holding that, with respect to substantive due process claims in the academic context, a “court should . . . look to the record as developed before the academic agency to determine whether there was substantial evidence before the agency to support the action taken, with due care taken to judge the constitutionality of the school’s action on the basis of the facts that were before the agency, and on the logic applied by it.”
How later courts described this case
- holding that, with respect to substantive due process claims in the academic context, a “court should . . . look to the record as developed before the academic agency to determine whether there was substantial evidence before the agency to support the action taken, with due care taken to judge the constitutionality of the school’s action on the basis of the facts that were before the agency, and on the logic applied by it.”
- upholding dismissal of teacher for making speeches using profane language and criticizing university administration and policies on the basis that such conduct was a breach of minimal duty of loyalty and civility
- teacher’s use of profane language in speech to students criticizing the school administration, and teacher’s preparation and distribution of leaflets announcing a protest meeting which violated school regulations were not protected
- categorizing, in the Four- teenth Amendment context, “universities” as “creatures of the state”
Written by the judges who cited it.
The opinion
GODBOLD, Circuit Judge
(dissenting) :
The District Court made a specific finding of fact, supported by a large body of evidence, that the President’s Cabinet did not possess the “apparent impartiality” toward the charges which Ferguson v. Thomas, 430 F.2d 852, 856 *842 (5th Cir. 1970), requires of an administrative hearing tribunal. This requirement is but a way of pointing out that to be qualified to hear the case the designated hearing body must be detached from the core of the controversy. The statement in Ferguson was based expressly upon a dictum of the Supreme Court in Pickering v. Board of Educ., 391 U.S. 563 , 578 n. 2, 88 S.Ct. 1731, 1740 , 20 L.Ed.2d 811 , 823 n. 2 (1968):
In the present case the trier of fact was the same body that was also both the victim of appellant’s statements and the prosecutor that brought the charges aimed at securing his dismissal.
In this case our concern is with competence to sit, and not whether the body acted in a partial manner in the conduct of its business or in its decision. 1
My brothers hold the actions of the President’s Cabinet valid on the sole basis (ground 2) of appellant’s actions and statements at the meetings of July 30 and August 3. In so doing they do not directly address themselves to the matter of the competency of the President’s Cabinet to hear her case. Rather they explicitly assume that the Cabinet acted impartially and conclude that the plaintiff failed to produce evidence of actual partiality sufficient to override that assumption. If they mean that as a factual matter the President’s Cabinet was sufficiently removed from the controversy that it was competent to conduct the hearing, they fail to comply with Rule 52, Fed.R.Civ.P., which protects findings of fact made by the district judge unless plainly erroneous, and, in addition, they simply ignore the evidence. If they mean that the decision of an administrative body not qualified to sit because of its connection with the controversy is valid unless it can be proved that it acted in a partial manner, they employ a erroneous legal standard. The District Judge recognized the necessity of the hearing body’s detachment from the subject matter, and found it to be lacking. That decision should be affirmed.
The majority opinion appears to me incorrect for another reason as well. Under the correct legal standard the Board of Regents, which exercised administrative appellate review, did not meet the qualifications required of an administrative body participating in consideration of plaintiff’s claim. 2
Ferguson sets out in simple and brief language a set of guiding principles for institutional hearings. In the phrase “apparent impartiality” the key word “apparent” is not a mere gratuitous redundancy. It is used advisedly as a warning to the administrative body and those who designate it that, at the threshold, they must be alert to determine whether the tribunal is competent. Judicial bodies have the benefit of established principles and traditions, and knowledge of their proper application, to guide them in situations where they have interests adverse to the litigants and must determine whether disqualification may be required or recusal appropriate. The usual institutional hearing body will possess neither these traditional criteria nor specialized knowledge of their applicability. Also judicial bodies have the advantages of history, of established status and the trappings of office which, in addition to their decisions, assist them in creating their own image and aura and engendering public confidence in and respect for what they do. The institutional hearing body within a university lacks these collateral means for creating the confidence and support of those who are to utilize it. The viable institutional remedy must present a recognizable face of justice as well as dispense the fact of justice — what the Dis *843 trict Judge in this ease described as “the atmosphere of impartiality.”
