Jablon v. Trustees of California State Colleges, 73-1485.

• Decision Date: 05 September 1973
• Docket Number: No. 73-1485.,73-1485.
• Parties: Barry JABLON, Plaintiff-Appellee, v. TRUSTEES OF the CALIFORNIA STATE COLLEGES et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

482 F.2d 997 (1973)

Barry JABLON, Plaintiff-Appellee, v. TRUSTEES OF the CALIFORNIA STATE COLLEGES et al., Defendants-Appellants.

No. 73-1485.

United States Court of Appeals, Ninth Circuit.

August 9, 1973.

Rehearing Denied September 5, 1973.

John J. Klee, Jr., Deputy Atty. Gen., (argued), Evelle J. Younger, Atty. Gen., Elizabeth Palmer, Asst. Atty. Gen., San Francisco, Cal., for defendants-appellants.

Sheldon L. Greene (argued), of Lorenz & Greene, Levy & Van Bourg, San Francisco, Cal., for plaintiff-appellee.

Before BARNES and CHOY, Circuit Judges, and MURRAY^*, District Judge.

CHOY, Circuit Judge:

Dr. Barry Jablon, an untenured assistant professor of English at San Francisco State College (the College), brought this suit charging that his employment was unlawfully terminated at the end of the 1970-1971 academic year. In the fall of 1969, Jablon was informed that the president of the College, Dr. S. I. Hayakawa, had determined that 1970-1971 would be Jablon's terminal year. However, Hayakawa indicated that his decision was not final and that he was calling for a later reevaluation.

Hayakawa's decision not to rehire Jablon did not follow the formal written recommendations of the department's Hiring, Retention and Tenure Committee (HRT), the department chairman, or the dean of the School of Humanities. And, despite a further recommendation of HRT that Jablon be rehired, Hayakawa decided in the spring of 1970 not to change his original decision.

Jablon then initiated proceedings under the Interim Grievance Procedures for Academic Personnel then in effect on the campus. The grievance procedures provide for a hearing before a committee composed of tenured faculty members and permit the aggrieved instructor to introduce evidence of his own and examine any witnesses against him. Although the recommendation of the committee is not binding upon the president, the grievance procedures provide:

6.3 The decision of the President, except in rare cases and for compelling reasons, shall concur with the judgment of the hearing committee. In the event that the President\'s decision is not in accord with the grievance committee\'s judgment, the compelling reasons for his decision shall be stated in writing to the aggrieved and to the hearing committee.

At the hearing, Jablon argued only that he was academically qualified and, therefore, he should be retained. After deliberating, the committee voted 4-1 that the president should review the decision not to retain Jablon. Hayakawa requested a clarification of what the committee meant by the vote. The chairman, without consulting the other members indicated that he interpreted the four votes for review to mean votes for retention. But when the individual members of the committee were asked to interpret their votes, two members said Jablon should be retained; one member said he should not be retained; and two members declared that their votes had only been for an additional review of the case.

In view of this split, Hayakawa concluded that the committee had failed to reach a decision on the issue of Jablon's retention and that it was impossible for him to concur as required by Section 6.3 of the Grievance Procedures. He reviewed the decision again since it was clear that a majority of the committee wanted a review and determined that his original decision should stand.

Jablon was notified of the decision and registered an appeal with the Chancellor of the California State Colleges as is permitted under the grievance procedures. The chancellor, however, can only review those decisions when the president fails to concur with the hearing committee and the chancellor interpreted Hayakawa's decision as a concurrence with the hearing committee's decision requesting a review.

Thereafter, Jablon commenced this lawsuit. The basis of the lawsuit is substantially different from the issue raised in the grievance proceedings. Whereas the grievance proceeding dealt only with Jablon's academic qualification, the gravamen of the lawsuit is that Jablon was not retained because of his political beliefs and union membership.¹ The district court, however, never reached this issue because it had not been raised at the college administrative proceeding.

But the court ordered the College to reinstate Jablon with back pay, ruling that the president had violated the College rules in not remanding the matter to the committee for further deliberation until the committee reached a definite decision on the retention issue. The court felt that if the committee were unable to break its deadlock, the president would have to request that a new committee be formed to hear the matter de novo.

As an alternate ground for ruling in favor of Jablon, the court held that the College had imposed a stigma upon Jablon, so he was entitled by procedural due process concepts to an evidentiary hearing on his termination, and that the grievance procedure hearing did not fulfill the constitutional requirement. We reverse.

We agree with the district court that we cannot consider Jablon's first amendment claims. Formal presentation of a claim in the administrative proceeding is a prerequisite to a lawsuit. Toney v. Reagan, 467 F.2d 953 (9th Cir. 1972); Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969).

However, we disagree with the court's...