holding that a non-tenured professor may acquire a pro-tectible property interest in continued employment if he has a reasonable expectation of the same
How later courts described this case
- holding that a non-tenured professor may acquire a pro-tectible property interest in continued employment if he has a reasonable expectation of the same
- “[in the context of teacher termination] minimum procedural due process requires that (a) he be advised of the cause or causes for his termination in sufficient detail to fairly enable him to show any error that may exist”
- remanding to court for order of joinder, or if joinder not feasible, for determination of indispensability
- outlining minimum requirements of post-termination due process for termination of teacher for cause
Written by the judges who cited it.
The opinion
THORNBERRY, Circuit Judge
(dissenting) :
With deference, I dissent. The majority recognizes that the State of Texas could terminate Dr. Ferguson’s employment only for cause and only after a hearing satisfying due process standards. Dixon v. Alabama State Board of Education, 5th Cir. 1961, 294 F.2d 150 . Ordinarily, due process rights will not entitle terminated employees to a federal remedy, because due process defines a broad boundary within which the State has discretion to adopt the procedures it finds most appropriate. But this case is outside the boundary. In my judgment, the case should be reversed because the defendants never accorded *861 Dr. Ferguson a hearing satisfying even minimum standards of due process.
The hearing the majority approves took place against a background of severe administration disapproval of Dr. Ferguson’s alignment with student causes and reluctance to recognize his procedural rights, circumstances that should have called for a particularly careful fact-finding hearing. Yet the hearing was a brief one, held before the Board of Directors of the University System as part of the agenda of a regular board meeting, and it took place after the College administration had already terminated Dr. Ferguson’s employment. The record before the district court discloses that one of the main grounds for Dr. Ferguson’s termination, his alleged incompetence, was never presented to the Board out of concern for Dr. Ferguson’s welfare. In contrast to this procedure, the cases hold that discipline cannot be based upon reasons not presented to the tribunal or set out in the notice to the accused. 1 The hearing itself was simple: President Thomas stated the three reasons for discharge, and Dr. Ferguson was allowed to make extemporaneous reply. He was denied the right to present evidence, a right clearly accorded by the cases. 2 Most important of all, the Board refused to make any findings or decisions regarding material disputed facts. It merely informed Dr. Ferguson that “The Board of Directors considers this an administrative matter to be handled by President Thomas and President Rudder.” The courts have indicated that colleges have a duty to furnish disciplinary tribunals that have at least the appearance of impartiality; 3 and it should be obvious that this duty cannot be fulfilled by a body that expressly abdicates its function to a person who has not heard the case.
The majority avails itself of testimony presented to the district court, but not received by the Board, to show that the hearing before the Board was adequate. I question the soundness of this approach. In the first place, the Board’s refusal to hear these witnesses was so definite that it discouraged the calling of any witnesses and the presentation of an adequate defense. In the second place, the majority’s approach ignores the duty of the State of Texas, as distinguished from the federal courts, to make an informed and impartial decision whether to terminate Dr. Ferguson’s employment. The majority’s holding reduces to the proposition that the Board was not required to afford Dr. Ferguson due process because Dr. Ferguson’s ease was weak.
In my view the college was required to afford Dr. Ferguson due process regardless of the merits of his case, and because of its failure to do so this Court should not sustain the termination of his employment.
. See Wright, The Constitution on the Campus, 22 Yand.L.Rev. 1027, 1072 (1969); Hammond v. South Carolina State College, D.S.C.1967, 272 F.Supp. 947, 950 ; Woody v. Burns, Fla.App. 1966, 188 So.2d 56, 57 .
. See, e. g., Dixon v. Alabama State Board of Education, 5th Cir. 1961, 294 F.2d 150, 159 ; Wright, supra note 3, at 1072 & n. 240.
. See Pickering v. Board of Education, 1968, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 & n. 2 ; Esteban v. Central Missouri State College, W.D.Mo.1967, 277 F.Supp. 649, 651 ; French v. Bashful, 5th Cir. 1970, 425 F.2d 182 (dismissing appeal from injunction against disciplinary action); French v. Bashful, E.D.La.1969, 303 F.Supp. 1333 .