Clark v. Holmes

• Decision Date: 12 December 1972
• Docket Number: No. 71-1709.,71-1709.
• Citation: 474 F.2d 928
• Parties: L. Verdelle CLARK, Plaintiff-Appellant, v. Leslie HOLMES et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

474 F.2d 928 (1972)

L. Verdelle CLARK, Plaintiff-Appellant, v. Leslie HOLMES et al., Defendants-Appellees.

No. 71-1709.

United States Court of Appeals, Seventh Circuit.

Argued September 11, 1972.

Decided December 12, 1972.

Certiorari Denied May 7, 1973.

Elmer Gertz, Wayne B. Giampietro, Chicago, Ill., for plaintiff-appellant.

Robert E. Cronin, John L. McCausland, Chicago, Ill., for defendants-appellees.

Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges.

Certiorari Denied May 7, 1973. See 93 S.Ct. 2148.

PER CURIAM.

In his amended three-count complaint based upon 42 U.S.C. §§ 1983 and 1985 (3), L. Verdelle Clark sought damages for the alleged violation of his civil rights by certain teachers and officials at Northern Illinois University (NIU),¹ a state institution of higher learning. A nontenured temporary substitute teacher at NIU from 1962 to 1964, Clark claimed, inter alia, that the defendants had made false charges against him, the result of which was that NIU decided not to rehire him. The defendants also allegedly denied him a hearing or investigation of these charges. Clark maintained that these actions stemmed from a conspiracy among the defendants, who allegedly wished to penalize him for exercises by him of his right to freedom of speech.

The trial, limited to the question of liability, was held before a jury. At the close of the plaintiff's case, the court granted a directed verdict for the defendants on the issue of conspiracy (Count II and part of Count I).² It also rejected plaintiff's proffered instructions on the First Amendment rights of public school teachers. The jury returned verdicts for each of the defendants. After the court denied his motion for judgment notwithstanding the verdicts or for a new trial, Clark brought this appeal.

In August 1962, Clark applied for and accepted a temporary position for the fall semester of 1962 as an associate professor in NIU's Department of Biological Sciences. Clark was to substitute for the professor who usually taught a required introductory health survey course. The possibility of employment for the spring semester was left open. When the teacher for whom the plaintiff was substituting decided not to return for the spring session, Clark accepted an offer to teach that semester.

In a letter dated April 30, 1963, the head of the Department of Biological Sciences offered Clark a temporary position for the following academic year, 1963-64, as a replacement for another professor. The letter also warned Clark that his acceptance of the offer should be made with the understanding that he should remedy certain deficiences in his professional conduct: he counselled an excessive number of students instead of referring them to NIU's professional counsellors; he overemphasized sex in his health survey course; he counselled students with his office door closed; and he belittled other staff members in discussions with students.

Clark subsequently discussed these criticisms with the department head and with defendant Skok, then Dean of the College of Liberal Arts and Sciences. He defended his conduct, maintaining that it was proper for a teacher to hold himself out as a personal confidant of his students and denying that he was teaching too much sex education. He stated that he had surveyed his students' interests, had found that they wanted sex education and mental health emphasized and so had agreed to do so and only "touch on" the other topics covered by the assigned text and the course syllabus. Rejecting disapproval of his critical remarks as hypocritical, he declared that he would not stop discussing with students his complaints about the administration and other teachers and he would not confine his discussions to his office. Rather, he would "do it where I think it is effective, and if it costs me, so be it."

In May 1963, Clark formally accepted the temporary position for the 1963-64 academic year. On December 11, 1963, he received written notification that his temporary contract terminated June 8, 1964. In early February 1964, at a conference with the department head and two senior members of the department, Clark was told that he would not be scheduled for any classes for the spring semester, 1963-64. The three men pointed out to Clark that his position was a temporary one and repeated most of the criticisms outlined in the April 30th letter.

Although plaintiff's briefs and oral argument leave us somewhat uncertain as to his contentions on this appeal, it appears that he claims the trial court erred (1) in refusing to instruct the jury respecting First Amendment rights of public school teachers; (2) in excluding testimony of a faculty member about his efforts to secure Clark a hearing; (3) in instructing the jury that Clark's due process rights in connection with the expiration of his contract did not include the right to formal charges and hearing; and (4) in directing a verdict for the defendants on the conspiracy issue.

After lengthy discussion with counsel, the trial court declined to instruct the jury to the effect that a public school teacher has a First Amendment right to teach and say anything he wishes in classes and to students as long as he does not make statements knowing them to be false or with reckless disregard of their truth or falsity.

Both parties claim to find support in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), a major pronouncement of the First Amendment rights of public school teachers. There, the Supreme Court reversed the dismissal of a teacher who had written a letter to a local newspaper in which he, as a citizen, criticized the Board of Education's allocation of school funds and its method of informing the district's taxpayers about the need for additional tax revenue. The Court analyzed the First Amendment problem as follows:

"It cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." 391 U.S. at 568, 88 S.Ct. at 1734. Emphasis added.

Cf. Mailloux v. Kiley, 448 F.2d 1242, 1243 (1st Cir. 1971).

Clark's claim of error fails for two reasons. First, Clark construes too broadly the extent of his First Amendment rights and thus slights the interest of the State in providing its educational services according to policies it deems proper. Clark would have us drastically and radically curtail the scope of discretion which may be exercised by a state school in deciding whom it shall rehire. Second, Clark ignores the factual differences between his case and a case like Pickering. His disputes with his superiors and colleagues about course content and counselling were not "matters of public concern" and involved Clark as a teacher rather than as an interested citizen. Compare also Perry v. Sindermann, 408 U.S. 593, 595, 598, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972). Further, Clark has cited no sound authority for his proposition that he had a constitutional right to override the wishes and judgment of his superiors and fellow faculty members as to the proper content of the required health course and the inadvisability of engaging in extensive personal counselling of students, two of the three matters about which most of the defendants were particularly concerned.

The same reasoning applies to Clark's criticisms of NIU's administration and faculty in front of students. We think the district court correctly decided that this conduct also was not protected by the First Amendment. Pickering, which guards a public school teacher's right to speak out publicly on issues of public concern, is factually distinguishable from the present case. However, we do recognize that, although academic freedom is not one of the enumerated rights of the First Amendment, Parducci v. Rutland, 316 F.Supp. 352, 355 (M.D.Ala.1970), it is now clear that academic freedom, the preservation of the classroom as a "market place of ideas," is one of the safeguarded rights. Healy v. James, 408 U.S. 169, 180-181, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). But we do not conceive academic freedom to be a license for uncontrolled expression at variance with established curricular contents and internally destructive of the proper functioning of the institution. First...