Alcorn v. Vaksman
| Decision Date | 12 May 1994 |
| Docket Number | No. 01-91-01406-CV,01-91-01406-CV |
| Citation | 877 S.W.2d 390 |
| Parties | 91 Ed. Law Rep. 1201 Dorothy J. ALCORN, John Ettling, Debbie Hanna, James H. Jones, C.F. Kendall II, James L. Ketelsen, Kenneth L. Lay, Xavier C. Lemond, Amos C. Miller, Jose Molina, James H. Pickering, R.E. Reamer, Don A. Sanders, Loyd S. Swenson, Jr., Stanley E. Siegel, James A. Tinsley, Richard L. Van Horn, and Sally N. Vaughn, Appellants, v. Fabian VAKSMAN, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Dan Morales, Will Pryor, Mary F. Keller, Jorge Vega, David W. Williams, Austin, for appellants.
David T. Lopez, Houston, for appellee.
Before OLIVER-PARROTT, C.J., and DUGGAN, O'CONNOR, WILSON, HEDGES and ANDELL, JJ., en banc.
The appellants and the appellee have filed motions for rehearing. We overrule the motions, withdraw our previous opinion, and issue this one in its place.
The appellee, Fabian Vaksman, sued the appellants, who are members of the board of regents of the University of Houston, the president of the University, and the dean, department chair, and members of the graduate committee that expelled him, for damages he alleged resulted from his dismissal from the University's doctoral program in history. Vaksman sued the regents and the president of the University in their official capacities, and the dean, department chair, and members of the graduate committee both individually and in their official capacities.
Trial was to the bench. The court found for Vaksman, awarded him actual damages and attorney's fees, and ordered that he be reinstated to the doctoral program.
The primary issues presented are whether state officers held liable only in their official capacities are protected by sovereign immunity from an award of money damages; whether legislative consent is required to sue the State for relief other than money damages for denial of state constitutional rights; whether legislative consent is needed to sue the State for money damages for breach of contract; and whether the evidence supports the trial judge's findings that Vaksman's expulsion was motivated by bad faith and ill will and violated his rights under the Texas Constitution to due process and freedom of speech. We hold that (1) state officers held liable only in their official capacities are immune from an award of money damages; (2) legislative consent is not required to sue state officials for nonmonetary relief for violation of state constitutional rights; (3) legislative consent is required to sue the State for monetary damages for breach of contract; and (4) the evidence supports the judge's findings.
Vaksman emigrated to the United States from Russia. He attended New York University, where he was awarded a master's degree in history. In 1982, he entered the University of Houston's doctoral program in American history. The program was taught by the University's history department, which was chaired by Professor John Ettling.
By 1984, Vaksman had completed all of the preliminary requirements for his doctorate, including course work, teaching assignments, and a comprehensive oral examination. He thus attained "ABD" status, signifying that he had completed the requirements for a doctorate "all but dissertation." Two professors were assigned to be Vaksman's dissertation advisors. Upon their resignation, Professor Clifford Egan was assigned. Vaksman was dismissed from the program in 1986.
Between his entering the program and his dismissal, Vaksman was outspoken about university policies and current political issues. He expressed his views in newspapers, both in articles and in letters to the editor. He appeared on radio talk shows, gave lectures, and spoke at seminars. Vaksman's targets included the Soviet Union, the History Department at the University of Houston, and the Athletic Department at the University. Examples of his outspokenness include the following:
* Vaksman criticized the Soviet Union's government as, among other things, oppressive.
* He criticized the expenditure of public funds by the Athletic Department, arguing that the funds would be better spent on academic pursuits.
* He alleged that the University improperly provided funds to students who had full-time jobs and to a student who was assisting the chancellor's wife in editing her dissertation thesis.
* He provoked a legislative inquiry into the allegedly improper use of funds by the University, and, specifically, by the History Department.
