Duke v. North Texas State University
Decision Date | 10 January 1973 |
Docket Number | No. 71-3198.,71-3198. |
Citation | 469 F.2d 829 |
Parties | Elizabeth Anna DUKE, Plaintiff-Appellee, v. NORTH TEXAS STATE UNIVERSITY, et al., Defendants-Appellants. |
Court | U.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.
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:
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.
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 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:
(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) ( ); 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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