Cooper v. Ross

• Decision Date: 25 June 1979
• Docket Number: No. LR-74-C-347.,LR-74-C-347.
• Parties: Grant COOPER, Plaintiff, v. G. Robert ROSS, C. Fred Williams, Fred Pickens, Richard Arnold, Hugh Chalmers, Preston Hathcock, Charles Kemp, Raymond Miller, Louis Ramsay, Roy Ritter, George Shankle, and Robert Shults, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

472 F. Supp. 802

Grant COOPER, Plaintiff, v. G. Robert ROSS, C. Fred Williams, Fred Pickens, Richard Arnold, Hugh Chalmers, Preston Hathcock, Charles Kemp, Raymond Miller, Louis Ramsay, Roy Ritter, George Shankle, and Robert Shults, Defendants.

No. LR-74-C-347.

United States District Court, E. D. Arkansas, W. D.

June 25, 1979.

COPYRIGHT MATERIAL OMITTED

Phillip E. Kaplan, John M. Bilheimer, Kaplan, Brewer, Bilheimer & Marks, P. A., Little Rock, Ark., for plaintiff.

Robert S. Lindsey, Patrick J. Goss, Wright, Lindsey & Jennings, Little Rock, Ark., Ray Trammell, Fayetteville, Ark., for defendants.

HEANEY, Circuit Judge, Sitting by Designation.

On November 11, 1974, in the United States District Court for the Eastern District of Arkansas, Grant Cooper filed this action, alleging that he was not reappointed to the faculty of the University of Arkansas at Little Rock in violation of his rights of freedom of speech and association guaranteed by the First and Fourteenth Amendments of the Constitution and by 42 U.S.C. § 1983 (1976). Jurisdiction is premised upon 28 U.S.C. § 1343(3) (1976). The cause was tried to the Court in October 1978. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes the following findings of fact.

FINDINGS OF FACT

1. In September 1969, Little Rock University was merged into the University of Arkansas, an educational institution of the State of Arkansas. Defendant G. Robert Ross was appointed Chancellor of the University of Arkansas at Little Rock (UALR or University) in January 1973. Defendant C. Fred Williams was named head of the History Department at the University in May 1973. The remaining defendants are all members of the University of Arkansas Board of Trustees.¹ All defendants are sued only in their official capacities.

2. Grant Cooper was employed as an assistant professor of history at the University for the 1970-71 academic year. He was reappointed as assistant professor for the 1971-72, 1972-73 and 1973-74 academic years.

3. Cooper did not have tenure. The Faculty Handbook provided that:

A non-tenure appointment may be terminated effective at the end of an academic or fiscal year as the case may be at the option either of the individual or the University.

4. During the fourth year of teaching at the rank of assistant professor, a faculty member was normally considered for promotion to associate professor. Promotion would automatically confer tenure. Alternatively, the teacher could be retained at the rank of assistant professor without tenure, or he could be notified that he would not be reappointed. The Faculty Handbook provided that one who had been a faculty member for two or more years was entitled to at least one year's written advance notice if he was not going to be recommended for reappointment.

5. Prior to the spring of 1973 there were no established procedures and no specific standards for faculty evaluation and promotion purposes, either University-wide or within the History Department. Beginning in the spring of 1973 the Ross administration instituted a policy of merit pay increases and required periodic faculty evaluations.

6. Cooper became a member of the Progressive Labor Party (PLP) in June or July 1973. In mid-July 1973, at the beginning of the second summer school session, Cooper informed his classes in World Civilization and American Civilization that he was a communist and a member of the PLP, and that he taught his courses from a Marxist point of view. Other History Department members and Chancellor Ross learned of the statements shortly thereafter.

7. At registration for the fall 1973 term, Williams questioned Cooper about his statements to his classes and suggested to Cooper that it was inappropriate for him to announce his personal point of view to his classes. Bedford Hadley, Dean of the Division of Social Science, similarly discussed the matter with Cooper. Cooper was, however, not directed to discontinue the practice.

8. On September 20, 1973, Essence, an "underground" student newspaper, carried an article about Cooper and his statements to his summer school classes. On September 26, 1973, substantially the same article appeared on the front page of the Arkansas Gazette, a newspaper with statewide circulation. The articles apparently reported that Cooper had been ordered by the University not to state his personal political views in the classroom. Thereafter, Cooper became the subject of considerable public controversy and for several weeks the case received daily newspaper and television coverage.

