Franklin v. Atkins
| Decision Date | 11 February 1976 |
| Docket Number | Civ. A. No. 74-A-777. |
| Citation | 409 F. Supp. 439 |
| Parties | H. Bruce FRANKLIN, Plaintiff, v. Dale M. ATKINS et al., Defendants. |
| Court | U.S. District Court — District of Colorado |
The American Civil Liberties Union Foundation of Colorado by Anthony F. Renzo, Louis A. Bluestein, Denver, Colo., and Robert C. Leher, Littleton, Colo., for plaintiff.
Richard A. Tharp, Asst. University Counsel and George D. Dikeou, Asst. University Counsel, University of Colorado, Boulder, Colo., for defendants.
On December 3, 1973, Plaintiff H. Bruce Franklin made application for one of two available faculty positions in the English Department at the University of Colorado. Although his application was one of several hundred submitted, the English faculty approved his appointment in January, 1974, by the "overwhelming" vote of twenty-six to five (one abstention). Pursuant to subsequent independent investigations and interviews, plaintiff's appointment also received the approval of the Dean of the College of Arts and Sciences, Mr. William E. Briggs, the then Vice-President of University Affairs and Provost, Mr. Lawson Crowe, and the President of the University at that time, Dr. Frederick Thieme.
At the regular meeting of the Board of Regents of the University of Colorado on April 25, 1974, Dr. Thieme presented plaintiff's application for consideration with his recommendation. However, the Regents voted eight to one against approval. On June 25, 1974, at another regularly scheduled meeting of the Board, the same Regents voted to refuse to reconsider the earlier vote. The eight individual Regents voting against plaintiff on each occasion are the named defendants.
Plaintiff brings this action under 42 U.S.C. § 1983, seeking injunctive relief and damages against each defendant, and, pursuant to Rule 57, Fed.R.Civ.P., a declaratory judgment. Injunctive and declaratory relief are also sought for the alleged violation of the University's own regulations by the defendants, and we have previously determined that the Court will consider this pendent claim. Jurisdiction, claimed to exist by virtue of 28 U.S.C. §§ 1343, 2201, and 2202, is apparently conceded.
It is plaintiff's claim that each defendant's decision was based primarily, if not solely, on Professor Franklin's belief in Marxism, his advocacy of that political belief and philosophy in his speeches and writings, and his participation in various political movements, groups, and demonstrations, thus abridging his First Amendment rights to free speech and association, as well as violating University regulations. Defendants respond that the decision not to hire Mr. Franklin was a valid exercise of the discretion vested in them, and involved a determination that the hiring of plaintiff was not in the best interests of the University of Colorado. Trial was to the Court, and this opinion shall constitute our findings of facts and conclusions of law.
Before turning to a consideration of the issues involved in the resolution of the present matter, it is necessary to point out what is not at issue. Only one of the defendants entertained any doubt as to the outstanding academic qualifications of Professor Franklin, and all agreed that his scholarly achievements and teaching abilities were not an issue. He was described in letters of recommendation as one of the outstanding scholars in American Literature, perhaps the most accomplished at his age, and as a teacher of ease and confidence, as well as wit, who knows his subject thoroughly, and how to get it across. Nor is there any evidence that Professor Franklin ever improperly used his classroom as a forum for the advocacy of his political views.
This is particularly true in the case of a potential applicant, rather than that of a present employee seeking to continue in his position. The state's interest in obtaining even marginally relevant information about an applicant is greater because of the lack of other, more direct information from his conduct as an employee. Developments in the Law, Academic Freedom, 81 Harv.L.Rev. 1045, 1075 (1968).
This is not to say that the determination may be placed on any basis. The Regents may decline to hire a professor for a good reason or, perhaps, no reason. But it may not do so for a bad reason if that reason is one's lawful exercise of constitutionally protected rights. Shumate v. Board of Education of County of Jackson, 478 F.2d 233, 234 (4th Cir. 1973); Weathers v. West Yuma County School District R-J-1, 387 F.Supp. 552, 561 (D.Colo.1974). This would allow the government to produce a result indirectly which it could not command directly. Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2513, 33 L.Ed.2d 570 (1972). Thus, while the interest of an applicant in obtaining a position may be less compelling than that of an employee in retaining his position, Developments in the Law, Academic Freedom, supra, we pointed out in our previous opinion in this matter that the indirect abridgment described in Sindermann would nevertheless be present where the application is denied because of the exercise of the constitutionally protected interests in free speech and association. Our task in this case is therefore to determine whether the defendants based their decisions on grounds which impermissibly abridge plaintiff's constitutional rights, or on considerations prohibited by their own regulations, or both.