The lash of Mrs. Duke’s crude and offensive remarks was directed in general at the university administration (as distinguished from faculty and students)— “caustically critical” as the majority note — and in particular at the Board of Regents. The responsive action of which she complains came at the direction of the Regents and with the concurrence of the administration. I do not imply that either administrators or Regents were not high minded and honorable people. But it simply will not do that the speaker whose words have flayed, and who has been penalized for what she has said, is to have her objections to the penalty, and her appeal therefrom, at the hands of the persons who are her victims, accusers, investigators, prosecutors, and authors of the penalty as well. This is not judicial ivory towerism but common sense and everyday fairness in relationships between human beings.
Disqualification of the victim of verbal abuse to try his assailant is an established principle. Mayberry v. Pennsylvania, 400 U.S. 455 , 91 S.Ct. 499 , 27 L.Ed.2d 532 (1971), requires that a trial judge reviled by a contemnor must, if he waits until the trial’s end to mete out contempt punishment, defer to another judge. In Mayberry , the trial judge had been called a “dirty sonofabitch,” a “dirty tyrannical old dog” and other strong epithets. The Court concluded that “[n]o one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication.” Id. at 465 , 91 S.Ct. 505 , 27 L.Ed.2d at 540 . 3
In early August 1970, having just become Acting President of North Texas State University, Mr. John Carter learned of Mrs. Duke’s actions of July 30 and August 3 and directed that an investigation be made. He reported the results of the investigation to a meeting of the Board of Regents on August 19, and the Regents instructed him to conduct additional investigation and to satisfy himself whether what appeared to be the facts was true, and if so to “dismiss” her. President Carter investigated further and on August 25 wrote Mrs. Duke that at the direction of the Board of Regents the offer previously made to her to serve as part-time instructor was withdrawn. The letter proffered her a right to appeal by requesting within three days a hearing before the President’s Cabinet, which consisted of President Carter and his three Vice-Presidents, Lindsley, Spurlock and Rogers. On August 27 Mrs. Duke accepted the offer of appellate review procedures. The hearing before the Cabinet was scheduled for September 23, and Mrs. Duke was notified that the University would be represented by an Assistant Attorney General of the State of Texas. The hearing took place as scheduled.
These specific points must be cata-logued :
(1) It is not clear who made the decision that the President’s Cabinet be the hearing body. But it is revealed by *844 President Carter, who had been with the university 16 years, that he had never before heard of the procedure employed in this case being used with reference to any teacher or teaching assistant nor had he ever heard of the Board of Regents, which he considered to be a hiring and not a firing body, dismissing any faculty member. The procedure employed in this case was an ad hoc procedure which by-passed administrative machinery established for handling cases such as this one (if not this very one). By approval of the faculty, the President and the Board of Regents, the university previously' had adopted and had in force a detailed “Statement on Academic Freedom, Faculty Responsibility and Tenure of the Faculty, Administration and Board of Regents,” based upon a similar document adopted by the Coordinating Board of the Texas Colleges and University System. This document prescribes administrative procedures for faculty dismissals where reason arises to question the fitness of a faculty member, that encompass several steps. They begin with a conference with the department head, followed by an inquiry by a tenure committee of the department. If the faculty member desires a hearing, it is conducted by the University Tenure Committee under prescribed standards for right to counsel, examination of witnesses, and other rights of procedural due process. 4 Review of the decision of the University Tenure Committee is by the Board of Regents, who, if they do not sustain the Committee’s decision, are required to return the case to the Committee for reconsideration and if necessary further evidence, and only after that reconsideration can the Regents overrule the Committee.
