Hillis v. Stephen F. Austin State University

• Decision Date: 13 March 1980
• Docket Number: Civ. A. No. TU-75-360-CA.
• Citation: 486 F. Supp. 663
• Parties: Richard K. HILLIS, Plaintiff, v. STEPHEN F. AUSTIN STATE UNIVERSITY et al., Defendants.
• Court: U.S. District Court — Eastern District of Texas

486 F. Supp. 663

Richard K. HILLIS, Plaintiff, v. STEPHEN F. AUSTIN STATE UNIVERSITY et al., Defendants.

Civ. A. No. TU-75-360-CA.

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

March 13, 1980.

Martha McCabe of Daves, McCabe & Crews, Tyler, Tex., and Thomas J. Griffith of Griffith & Brister, Lubbock, Tex., for plaintiff.

Susan J. Dasher and David Talbot, Asst. Attys. Gen., Austin, Tex., and Robert Provan, Staff Counsel for the University, Nacogdoches, Tex., for defendants.

ROBERT M. PARKER, District Judge.

This cause was tried to the Court, sitting at Tyler, Texas, with trial commencing on August 28, 1979. After two days of evidence and argument by counsel for the respective parties, the Court announced its decision to take the matter under advisement. In connection therewith, the Court requested briefs of counsel on the Eleventh Amendment immunity issue. Said briefs were duly submitted and reviewed by the Court in reaching its decision. After a review of the testimony and the relevant authorities, the Court finds for the Plaintiff in connection with his claims under the First and Fourteenth Amendments to the United States Constitution and orders monetary and injunctive relief.

I. The Facts

Richard K. Hillis accepted a teaching position at Stephen F. Austin State University, Nacogdoches, Texas, for a nine month period which began August 23, 1974. Dr. Hillis possessed a strong academic background for the regional university, having received his Doctor of Arts from the Carnegie Mellon University in 1973.¹ A review of his vitae, admitted as Plaintiff's Exhibit # 3, reveals impressive achievements as a practicing studio artist and as a critical writer in the field of art. The conclusion that he possessed a high degree of professionalism is supported by a review of the recommendation letters which are appended to his vitae. Dr. Hillis was an asset to Stephen F. Austin University.

The Art Department at Stephen F. Austin University had been conceived primarily as a training ground for art teachers in the primary and secondary schools. As the university grew, the direction of the Art Department expanded in scope. While a majority of art majors continue to concentrate in Art Education, Stephen F. Austin has matriculated a significant number of art majors with other career goals.

Dr. Hillis was part of the new wave in the Art Department. As a result of Dr. Hillis' integrity, high professional standards, and introduction of new teaching methods, a series of confrontations with Dr. Creighton Delaney, Chairman of the Art Department, ensued. It does not escape the Court's sense of irony that Creighton Delaney was the man chiefly responsible for Dr. Hillis' hiring.

On September 4, 1974, only six days after Dr. Hillis began teaching at Stephen F. Austin, he received a memorandum from Dr. Delaney. (Plaintiff's Exhibit 69) Dr. Hillis was teaching Art 300² in the Fall term of 1974. Art 300 was a design course for which studio hours were required. Dr. Delaney, in the September 4th memorandum, instructed Dr. Hillis to carry Kelly Perkins on his class roll for Art 300 and to give her a "B" for the course.³ In accordance with Dr. Delaney's instructions, but still uncertain about them, Dr. Hillis listed Ms. Perkins on his twelfth day class roll.

The semester passed, and Dr. Hillis never saw Ms. Perkins in his class nor did he review her portfolio. The plaintiff made several attempts to speak to Dr. Delaney about Ms. Perkins. Dr. Delaney testified that he made the same attempt to speak to Dr. Hillis. In any case, the subject of Kelly Perkins and the September 4, 1974, memorandum was not discussed between Dr. Delaney and Dr. Hillis until sometime in early December, before the end of the Fall term and the final examination period.

The December meeting between Dr. Hillis and Dr. Delaney evidently turned into a heated debate. It was Dr. Hillis' position that he could not award a grade for a studio course to a student whose work he had never seen. Dr. Delaney's position was that as head of the Department his assessment of Ms. Perkins' work should be a sufficient guarantee of its quality to warrant the award of a "B". The disagreement over Ms. Perkins seemed to solidify the rift between the two educators, the new wave refusing to compromise his integrity to give way to the old.

Believing that Dr. Delaney would allow him to review the student's work before assigning the grade, Dr. Hillis gave Ms. Perkins a "WH", signifying that her grade was being withheld. Dr. Hillis did this even though he had given another student an "F" for excessive absences. Sometime after Dr. Hillis had turned in his grades, but before they were posted, Dr. Delaney changed the "WH" to a "B".

