Fluker v. Alabama State Board of Education

• Citation: 441 F.2d 201
• Decision Date: 31 March 1971
• Docket Number: No. 30670 Summary Calendar.,30670 Summary Calendar.
• Parties: Willie J. FLUKER and Richard L. Parsons, Plaintiffs-Appellants, v. ALABAMA STATE BOARD OF EDUCATION et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

441 F.2d 201 (1971)

Willie J. FLUKER and Richard L. Parsons, Plaintiffs-Appellants, v. ALABAMA STATE BOARD OF EDUCATION et al., Defendants-Appellees.

No. 30670 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

March 31, 1971.

Michael S. Lottman, Alexandria, Va., for plaintiffs-appellants.

Smith, Bowman, Thagard, Crook & Culpepper, T. W. Thagard, Jr., Gray, Seay & Langford, Fred D. Gray, Montgomery, Ala., for defendants-appellees.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

At the time this suit was filed in federal court, the appellants, Mr. Willie Fluker and Mr. Richard Parsons, were nontenured members of the faculty of Alabama State University, a state institution of higher learning. Fluker had been employed as a history instructor by the University for the 1968-69 school year under a one-year probationary contract, and was re-hired under a similar one-year contract for the 1969-70 school year. Parsons had been employed as an art instructor under the same terms and conditions and in the same years as Fluker. On December 15, 1969, the President of the University, Levi Watkins, informed each appellant by letter that his contract would not be renewed for the 1970-71 academic year. The President gave no reasons for his action.

Without requesting from President Watkins any hearing or explanation for the nonrenewal of their contracts,¹ Fluker and Parsons filed a section 1983 action² in federal district court for the Middle District of Alabama, alleging that their employment was being terminated because of their activities, associations and expressions of opinion, in violation of the First and Fourteenth Amendments to the Constitution; and that they had been given no notice of the charges against them and no hearing or opportunity to respond in any manner. On March 31, 1970, after a hearing on Fluker's and Parsons' allegations, the district court ordered the University to give Fluker and Parsons formal notice and specification of the charges against them and a hearing on those charges within thirty days. In its findings and conclusions, the court reserved the power to evaluate the adequacy of the University's procedures and to determine whether appellants' substantive constitutional rights had been violated, "if and when" a decision of those issues became necessary.³

Pursuant to the court's order, and on the same day it was entered, President Watkins notified Fluker and Parsons each by letter of the reasons for the nonrenewal of his teaching contract. These letters explained that the University wished to employ a person with a doctorate degree in its history department, and a person with a Master of Fine Arts MFA in its Art Department "in order to strengthen the faculties" in the History and Art Departments and "in order to comply with the standards of the Southern Association of Colleges and Schools." These letters went on to explain that "in order to make room for the persons coming, it would be necessary to terminate the services of one existing member" of each Department. Finally, the letters stated that a review of the training and experience of the History and Art faculties had revealed that Mr. Fluker was the only person who had not acquired tenure in the History Department and had been the last person employed in History; and that in the Art Department Mr. Parsons had not acquired tenure and had the least amount of teaching experience and training of anyone in that Department. These letters also invited Fluker and Parsons to attend a hearing on the proposed nonrenewal of their contracts, which hearing was scheduled for April 7, 1970.

The hearing was before the University's Advisory Committee on Faculty Personnel, which is composed of three professors elected by the faculty to hear faculty grievances. The parties were present and represented by counsel. All parties agreed by stipulation upon the procedure to be followed.⁴ These procedures included giving both parties the opportunity to make an opening statement, to present witnesses and to cross-examine opposing witnesses, to offer rebuttal evidence and to make closing statements. The lawyers on both sides agreed to avoid objecting to evidence as much as possible, so that the taking of testimony was subject to very few restrictions. In spite of the practically unlimited opportunity to present evidence at the hearing, however, the testimony from both sides was devoted almost entirely to the adequacy of the University's stated reasons for not reappointing Fluker and Parsons, with very little mention being made of any connection between Fluker's and Parsons' alleged first amendment activities and the University's action.⁵ The conclusion reached by the Committee in making its recommendation to President Watkins was as follows:

