Allen v. Lewis-Clark State College

• Citation: 105 Idaho 447,670 P.2d 854
• Decision Date: 28 September 1983
• Docket Number: LEWIS-CLARK,No. 14072,14072
• Parties: , 14 Ed. Law Rep. 168 Herbert ALLEN, Appellant, v.STATE COLLEGE, State Board of Education, State of Idaho, Respondents.
• Court: United States State Supreme Court of Idaho

Page 854

670 P.2d 854

105 Idaho 447, 14 Ed. Law Rep. 168

Herbert ALLEN, Appellant, v. LEWIS-CLARK STATE COLLEGE, State Board of Education, State of Idaho, Respondents.

No. 14072.

Supreme Court of Idaho.

Sept. 28, 1983.

Merlyn W. Clark and P. Mark Thompson, Boise, for appellant.

Robert P. Brown, Lewiston, Jim Jones, Atty. Gen., Steven W. Berenter, Deputy Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for respondents.

BISTLINE, Justice.

This case involves an appeal from a decision of the State Board of Education upholding the discharge of the appellant Herbert Allen from his employment as chief of campus security at Lewis-Clark State College (LCSC) in Lewiston, Idaho.

Mr. Allen was employed part-time as chief of campus security at LCSC from 1972 until his discharge on September 12, 1978. During that time, Mr. Allen was also employed by LCSC as a full-time tenured faculty member in the police officer training program. As chief of campus security, Mr. Allen was responsible for the overall coordination of campus security and the supervision of security personnel. In this capacity, Mr. Allen worked directly with and under Dr. Lee Vickers, president of LCSC.

Mr. Allen was terminated from his part-time position after making public statements during a campus and community controversy over whether student security officers should continue to carry firearms. The question of whether campus security personnel should be allowed to carry firearms had been a controversial issue for many years. However, in 1978 local and state law enforcement agencies declined to commission the campus security personnel so as to give them official authority as law enforcement officers. Because this created a potential problem of liability for the college, President Vickers determined that the security personnel would not be permitted to carry firearms. Although Mr. Allen did not agree with this decision, he followed the president's directions and attempted to implement the new policy. However, the student security officers refused to work without their weapons.

On Saturday, September 9, 1978, an article appeared in the Lewiston Morning Tribune regarding the situation. Mr. Allen was quoted as making the following statement:

"I don't believe anybody should shoot anybody. I'm against killing anything or anybody unless it's necessary to save a life. But let's face reality--there are murderers, rapists and burglars around. Somebody's got to defend the rest of the population."

Later in the same article he was quoted as follows:

"They're professionals.... There's three or four colored guys on campus from California who have been hassling the officers a little bit. It doesn't bother them. They can handle it."

Mr. Allen claims that the news article omitted a portion of his statement when quoting his remarks about and reference to perpetrators of crime, and that he did not intend to refer to persons on campus:

"A newspaper reporter and photographer appeared at [Mr. Allen's] office on Friday afternoon and requested an interview. During the interview, he was asked why the officers needed guns. He informed the reporter that when you have a large population, there are 'murders, rapists, and burglars around, and that somebody (police or security officers) has to defend the rest of the population.' The news article, as indicated by the hyphen after the word 'reality' omitted the reference to the 'large population' when quoting his remarks and reference to perpetrators of crimes. Appellant did not intend to refer to, nor did he limit his remarks to persons on campus."

Appellant's Brief, p. 7.

Furthermore, Allen claims that the second quotation was taken out of context. He claims that in answer to a question regarding recent incidents on campus he stated that the best example that came to mind was a report from an officer that "three or four colored guys from California" had "hassled" a security officer while on patrol near the gymnasium, but that it was nothing serious.

The article generated adverse reactions on campus, particularly among the small number of black students at LCSC (eight or nine), some of whom felt they had been singled out and equated with murderers, rapists and robbers. In addition, some controversy arose over Allen's use of the term "colored." On the day the article appeared, the LCSC student body president telephoned Mr. Allen and informed him that his remarks were causing problems. Later that day Mr. Allen returned a call to the Tribune and discussed the situation with someone who Mr. Allen claims he did not know was a reporter. On Sunday, September 10, 1978, another article appeared in the Tribune, containing Mr. Allen's explanation of the earlier article.

