Duke v. North Texas State University

Decision Date10 January 1973
Docket NumberNo. 71-3198.,71-3198.
Citation469 F.2d 829
PartiesElizabeth Anna DUKE, Plaintiff-Appellee, v. NORTH TEXAS STATE UNIVERSITY, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

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Crawford C. Martin, Atty. Gen., W. O. Shultz, II, Asst. Atty. Gen., Austin, Tex., Lucius Bunton, Odessa, Tex., James C. McCoy, Asst. Atty. Gen., Austin, Tex., for defendants-appellants.

Sylvia M. Demarest, San Antonio, Tex., Edward Bradbury Cloutman, III, Dallas, Tex., for plaintiff-appellee.

Before AINSWORTH, GODBOLD and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 10, 1973.

AINSWORTH, Circuit Judge:

Mrs. Elizabeth Anna Duke filed this complaint on May 13, 1971, against North Texas State University1 pursuant to 42 U.S.C. §§ 19812 and 19833, alleging that the University violated her First, Fifth and Fourteenth Amendment rights pertaining to freedom of speech and due process of law when it withdrew an offer to employ her as a teaching assistant for the academic year of 1970-71. After a hearing, the District Court, 338 F.Supp. 990, entered a preliminary injunction on September 1, 1971, ordering defendants to reinstate Mrs. Duke as a teaching assistant. We reverse.

Mrs. Duke received notice of her termination as well as the reasons for termination in a letter dated August 25, 1970, from the Acting President of the University, John L. Carter, Jr. The letter gave her an opportunity for an administrative hearing before the President's Cabinet, which consisted of Mr. Carter and three vice presidents of the University. She took advantage of the opportunity. At the hearing held on September 23, 1970, Mrs. Duke was present and represented by counsel and the University was represented by an Assistant Attorney General of the State of Texas. The parties presented evidence and cross-examined witnesses. Following the hearing, the President's Cabinet decided not to rehire Mrs. Duke and entered written findings as follows:

"On the evenings of July 30, 1970, and August 3, 1970, Mrs. Elizabeth Duke appeared before and made an address to an unauthorized and unsponsored group meeting in the park on the campus of North Texas State University. Mrs. Elizabeth Duke participated in the organization of such meetings and in distributing leaflets announcing such meetings which were a planned effort to bring a subculture group into the official orientation program of the University.

"The audience which Mrs. Elizabeth Duke addressed upon these two occasions included persons who had been enrolled as students in prior semesters at the University as well as persons who would be freshmen students at the fall semester of 1970.

"During the course of her address to the crowd on both occasions Mrs. Elizabeth Duke used profane and obscene language. Her statements discredited the University administration and the governing board of the University and were critical of the manner in which the University is operated and maintained.

"The withdrawal of the offer to employ Mrs. Elizabeth Duke as a teaching assistant for the academic year beginning in September of 1970 is sustained by the President's Cabinet for the following reasons:

1. By assisting in organizing and appearing upon the program at the meetings held in violation of the rules and regulations of the University upon the campus of North Texas State University on the evenings of July 30, 1970, and August 3, 1970, Mrs. Elizabeth Duke demonstrated an unwillingness on her part to respect and abide by the rules and regulations of the University and further encouraged and caused members of the student body to violate such rules and regulations.

2. The actions and statements of Mrs. Elizabeth Duke demonstrate a lack of academic responsibility required by Section II of the Statement on Academic Freedom at North Texas State University, in that: (a) her actions and statements before a group of students and her participation in meetings which violates the rules and regulations of the University impair her efficiency as a teacher and her judgment as a scholar, and (b) by her actions and statements upon the occasions in question, Mrs. Elizabeth Duke failed to recognize and appreciate that the public will judge North Texas State University and its teaching faculty by such statements and actions, thereby demonstrating the lack of professional integrity required of the teaching faculty at North Texas State University.

3. The fact that Mrs. Elizabeth Duke did not enroll for at least six semester hours at the fall semester of 1970 at North Texas State University fails to comply with the requirements of North Texas State University concerning teaching assistant positions, as was set forth in the written offer to her.