We, the Advisory Committee on Faculty Personnel, feel that the question is one of whether the President of the University and the Board of Education have a right by law to dismiss nontenured faculty members for the reasons presented in evidence today. If so, then this Committee feels that the issue of this controversy is beyond its power to render a judgment, therefore the Committee advises that the issues be resolved between plaintiffs and the administration or in a court of law.⁶

Upon receiving this opinion from the Advisory Committee, the President of the University notified Fluker and Parsons each by letter that the University's attorneys had advised him that the University did have a right to refuse to renew the contracts of nontenured faculty for the reasons presented in evidence at the faculty committee hearing. Therefore, the letters concluded, Fluker and Parsons would not be recommended for reappointment upon the expiration of their current contracts. Whereupon Fluker and Parsons returned to federal court pursuant to the district court's previous reservation of any remaining questions in the case.⁷

At the commencement of this second hearing before the district court the judge announced his intention to hear any "new additional testimony" that Fluker and Parsons had to present, but requested that they avoid reiteration of testimony presented before the Committee. At this point the attorney for the University objected, arguing that all the parties had been given a full opportunity to present all evidence on all issues in the case before the Faculty Advisory Committee, and that the hearing before the court should be limited to a review of the record made at the hearing. The district judge expressly denied the University's motion on this point and proceeded to conduct a full and independent hearing on the controversy.⁸ At the termination of the hearing, the court announced the following pertinent findings and conclusions:

"The evidence in the case reflects that the defendant, Levi Watkins, acting as President of the Alabama State University, on or about December 15, 1969, notified each of those plaintiffs in writing that they would not be reemployed as instructors or in any capacity with the University. No basis was given in that notification for the action taken by the school authorities. However, the evidence is clear — as a matter of fact, it is uncontroverted — that each of the plaintiffs were then officially put on notice that their contracts would not be renewed; that their probationary status would be terminated at the end of the second contract period.

"This Court finds further that each of the plaintiffs have been accorded, fully and completely, any and all procedural rights to which they were entitled. The Court further finds that, even though the plaintiffs occupied a probationary status, even though they did not have any tenure, they are entitled to their constitutional protections — particularly their right not to be punished or to have sanctions imposed upon them by reason of the exercise of their First Amendment rights.

"Another legal principle with which the Court must deal in this case is the hiring and the firing, employment or re-employment, and refusal to employ or re-employ, generally and basically must be vested in the school authorities. There is a factual basis presented to this Court in this case for the action taken by the defendants, acting through the President, Dr. Watkins, for terminating the employment of and for the failure and refusal to re-employ either of these plaintiffs, which basis does not violate any constitutional right vested in the plaintiffs. The evidence in the case convinces this Court that the action taken by the defendants was an altruistic or altruistically motivated action to strengthen the faculty; it was based upon educational and administrative sound principles and reasons as to both the plaintiff, Fluker, and the plaintiff, Parsons. More specifically, and particularly insofar as the plaintiff, Parsons, is concerned, the evidence in this case reflects there are four fulltime faculty members in the Art Department at the university — or there were at the time this action was taken. None of them had a Master in Fine Arts. The college officials considered it desirable to secure someone with an M.F.A., to be employed commencing with this next academic year. Parsons was the logical person to be selected for termination, since he had less teaching experience than anyone else in the department. He was on probationary status; it was not unreasonable to select him. Going to Fluker, in the History Department: The evidence reflects that at times pertinent here, there were six full-time faculty members in the History Department at the school. Only one of them had a doctorate. The university officials considered that it would be to their benefit — particularly now that they are being reappraised for accreditation by the Southern Association of Colleges and Schools — to secure another doctor in that department. The evidence reflects that it was expedient that someone be eliminated; that the staff be reduced for that purpose. ...