Mabey v. Reagan

• Decision Date: 01 June 1976
• Docket Number: No. 74--3413,74--3413
• Citation: 537 F.2d 1036
• Parties: Rendell Noel MABEY, Jr., Plaintiff-Appellee, v. Ronald REAGAN et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1036

537 F.2d 1036

Rendell Noel MABEY, Jr., Plaintiff-Appellee, v. Ronald REAGAN et al., Defendants-Appellants.

No. 74--3413.

United States Court of Appeals Ninth Circuit.

June 1, 1976.

Rehearing Denied June 24, 1976.

Robert Leberman, Deputy Atty. Gen. (argued), San Francisco, Cal., for defendants-appellants.

E. Mark Himelstein (argued), of Himelstein & Savinar, San Francisco, Cal., for plaintiff-appellee.

OPINION

Before MERRILL and HUFSTEDLER, Circuit Judges, and JAMESON, ^* District Judge.

HUFSTEDLER, Circuit Judge:

Mabey, a former untenured faculty member at Fresno State College (the 'College,' now California State University at Fresno), brought suit under 42 U.S.C. § 1983 against the Trustees of the California State Colleges, the Chancellor of the State College System and the President of the College (collectively herein called the 'College' or the 'appellants'). He alleged that the College had declined to reappoint him to his probationary teaching position as a direct result of exercise of his constitutionally-protected right of freedom of expression and that he had been denied administrative procedures due him under Article 7 of Title 5 of the California Administrative Code. ¹ The district court granted summary judgment for Mabey on both claims and the College has appealed. ²

Mabey was first appointed as a probationary academic employee in the College's philosophy department for the 1968--69 year. ³ The College reappointed him for the next year. Both of these contracts were for one year. Mabey does not claim that he was de facto tenured.

On November 25, 1970, the President of the College informed Mabey by letter that his contract would not be renewed. The letter contained no explanation for the College's decision, but the appellants later advanced two reasons. To better understand the reasons, they must be seen against the background at the College in the Fall of 1970. The campus had become one of the battlegrounds of the political and academic conflicts of the middle and late 1960's. Civility even among faculty and administrators, was a major casualty, with apparently open hostility existing among the various factions. The acting president of the College was aligned with the 'conservative' faction. On May 17, 1970, the Los Angeles Times published an interview with him in which he was quoted as calling some of the younger faculty 'punks' and the ousted ombudsman a 'jerk;' his executive vice president was quoted as calling the opposing faculty 'damned liars.' The next day, at an academic senate meeting, following a vote to amend the agenda to include a discussion of the Times article, Mabey took the floor to comment on the article. After the chairman of the senate ruled him out of order, Mabey engaged in a dialogue with him for a few minutes. ⁴ When a motion to adjourn was made, Mabey left and the meeting resumed. During his remarks he had referred to various people as 'older punks,' 'jerks', and 'damned liars.' The appellants alleged neither that Mabey was violent, nor that there were students present. The College asserts that Mabey's unprofessional conduct at this meeting was one ground for his non-retention.

The College urges that a second, independent reason for not reappointing Mabey was the 'overstaffed' condition of the philosophy department. The university arrives at the number of faculty each department is entitled to by a complicated formula that compares the number of full-time equivalent students to the student-faculty ratio, established on the basis of available funds. Appellants have alleged that during the 1970--72 period Mabey's department employed three to five more faculty than its enrollment warranted. Nevertheless, in the Fall of 1970, the department and its chairman recommended that Mabey be reappointed, and also recommended approval of his application for a leave of absence without pay to complete his doctoral thesis. Allegedly because of the overstaffing problem, the Dean of the School of Humanities (and the Acting Academic Vice President) recommended against both retention and granting the leave. The president adopted the Dean's advice, and notified Mabey of his decision not to reappoint him.