Plaintiff had become a controversial figure in 1971 while teaching at Stanford University. On March 22 of that year the University President, Richard W. Lyman, filed a Statement of Charges against Franklin, alleging that he had participated in various campus disruptions and made speeches inciting others to lawless actions. Because of the importance the subsequent hearing on those charges and the circumstances which gave rise to them will assume in the resolution of the matter now before the Court, it is necessary to recount those events in some detail.
Pursuant to university regulations an Advisory Board, composed of an elected body of seven faculty members responsible for the review of professional appointments and promotions, held hearings on the charges preferred. The Board initially determined that the standard it would utilize in considering speeches by Professor Franklin was that suggested by the Supreme Court in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). It concluded that Franklin could not be found culpable unless any advocacy was directed to inciting or producing imminent lawless action, and was likely to produce such action. It further determined that Franklin could be found culpable of any charge only by "strongly persuasive," rather than a mere preponderance of, evidence.
The opinion rendered by the Advisory Board at the end of the hearings dealt for the most part with charges arising from what became known as "the Lodge incident" and from the events of February 10, 1971. As to the former, it was alleged that on January 11, 1971, Ambassador Henry Cabot Lodge attempted to deliver an address in the Dinkelspiel Auditorium, but was prevented from doing so by the disruptive conduct of various people in the audience. That conduct including loud shouting, chanting, and clapping. It was charged that Professor Franklin was in the audience and knowingly and intentionally participated in the disruptive conduct.
Although the disruption was not denied, the evidence was conflicting as to the extent of Professor Franklin's participation. The Board concluded that while Franklin did engage in loud shouting on at least two occasions when the rest of the audience was quiet, and possibly at other times as well, the evidence was not strongly persuasive that this shouting took place during the time Lodge was at the podium, nor was it strongly persuasive that Professor Franklin's conduct included "chanting and clapping" as specified in the charges. The Board therefore unanimously refused to sustain the specific charge. It did, however, note that Professor Franklin's right to speak must be balanced not only against the rights of Mr. Lodge to speak, but also against the rights of others to hear and to assemble peacefully. It could not accept the view that the interruption of University functions, let alone their disruption, was a part of the appropriate function of a faculty member at Stanford.
As to the events of February 10, 1971, the Advisory Board observed at the outset that the "climatic events" of that date did not occur without warning. Dissatisfaction with the Indochina war was rising again because of rumors that an invasion of Laos was about to begin, perhaps with participation of American armed forces. In addition, the Stanford Judicial Council had been holding hearings on charges brought against students accused of disrupting the January speech of Ambassador Lodge. The preceding several days had been characterized by overt turbulence and escalating protest activities.
Beginning at about noon on February 10, a rally took place at the White Memorial Plaza. It was charged that Professor Franklin intentionally urged and incited students and other persons present at the rally to disrupt University functions and business, and specifically to shut down a University computer facility known as the Computation Center.
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Franklin v. Leland Stanford Junior University
...interfered with University activities and discipline" although they "may not have been criminally culpable." (Franklin v. Atkins, supra, 409 F.Supp. 439, 451.) The Propriety of the Trial Court's Remand to the University Plaintiff contends that once the trial court determined his expressive ......
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Ward v. Industrial Com'n, 83SC186
...public school teacher's contract may not be predicated on his exercise of first and fourteenth amendment rights); Franklin v. Atkins, 409 F.Supp. 439 (D.Colo.1976), aff'd, 562 F.2d 1188 (10th Cir.1977), cert. denied, 435 U.S. 994, 98 S.Ct. 1645, 56 L.Ed.2d 83 (1978) (same); Hadley v. Moffat......
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Ruhlman v. Hankinson
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