COOK COUNTY COLLEGE TEACHERS U., LOC. 1600, AFT v. Byrd, 18967.

• Citation: 456 F.2d 882
• Decision Date: 09 March 1972
• Docket Number: No. 18967.,18967.
• Parties: COOK COUNTY COLLEGE TEACHERS UNION, LOCAL 1600, AMERICAN FEDERATION OF TEACHERS, AFLCIO, a voluntary association, et al., Plaintiffs-Appellants, v. Milton B. BYRD et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

456 F.2d 882 (1972)

COOK COUNTY COLLEGE TEACHERS UNION, LOCAL 1600, AMERICAN FEDERATION OF TEACHERS, AFLCIO, a voluntary association, et al., Plaintiffs-Appellants, v. Milton B. BYRD et al., Defendants-Appellees.

No. 18967.

United States Court of Appeals, Seventh Circuit.

March 9, 1972.

John Henry Schlegel, Chicago, Ill., amicus curiae.

Gilbert A. Cornfield, Chicago, Ill., for plaintiffs-appellants; Kleiman, Cornfield & Feldman, Chicago, Ill., of counsel.

Albert E. Jenner, Jr., Chester T. Kamin, Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, PELL and SPRECHER, Circuit Judges.

PELL, Circuit Judge.

This is an appeal from a judgment in a suit brought pursuant to 42 U.S.C. § 1983, concerning the nonrenewal of the teaching contracts of the two individual plaintiffs, Donald Paull and Ruth Nedelsky, formerly probationary faculty members at Chicago State College. The Cook County College Teachers Union, Local 1600, American Federation of Teachers, AFL-CIO (Union) joined in the action, purportedly on behalf of all the College's faculty. The defendants are officials at the College and the Board of Governors of State Colleges and Universities of Illinois, which by statute operates the College.

The amended complaint alleged that the defendants in denying Paull and Nedelsky teaching contracts for the 1970-71 academic year had violated their civil rights, their constitutional rights guaranteed by the first and fourteenth amendments, and "ancillary" guarantees of academic freedom incorporated into their teaching contracts. The complaint sought a declaration of the rights of the parties, injunctive relief and money damages.

More particularly, Paull and Nedelsky claimed that the defendants' failure to provide them with statements of the reasons for the nonrenewals violated their rights to procedural due process. In their briefs, but not in their complaint, they contend that they were also entitled to a hearing prior to their termination to respond to the reasons for the nonrenewal. The defendants allegedly violated the teachers' substantive constitutional rights by refusing to offer them contracts in retaliation for their union activities, their opposition to defendant Clark's reappointment to the chairmanship of the Department of Psychology, their public positions on racism in educational institutions and their opposition to the use of city police on the College's campus. In addition, plaintiff Paull alleged that he was not retained because of a letter he had written to the Illinois Psychological Association charging ethical violations in the use of student I.Q. scores by personnel employed by the Chicago Board of Education.

The defendants in their answer to the amended complaint denied, inter alia, that the Union was a proper class representative and admitted that the defendants had not told Paull and Nedelsky the reasons for the nonrenewal of their contracts.

In May 1970, the plaintiffs moved for a preliminary injunction allowing the terminated instructors to teach during the 1970-71 academic year pending a decision by the court whether their due process rights had been violated. Before the scheduled hearing on that motion, however, the plaintiffs moved for summary judgment on their claim that Paull and Nedelsky had been denied procedural due process. The district court then took the summary judgment motion under advisement and, sua sponte, struck from the call the hearing on the motion for preliminary injunction. In August 1970, the plaintiffs renewed their motion for preliminary injunction. On September 9, 1970, the district court scheduled a hearing on the motion for preliminary injunction. He also granted the defendants' motion to dismiss the class action and to strike the Union as a party plaintiff.

The parties stipulated that the record in the hearing on the motion for preliminary injunction would serve for disposition of the action on the merits. For four and one half days, the district court heard testimony and arguments about the procedures followed by the defendants in deciding not to renew the plaintiffs' contracts and the reasons for those decisions.