9. On October 8, 1973, twenty-three state legislators, as individuals, filed suit in state court against Cooper, Chancellor Ross, and the Trustees of the University, to enjoin Cooper's further employment at the University. The suit was predicated on Ark.Stat.Ann. §§ 41-4111 and 41-4113 (1964). Section 41-4113(c) provided,

No person who is a member of a Nazi, Fascist or Communist society, or any organization affiliated with such societies, shall be eligible for employment by the State of Arkansas, or by any department, agency, institution, or municipality thereof.

10. On approximately October 2, October 9, and October 23, 1973, Cooper participated in public forums sponsored by Students for Action and the PLP regarding the use by another UALR faculty member of The Unheavenly City by Edward Banfield as a required textbook. Cooper publicly criticized the book as racist and unscientific and argued that the book should not be required course material and should be banned from the University campus.

11. On October 3, 1973, Cooper met with Chancellor Ross at the latter's request. They discussed the statements Cooper made to his classes, Cooper's political beliefs and how these affected his teaching of his courses. They also discussed Cooper's statements about the Banfield book.

A second meeting was held on October 29, 1973, and the same general issues were discussed. At the conclusion of the discussion Ross inquired whether, if instructed by the University, Cooper would teach his courses from an objective point of view and refrain from identifying his own beliefs to his classes. Cooper responded that he felt it would be intellectually dishonest if he did not state his own beliefs, that he could not be entirely objective toward other points of view, and that if he were ordered not to teach from a Marxist point of view he would feel compelled to resist the order. At no time in either meeting were any other factors relating to Cooper's performance as a teacher discussed.

12. On November 7, 1973, Cooper was notified by Williams that he was not recommending Cooper's reappointment and that Cooper's 1974-75 appointment would be a terminal appointment.

13. Cooper requested and was granted a conference at which Williams explained his decision not to recommend Cooper's further employment. Cooper then requested and received a written list of reasons for the non-reappointment recommendation. The reasons given were as follows:

1. A student evaluation of faculty, published by the Student Government Association during the 1971/72 academic year, gave your courses in History of Civilization next to the lowest evaluation of any faculty member in the department. A student survey in the fall semester of 1973, conducted by a student, reflected a concern for your academic competence.

2. An evaluation by the acting department chairman, dated April 30, 1973, gave you the lowest merit rating of any of the full time departmental faculty with terminal degrees.

3. Over a period of some three years, a variety of irregularities have been brought to your attention. These include:

a. Questionable grading procedures and problems involving evaluation of students.

b. Student complaints about meeting and conducting scheduled classes.

4. The Dean of the Division of Social Science, who was a former chairman of the History Department, has stated that during the past three years he has received more student complaints about your teaching responsibilities than has been received on any other faculty member in the division.

5. Students have repeatedly indicated that your courses did not cover the subject area as described in the University catalog; that you failed to adhere to the required text materials in assignments, lectures or discussion and your attitude toward those materials discouraged their use.

6. Changing, in a unilaterial sic manner, the content and scope of a course required by the general faculty for graduation.

7. Your attempts to restrict the academic freedom of others in the academic community which reflects a lack of restraint and does not show proper respect for the opinion of others in the academic setting. Specifically, your statements about banning a book on the UALR campus.

8. You have indicated either a lack of awareness or concern for a well known and respected statement of the American Association of University Professors in a "1940 Statement of Principles and Interpretive Comments" on academic freedom and tenure. Paragraph "C" of that document, in reference to the college or university teacher, includes the following statements:

"As a man of learning and an educational officer, he (the teacher) should remember that the public may judge his profession and his institution by his utterances."

9. These reasons have led me to conclude that your professional development in scholarly endeavors and classroom instruction have not been satisfactorily demonstrated and, therefore, your appointment as assistant professor should not be renewed. I feel confident that a more qualified person can be readily employed as an assistant professor.

14. Reason 1 was subsequently withdrawn by Williams after Cooper objected that the student surveys were unscientific and unvalidated and that University officials had previously indicated that the surveys would not be considered in faculty appointment decisions.

Reason 2 referred to an evaluation of Cooper...