Toney v. Reagan

Decision Date15 January 1973
Docket NumberNo. 71-1588.,71-1588.
PartiesJoe David TONEY et al., Plaintiffs-Appellants, v. Ronald REAGAN et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

James N. Penrod (argued), Mark Himelstein, of Penrod & Himelstein, San Francisco, Cal., for plaintiffs-appellants.

Donald B. Day, Deputy Atty. Gen. (argued), Norman L. Epstein, Frances Rothschild, Evelle J. Younger, Atty. Gen., San Francisco, Cal., for defendants-appellees.

Before WRIGHT and CHOY, Circuit Judges, and POWELL, District Judge.*

Certiorari Denied January 15, 1973. See 93 S.Ct. 951.

EUGENE A. WRIGHT, Circuit Judge.

During the 1970-71 academic year appellants were probationary (nontenured) professors at Fresno State College in California. In the fall of 1970 they were notified that the college did not intend to offer them employment for the ensuing year.1

It appears that the appellants had actively criticized the college administration and had openly opposed the Viet Nam war. Some had participated in draft counseling programs, others had supported the work of Cesar Chavez and the United Farmworkers Organizing Committee. Professor Toney had been an outspoken proponent of Black student aspirations on campus. All appellants had taken part in demonstrations to publicize their views.

Appellants allege that they were not rehired because of the exercise of their First Amendment rights of free speech and assembly.

The California State College System has established a grievance hearing procedure which was available to appellants. This procedure was promulgated by Executive Order 112 of the Chancellor, acting pursuant to 5 Cal.Adm.Code § 42174. Appellants filed timely grievances in December 1970.

The following month they brought this civil rights suit in the District Court for the Northern District of California. The action was described as twofold. First, the plaintiffs sought an order reinstating them to the faculty for the 1971-72 academic year. Second, they asked the convening of a three-judge district court pursuant to 28 U.S. C. §§ 2281, 2284 to enjoin the enforcement of Executive Order 112 on the ground that the procedures outlined therein are unconstitutional.

A three-judge court was convened and appellants' claims were heard. That court then dissolved itself, holding that the case was proper for adjudication by a single district court judge. A district judge sitting alone considered the issues and ruled that the plaintiffs had stated a cause of action but that they had failed to exhaust an adequate prospective state administrative remedy as required by our decision in Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969). The trial judge denied a preliminary injunction against proceedings under Executive Order 112 but retained jurisdiction to hear the cause on the merits following the completion of the state hearings. Toney v. Reagan, 326 F. Supp. 1093 (N. D.Cal.1971).

Appellants appeal from the denial of a preliminary injunction. They also appeal from the order dissolving the three-judge court. After argument we delayed submission of the matter to await the Supreme Court's decisions in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

I. CAUSE OF ACTION.

Under the doctrines set forth in Roth and Perry, appellants' lack of tenure does not defeat their claim that the nonrenewal of their contracts violated their First Amendment rights. In Perry the Supreme Court specifically reaffirmed prior holdings that "the nonrenewal of a nontenured public school teacher's one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights." p. 598, 92 S.Ct. p. 2698. The Court stated:

"For at least a quarter century, this Court has made clear that even though a person has no `right\' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to `produce a result which it could not command directly.\' Speiser v. Randall, 357 U.S. 513, 526 , 78 S.Ct. 1332, 2 L.Ed.2d 1460. Such interference with constitutional rights is impermissible." p. 597, 92 S.Ct. p. 2697.

Thus the allegation that the appellants were not rehired because of their exercise of their First Amendment rights states a cause of action cognizable under the civil rights statutes.

Of course, appellants have not proved that the nonrenewal was a result of their expression of their opinions. They have only alleged it. But their allegations are sufficient to entitle them to present their evidence to the district court and to obtain relief if they prevail.2

II. RIGHT TO A HEARING.

The district court correctly found that appellants are nontenured. Roth holds that the Due Process Clause of the Fourteenth Amendment does not impose upon state schools an obligation to grant a hearing to a nontenured teacher whose employment is not renewed.

III. EXHAUSTION OF ADEQUATE PROSPECTIVE STATE ADMINISTRATIVE REMEDIES.

Despite the absence of a federal constitutional requirement that a hearing be provided, Executive Order 112 provides a state hearing procedure. This is a matter of state policy, not federal constitutional law. Cf. Roth, p. 578, 579, 92 S.Ct. 2710.

The issue then becomes whether, under Whitner v. Davis, supra, appellants were required to avail themselves of the state administrative remedy.

Claims under the Civil Rights Acts are not generally subject to the requirement that state remedies be first exhausted. The remedy provided by the federal statutes "is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked." Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961). See Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed. 2d 1319 (1968); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963).

However, in Whitner v. Davis, 410 F. 2d 24 (9th Cir. 1969), this court, citing Houghton, Damico, McNeese and Monroe, held that prospective, as distinguished from retrospective, state administrative remedies must be exhausted in order to state a claim upon which relief can be granted under the Civil Rights Acts.

In November 1970, when appellants were notified that they would not be reemployed in the fall of 1971, the alleged injury to their constitutional rights was not yet consummated. There was a threat that their employment would be terminated at a foreseeable time in the future. But they were not discharged. They were still assured of employment through the end of the current academic year.

The grievance procedures in this case would not operate to rectify a wrong which had already occurred. Rather, they were a means of forestalling a threatened deprivation of rights which was not to transpire for several months. In the event that appellants were to utilize the state hearing procedures, they might successfully reverse the decision not to reemploy them, have their contracts renewed, and suffer no break in their employment.

Under these circumstances, appellants were required to exhaust a state administrative procedure which would provide "a fair opportunity to present their version of the facts and law." Whitner v. Davis, supra, 410 F.2d, at p. 29. Cf. Stevenson v. Bd. of Ed., 426 F. 2d 1154, 1157 (5th Cir. 1970), cert. denied 400 U.S. 957, 91 S.Ct. 355, 27 L. Ed.2d 265 (1970). Indeed, if the administrative remedy designed to forestall the threatened discharge was "adequate," then "refusal to make use of it constituted an acceptance of the discharge and prevents appellants from establishing a claim under the Civil Rights Acts." Whitner, 410 F.2d at p. 29.

The district court thus was correct in ruling that the appellants were required to exhaust the procedures outlined in Executive Order 112, if those procedures were "fair and adequate."

IV. ADEQUACY OF THE STATE REMEDY.

We do not understand the appellants to question the applicability of the Whitner doctrine to this case. Rather they vehemently attack the adequacy and fairness of the procedures contained in Executive Order 112.

The Executive Order sets up a carefully considered, very detailed grievance procedure. It may be invoked by any academic employee who claims to have been wronged in connection with rights of job classification, benefits, working conditions, appointment, reappointment, tenure, promotion, reassignment or the like.

The grievant is first required to make a reasonable attempt to resolve the problem amicably on an informal basis. If such efforts are unavailing, he initiates formal proceedings by written notice to the President of the college, specifying the alleged wrong.

A hearing panel of three members is then selected by lot from the tenured faculty. The grievant and certain specified members of the administration may each exercise two peremptory challenges and an unlimited number of challenges for cause.

The panel makes an initial determination whether a hearing is required. If this initial determination is negative, the panel states its reasons and proceedings are at an end. If the determination is affirmative, notice of the hearing is sent to the appropriate persons.

At the hearing the grievant presents his evidence first and...

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