Starsky v. Williams

• Decision Date: 26 December 1972
• Docket Number: No. Civ. 70-309 PHX.,Civ. 70-309 PHX.
• Citation: 353 F. Supp. 900
• Parties: Morris J. STARSKY, Plaintiff, v. Jack R. WILLIAMS et al., Defendants.
• Court: U.S. District Court — District of Arizona

353 F. Supp. 900

Morris J. STARSKY, Plaintiff, v. Jack R. WILLIAMS et al., Defendants.

No. Civ. 70-309 PHX.

United States District Court, D. Arizona.

December 26, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Alan M. Kyman, Phoenix, Ariz., for plaintiff.

Gary K. Nelson, Atty. Gen. of Arizona, by Howard P. Leibow, Sp. Asst. Atty. Gen., Phoenix, Ariz., for defendant State of Arizona.

J. Mercer Johnson, Tucson, Ariz., for defendant James Elliot Dunseath, in his individual capacity.

Nicholas Udall, Jennings, Strouss & Salmon, Phoenix, Ariz., for defendant Jack R. Williams, in his individual capacity.

Olgerd W. Kalyna, J. Mercer Johnson, Phoenix, Ariz., for Board of Regents of Universities and State College of Arizona and defendants comprising said Board.

OPINION and ORDER

MUECKE, District Judge.

Plaintiff has filed this action under the Civil Rights Act, 42 U.S.C. 1981-1985, alleging that his termination as an assistant professor at Arizona State University violates his federal First and Fourteenth Amendment rights.

Plaintiff and defendants have both moved for summary judgment. Each has filed factual statements in accordance with our Court's Local Rule 11(h) see Appendix for text. The statements show no genuine issue of material, specific fact.

Plaintiff's basic attack is upon the decision of the Arizona Board of Regents, as shown in the Board's minutes of June 10, 1970.¹ The members of the Board who took part in that dicision have submitted an affidavit² to the effect that their decision is based ". . . upon a review of the transcript of hearing and exhibits presented before the Committee on Academic Freedom and Tenure at Arizona State University . . ." Defendants' motion for summary judgment depends on ". . . the complete Transcript of Record, including all exhibits, of the hearing before the Committee . . ." Plaintiff's Rule 11(h) statement also relies on the Committee transcript.

This Court issued an order on July 18, 1972 stating that this case is ready for final judgment on the merits on the issue of liability. The parties were given additional time to file any further pertinent documents. Additional documents were filed, and neither party took issue with this Court's characterization of the posture of the case. This Court, therefore, can now decide this case on the issue of liability. Should the plaintiff prevail, the issues of damages would be tried later.

Throughout the proceedings to date, neither side has suggested the existence of any additional evidence pertinent to the issue of liability. Although we are dealing with cross-motions for summary judgment, the case in view of the foregoing is now in the posture of an agreed statement of facts.

The termination of plaintiff's employment is the culmination of lengthy hearings, voluminous evidence and formal charges, findings, resolutions, and examination and cross-examination by attorneys during administrative hearings.

Plaintiff admits that not every act he is accused of is constitutionally protected, but he argues that his discharge is principally based on an impermissibly restrictive view of his First Amendment rights. Defendants argue that the Board of Regents acted within its lawful discretion in dismissing plaintiff for a series of unprofessional acts, and for speech which loses constitutional protection in that it amounts to a verbal act, or lacks professional restraint and accuracy.

The plaintiff having raised a constitutional issue, this Court must now make "an independent examination of the record . . . in order that the controlling legal principles may be applied to the actual facts in the case." Pickering v. Board of Education, 391 U. S. 563, 579, 88 S.Ct. 1731, 1740 Footnote 2, 20 L.Ed.2d 811. Great weight will be given to the findings of the Board of Regents where such findings were ". . . reached by correct procedures and supported by substantial evidence. . . ." Ferguson v. Thomas, 430 F.2d 852, 859 (5th Cir. 1970).

The record shows that on January 14, 1970, Professor Starsky absented himself from a regularly scheduled class at Arizona State University and attended a rally in front of the Administration Building at the University of Arizona, where he was one of eight or ten speakers protesting the arrest of certain students of the University of Arizona. The entire incident attracted a considerable amount of public attention, (Tr. Peek, 820 ln. 19-821 ln. 2) and undoubtedly was the incident which caused disciplinary actions to be initiated against the plaintiff.