"Allen told the Tribune Saturday that he wasn't singling out the blacks as trouble for the security officers, but just citing the latest incident where officers have received some harassment from students.

"As for using the term 'colored,' Allen said he was 'raised in the South, where we called the good ones colored and the bad ones niggers.' "

This explanation exacerbated the situation and generated extreme adverse reactions on campus and in the community. Mr. Allen has not alleged that he was misquoted in the second article.

On Monday, September 11, President Vickers summoned Mr. Allen to his office. President Vickers informed Mr. Allen that his actions had created an embarrassment to the school and stated that he should make a public apology. Mr. Allen in turn stated that he had done nothing wrong and declined to apologize. At the end of a conversation which lasted approximately twenty to thirty minutes, President Vickers advised Mr. Allen that if he did not apologize he would have the option of resigning or being terminated. When Mr. Allen refused to resign, President Vickers fired him. On September 12, the day following Mr. Allen's dismissal, President Vickers gave Mr. Allen a letter informing him that he had been relieved of his duties as chief of campus security, effective September 11, 1978. The letter provided in part:

"Individuals in this capacity must reflect through their attitude and their actions a posture that is congruent with an institution of higher education, i.e., Lewis-Clark State College. Since your recent actions have been detrimental to the image of the institution and since, as you indicated in our conversation on Monday, you are not willing to modify your position in an attempt to rectify the situation, I feel compelled to take this action."

Thereafter Mr. Allen notified President Vickers of his wish to appeal his dismissal, and a faculty administrative hearing board was convened to review the dismissal and make a recommendation. A hearing was held on October 9, 1978, at which time Allen appeared before the hearing board, was represented by counsel, and was given the opportunity to present evidence and to cross-examine witnesses presented by the college. The written decision of the hearing board, which was issued on October 10, 1978, stated:

"That this Administrative Hearing Board recommend to President Vickers that Herbert Allen be reinstated as Chief of Campus Security provided Mr. Allen express publicly suitable regrets for the unfortunate situation which has developed."

President Vickers took the hearing board's recommendation under advisement, and on October 12, issued a memorandum rejecting the recommendation: "After considering your recommendation, I feel that I must reject it on the basis that forced 'publicly suitable regrets' at this point in time would be perfunctory, insincere and without credibility." At the time President Vickers issued the memorandum he had received no word from Mr. Allen regarding his willingness to comply with the board's recommendation. However, on that same date Mr. Allen had written a letter expressing his regrets regarding the situation and stating that it was not his practice to discriminate against any minority in his job or in his personal life. The letter was sent to President Vickers, the Governor, the Board of Education, members of the hearing board, and the Tribune. President Vickers later testified that he did not wait for a response from Mr. Allen to the hearing board's memorandum because he considered any apology to be too late and he stated that he would not have changed his mind even if he had known of the letter. ¹

In a letter to the State Board of Education, dated October 20, 1978, Mr. Allen requested a formal hearing. The request was granted and Michael McNichols was appointed by the Board to serve as the hearing officer. A hearing was held before Mr. McNichols on December 13, 1978, at which testimony was submitted in support of and in opposition to the termination. At the close of the hearing, Mr. McNichols indicated that he thought President Vickers' determination of good cause was supported by the evidence, but that he had reservations on the first amendment and due process issues. Mr. McNichols issued his opinion and recommendation to the Board on May 8, 1979. The opinion concluded: (1) that the procedures required by Section 513.59 of the Personnel Policies of the State Board of Education were not followed in Mr. Allen's case; (2) that Mr. Allen had a property right in this employment, the existence of which entitled him to be afforded due process of law and that due process was not provided; and (3) that Mr. Allen's discharge was based, in part, on the constitutionally impermissible ground of his exercise of his right to free speech. Based upon these conclusions Mr. McNichols recommended that "Lewis-Clark State College pay to Mr. Allen the sums of money Mr. Allen would have otherwise been paid under the terms of his contract, less any sums earned by Mr Allen in place of his earnings under the contract." No recommendation was made relative to reinstatement of Mr. Allen.

Following the issuance of the hearing officer's opinion, the matter was submitted to the State Board...