Since Mrs. Duke was without tenure, and her appointment for the preceding term had expired, the university proceeded on the basis that the procedure prescribed by the “Statement on Academic Freedom” did not govern her case. 5 While the District Court did not need to reach the point, it is not clear that the university’s assumption was even correct. By its terms 6 the statement appears to be applicable under some circumstances to a teacher without tenure, whose appointment has expired, and whose contract is not renewed. This was precisely the situation of Mrs. Duke. However, whether Mrs. Duke fell within or without the formalized procedures is not determinative. The purposes of a hearing, and, if offered, and held, the necessity for its complying with pro *845 cedural due process, are the same whether the teacher has contractual status or, like Mrs. Duke, lacks that status. Contractual status goes to entitlement to a hearing, but once entitlement exists, whether by operation of law or by grace, the differences are at an end. Thus, even if the university was not required to adhere to the “Statement,” it was a source of suspicion from the beginning that with an established procedure available in which the faculty participated, the administration chose instead to follow an ad hoc procedural scheme never before employed that excluded faculty and placed the ease in the hands of administrators. It was this exclusion of the faculty rather than any contention that the “Statement” governed which, from the beginning, caused the university’s chapter of the American Association of University Professors (AAUP) to take the position that procedural due process was not being employed. Summarizing, I do not say that the hearing was required to be before the Tenure Committee. I do say, first, that there is a serious question of whether the university was correct in assuming that the hearing was not required to be before the Tenure Committee; and, second, even if the assumption was correct, the decision to bypass the available and approved hearing system in favor of an ad hoc procedure never before employed and wholly excluding faculty participation, contributed to the lack of the essential apparent impartiality.
(2) Mrs. Duke conferred with the local chapter of AAUP, which appointed a committee of university faculty members chaired by Dr. Clovis Morrisson, a lawyer, a former practicing attorney, member of the political science department, and faculty advisor to pre-law students. At no time did the AAUP Committee take a position on the merits of Mrs. Duke’s case or approve of her views or her language, but dealt with only the procedures under which the case should be handled. 7 The AAUP Committee requested of Dr. Carter that the hearing body be the Tenure Committee rather than the Cabinet. Carter agreed to, and did, relay that request to the Chairman of the Board of Regents. It was rejected. No explanation was then offered other than the fact that Mrs. Duke lacked tenure (and was between appointments). In the District Court an additional explanation was offered, that the date, physical arrangements and court reporter for a hearing already were arranged for.
(3) The AAUP Committee then asked to be allowed merely to attend the hearing. This too was denied. No reason was then or is now given for excluding from the hearing local faculty members representing the established and traditional organization of the university teaching profession.
In this case one need not speculate about the absence of apparent impartiality. The position of AAUP that the Cabinet was the wrong tribunal, that the Tenure Committee was an appropriate tribunal, that in no event should the hearing be before a group composed solely of administrators and from which faculty members were excluded, and that the hearing should not be closed, is the “proof of the pudding.” Drawn from the class to whom the “appearance” of impartiality was directed, and by virtue of their committee membership having their attention sharply focused on the situation, this committee was unable to perceive “apparentness” to be present.
(4) As already pointed out, the Cabinet consisted of Acting President Carter and Vice-Presidents Lindsley, Spurlock and Rogers. In early August, Carter had instructed Lindsley to investigate the actions of Mrs. Duke which are the subject of this suit, and Lindsley had done so. Spurlock also had taken some part in the investigation. When President Carter reported the results of the investigation to the meeting of the Regents, Lindsley and Spurlock were pres *846 ent. The Regents did not unequivocally direct President Carter to withdraw the offer to Mrs. Duke. Rather they instructed him to investigate further the “facts” as reported to them and to satisfy himself whether they were “true facts,” and, if they were, then to “dismiss” her. President Carter made further investigation, satisfied himself, and on August 25 took action as he had been directed. A month later he sat as senior and presiding member of the hearing body which, on conflicting testimony, decided the same general issues as those previously submitted to him for one-man decision and then determined by him to be true.
(5) Following the hearing before the Cabinet, proposed findings were prepared by the Assistant Attorney General serving as counsel for the university and forwarded to Mr. Carter.
(6) On October 30, five weeks after the hearing, no decision having been handed down, Mrs. Duke’s counsel wrote the President, asking a prompt decision. The Cabinet released its decision November 5.