The January 31, 1970 minutes of the Board of Regents show the following resolution:

The Arizona Board of Regents recognizes and supports the principle that when a faculty member speaks or writes as a private citizen, he should be free from institutional censorship or discipline. The Board is also mindful, however, that a faculty member's special position in the community imposes upon him the particular obligations and serious responsibilities of conducting his behavior and activities in the best interests of the university and his profession.

The Board instructs the President of Arizona State University to institute proceedings in accordance with due process and university procedures to recommend what appropriate disciplinary action, if any, should be taken in regard to Assistant Professor Morris J. Starsky including whether his appointment be renewed or terminated.

An Ad Hoc Committee was appointed consisting of Arizona State University professors. This Committee met, deliberated, and prepared a report.

On February 21, 1970, portions of the report of the Ad Hoc Committee were read at a meeting of the Board of Regents. The report³ recommended against instituting proceedings for dismissal as it ". . . does not have sufficient evidence to warrant formal proceedings concerning dismissal." The report included a letter from the local chapter of the American Association of University Professors, including the following statement:

Failure to meet a class even for an illegitimate reason is not in and of itself sufficient reason to recommend formal proceedings . . . .

The Board of Regents, nonetheless, voted to order that hearings be instituted. Pursuant to this order, the administration of the University drew up formal charges which were mailed to plaintiff on March 4, 1970. The Committee on Academic Freedom and Tenure (hereinafter called the Committee) was convened to preside over the hearings pertaining to these charges. Between March 24, 1970 and April 29, 1970, the Committee, consisting of six Arizona State University professors, held thirteen open hearings at which attorneys for both plaintiff and the administration examined twenty-one witnesses. The Committee spent in excess of 100 hours in work sessions.⁴ The Committee then filed a fourteen-page "Findings, Conclusions, and Recommendations."⁵

The charges against plaintiff are set forth in the transcript of the Committee's hearing. There is a "summary charge" stating in part that as measured by the American Association of University Professors (hereinafter called A.A.U.P.) 1940 Statement of Principles on Academic Freedom and Tenure, plaintiff has "failed to act responsibly as a member of the teaching profession, has willfully violated Regents' policies and University regulations, has not exercised appropriate restraint as becomes a university professor in his public activities . . ."

The A.A.U.P.'s principles by which the charges were to be judged are set forth as approved by the Board in its June 10, 1970 meeting:

The college or university teacher is a citizen, a member of a learned prosession, and an officer of an educational institution. When he speaks or writes as a citizen, he should be free from institutional censorship or discipline, but his special position in the community imposes special obligations. As a man of learning and an educational officer, he should remember that the public may judge his profession and his institution by his utterances. Hence he should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that he is not an institutional spokesman.

The "summary charge" is supported by five "general charges" and the "general charges" are supported by a number of "subcharges," eleven of which refer to specific incidents. Evidence was adduced as to eight of the specific instances. Of these eight, the Committee found that five of the charges were either unsubstantiated by the evidence or involved constitutionally protected conduct.

Charge I involves failure to exercise "appropriate restraint" in transmitting knowledge, and is supported by one incident of handing out a letter to faculty members on campus. The Committee found this incident ". . . within the area of free discussion . . . ."

Charge II states a failure to observe university regulations and is supported by evidence of two incidents—a cancellation of one class, and a speech at the University of Arizona.

The Committee found the class cutting a violation of University policy, but found that the speech did not violate A. A.U.P. standards.

Charge III involves failure to show respect for the opinions of others. It is supported by evidence of two incidents charging abusive speech to specific persons on campus and two incidents of public utterances. The Committee found as to the four incidents that (1) plaintiff was abusive to a Mr. Warren Sumners; (2) his remark concerning the engineering staff "does not constitute an insult by normal standards"; (3) he was "inaccurate as to a legal matter" in a television broadcast; and (4) a press release was constitutionally protected.

Charge IV alleges a breach of A.A.U. P. principles regarding student-faculty relations and is supported by evidence of one specific incident of having "urged and encouraged" students to occupy the Administration Building. The Committee found that "The...