Franklin v. Leland Stanford Junior University

Decision Date20 September 1985
Citation218 Cal.Rptr. 228,172 Cal.App.3d 322
CourtCalifornia Court of Appeals Court of Appeals
Parties, 27 Ed. Law Rep. 525 H. Bruce FRANKLIN, Plaintiff and Appellant, v. LELAND STANFORD JUNIOR UNIVERSITY, et al., Defendants and Respondents. A014999.

Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, for plaintiff and appellant.

McCutchen, Doyle, Brown & Enersen, David M. Heilbron, Richard C. Brautigam, San Francisco, Jan Vetter, Berkeley, for defendants and respondents.

AGLIANO, Associate Justice.

This appeal by plaintiff H. Bruce Franklin challenges the judgment of the trial court upholding plaintiff's dismissal by his former employer, Leland Stanford Junior University. The underlying dispute dates back to a time of protest against the Vietnam war. More specifically, it concerns plaintiff's conduct on February 10, 1971. He was then, as he described himself, a leader of the local anti-war movement, his stature deriving partly from his tenured position as an associate professor of English. This action, 1 filed August 15, 1972, challenges his dismissal from that position. 2 Plaintiff's major contentions are that his conduct was protected by the First Amendment and the University regulations authorizing his discharge were unconstitutionally vague. We reject these contentions and the others discussed below. 3

Procedural History

On March 22, 1971, University President Lyman filed charges with the Faculty Advisory Board of the Academic Council against plaintiff, alleging he had engaged in activities which constituted a "substantial and manifest neglect of duty and a substantial impairment of his performance of his appropriate functions" within the University in violation of the Statement of Policy on Appointment and Tenure at Stanford University and the Stanford Policy on Campus Disruption.

The charges alleged four incidents:

1. On January 11, 1971, plaintiff participated in disruptive conduct which prevented Ambassador Henry Cabot Lodge from speaking at a public program at the University (Lodge incident).

2. On February 10, 1971, at a rally at White Memorial Plaza to discuss methods of protesting the Vietnam War, plaintiff intentionally "urged and incited students and other[s] ... to [disrupt University functions] and specifically to shut down a University computer facility known as the Computation Center" (White Plaza speech).

3. Later on February 10, 1971, following disruption at the Computation Center, plaintiff significantly interfered with a police order to disperse by inciting those present to disobey it (Computation Center incident).

4. On the evening of February 10, 1971, at a rally in the Old Union Courtyard, plaintiff "intentionally urged and incited students and other persons to engage in conduct calculated to disrupt activities of the University ... and which threatened injury to individuals and property" (Old Union speech).

Upon plaintiff's request, a seven-member Faculty Advisory Board evaluated the charges in accordance with the University's tenure agreement. Following 33 days of hearing in which 111 witnesses testified, the Board, on January 5, 1972, issued a detailed decision in which it (1) declined to sustain the charge regarding the Lodge incident; (2) unanimously sustained the charge regarding the White Plaza speech; (3) sustained the charges regarding the Computation Center incident and Old Union speeches by a 5-2 vote; and (4) by the same 5-2 vote recommended plaintiff's dismissal. President Lyman and the Board of Trustees of the University accepted the recommendation and discharged plaintiff effective August 31, 1972.

Plaintiff filed this action seeking reinstatement, declaratory relief, back pay and damages.

On January 4, 1978, the trial court determined the University's standard for dismissal was not unconstitutionally vague and plaintiff's conduct during the White Plaza speech and the Computation Center incident was not constitutionally protected. However, the court did not sustain the charge relating to the "Old Union Speech." Since the trial court could not determine whether the University would have imposed the same penalty based on two of the three charges, on September 1, 1978, the case was remanded to the University for such determination. 4

The Faculty Advisory Board conducted further proceedings without redetermining the facts found by the 1972 board. On May 30, 1980, the Advisory Board unanimously recommended plaintiff's dismissal be reaffirmed. The Board of Trustees accepted the recommendation and reaffirmed plaintiff's dismissal on July 14, 1980.

The case returned to the trial court on November 18, 1980, for review. The court concluded the proceedings were proper, there was no abuse of discretion in the Advisory Board's determination that either of the two charges was serious enough to merit dismissal, and entered judgment in favor of defendants.