Appellants raise four issues before this court. They assert that the posture of the case as of April 12, 1974, did not permit the district court to resolve all the disputed fact issues; therefore, summary judgment was improperly granted on both the First Amendment and due process questions. Next they say that even if summary judgment was appropriate, the record shows that Mabey's conduct at the meeting was not protected. Finally they say that the district court was wrong in its interpretation of Article 7; since the conduct ground was independent of the overstaffing ground, the latter sufficed. ⁶

This case presents both non-constitutional and constitutional issues. When a non-constitutional ground will dispose of a case, it is our obligation to use it. Here, if Article 7 procedures apply, a dispositive non-constitutional issue is presented. Since we conclude that Article 7 was inapplicable, it is necessary to treat the First Amendment claim. Before doing so, we discuss mixed-motive terminations, where one factor is constitutionally protected and a second, independent factor is not. Finally, we confront the free expression issues and discuss the standard governing expressive conduct in quasi-academic environments.

1. ADMINISTRATIVE DUE PROCESS CLAIM

As an untenured instructor, Mabey had no constitutional right to notice and a hearing in respect to his non-retention. (Board of Regents v. Roth (1972) 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548.) However, if the College's own rules dictated that certain procedures had to be used when an untenured instructor was not reappointed, it was bound to follow them. (Yellin v. United States (1963) 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778; Vitarelli v. Seaton (1959) 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012; Service v. Dulles (1957) 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403; Amluxen v. Regents of the University of California (1st Dist. 1975) 53 Cal.App.3d 27, 36, 125 Cal.Rptr. 497, 502.) Mabey claims that Article 7 of Title 5 of the California Code of Administrative Procedure covers his case. Article 7 contains procedures to be used when employees of the state colleges and universities are laid off 'for lack of work or lack of funds.' Appellants do not dispute that they did not use these procedures when they chose not to retain Mabey because his department was overstaffed. They argue instead that the 'lack of work or lack of funds' does not include overstaffing. According to them, Article 7 applies in emergency situations when substantial numbers of employees must be laid off in an impersonal way. Non-retention is, in contrast, an individualized decision dependent on a number of factors, a decision made deliberately and normally in the course of meeting personnel requirements. The district judge agreed with Mabey that Article 7 applied and granted summary judgment on this issue. Relying on appellants' responses to Mabey's interrogatories and requests to admit, and the special master's report, he found that Article 7 had not been complied with. ⁷

Subchapter 6 of Title 5 deals with employees of the California State Colleges. The first section of Subchapter 6 is definitional (§ 42700). Subsections 42700(q) and 42700(s) respectively define 'tenure' and 'probationary employee.' The tenured employee is permanent; a probationary employee is hired for terms of one year. 'Temporary employees' are defined implicitly; they may be hired for less than one year (§§ 42700(j), 42703(b)).

Three Articles within Subchapter 6 specify circumstances under which employees can lose their jobs. A distinct procedure attends each circumstance. Article 11 on 'disciplinary actions' regulates dismissals for cause. Employees dismissed for cause must be given notice and have access to a grievance committee. (§ 43525.) Cause is defined by the Education Code (Cal.Educ.C. § 24306) which also specifies in some detail the procedural safeguards surrounding a dismissal for cause. (Cal.Educ.C. §§ 24308--09.)

Article 7, as stated, deals with separations for lack of work or lack of funds. Rather than specifying procedures, the Education Code grants the trustees authority to adopt regulations governing these separations. (Cal.Educ.C. § 24312.) They have done so and in contrast to cause or non-retention decisions, this process is not at all individualized. The Chancellor of the system decides what 'classes or teaching service areas' within each school are to be 'reduced and the number of employees therein to be laid off . . ..' (§ 43200.) The employees are then laid off in an order specified by the Code: first temporary, then probationary, and finally permanent, the last in reverse order of seniority. Within the probationary and temporary groups, the Chancellor and president have discretion to chose from among those in the same class. (§ 43202(a)(1), (c).)

Article 13 treats the tenure rights of academic employees, including some aspects of non-reappointment of untenured faculty. Like the layoff regulations, the regulations dealing with decisions not to reappoint are within the broad discretion of the trustees. (Cal.Educ.C. § 24305.) Within Article 13 section 43566 governs the 'determination not to reappoint' a probationary employee, specifying when notice of the non-retention decision must be given, and that it must be written. This section refers to section 42701, which establishes a consultative procedure for 'academic personnel matters,' including retention. In accordance with this section, the tenured faculty make recommendations on 'academic personnel matters.' Section 42702(a) says '(a)ll appointments' will be made 'solely on ability and fitness for the position to be filled,' while section 42702(d)(1) gives the president the authority to make all academic...