471 F.2d 488 (7th Cir. 1972), 72-1285, Hostrop v. Board of Junior College Dist. No. 515, Cook and Will Counties, and State of Ill.

Docket Nº:72-1285.
Citation:471 F.2d 488
Party Name:Richard W. HOSTROP, Plaintiff-Appellant, v. BOARD OF JUNIOR COLLEGE DISTRICT NO. 515, COUNTIES OF COOK AND WILL, AND STATE OF ILLINOIS, a body politic and corporate, et al., Defendants-Appellees.
Case Date:December 21, 1972
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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471 F.2d 488 (7th Cir. 1972)

Richard W. HOSTROP, Plaintiff-Appellant,

v.

BOARD OF JUNIOR COLLEGE DISTRICT NO. 515, COUNTIES OF COOK AND WILL, AND STATE OF ILLINOIS, a body politic and corporate, et al., Defendants-Appellees.

No. 72-1285.

United States Court of Appeals, Seventh Circuit.

December 21, 1972

Argued Nov. 1, 1972.

Page 489

Elmer Gertz, William Lee Carrier, Wayne B. Giampietro, Chicago, Ill., James Pappas, Chicago Heights, Ill., for plaintiff-appellant.

Bruce Mackey, Anthony Scariano, James C. Franczek, Chicago Heights, Ill., for defendants-appellees.

Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and PELL, Circuit Judge.

CASTLE, Senior Circuit Judge.

Appellant Richard W. Hostrop appeals the action of the district court dismissing his civil rights complaint against the Board of Junior College District No. 515 and its members for failure to state a claim upon which relief can be granted. The basic question on this appeal is whether the rights of free expression and procedural due process traditionally given to teachers and other public employees extend also to a college president who was hired to act as the direct agent of a school board.

Plaintiff Hostrop's complaint alleged the following facts, which we shall take as true for the purposes of this appeal. Hostrop was appointed President and chief administrative officer of Prairie State Junior College in Chicago Heights, Illinois by the defendants through a series of contracts which extended his tenure until June 30, 1972. 1 On May 25,

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1970, as part of his official duties, plaintiff prepared a confidential memorandum for circulation among his administrative staff which requested that the staff consider certain proposed changes in the college's ethnic studies program for discussion at the next staff meeting. After an unknown person made a copy of this memorandum public, certain defendants questioned Hostrop's right to make such a proposal and told him that it was a breach of his administrative duties and was not a matter of free expression. On July 13, 1970, plaintiff was summoned to the office of counsel which the Board had recently hired and told that he had the choice of resigning or taking the consequences of being fired. The publication of the memorandum was mentioned as being a prime reason for Hostrop's termination, although he was told that he would be fired without any notification of the charges against him. Ten days later the Board met and terminated Hostrop's contract without giving him any hearing or opportunity to speak in his defense. A list of charges that supposedly justified his termination was given to Hostrop some time later. 2

Plaintiff's complaint concluded that the alleged facts showed a deprivation of his right to free speech and a denial of due process of law, and asked that the court order the college to give him a full and complete hearing, enjoin the defendants from replacing him with another person as president, and declare that his dismissal violated his first amendment rights. A second count of the complaint alleged the same facts as the first count plus the facts that the defendants had violated the Illinois anti-secrecy statute and that the plaintiff had suffered both mental strain and financial loss because of the defendants' conduct. This count asked for recovery of actual damages of $100,000 and punitive damages of $500,000.

The district court dismissed the complaint for failure to state a claim upon which relief can be granted, 3 Hostrop v. Board of Junior College District No. 515, 337 F.Supp. 977 (N.D.Ill.1972), finding that Hostrop's position as a college president directly responsible to the Board required that he be loyal to the Board and maintain its confidence in him as conditions of his continued employment. Reasoning from a remark in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), that first amendment rights of persons in personal and intimate working relationships with their superiors may be restricted, the court found that Dr. Hostrop's position vis-a›2‹-vis the Board required that his right to make public statements or to disagree with the Board be limited. 337 F.Supp. at 978-979. Applying the test of Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), to balance the interests of the Board against those of Dr. Hostrop, the court found that the need of the Board to have wide

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discretion in deciding to fire its presidents without asserting reasons outweighed any need of the plaintiff to know the reasons for his dismissal and any harm to his professional career. 337 F.Supp. at 980.

Initially, we note that the disposition of a motion to dismiss for failure to state a claim in a case such as this one is an extremely difficult task. As the district court recognized, resolution of the issues requires an analysis of the working relationship between Dr. Hostrop and the Board and a balancing of the various competing interests of each. Unfortunately, the record at this stage of the litigation does not clearly define the working relationship between the parties. It does not indicate how closely Hostrop had to follow the dictates of the Board-how often he met with the Board, how much power he had to formulate educational policy with the Board's blanket approval, or whether he had any ability to debate Board members on certain issues that would be decided by a vote of the Board. A consideration of these factors would indicate more clearly whether Hostrop's right to make his recommendations or to disagree with the Board had to be limited, as the district court asserted, "[i]n order for the working relationship between them to be effective." Similarly, the record does not identify the nature of the competing interests or the extent to which they are irreconcilable-how a hearing procedure would interfere with the discretion of the Board in hiring and firing personnel, whether other administrators were granted hearings before action was taken against them, and what the effects of the hearings given others actually were. With these shortcomings in the record in mind, we turn to the allegations of the complaint.

I. Preparation of the Memorandum As a Ground for Discharge

Plaintiff argues on this appeal that the protections that have traditionally been given to the speech and associations of academicians 4 should extend also to his circulation of the ethnic studies memorandum. It is true that the judiciary has steadfastly construed the concept of freedom of expression broadly as a means of prompting vigorous, robust debate, 5 and that it has consistently rejected attempts to formulate absolute rules which would restrict the first amendment rights of whole classes of individuals, whether they be students, 6 campus speakers, 7 school newspaper editors, 8 student organizers, 9 or teachers. 10 Against this commitment to academic freedom, defendants are asking this court to excise a class of academic personnel who will have no first amendment rights.

Defendants argue that college administrators like Dr. Hostrop can be discharged whenever they circulate proposals that might offend the sensibilities of the Boards that hired them...

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