* He criticized apartheid-inspired United States sanctions against South Africa, writing that the sanctions should be ended because they were so weakening South Africa that Russia could get a foothold there, making the choice "apartheid or the KGB."
* He criticized the University for not maintaining a separate graduate faculty, arguing that a single faculty for both undergraduate and graduate students decreased the quality of the students' education.
* He criticized members of the History Department for allegedly violating the University's no-smoking policy.
* He criticized the University for not hiring more minority faculty members.
* He wrote a book, Ideological Struggle, that criticized the internal politics of the Soviet Union. The book was ultimately published and was criticized by some members of the History Department.
In 1986, Vaksman asked the graduate committee to allow him to change fields from American history to European history, provided that he could pass an oral examination in European history, and then to allow him to submit Ideological Struggle as his dissertation. The committee met in October to consider Vaksman's requests and also to consider Vaksman's appointment as a teaching or research assistant.
On October 28, 1986, the committee unanimously voted to dismiss Vaksman. Neither Professor Egan nor Vaksman had been notified that the committee was considering dismissing Vaksman.
Vaksman was notified of his dismissal by hand delivery of a letter the next day. The letter was signed by Professor James Jones, as coordinator of graduate studies, and stated as follows:
The Graduate Committee (all members present) met on October 28, 1986 to consider your request that you be permitted to change your major field of graduate study from American history to European history, with a concentration on Russian/Soviet history. As you know this was the second time this fall that the Graduate Committee has held a special meeting to consider a request by you, the first meeting occurring earlier this month to review your renewed request for financial assistance.
These two meetings have given the Graduate Committee an opportunity to review your progress and performance to date in the Ph.D. program. We have been deeply troubled by what we have learned from this review, for your graduate record reveals a pattern of academic problems that in our judgment cannot be ignored.
I regret to inform you that the Graduate Committee, after discussing your record thoroughly, decided in its meeting yesterday to turn down your request for permission to switch fields from American history to European history. In addition, and far more seriously, the Graduate Committee voted unanimously to dismiss you from our graduate program, effective immediately.
Several reasons prompted the Graduate Committee's decision to dismiss you from the program. First, the Graduate Committee noted that you have failed to make satisfactory progress toward completing the requirements for your degree since passing your comprehensive examinations more than two years ago. The record reveals that during this interlude you have suggested several different dissertation topics, each with a different director, and none of these topics has resulted in a substantial body of scholarly research and objective historical writing which the department could accept as constituting progress toward your degree. Indeed, the Graduate Committee was unanimous in its judgment that your written work to date raises serious doubts about whether you are capable of conducting original research and writing objective, scholarly history. In the Graduate Committee's view, your written work suggests that you are primarily a polemicist who substitutes political ideology for original research and scholarly analysis.
The Graduate Committee's second concern centered on your teaching. After reviewing the student comments in your file and comparing them with those of professors who have supervised you as a graduate teaching assistant, the Graduate Committee concluded that grave doubts exist about your ability to become a satisfactory classroom teacher. Your record to date suggest that your approach to teaching is essentially argumentative--that you view the classroom as a forum for persuading students to accept your views rather than a learning center where faculty and students alike attempt to understand the past on its own terms and reach well-informed, independent conclusions about history.
The graduate committee's third (and final) concern focused upon your professional conduct. Your record reveals that you have often found yourself in disagreement with the department's evaluation of your work and that you have consistently refused to accept the department's right to pass judgment on your academic performance. The members of the Graduate Committee therefore agreed that our department has nothing to teach you. In our judgment, you are unteachable.
You have the right to appeal your dismissal. Should you decide to exercise your right of appeal, please contact Dr. John Ettling, our department chairperson. He will explain your rights.
In May of 1987, Vaksman appealed the matter of his dismissal to four members of the graduate committee. Both Vaksman and Professor Egan appeared before these members. They declined to change their decision.
Vaksman then took the matter before a committee comprised of University faculty not from the ...
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