Plaintiff's timely appeal followed.

The Scope of Appellate Review

Reviewing courts have repeatedly observed the obligation to independently evaluate the record in resolving First Amendment issues. (E.g., Columbus Ed. Ass'n. v. Columbus City School Dist. (6th Cir.1980) 623 F.2d 1155, 1160; Sussli v. City of San Mateo (1981) 120 Cal.App.3d 1, 9, 173 Cal.Rptr. 781, cert. den. 454 U.S. 1085, 102 S.Ct. 643, 70 L.Ed.2d 621.) The United States Supreme Court has recently reiterated: " 'This Court's duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across "the line between speech unconditionally guaranteed and speech which may legitimately be regulated." [Citation.] In cases where that line must be drawn, the rule is that we "examine for ourselves the statements in issue and the circumstances under which they were made to see ... whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect." [Citations.] We must "make an independent examination of the whole record," [citation], so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.' New York Times Co. v. Sullivan, 376 US 254, 285 [84 S.Ct. 710, 728, 11 L.Ed.2d 686]." (NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 915-916, 102 S.Ct. 3409, 3426-3427, 73 L.Ed.2d 1215); Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 497-502, 104 S.Ct. 1949, 1958-1960, 80 L.Ed.2d 502, 521-523.

When an employee has claimed to have been terminated for speech activity, appellate courts have independently reviewed the record to determine what expressive conduct was involved and whether it was protected. (Pickering v. Board of Education (1968) 391 U.S. 563, 578-579, fn. 2, 88 S.Ct. 1731, 1739-1740, fn. 2, 70 L.Ed.2d 811; Monsanto v. Quinn (3d Cir.1982) 674 F.2d 990, 996, fn. 10; McMullen v. Carson (11th Cir.1985) 754 F.2d 936, 938; Brasslett v. Cota (1st Cir.1985) 761 F.2d 827, 840.) 5

Defendants' contention that we perform a traditional substantial evidence review is supported almost exclusively by license revocation cases which do not involve First Amendment claims. The one which does, 12319 Corp. v. Business License Com. (1982) 137 Cal.App.3d 54, 186 Cal.Rptr. 726, reflects full awareness that First Amendment claims receive a different treatment. (Id., at pp. 64-66, 186 Cal.Rptr. 726.) We have independently reviewed the evidence, including transcripts of tape recordings of certain incidents.


Both incidents occurred on February 10, 1971. The second ensued from the first, but both are set in a broader context. There was unrest at Stanford about the war in Indochina and the University's role in U.S. involvement. On January 11, 1971, a speech on campus by Ambassador Henry Cabot Lodge was disrupted. Proceedings by the Stanford Judicial Council against several students due to this disruption were in progress.

Several arson attempts and false alarms occurred on the evening of Saturday, February 6. The rumored invasion of Laos was officially confirmed on Sunday, February 7. That evening about 600 persons attended an antiwar benefit in Dinkelspiel Auditorium. Leaflets were circulated to the crowd, including one by an antiwar group called "The Inquisition" which described a war-simulation program by the Stanford Research Institute run at the school's Computation Center and advocated immediate end to war research at the Center. The Center was evacuated that evening due to a bomb threat. After the gathering at Dinkelspiel, about 100 windows were broken on campus, including windows on two University police cars when they trained spotlights on a group throwing rocks.

On Monday, February 8, a noon rally at White Memorial Plaza on campus was attended by about 800 persons. Then, about 150 persons blocked a room in which members of the Stanford Board of Trustees were meeting. The group dispersed after the Sheriff declared an unlawful assembly and deputy sheriffs arrived. Later that day the police dispersed two other assemblies and maintained a presence on campus that evening.

At 8 p.m., on Tuesday, February 9, a three-hour meeting in Dinkelspiel Auditorium was attended by about 800 persons. Plaintiff was present throughout the following events. An open discussion was guided by a chairman. Information was received regarding protest activities in other areas. Proposals were sought regarding positions to take and demands to make, and finally, proposals were sought for implementation.

Several written demands were announced. "The Inquisition" demand centered on publicizing and prohibiting use of the Computation Center and any other Stanford facilities for military research. Pla...

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