculty for the school year 1969-1970; no reasons for the decision were given. The defendants did not offer the plaintiff a hearing of any kind on the merits of the decision.
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No hearing was requested by him; none was held. Of 442 non-tenured teachers at the university, four were given notice that contracts would not be offered them for 1969-1970.
The complaint alleges, among other things, that the reason for the decision not to offer plaintiff a contract for 1969-1970 was to retaliate against him for his expressions of opinion in the exercise of his freedom guaranteed by the First and Fourteenth Amendments; that the decision was not made under 'ascertainable and definite standards governing the Defendants in making this decision'; and that the decision has caused and will cause damage to plaintiff's professional reputation and standing. The complaint seeks judgment that plaintiff's rights, and the rights of those similarly situated, under the First, Fifth and Fourteenth Amendments to the United States Constitution have been violated: by the very decision not to reemploy him; by failure of the defendants to provide a hearing as to the merits of said decision; by the refusal of the defendants to give reasons for their decision; and by defendants' failure to make such decision under ascertainable and definite standards. Further, the plaintiff's complaint seeks an order directing the defendants to employ him in his position as a member of the Wisconsin State University-Oshkosh faculty for the school year 1969-1970.
Among other things, the answer denies that the reason for the decision was to retaliate against plaintiff for his expressions of opinion, alleges that the reasons for the decision were that the plaintiff was guilty of substantial neglect and violation of duty, violation of university rules, and insubordination, denies that this court enjoys jurisdiction of the action, and alleges that the complaint fails to state a claim upon which relief can be granted.
Plaintiff has moved for partial summary judgment: declaring that he is entitled to a hearing on the merits of the decision not to retain him, and requiring the defendants either to provide such a hearing or to offer him a contract for the 1969-1970 school year; and also, apparently in the alternative, declaring that his constitutional rights have been violated because the decision of non-retention was not made under ascertainable and definite standards, and requiring the defendants to offer him a contract for the 1969-1970 school year.
Defendants have moved for summary judgment dismissing the action on its merits because the complaint fails to state a claim upon which relief can be granted, because the undisputed facts show that no federal constitutional right of plaintiff has been violated by defendants, and because plaintiff has failed to exhaust his administrative remedies.
This opinion and order is confined to the competing motions for summary judgment.
Jurisdiction is present. 28 U.S.C. § 1343(3), (4); 42 U.S.C. § 1983.
Defendants' Motion for Summary Judgment
Defendants raise, directly or indirectly, three threshhold questions: whether defendants are 'persons' within the meaning of 42 U.S.C. § 1983; whether defendants enjoy the protection of sovereign immunity; and whether defendants enjoy common law immunity.
Neither defendant is a municipal corporation. See Monroe v. Pape,365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). This is an action for declaratory and injunctive relief, not damages. See United States ex rel. Lee v. State of Illinois, 343 F.2d 120 (7th cir. 1965); Schnell v. City of Chicago, 407 F.2d 1084, 1086 (7th cir. 1969); Adams v. City of Park Ridge, 293 F.2d 585, 587 (7th cir. 1961). For the purposes of this action, defendants are 'persons' under 42 U.S.C. § 1983.
Neither the Eleventh Amendment nor the doctrine of Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), affords these defendants the shield of sovereign immunity in this action for declaratory and injunctive relief
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in which it is alleged that, acting under color of state law, they have deprived plaintiff of rights secured to him by the Constitution of the United States. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Whitner v. Davis, 410 F.2d 24 (9th cir. 1969); Louisiana State Board of Education v. Baker, 339 F.2d 911 (5th cir. 1964); Board of Supervisors of Louisiana State University v. Fleming, 265 F.2d 736 (5th cir. 1959); Orleans Parish School Board v. Bush, 242 F.2d 156 (5th cir. 1957), cert. den., 356 U.S. 969, 78 S.Ct. 1008, 2 L.Ed.2d 1074; School Board of City of Charlottesville v. Allen, 240 F.2d 59 (4th cir. 1956), cert. den. School Bd. of Arlington County v. Thompson, 353 U.S. 910, 77 S.Ct. 667, 1 L.Ed.2d 664; Dorsey v. State Athletic Commission, 168 F.Supp. 149 (E.D. La. 1958), aff'd 359 U.S. 533, 79 S.Ct. 1137, 3 L.Ed.2d 1028.
The purpose of common law immunity enjoyed by the judiciary and legislature, here sought to be extended in a qualified form to the defendant Board and university president, is to preserve the integrity and independence of those bodies, and to insure that judges and legislators will act on their free, unbiased convictions, uninfluenced by apprehensions of consequences. Tenny v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Bauers v. Heisel, 361 F.2d 581 (3rd cir. 1966), cert. den., 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457; Kenney v. Fox, 232 F.2d 288 (6th cir. 1956), cert. den., 352 U.S. 855, 77 S.Ct. 84, 1 L.Ed.2d 66. Such considerations do not support extending, nor have courts extended, the doctrine to shield officials from the type of equitable relief here requested.
We reach the major grounds of defendants' motion for summary judgment of dismissal.
The defendants' principal contention is to this effect: Plaintiff was hired for a one year period. There was no breach or threatened breach of that contract by the defendants. As a non-tenured teacher, plaintiff can be removed 'at pleasure' under Sec. 37.11(3), Wis.Stats. Such complete discretion in defendants is essential to keep the faculty at the 'highest level of competency, responsibility, and devotion to duty'. The administrative decision not to rehire can be reached for 'no reason or any reason'. It follows that no statement of reasons need be given, nor hearing offered.
If a decision not to renew the employment contract of a non-tenured university professor may be based consciously and deliberately on the fact that he has written a scholarly letter to the newspaper in support of the President's policy on Viet Nam, or on the fact that he is white, or on the fact that he is a Protestant, or on the fact that he is a Republican, and if the decision may be based on the university president's belief that the professor physically struck a student at a certain time and place, whereas in fact the professor was not present at that time and place and the incident never occurred, and if there need be no reasoned basis whatever for the decision, then it may be concluded that the Constitution of the United States affords him no substantive protection. If he enjoys no substantive protection under the Constitution--that is, if the decision not to renew may be based upon any reason or may be based upon no reason-- then it also follows that he need be afforded no procedural protection by the Constitution; to require the university administration to state the reason for the decision, or to state that there is no reason for the decision, or to provide an opportunity to the professor to be heard, would serve no purpose.
On the other hand, if the Constitution of the United States forbids a decision consciously and deliberately based on the professor's otherwise protected speech activity, or his race, or his religion, or his political affiliation, then this substantive right may require procedural protection. (For the purposes of this opinion, for convenience and brevity, I will refer to an alleged right of this kind as a 'First Amendment' right, although this does not accurately reach
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the matter of racial discrimination, for example.)
Also, if the Constitution forbids a decision based upon a wholly false assumption (for example, that the professor struck the student), or if it forbids a decision which is wholly unreasoned, then this substantive right may also require procedural protection....
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