Rampey v. Allen

• Decision Date: 25 September 1974
• Docket Number: No. 73-1609,73-1609
• Citation: 501 F.2d 1090
• Parties: W. Leroy RAMPEY et al., Plaintiffs-Appellants, v. Walt ALLEN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1090

501 F.2d 1090

W. Leroy RAMPEY et al., Plaintiffs-Appellants, v. Walt ALLEN et al., Defendants-Appellees.

No. 73-1609.

United States Court of Appeals, Tenth Circuit.

Argued May 15, 1974.

Decided Aug. 16, 1974, Rehearing Denied Sept. 25, 1974.

Stephen Jones, Jones, Williams, Bane & Klingenberg, Enid, Okl., for plaintiffs-appellants.

Joe C. Lockhart, Asst. Atty. Gen. (Larry Derryberry, Atty. Gen. of Oklahoma, and James H. Gray, Asst. Atty. Gen., on the brief), for defendants-appellees.

Before LEWIS, Chief Judge, and HILL, SETH, HOLLOWAY, McWILLIAMS, BARRETT and DOYLE, Circuit Judges, sitting en banc.

WILLIAM E. DOYLE, Circuit Judge.

The 14 appellants, plaintiffs in the district court, seek reversal of a judgment denying relief for alleged violations of civil rights. The claims were brought pursuant to 28 U.S.C. 2201 and 2202, together with 42 U.S.C. 1983. The complaint sought injunctive relief together with a declaratory judgment (no damages) determining the termination of the plaintiffs' employment to be null and void and violative of their rights to freedom of expression and due process under the First and Fourteenth Amendments of the Constitution of the United States. Eleven of the plaintiffs were faculty members and three were administrative officers of the Oklahoma College of Liberal Arts, a statutorily created Oklahoma state institution located at Chickasha.

On April 26, 1973 the defendant Bruce Carter, President of the college, recommended to the members of the Board of Regents that the employment of the 14 plaintiffs be terminated. A majority of the Board (five to two) accepted this recommendation, and in carrying it out gave no reasons for their action. The complaint alleged that the terminations were the result of the exercise by the plaintiffs of their constitutional rights of freedom of expression guaranteed by the First Amendment.

According to further allegations, the plaintiffs held a press conference and issued a release to the media on April 24, 1973, just prior to their termination. At the press conference they criticized the policies of Carter and some members of the Board of Regents.

Originally the plaintiffs apparently believed that the press conference had been the cause of their having been fired since the terminations were related in time, but the record does not support this. The trial court also focused on the press conference, but the evidence at trial goes far beyond this. ^*

President Carter's testimony disclosed that the decision not to rehire the plaintiffs was made on April 22, 1973, after consultation with Dr. Feree. In his testimony, the reasons he gave for the firings were that the plaintiffs were 'divisive' because they were unwilling to come into his office and have informal talks and because they had a tendency to talk among themselves and with the students. ^*0 In addition, one member of the faculty was accused of criticizing an address of Dr. Carter's given at an assembly and to have done so in the classroom. Carter's knowledge of this was based upon the hearsay statement of an unnamed student. The trial court generally followed Carter's statements, finding that the plaintiffs were 'divisive.'

At the trial (which commenced May 30, 1973), testimony was given by many of the plaintiffs and by President Carter. The district court ruled in favor of the defendants and against the plaintiffs, holding that the nonrenewal of the contracts was unconnected with the plaintiffs' exercise of their right of free speech under the First and Fourteenth Amendments. Extensive oral findings were made, and the testimony which was emphasized was the statement of President Carter that it was the divisiveness of the plaintiffs which caused their discharge and not the holding of the press conference. The court considered the plaintiffs' divisiveness to be the sole reason for the firing.

As we have indicated, it appears from the record that the decision to terminate the plaintiffs had been made, with one exception (Professor Ward), prior to the date of the press conference. Because of his years of service the plaintiff Rampey was held to have been entitled to a hearing for the purpose of determining whether sufficient cause existed for his separation.

The trial court recognized that the three administrative employees would normally have been entitled to a hearing but that the conditions at the institution were not normal so that the rule providing for a hearing was necessarily suspended.

