Duke v. North Texas State University

• Decision Date: 01 September 1971
• Docket Number: Civ. A. No. 1977.
• Citation: 338 F. Supp. 990
• Parties: Elizabeth Anna DUKE v. NORTH TEXAS STATE UNIVERSITY et al.
• Court: U.S. District Court — Eastern District of Texas

338 F. Supp. 990

Elizabeth Anna DUKE v. NORTH TEXAS STATE UNIVERSITY et al.

Civ. A. No. 1977.

United States District Court, E. D. Texas, Sherman Division.

September 1, 1971.

COPYRIGHT MATERIAL OMITTED

Sylvia M. Demarest, Dallas, Tex., for plaintiff.

W. O. Shultz, Asst. Atty. Gen., Austin, Tex., for defendants.

Lucius Bunton, Odessa, Tex., for Mr. Shur, a member of the Board of Regents.

MEMORANDUM OPINION AND ORDER

JUSTICE, District Judge.

Plaintiff, Mrs. Elizabeth Anna Duke, seeks a preliminary injunction pursuant to Rule 65, Fed.R.Civ.P., reinstating her as a teaching assistant at North Texas State University.

During the academic years of 1967-68 and 1969-70, plaintiff was employed as a teaching assistant in the English department of North Texas State University. Prior to July 30, 1970, plaintiff again received and accepted an offer for a teaching assistantship at the University for the academic year 1970-71. Subsequently, on each of the evenings of July 30 and August 3, 1970, plaintiff, at "rock" concerts held in the park on the campus of North Texas State University, made a speech over a public address system to the crowd gathered to hear the music. The speech on July 30 was on the general subject of oppression. Beginning by describing conditions on the local level, plaintiff strongly criticized the University administration and the official policies of the University and cited the University as a prime oppressor of human beings. During the course of the speech, plaintiff stated that the "system" as represented on the local level at the University "fucks over" students, and that the Board of Regents was an example of a group that has power in the system on the local level. Plaintiff then proceeded to give examples of oppression throughout the United States and concluded by calling for students to work together to change the system. Plaintiff's speech on August 3 was in response to the shutting down of the August 3 concert by the University security police. In her harangue, plaintiff stated her opinion that the concert was being shut down because speakers on July 30 had been critical of the University. On August 25, 1970, plaintiff was informed by Acting President Carter that the offer of the teaching assistantship for the academic year 1970-71 was rescinded on the "basis of written statements reporting her use of obscene language and conduct unbecoming an instructor in front of students and others on the University campus." Plaintiff appealed her dismissal to the President's Cabinet. On November 5, 1970, that body published findings upholding plaintiff's dismissal on the following grounds:

(1) The participation of plaintiff in organizing and appearing on the program at the July 30 and August 3 concerts held in violation of the rules and regulations of the University;

(2) The lack of academic responsibility demonstrated by plaintiff by her actions and statements upon the occasions in question;

(3) Failure of plaintiff to register for at least six hours in the fall semester of 1970 at the University. Plaintiff further appealed to the Board of Regents which finally approved, in February, 1971, the findings of the President's Cabinet and affirmed her dismissal.

The law governing the merits of this controversy may be stated simply. The public school teacher does not, as a condition of employment, waive his rights of freedom of speech and assembly guaranteed by the First Amendment of the Constitution. At the same time, however, "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." Pickering v. Board of Education, 391 U.S. 563, 569, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). In applying these rather obvious principles the difficulty arises in striking a balance between the interests of the teacher as a citizen in commenting upon matters of public concern and the interests of the state in efficiently and effectively maintaining its system of public education. Slochower v. Board of Higher Education, etc., 350 U.S. 551, 555, 76 S.Ct. 637, 100 L.Ed. 692 (1956).

Recognizing the difficulty attendant upon striking this balance, the Court of Appeals for the Fifth Circuit has wisely cautioned against development of the merits of a teacher dismissal case at the district court level, when the school constituted review body has not had the opportunity to thrash out the matter in compliance with minimum standards of procedural due process. Ferguson v. Thomas, 430 F.2d 852, 858 (5th Cir. 1970); Sindermann v. Perry, 430 F.2d 939, 944 (5th Cir. 1970).