It was not until January 28, 1975, that Dr. Hillis learned of the grade change. By that time, Dr. Delaney had struck again. Dr. Hillis had been appointed to the graduate faculty on October 1, 1974. (Plaintiff's Exhibit 38) For the Spring Semester, Dr. Hillis had been assigned a graduate seminar course in research techniques in art, Art 550G. After a university approved trip to Washington, D. C., for an art conference, Dr. Hillis was reassigned to teach Art 100. Dr. Delaney took over the teaching responsibilities for Art 550G.

In response to his reassignment, Dr. Hillis initiated an airing of grievances through Dr. Fred Rodewald, a member of the American Association of University Professors, on January 28, 1975. It was through a conference between Rodewald, Delaney and Hillis that the grade change was revealed to the plaintiff. Plaintiff's Exhibit 8, a letter Dr. Hillis wrote to Dr. Bos, the President of AAUP at Stephen F. Austin, was dated January 28, 1975. This letter dealt exclusively with the reassignment. Plaintiff's Exhibit 9, another letter to Dr. Bos from Dr. Hillis, was written after the conference with Rodewald and Delaney. In Exhibit 9, Dr. Hillis protested the grade change as an infringement of his academic freedom.

A letter dated February 5, 1975, from Delaney informed Dr. Hillis that his teaching contract would not be renewed. (Plaintiff's Exhibit 11) Notably absent from the letter are any reasons for the failure to renew his contract. However, it was Dr. Delaney's own testimony at trial that established that the Kelly Perkins matter was not "insignificant" in the nonrenewal decision. The Court agrees with Dr. Delaney's assessment but carries it a step further; Dr. Hillis' protected activities in respect to Kelly Perkins were a motivating factor in the failure to renew Dr. Hillis' teaching contract.

Before entering legal findings with respect to the non-renewal, it is of some significance to note two other factual areas established at trial. Dr. Hillis made numerous attempts after February 5, 1975, to give the University an opportunity to resolve the matter itself. Among these were two separate requests for faculty senate hearings; both were denied. A Fine Arts Council Investigation Committee was empaneled to investigate the allegations of infringement of academic freedom, but the committee had no authority to deal with the question of non-renewal. Yet, the University felt sufficiently certain of its position to twice advise Dr. Hillis that he had exhausted his administrative remedies with respect to his non-renewal.

From the time of his non-renewal to the time evidence was heard in this case, Dr. Hillis made 286 applications to art-related employers. (Plaintiff's Exhibit 73) Dr. Hillis was rejected from consideration each time. At the trial of this case, Dr. Hillis had been employed by Texas Instruments in Lubbock, Texas, earning hourly pay. Before his employment with Texas Instruments, Dr. Hillis had worked as a manual laborer for the City of Lubbock. His total earnings from both employers over the four year period were $18,699.43. The parties stipulated that Dr. Hillis' salary for four academic years at Stephen F. Austin State University would have totaled $87,545.00.

II. The Merits

A teacher does not surrender constitutionally protected rights of freedom of expression and petition for redress of grievances as a condition of public employment. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). This fundamental precept of public employment, entrenched as it is in the case law, requires the Courts to guard against its infringement by the public employer. While public entities are free to make personnel decisions, their freedom of decision may not exceed their constitutional authority. When a public employer exceeds its constitutional license, the employee has but one recourse, the Courts. After a review of the evidence in the instant case, the Court may draw only one conclusion. Stephen F. Austin has exceeded its constitutional license; the University has made a personnel decision for a constitutionally impermissible reason.

Richard Hillis engaged in a number of protected activities. First, and probably most important in terms of the employment consequences, he met with Dr. Delaney to discuss the Kelly Perkins directive. His criticism of the directive and request to review Ms. Perkins' portfolio were protected by the First Amendment. Givhan v. Western Line Consolidated Independent School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979). Prior to being notified of his non-renewal, Dr. Hillis appealed to the AAUP for relief from infringement of his academic freedom. This he clearly had a right to do. Mailloux v. Kiley, 448 F.2d 1242 (1st Cir. 1971); Kaprelian v. Texas Woman's University, 509 F.2d 133 (5th Cir. 1975); Grimm v. Cates, 532 F.2d 1034 (5th Cir. 1976). Dr. Hillis' criticism of Dr. Delaney does not lose its protection simply because it was directed at or to his nominal superior. Givhan, supra; Abeyta v. Town of Taos, 499 F.2d 323 (10th Cir. 1974).

Having established that Dr. Hillis engaged in...