The issue for our determination is whether the evidence is sufficient to support the trial court's findings that the firings were unrelated to plaintiffs' right to freely express themselves. If the evidence supports these findings, the judgment would have to be affirmed. We conclude, however, that the evidence fails in this regard and that the judgment of the district court must be reversed.

THE PLAINTIFFS' PRIOR RELATIONSHIP TO THE COLLEGE

The service background of the several plaintiffs differs. Rampey, a professor in the English department, was 46 years of age at the time of trial and had been employed at the college for more than ten years. At the time of Rampey's hiring there was a tenure policy which required a new faculty member to be on probation for three years and, following the completion of the three-year period, tenure was granted. On this basis Rampey was notified in 1965 that he had achieved tenure and had the rank of assistant professor. This was accomplished without the express approval of the Board of Regents. But in May 1972, just prior to the employment of President Carter, the Board of Regents abolished the tenure system. About a year later Rampey was terminated without notice or any kind of hearing. There had been no complaint made to Rampey or to anyone else that his work was unsatisfactory. He explained that the reason for his speaking out at the press conference and prior thereto to his colleagues was because of his concern about the future of the college, which had been placed on probation by the North-Central Accrediting Association. Rampey was unaware that President Carter was then engaged in the preparation of a list of people to be hired the following year, which list omitted the names of the plaintiffs.

Bryan Ledgerwood testified that he was Dean of the college and had first been employed in 1967 as director of institutional research and development. Subsequently, he became assistant to the then president. Thereafter, he was appointed acting Dean and finally academic Dean. Ledgerwood's immediate concerns were the decrease in student enrollment, the accreditation policy and the failure of those in authority to remedy these and other problems. He also sought to research the tenure issue and discovered, according to his testimony, that the Board of Regents had never specifically granted tenure to individual members of the faculty. He had learned prior to April 24, 1973 that certain of the faculty members with contracts would not be rehired. He also testified that he had expressed his concern about the institution to President Carter and also to members of the Board. In his opinion, if a faculty member were not terminated at the end of the three-year probationary period, he automatically acquired tenure. According to Ledgerwood, this was borne out by the faculty handbook.

Dr. Leon Cherrington testified that he was age 46 and that his teaching field was history, geography and interdisciplinary studies. His employment at the Oklahoma College of Liberal Arts commenced in September 1966 and his contract had been renewed each year since then for a total of six years. When rehired for the fourth year there had been no criticism of his teaching ability. The same in true when he was rehired for the fifth year. He had been selected teacher of the year in 1968 and had had other honors and was not apprehensive about being rehired. Prior to the press conference there was no indication given that he would not be rehired and he believed that he would be. He spoke out only because he felt that it was necessary since the college was in danger, as he phrased it, of 'going down the drain.' The reason he did not speak to Dr. Carter during the year 1972-73 was because it was impossible to see him and the faculty members were told that they were to report directly to Dr. Feree who was Carter's assistant.

The only plaintiffs (teachers) who had completed four years at the college prior to the abolition of tenure were Rampey, Cherrington, Richardson and Wimbish. Plaintiffs Poole, Holt and Maness had completed their fourth year in May 1972, subsequent to the abolition of tenure.

OTHER BACKGROUND FACTS

Some of the plaintiffs had never been notified that tenure had been abolished. As we view it, the tenure issue enters into this case to the extent that it provides some insight regarding the alleged arbitrariness of the defendants. The 11 plaintiffs who were on the teaching staff were treated by the administration as one group; Dr. Carter particularly placed them in one category. This was undoubtedly because they had been a part of the so-called core curriculum teaching staff, which meant that they used an interdisciplinary approach to teaching. Rampey was a member of this core curriculum staff, although he had not been hired initially as such.

The Oklahoma statute which created the subject institution contemplated that the Regents would maintain a tenure system. However, just prior to the appointment of Dr. Carter on May 3, 1972, as we have previously noted, the tenure system was abolished. We do not regard as irrelevant the fact that the plaintiffs who were members of the teaching staff had been led to believe when they were hired that they would receive tenure if they successfully completed the probationary period. It is further to be noted that the Governor's office had secured the resignations of several of the former members of the Board of Regents just prior to the...