Greene v. Howard University
| Citation | 412 F.2d 1128 |
| Decision Date | 17 June 1969 |
| Docket Number | No. 21267,21268.,21267 |
| Parties | JeRoyd W. GREENE et al., Appellants, v. HOWARD UNIVERSITY, a Corporation, Appellee. Nathan HARE, Appellant, v. HOWARD UNIVERSITY, a Corporation, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Mr. Richard M. Millman, Washington, D. C., for faculty appellants in No. 21,267 and appellant in No. 21,268.
Mr. Dorsey Edward Lane, with whom Mr. George E. C. Hayes, Washington, D. C., was on the brief, for appellee.
Before BURGER, WRIGHT and McGOWAN, Circuit Judges.
This appeal is from the denial by the District Court of motions for a preliminary injunction. 271 F.Supp. 609 (1967). One group of appellants consists of four persons who were students at Howard University in the spring of 1967 when serious disturbances occurred on the campus. The second is made up of five faculty members holding non-tenured positions at that time. After making an investigation which purported to find both groups actively involved in the disorders, the University, without according them a hearing of any kind although one was requested, terminated the connection of both student and faculty appellants with the school as of the close of the academic year on June 30.1 Actions were brought by these student and faculty groups to restrain the University from interfering with the relationships between them and the University. We hold that (1) the litigation has become moot as to the student appellants, and (2) the faculty appellants have stated a cause of action which, upon proof of monetary damage, would entitle them to relief of that nature.
Upon noticing an appeal in this court, the student appellants, seeking to continue as students in the University, moved alternatively for summary reversal or for an injunction pending appeal. A division of this court directed the University to permit the movants to reenroll pending disposition of the appeal or further order of the court, and held the request for summary reversal in abeyance pending consideration by the University of the possibility of affording these appellants a hearing.
The University promptly complied with the direction to permit continuation by the student appellants in the University. It now appears that, of these appellants, one voluntarily chose to continue his studies at another institution, two have graduated from Howard and received their diplomas, and the fourth is currently enrolled and will in due course, assuming no academic or other disqualification, graduate also. At oral argument it was represented to us by counsel for Howard that this student would be permitted to finish his studies no matter what our decision might be.
Thus it appears that the student appellants, seeking the remedy of an opportunity to pursue their studies at Howard, have in fact received that remedy. This lawsuit has, accordingly, lost its adversary character and is no longer meaningful in terms of the actual controversies which courts exist to resolve.
In terminating this aspect of the litigation, we are not unmindful that this episode might conceivably have collateral consequences for the students of an adverse character. The student appellants, however, have made no representations to us of any such consequences as militating against our disposition of their appeal as moot. Compare Scoggin v. Lincoln Univ., 291 F.Supp. 161, 170-171 (W.D.Mo.1968). It also appears from the record that the University was, even prior to our earlier direction for reenrollment pendente lite, making every effort to limit the adverse inferences which might be drawn from its action in informing appellants that they must seek their schooling elsewhere after the close of the 1967 spring semester. The University's Dean testified as follows in characterization of that action:
It was also represented to us at oral argument by counsel for the University that one of the student appellants was accepted for admission to the Law School of the University after the temporary ban upon his continuing his undergraduate course of study. The fact that the University has invited the disposition of mootness places a responsibility upon it to negate so far as possible adverse consequences of the kind here in contemplation, and we have no reason to doubt the University's sensitivity to this consideration.
Counsel for Howard at oral argument stated his belief to be that there was no reflection in the students' official transcripts of the temporary prohibition of their reaffiliation with the University for the new academic year, but was unable to give final assurances on this score for lack of personal knowledge. Under these circumstances our dismissal for mootness, which the University at oral argument affirmatively sought, is conditioned upon the complete effacement from the University records of these appellants of any reference, if such there now be, to the hiatus in the relationship which the University purported to have effected during the few weeks between June 30, 1967, and the University's compliance with the court's order of September 8, 1967. Our order will make appropriate provision for such expungement wherever necessary.
The teacher appellants also sought summary reversal or an injunction pending appeal; and the division of the court referred to above denied the latter while holding the former in abeyance "pending consideration by appellee of granting said appellants a hearing." By a petition for rehearing en banc, the University challenged this action of the division, but the petition was denied. Thereafter the University reported to the court its decision to permit the student appellants to reenroll, but to deny the teacher appellants either a hearing or reinstatement. This prompted the latter to renew their motions for summary reversal, but they were denied by the division in an order which said:
"Notwithstanding the substantial question whether the requested hearings are required, we deny the motions for summary reversal and immediate reinstatement since we think appellant faculty members have an adequate remedy at law. * * *"
This distinction drawn by the motions panel between the students and the faculty members in terms of adequacy of the remedies at law available to the latter was, we think, well taken. It reflects, among other things, the fact that, unlike the students, an employment relationship rooted in contract existed between the faculty members and the University; and we note that the complaints filed in the District Court on behalf of the teachers purport to state a cause of action sounding in contract as well as in a deprivation of constitutional right. Since we think that, if entitled to prevail under either approach, the appropriate remedy on this record is legal in character, we address ourselves in the first instance to the non-constitutional ground.
We conclude that the contractual relationships existing here, when viewed against the regulations prescribed for, and the practices customarily followed in, their administration, required the University in the special circumstances here involved to afford the teachers an opportunity to be heard. The University's failure to do so gives the teachers the privilege in the District Court of proving and recovering the damages, if any, caused each of them by the non-renewal of their contracts; and we remand to the District Court for this purpose.2
The teacher appellants had not achieved a tenure status and thus, in the familiar academic tradition, the renewal of their appointments was at the University's pleasure. They do not now challenge the general applicability of this principle. Instead, they assert that the University failed in its obligation, incident to their contracts, to give the appropriate advance notice of non-renewal. They point out that, far from having given such notice, the University explicitly refrained from doing so under circumstances which warranted appellants in entertaining and acting upon the clear expectations that their reappointments would be forthcoming. In these conditions, say appellants, irrespective of the generally unqualified nature of the University's power to determine whether non-tenure teachers shall continue beyond their appointed terms, the University was required, if it gave a last-minute notice of non-renewal because of alleged campus misconduct, to allow appellants to be heard on those charges before making them the occasion of non-renewal.
It is helpful in this regard to examine the relevant sections of the Faculty Handbook, a manual which governs the relationship between faculty members and the University.3 Section VIII states the normal University practice with respect to dismissals:
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