430 F.2d 939 (5th Cir. 1970), 28372, Sindermann v. Perry

Docket Nº:28372.
Citation:430 F.2d 939
Party Name:Robert P. SINDERMANN, for himself and others similarly situated, Plaintiff-Appellant, v. Charles R. PERRY et al., Defendants-Appellees.
Case Date:August 10, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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430 F.2d 939 (5th Cir. 1970)

Robert P. SINDERMANN, for himself and others similarly situated, Plaintiff-Appellant,


Charles R. PERRY et al., Defendants-Appellees.

No. 28372.

United States Court of Appeals, Fifth Circuit.

Aug. 10, 1970

Rehearing Denied Sept. 9, 1970.

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Warren Burnett, Odessa, Tex., Law Offices Burnett & Childs, Odessa, Tex., for plaintiff-appellant; by Richard J. Clarkson, Odessa, Tex., of counsel.

W. O. Shafer, Lucius D. Bunton, Raymond D. Wier, Shafer, Gilliland, Davis, Bunton & McCullom, Odessa, Tex., for appellees.

David Rubin, Deputy Gen. Counsel, National Education Association, Richard J. Medalie, Alvin Friedman, Epstein and Friedman, Washington, D.C., for the National Education Association.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

CLARK, Circuit Judge:

The court below disposed of this case by summary judgment but because we find that this case presents issues of constitutional law, the longest way around now proves to be the shortest way through the thicket. The Board of Regents of Odessa Junior College voted not to renew the employment contract of Professor Robert P. Sindermann. Sindermann filed suit in the district court alleging that the action of the Regents in refusing to offer him a new term of employment was based solely on his exercise of First and Fourteenth Amendment rights of expression, association and petition and alleging violations of due process in connection with this refusal. Finding the contract rights of the parties clear, the court granted a motion of defendants for summary judgment. Shortly after the summary judgment was appealed, this court decided Pred v. Bd. of Public Instruction, 415 F.2d 851 (5th Cir. 1969), which classifies the rights of persons circumstanced such as plaintiff as constitutional rather than contractual. Pred aligned this court with the 4th Circuit 1 and against the 10th Circuit 2 in this as yet unresolved conflict between circuits. This new development in decisional law, coming as it did after the decision of the court below, renders that court's summary judgment inappropriate and erroneous. We reverse for further development of the facts.


Professor Sindermann became a member of the Odessa College faculty in September 1965, after previous college teaching experience. By a succession of one-year contracts he remained a faculty member until the end of the 1968-69 school year. On May 19, 1969 the college

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president notified Sindermann that the Regents had voted to approve the president's recommendation not to renew his contract for 1969-70. Sixteen days later Sindermann filed the present action and contemporaneously with the instigation of litigation, requested that he be given a hearing by college authorities. Apparently no such hearing has been afforded.

During the 1969-70 school term no member of the Odessa College faculty had any formal assurance of continuation of employment beyond the present school term. 3

Shortly before official notice of the decision not to renew plaintiff's contract, the college issued an 11-page press release documenting the deterioration of its relationship with plaintiff. The highlights are reflected in this chronology from that document. The validity of Professor Sindermann's work with Odessa College was recognized by his nomination to be co-chairman of the Social Science Department with an increase in pay. As soon as he became co-chairman, he began to circularize lengthy letters to the members of his department. This resulted in his being dropped as co-chairman in the Fall of 1968 but with no corresponding reduction in salary. In February 1969 Sindermann was elected president of the Texas Junior College Teachers Association. 4 Sindermann accepted this office without consultation with any administrative officer of Odessa College and immediately requested student clerical help, a reduction in teaching load and time off during winter months to visit other junior colleges, which had not been true with former faculty members who served in this same office. Sindermann also aligned himself with a group known as 'The Committee to Elevate Odessa College', a group seeking to raise Odessa College to a 4-year status-- a move officially opposed by the Board of Regents. Plaintiff's name appeared as sponsoring a newspaper advertisement ridiculing the position taken by the Board of Regents on Odessa College's 4-year status. 5

On at least four occasions Sindermann requested permission from college officials to absent himself from the campus and his teaching duties in order to testify before committees of the Texas legislature on a bill relating to academic freedom and tenure. These requests were each refused but Professor Sindermann nevertheless attended the committee hearings. The press release concluded by quoting a telegram from Sindermann to a Senator which, in part, stated: 'I have been fired from Odessa College for attempting to testify on S.B. 512.' It noted however that Sindermann had not been officially advised that his contract would not be renewed. The letter of 'official' notification of non-renewal shortly followed the press release.


Sindermann's complaint alleged that his contract was not renewed in order to retaliate against him for expressions of opinion, that he was a competent classroom

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teacher, that he had not been offered an impartial hearing in connection with the non-renewal of his contract, that the action taken against him had a chilling effect on other professors at Odessa College, and that he had been damaged in his professional reputation and standing. He sought compensatory and punitive damages and attorneys fees, a declaratory judgment adjudicating that the Regents' action violated his constitutional rights and that he was entitled to a hearing under suggested procedural guidelines, and a mandatory injunction requiring his reinstatement for the 1969-70 college year at the same level of responsibility and function he had previously held. He named as defendants the members of the Board of Regents and the college president, individually and in their official capacity. The Board of Regents moved to dismiss the action insofar as they were sued in their official capacity. All defendants moved for summary judgment.

Only three affidavits were filed in the course of the pleadings. All were by the plaintiff, Sindermann. The first supported his motion for injunction, the second opposed summary judgment, the third verified the authenticity of the exhibits to his complaint. After denying the motion to dismiss, 6 the court granted defendants' motion for summary judgment on the basis of the findings and conclusions set out in the margin. 7


Pred v. Bd. of Public Instruction, supra, invalidates the basic legal premise of the Court's summary judgment. There we said:

'Equally unpersuasive is the related argument that since there is no constitutional right to public employment, school officials only allowed these teachers' contracts to expire, and thus they cannot be liable for a violation of any rights protected by § 1983. But in the posture of this case this misconceives the whole thrust of their claim. The right sought to be vindicated is not a contractual one, nor could it be since no right to reemployment existed. What is at stake is the vindication of constitutional rights-- the right not to be punished by the State or to suffer retaliation at its hand because a public employee persists in the exercise of First Amendment rights.' (415 F.2d at 856)

See also Orr v. Thorpe, 427 F.2d 1129 (5th Cir. 1970).

In a legally analogous situation, the Supreme Court has made it clear that even the broad discretion vested in a State government to fix municipal boundaries cannot be used as an instrument to circumvent constitutionally protected rights and that where constitutional wrongs are perpetrated in the guise of fixing city limits, the breadth of the legislative power being exercised provides no insulation from judicial correction. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).

The controlling effect of Pred is in nowise lessened by the circumstances in the case at bar that Sindermann requested

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permission to be absent from his teaching duties to exercise constitutional rights, that...

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