United Carolina Bank v. Board of Regents of Stephen F. Austin State University

• Decision Date: 11 January 1982
• Docket Number: No. 80-1624,80-1624
• Citation: 665 F.2d 553
• Parties: 1 Ed. Law Rep. 1103 UNITED CAROLINA BANK, Administrator CTA of the Estate of Seymour I. Somberg, Deceased, Plaintiff-Appellee, v. BOARD OF REGENTS OF STEPHEN F. AUSTIN STATE UNIVERSITY, et al., Defendants-Appellants. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 553

665 F.2d 553

1 Ed. Law Rep. 1103

UNITED CAROLINA BANK, Administrator CTA of the Estate of Seymour I. Somberg, Deceased, Plaintiff-Appellee, v. BOARD OF REGENTS OF STEPHEN F. AUSTIN STATE UNIVERSITY, et

al., Defendants-Appellants.

No. 80-1624.

United States Court of Appeals, Fifth Circuit.

Unit A ^*

Jan. 11, 1982.

L. Gregory Wilson, Asst. Atty. Gen., Richard E. Gray, III, Executive Asst. Atty. Gen., Austin, Tex., for defendants-appellants.

Rorie & Pedersen, Tom D. Rorie, Nacogdoches, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before CHARLES CLARK, TATE and SAM D. JOHNSON, Circuit Judges.

CHARLES CLARK, Circuit Judge:

The Board of Regents of Stephen F. Austin State University (SFA), its president, Dr. William R. Johnson in his official capacity, and four members of the university administration who were sued individually in this section 1983 action appeal from a judgment entered for the plaintiff, Dr. Seymour Somberg. The action was based on the university's denial of tenure to Somberg and his loss of the position of professor in the School of Forestry. After a bench trial the court determined that Somberg's first and fourteenth amendment rights had been violated, that his contract had been breached and that he had established liability under an implied cause of action under the Texas Penal Code. The court awarded Somberg tenure, reinstatement, backpay and other compensation of $144,161.99, attorney's fees of $34,338.00 and costs of $3,570.00. Judgment was entered jointly and severally against the Board of Regents and the President of the University in their official capacities, and the other four defendants, Dr. Laurence C. Walker, Dean of the School of Forestry at SFA; Dr. John T. Lewis, III, Vice-President for Academic Affairs; Dr. Ralph Steen, President of the University during Somberg's tenure; and Dr. J. David Lenhart, Assistant to the School of Forestry, in their individual capacities. Dr. Somberg died during the pendency of this action, and the administrator of his estate is now the plaintiff of record.

We affirm the district court's holding that Somberg's termination violated his first amendment rights, and we affirm the award of attorney's fees against the Board, President Johnson and the individual defendants. We reverse the backpay award against the Board of Regents and President Johnson which is barred by the eleventh amendment and reverse the claim allowed, based on an implied cause of action under the Texas Penal Code.

FACTS

On April 17, 1970 Somberg was offered employment at SFA as Professor and Director of Research in the School of Forestry. Somberg's initial 1970-71 contract was for a nine month period, and he was reappointed for the 1971-72 school year by means of another nine month contract. During this second year, the tenure policy which existed when he entered service was amended by the Faculty Senate. Somberg was reappointed for the 1972-73 year by means of another nine month contract. During this third year a moratorium on the granting of tenure was enacted by the Dean's Council. The effect of these changes in the tenure situation are discussed below.

Somberg's fourth year appointment, received on April 9, 1973, did not specify that his probationary status was being extended. However, on April 25, 1973 Somberg was informed by letter that he would not receive tenure at that time. Somberg's protests about this denial of tenure culminated in a hearing before the Faculty Senate which voted that he did not have tenure. Although the administration had announced beforehand its intention to abide the outcome of the vote, Somberg had declared he would not necessarily be bound. On February 7, 1974 during his fourth year, Somberg was told that his next year would be his last at SFA.

Somberg's duties as Director of Research included bookkeeping for research funding provided by state sources and the federally funded McIntire-Stennis Forestry Research Program. Soon after his arrival at SFA, Somberg began making allegations concerning the misuse, or misallocation of research funds. These claims were founded primarily on Somberg's calculations as to the percentage of time certain professors were devoting to research and the percentage spent on teaching. He compared this ratio of research to teaching with the share of their compensation derived from research funds. This comparison disclosed to him that certain professors were receiving more than their proportionate share of research funds based on the percentage of time they spent doing research. Somberg made other allegations such as the use of research funds to finance transportation which was not for research purposes. He repeated these allegations frequently during the time he was employed at SFA.