"The President's Cabinet fully recognizes and appreciates the right of freedom of speech and of association which is accorded to Mrs. Elizabeth Duke by the Constitution of the United States. However, her rights of speech and association must be balanced against the interest of the University in promoting and maintaining an efficient university and a faculty which commands the respect of the student body and the community. The record before the President's Cabinet demonstrates that Mrs. Elizabeth Duke has exercised her rights of speech and association in a manner and to an extent such as to seriously impair, if not destroy, her effectiveness as an instructor in the organized academic program at North Texas State University.

"The President's Cabinet considers each of the foregoing, considered separately and apart, as sufficient cause for the withdrawal of the offer to Mrs. Elizabeth Duke to be a teaching assistant at North Texas State University for the academic year commencing September, 1970."

Mrs. Duke appealed the decision of the President's Cabinet to the Board of Regents, the governing body of the University. On February 26, 1971, the Board reviewed the decision of the Cabinet. Mrs. Duke spoke to the Board on her own behalf; in addition, her attorney argued orally and submitted a brief of legal authority. When the Board sustained the findings and action of the Cabinet, Mrs. Duke prosecuted this action in District Court.

In Ferguson v. Thomas, 5 Cir., 1970, 430 F.2d 852, 856,4 we held that a teacher with an expectancy of reemployment is entitled to certain minimal procedural guarantees, including the availability of "a tribunal that both possesses some academic expertise and has an apparent impartiality toward the charges. (Note the dictum in Pickering v. Board of Education, 391 U.S. 563, at 578, n. 2, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)." In the present case the District Judge concluded that "the University satisfied each minimal procedural standard except the standard requiring the reviewing tribunal to possess an apparent impartiality toward the charges." The District Court reasoned as follows:

"Acting President Carter in his letter of August 25, 1970, informing plaintiff of her dismissal, stated that he was acting at the direction of the Board of Regents. Thus the Board had already made its position in the Duke affair known prior to the September 23 hearing before the President\'s Cabinet. It is, of course, possible that one in the position of Acting President Carter would be free, contrary to the expressed wishes of his employer, to act as his conscience directed after hearing plaintiff\'s presentation of her case; but such is not the common understanding of such situations. At any rate, the atmosphere of apparent impartiality is far from being preserved. Acting President Carter\'s presence on the Cabinet would alone be enough to violate procedural due process, but it also appears that the remaining three members of the cabinet were, like Mr. Carter, University administrative officers directly responsible to the Board of Regents.
Under these circumstances, the court cannot rule that the Cabinet possessed apparent impartiality toward the charges."

(Appendix, pp. 50, 51.) The record does not demonstrate actual partiality on the part of the President's Cabinet or any of its individual members despite Mrs. Duke's reference to the testimony of Clovis Clyde Morrisson, Jr., a Professor of Political Science. Professor Morrisson testified that his promotion from associate to full professor, as he understood it, was denied by the Board of Regents for reasons which bore in part a relation to his activities in the Duke matter. The promotion was denied despite the recommendation by his department, his Dean, and the Academic Vice President. Mrs. Duke argues that on the basis of the reprisal, "It thus becomes apparent that those under the employ of the Board of Regents at NTSU who go against the wishes of the Board can expect to be dealt with without mercy." In our view plaintiff's evidence relative to lack of impartiality of the President's Cabinet is inconclusive. The President's Cabinet cannot be deemed biased simply because the Board of Regents passed over Professor Morrisson for promotion. In the absence of evidence to the contrary, we must assume therefore that the Acting President and vice presidents acted independently and properly in these circumstances.

We decline to establish a per se rule that would disqualify administrative hearing bodies such as the President's Cabinet from hearing internal university matters solely for the reason that the members are employees of the Board and because some of them participated in the initial investigation of the incident and initiation of the cause under consideration. See Federal Trade Comm'n. v. Cement Institute, 333 U.S. 683, 702, 68 S.Ct. 793, 804, 92 L.Ed. 1010 (1948) (no denial of due process when commission expressed a view on the issue in advance of the case); French v. Bashful, 5 Cir., 1970, 425 F.2d 182, 184; Wasson v. Trowbridge, 2 Cir., 1967, 382 F.2d 807, 813; Jones v. State Bd. of Educ., M.D.Tenn., 1968, 279 F. Supp....

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