Carley v. Arizona Bd. of Regents, 1

• Decision Date: 26 February 1987
• Docket Number: No. 1,CA-CIV,1
• Citation: 153 Ariz. 461,737 P.2d 1099
• Parties: , 39 Ed. Law Rep. 1294 Denny CARLEY, Plaintiff-Appellant, v. ARIZONA BOARD OF REGENTS and Eugene M. Hughes, President of Northern Arizona University, Defendants-Appellees. 8873.
• Court: Arizona Court of Appeals

Page 1099

737 P.2d 1099

153 Ariz. 461, 39 Ed. Law Rep. 1294

Denny CARLEY, Plaintiff-Appellant, v. ARIZONA BOARD OF REGENTS and Eugene M. Hughes, President of Northern Arizona University, Defendants-Appellees.

No. 1 CA-CIV 8873.

Court of Appeals of Arizona Division 1, Department D.

Feb. 26, 1987.

Review Denied May 27, 1987.

Bendheim & Mote, P.C. by Theodore D. Mote, Phoenix, for plaintiff-appellant.

Mangum, Wall, Stoops & Warden by A. Dean Pickett, Flagstaff, for defendants-appellees.

OPINION

EUBANK, Presiding Judge.

This appeal is from a superior court judgment affirming a decision of Northern Arizona University President Eugene M. Hughes to deny the renewal of a teaching contract to the appellant Denny Carley. Carley raises the following issues on appeal: (1) whether his right to academic freedom was violated because student evaluations were utilized as the primary tool to determine his teaching effectiveness, (2) whether President Hughes abused his discretion by rejecting the findings of the majority of the Academic Freedom and Tenure Committee and (3) whether there was substantial evidence to support the President's decision. We find no infringement upon Carley's right to academic freedom and further find that President Hughes' decision was not an abuse of discretion and is supported by the record.

FACTS

In 1983-84 Carley was in his fifth year as an untenured assistant professor of art at Northern Arizona University (NAU). The Art Department Committee on Faculty Status reviewed material supplied by Carley in support of his request for continued retention and in addition considered several years of student evaluations. By a three-to-two vote, the committee recommended that Carley not be retained as a faculty member.

In accordance with university policies, the Art Department chairman, Dr. Don Bendel, reviewed the committee's recommendation and made his recommendation to Dr. Charles Aurand, Dean of the College of Creative Arts. Dr. Bendel disagreed with the committee and recommended that Carley be retained. Dr. Aurand then made a recommendation that Carley not be retained to Dr. Joseph W. Cox, Vice-President for Academic Affairs. Dr. Cox in turn recommended that President Hughes uphold the recommendations of the Art Department Committee on Faculty Status and Dean Aurand not to retain Carley. On May 29, 1984, President Hughes concurred in the recommendations for non-retention and informed Carley that he was being offered a terminal contract for the 1984-85 academic year.

Carley requested that Dr. Hughes review his decision. He was subsequently informed that Dr. Hughes had made his review and reaffirmed his original decision. Carley then appealed Dr. Hughes' decision to the NAU Committee on Academic Freedom and Tenure alleging violations of his constitutional rights to freedom of speech, press, association, academic freedom and substantive due process.

The Academic Freedom and Tenure Committee met on February 2 and 3, 1985, and by a six-to-three vote found that Carley's rights to academic freedom and due process had been violated and recommended that he be retained in his position at NAU. Both the majority and minority reports of the committee were submitted to President Hughes. President Hughes reviewed these reports and in addition considered a legal opinion from the Board of Regents' counsel, memoranda from counsel for NAU and counsel for Carley, and a transcript of Carley's hearing before the Committee on Academic Freedom and Tenure. He adopted the findings of the minority report and again reaffirmed his decision that Carley's contract for 1984-85 was a terminal contract.

Carley filed a complaint in superior court pursuant to A.R.S. § 12-901 et seq., the Administrative Review Act. The superior court upheld the administrative decision and Carley filed a notice of appeal to this court.