Pursuant to the admonition of the Court of Appeals, it is the duty of this court, first, to decide whether the review procedure followed in this case afforded plaintiff the procedural due process to which she is entitled. Proper consideration of this question requires that a distinction be made between the procedural due process to which tenured teachers and to which teachers with an expectancy of reemployment are entitled on the one hand; and the procedural due process to which non-tenured teachers and teachers having no expectancy of reemployment are entitled on the other hand. Ferguson v. Thomas, supra 430 F.2d at 856; Sindermann v. Perry, supra 430 F.2d at 943.

It is apparent that plaintiff must be classed as a teacher with an expectancy of reemployment. The offer of the teaching assistantship sent to her by Dr. Belcher, Chairman of the Selection Committee, stated in pertinent part: "Please bear in mind that employment is dependent upon enrollment and that, for that reason, no formal contract will be issued. It has been our experience, however, that promised sections have always developed." (Emphasis added.) The University argues that under Section 6 of the then current Fiscal Regulations, all contracts other than for equipment and supplies were subject to the approval of the President or Vice-President for Fiscal Affairs, and until such approval was given, plaintiff could not have had an expectancy of reemployment. The University's contention, however, is based on a too technical interpretation of the term "expectancy of reemployment." The test, as this court interprets Ferguson, is not whether the dismissed teacher could successfully maintain a suit for damages based upon contract, but whether under all the circumstances the teacher could reasonably expect to be employed. In the instant case, plaintiff could reasonably expect that she would ultimately teach at least one section of Freshman English. The University by its own admission stated in the offer that the promised sections always developed. No evidence was offered by the University tending to show the frequency that similar offers were rescinded by the University and that plaintiff had any knowledge of the likelihood or possibility of rescission; or to show that plaintiff was unreasonable in assuming she would be entitled to teach at least one section.

In Ferguson, the Court of Appeals held that a tenured teacher or a teacher with an expectancy is entitled to the following minimal procedural standards:

(a) notification of the cause for termination in sufficient detail to enable the teacher to show any error that may exist;

(b) notification of the names and nature of the testimony of witnesses against him;

(c) provision for a meaningful opportunity for the dismissed teacher to be heard in his own defense;

(d) availability of a tribunal to hear the matter that possesses some academic expertise and that has an apparent impartiality toward the charges; and

(e) assumption by the college or university of both the burden of instituting the review proceedings and the burden of proof of any fact issues arising at the review proceedings.

When the hearing afforded the dismissed teacher is deficient in one or more of the requirements set out above, the district court, pursuant to Ferguson, should remand the matter to the educational institution for compliance with these minimum federal standards, in order that the matter can first be made ripe for court adjudication by the school authorities themselves.

In the instant case, the University satisfied each minimal procedural standard except the standard requiring the reviewing tribunal to possess an apparent impartiality toward the charges. By a letter on September 9, 1970, Acting President Carter fully informed plaintiff of the charges against her and attached to the letter a list of witnesses for the University along with signed statements by these witnesses. A hearing was scheduled at which plaintiff was represented by counsel and at which she had the right to confront and cross-examine the University's witnesses as well as present evidence in her own behalf. Furthermore, the President's Cabinet was composed of four individuals who undoubtedly possessed sufficient expertise to be able to deal with the subject matter of plaintiff's dismissal. The court cannot, however, escape the conclusion that the Cabinet did not possess the requisite apparent impartiality toward the charges against plaintiff. Acting President Carter in his letter of August 25, 1970, informing plaintiff of her dismissal, stated that he was acting at the direction of the Board of Regents. Thus the Board had already made its position in the Duke affair known prior to the September 23 hearing before the President's Cabinet. It is, of course, possible that one in the position of Acting President Carter would be free, contrary to the expressed wishes of his employer, to act as his conscience directed after hearing plaintiff's presentation of her case; but such is not the common understanding of such situations. At any rate, the atmosphere of apparent impartiality is far from being preserved. Acting President Carter's presence on the Cabinet would alone be enough to violate procedural due process, but it also appears that the remaining...