The court then found for the defendants, holding that the defendants had not acted on the basis of the constitutionally improper reasons alleged in the amended complaint. It further concluded that the defendants had decided not to renew Paull's and Nedelsky's contracts in good faith and for constitutionally permissible reasons that were not wholly without basis in fact. Because the defendants at the hearing had explained the reasons for their decisions, the court held that no purpose would be served by returning the matter to the College for any further proceedings. Finally, the court decided that the pending motion for summary judgment was moot, denied the motion for preliminary injunction and dismissed the complaint.

The plaintiffs' appeal raises three issues: first, whether the district court erred in its determination that the action should not proceed as a class action; second, whether the district court clearly erred in finding that the defendants had acted in good faith and on the basis of constitutionally permissible reasons in deciding not to renew the plaintiffs' contracts; and third, whether, despite the holding of a full hearing in a federal district court on the reasons for the nonrenewals and the issuance of a judgment, the teachers were entitled to have their case referred back to the College for further proceedings.

I

The Union sued "on behalf of its class of members at Chicago State College and all of the faculty at Chicago State College." It did not sue individually in its own behalf. Paull and Nedelsky did not sue on behalf of a class. In support of the class action, the Union merely alleged that the claims of illegal action and the relief sought were of common interest to all faculty members.

Because the Union was a movant for summary judgment and both sides had submitted memoranda on that matter, the defendants wished the court to consider the propriety of the class action prior to its ruling on the plaintiffs' motion. Hence, pursuant to Rule 23(c)(1) of the Fed.R.Civ.P., they filed a motion, accompanied by supporting affidavit and memorandum, to dismiss the class action and to dismiss the Union as a plaintiff. Rule 23(c)(1) states in part, "As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained." One opposing a class action may move for an order determining that the action may not be maintained as a class suit. 3B J. Moore, Federal Practice ¶ 23.50, at 23-1102 (2d ed. 1969).

The Union contends that the district court should have held an evidentiary hearing on whether the Union was a proper representative. It is true that in doubtful cases a court may decide that such a hearing is necessary. The court here received three lengthy memoranda from the parties on the disputed issue whether the Union's purported class action met the requirements of Rule 23 and Rule 23.2. We find that the court did not err in proceeding as it did.

Rule 23(a), as amended in 1966, lists four prerequisites for a class suit.¹ The burden was on the Union, the party seeking to utilize the class action, to establish its right to do so. Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 457 (E.D.Pa.1968); 3B J. Moore, Federal Practice ¶23.02-2, at 23-156 (2d ed. 1969). It was obliged in its complaint to allege facts bringing the action within the appropriate requirements of the Rule. Gillibeau v. City of Richmond, 417 F.2d 426, 432 (9th Cir. 1969).

We agree with the defendants' contention that none of the prerequisites of Rule 23(a) are satisfied. The members of the purported class would seem to have interests antagonistic to those of their fellow "members" and to the Union's. We find it particularly significant that the Union is not recognized as the collective bargaining agent for any of the faculty. Further, apparently only a minority of the College's teachers are members of the Union and both tenured and probationary professors belong to the Union. According to an affidavit of the dean of faculty, only nine probationary faculty members' contracts were not renewed for the 1970-71 academic year. Thus, the class of teachers that is arguably valid is not too large to have made joinder impracticable.

The Union points to the declaratory and injunctive relief sought in the complaint and argues that because the "relief requested relates to each faculty member's rights guaranteed under the Constitution . . . it would be ludicrous to suggest that the right to make such statements or take such action is not a matter which affects all faculty." We can agree that the resolution of constitutional issues in a case "affects" many persons. Indeed, perhaps all citizens, not just the Chicago State faculty, are "affected" by the suit. That does not mean, however, that that is the appropriate criterion for the propriety of a class action. In neither their memorandum nor their briefs do the plaintiffs cite persuasive authority to support their arguments that the class action is maintainable and the Union a proper plaintiff. The requisites of the Federal Rules of Civil Procedure must be met but supportive facts were not brought to the court's attention.

We agree with the district court's determination that the Union's class action should be dismissed as a plaintiff.² cannot be maintained and that the Un-

II

On the merits, the district court found that the defendants did not renew Paull's and Nedelsky's contracts for proper reasons and not the unlawful reasons asserted by the plaintiffs in their amended complaint.

The decision-making process at the College had operated as follows. The Board of Governors had delegated, subject to its review, the responsibility for personnel decisions to the president of the College (defendant Byrd),...