SCOPE OF REVIEW

Pursuant to A.R.S. § 12-901 et seq., the trial court's review of President Hughes' decision was limited to determining whether he acted arbitrarily, capriciously or in abuse of his discretion. DeGroot v. Arizona Racing Comm'n, 141 Ariz. 331, 686 P.2d 1301 (App.1984); Schmitz v. Arizona State Board of Dental Examiners, 141 Ariz. 37, 684 P.2d 918 (App.1984). On appeal this court must determine whether the record contains evidence to support the trial However, both the trial court and this court are free to draw their own legal conclusions and decide whether an agency erred in its determination of the law. Arizona Department of Economic Security v. Magma Copper Co., 125 Ariz. 23, 607 P.2d 6 (1980); Eshelman v. Blubaum, 114 Ariz. 376, 560 P.2d 1283 (App.1977). We may substitute our judgment for administrative conclusions regarding the legal effect of its factual findings. Gardiner v. Arizona Department of Economic Security, 127 Ariz. 603, 623 P.2d 33 (App.1981). Therefore, we may decide independently whether the utilization of student evaluation forms critical of Carley's teaching methods as a basis for nonrenewal violated Carley's first amendment rights as a matter of law.

[153 Ariz. 463] court's judgment and, in so doing, reach the underlying question of whether President Hughes acted arbitrarily, capriciously, or in abuse of his discretion. Maricopa County v. Gottsponer, 150 Ariz. 367, 723 P.2d 716 (App.1986). In the resolution of factual issues, this standard requires us to determine whether there was substantial evidence to support the decision. Webster v. State Board of Regents, 123 Ariz. 363, 599 P.2d 816 (App.1979). If two inconsistent factual conclusions could be supported by the record, then there is substantial evidence to support an administrative decision that elects either conclusion. Id.

ACADEMIC FREEDOM

Carley's basic premise is that he was engaged in a constitutionally protected activity and that this activity was a motivating factor in the university's decision not to rehire him. He contends that the university must show that he would have been terminated notwithstanding the protected activity, citing Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

The activities which Carley identifies as "protected speech" are his teaching methods. He characterizes himself as being a "demanding teacher contrary to some student expectations" and represents one of his teaching methods as frequently leaving his classes unattended during appointed meeting times in order to teach students to be more self-reliant. He further describes his methods as emphasizing independent student work in order to reflect the expectations which students will encounter in the business world. Carley contends that, because student evaluations were critical of those methods, the students are challenging his exercise of academic freedom. Thus, he concludes that the student evaluations cannot be used as the primary basis for failing to renew his contract because they infringe on a protected activity.

Carley cites several cases in support of his contention that teaching methodology is part of his "academic freedom" right. However, our review of the cases indicates that each involved conduct closely identified with speech content rather than teaching methods.

For example, Carley relies on Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), in which the court was dealing with a New York law under which the "utterance of any treasonable or seditious word or words ..." was grounds for dismissal, as well as questions of Communist Party membership. Similarly, in State Board for Community Colleges and Occupational Education v. Olson, 687 P.2d 429 (Colo.1984), also cited by Carley, the court stated that the "principle [of academic freedom] finds its source in the belief that teachers should be free to engage in the exchange of diverse ideas on controversial topics...." 687 P.2d at 437. (Emphasis added.) Olson involved the cancellation of a student newspaper, finding that such closure did not "abridge the constitutionally protected aspect of [her] teaching function." She was still free to utilize other means for "presentation of the idea-content of her journalism courses...." 687 P.2d at 438.

In Kingsville Independent School District v. Cooper, 611 F.2d 1109 (5th Cir.1980), also cited by Carley, the court considered a history teacher's presentation of post-Civil War Reconstruction history through a role-playing technique which evoked strong student feelings on racial issues. The school board declined to renew her teaching contract because there had been parent complaints about this teaching method. Again, like Keyishian and Olson, the case involved the discussion of controversial topics and the presentation of controversial course materials. The court found that the speech was protected and could not be used as a basis for non-renewal unless the classroom discussions "clearly over-balance[d] [her] usefulness as an instructor...." 611 F.2d at 1113, citing Kaprelian v. Texas Women's University, 509 F.2d 133, 139 (5th Cir.1975). In neither Keyishian, Olson nor Cooper was termination or nonrenewal of employment based only upon classroom teaching techniques. Speech content was clearly at issue. Unlike those cases, specific communications are not at issue here.

Various courts have expressed their reticence to intervene in academic decision making by a university concerning retention of teaching personnel. This reluctance is based on the belief that such decisions are best made by those who have expertise in education. See, e.g., Beitzell v. Jeffrey, 643 F.2d 870, 875 (1st Cir.1981); Clark v. Whiting, 607 F.2d 634, 639-40 (4th Cir.1979); Derrickson v. Board of Education, 537 F.Supp. 338, 343 (E.D.Mo.1982). See generally W. Kaplin, The Law of Higher Education § 3.6.2 (2d ed. 1985).

Challenges to institutional decisions to deny tenure to faculty for reasons relating to teaching methods, course content and grading policies have been...