After the April, 1973 notice that he would not receive tenure, Somberg met with Walker to discuss a plan whereby Somberg would resign as Director of Research to become the Director of International Studies in the School of Forestry, a new post which was to be created for him. During the course of his employment a serious personality conflict developed between Somberg and Walker, which was due in part to Somberg's repeated allegations concerning the misuse of research funds. This conflict manifested itself in a variety of ways, including a misunderstanding between the two men concerning the duties Somberg would perform in his new role as Director of International Studies. Somberg prepared a memorandum of understanding in which he attempted to set out the agreement reached with Walker. For example, it provided he would teach no more than two courses each semester, and none in the summer. Walker refused to sign the memorandum. During the 1973-74 school year Somberg assumed the post of Director of International Studies and thereafter had little contact with Walker. He apparently continued to speak out concerning research funds. This prompted Walker to caution him that unless he ceased talking to people outside the University he would lose his job.

On February 7, 1974 Somberg was told by Walker that since he had resigned as Director of Research his 1974-75 contract would be a terminal one. From this point, until the time in the fall of 1974 when Somberg resigned from the University, Somberg not only continued to pursue his protests over the tenure issue, but also escalated the intensity and scope of his criticisms concerning the misallocation of research funds at SFA. So too, the defendants escalated their reprisals to his criticisms by cancelling his travel funds, excluding him from general pay increases, changing his responsibilities to 100% teaching, and cutting off help from graduate assistants. Because these reprisals made his working conditions unreasonable, Somberg resigned his post at SFA.

The escalation of hostilities occurring after February 7, 1974 forms no basis for our decision, since these events obviously have no bearing on the reasons for Somberg's termination on that date. Neither do we characterize any party's conduct during that period. Likewise, a dispute concerning Somberg's absence from classes in the fall of 1974 due to eye surgery is irrelevant. Finally, we note that an audit of the McIntire-Stennis program, conducted after Somberg resigned, corroborated his allegations, although the parties disagree as to the extent of such corroboration.

Eleventh Amendment Immunity

We are confronted at the outset with the question of whether the eleventh amendment bars federal jurisdiction over Somberg's claims against the Board of Regents and President Johnson, in their official capacity. Although the language of the eleventh amendment indicates that a state must be sued before the bar to suit in federal court applies, it is not necessary for the state to be actually named in the suit if by suing a state official the action is in effect one against the state and any recovery will come from the state. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 462, 65 S.Ct. 347, 349, 89 L.Ed. 389 (1945); Jagnandan v. Giles, 538 F.2d 1166, 1173 (5th Cir. 1976). We must decide whether the Board of Regents of SFA is to be treated as an arm of the State partaking of the State's eleventh amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the eleventh amendment does not extend. Edelman v. Jordan, 415 U.S. at 667 n.12, 94 S.Ct. at 1358 n.12; Mt. Healthy City School District v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977); Hander v. San Jacinto Junior College, 519 F.2d 273, 278 (5th Cir. 1975); Gay Student Services v. Texas Ass'n, 612 F.2d 160, 165 (5th Cir. 1980). In answering this question we examine the powers, characteristics and relationships created by state law in order to determine whether the suit is in reality one against the state. Mt. Healthy, 429 U.S. at 280, 97 S.Ct. at 572; Hander, 519 F.2d at 279.

The majority of decisions concerning the eleventh amendment status of state universities have concluded the institutions involved were arms of the state. Yet, each situation must be addressed individually because the states have adopted different schemes, both intra and interstate, in constituting their institutions of higher learning. See e. g., Vaughn v. Regents of Univ. of Calif., 504 F.Supp. 1349, 1352 (E.D.Cal.1981).

Until Hillis v. Stephen F. Austin State University, 486 F.Supp. 663 (E.D.Tex.1980) and the decision below found that Stephen F. Austin is not an arm of the state for eleventh amendment purposes, federal district courts sitting in Texas had consistently reached the conclusion that universities classified as "general academic teaching institutions" or "public senior colleges or universities," Tex.Educ.Code Ann. § 61.003(3) (Vernon 1972) were arms of the state. Ramos v. Texas...