(7) Mrs. Duke noted an appeal to the Board of Regents on November 11 and requested a prompt decision. On January 12, after waiting two months for a hearing to be scheduled, her counsel again asked a prompt hearing/ On January 23 the Regents for the first time proposed a hearing date, in late February. The hearing eventually took place on February 26, and purportedly consisted of a review of the transcript of the Cabinet hearing. 8 On March 1 the Regents upheld the Cabinet decision. Thus an institutional remedy, one of whose purposes is prompt amelioration or decision within the university community of strains and conflicts, had consumed from beginning to final decision more than six months. During that time Mrs. Duke, a divorced woman with two small children and nominal income, was without employment.
(8) One of the most disturbing aspects of this case is what I now discuss. Mrs. Duke was notified that the appeal before the Regents would consist of a review of the transcript and that there would be no evidence or witnesses. But, on February 19, by letters marked “Personal and Confidential,” President Carter mailed to each member of the Board of Regents an extract from the February 17-March 2 issue of “Denton’s New World Press,” purporting to be an article written by Mrs. Duke. It appears as footnote 6 of the majority opinion. The article attacks the university administration in general. More specifically, it bitterly assails the Regents for “stalling” in Mrs. Duke’s case. It describes them as “all white, all men, all rich,” and accuses them of “run[ning] the university as they and their class run the world.” Most significantly, the article says:
The regents are indeed guilty of immoral acts. They are criminals and their crimes are far more serious than m_ f__They insist on maintaining an imperialistic, militaristic, racist, sexist system which causes % of the people to go to bed hungry every night. The Board of Regents turns students at NTSU into robots, like themselves, whose fate is to become managers of a system which is already doomed to extinction. These criminals find it necessary to engage in severe repression when their system is threatened ....
It was egregiously wrong that, within two or three days of the hearing at which the Regents were to consider the appeal, they should be, ex parte and without notice to or knowledge of the appellant, furnished this inflammatory document that had been published months after the Cabinet hearing. It *847 asks too much of the Regents, in reviewing a record in which there was a conflict in testimony as to what Mrs. Duke had said of them and of the university administration in general, that they should be able to divorce what the record said and what the article said, or that they maintain requisite impartiality in the face of the remarks directed at them in the article. Though the judicial mind is trained to be more nearly capable of straining out what should not be considered, no panel of this court would sit in judgment in like circumstances. Certainly we would not entertain being privately furnished with such a document. This is not to say that institutional hearing bodies are expected to perform with the same carefully attuned responses as do courts. The point is that what happened demonstrates the necessity of separating those who were the victims of Mrs. Duke’s remarks from the function of trying and reviewing her case.
(9) The plaintiff contends that the Regents took punitive action against Dr. Morrisson because of his participation in Mrs. Duke’s case, thereby demonstrating that the Cabinet, as a subordinate body, and President Carter, could not act free of domination or fear of ’'reprisal. The same point goes, of course, to the issue of the Board’s disqualification to act as reviewing body. The conclusion of my brothers that the Cabinet cannot be deemed biased because the Board of Regents passed over Dr. Morrisson for promotion misses the point that the Regents too were required to be free of actual bias and possessed of apparent impartiality.
In addition to his actions already described, Dr. Morrisson had an audience with the Chairman of the Regents in mid-October. In February, having learned that the Regents would conduct their hearing later that month, he wrote the Chairman expressing ACLU’s continuing interest in the due process aspects of her ease but stating it would not ask that a representative attend. On April 2, after the Regents had upheld the Cabinet, he made a formal report of the Committee to the AAUP chapter of the university, sending a copy to President Carter. It stated that a serious breach of academic due process had occurred and that exclusion of the faculty from the matter had not been justified. On April 7 Dr. Carter sent a copy of the report to each Regent and suggested it be discussed at the next meeting. The April 2 report and other correspondence, requests and reports of the Morrisson Committee are in the record. They are models of discretion, courtesy and deference. They are dignified, reasonable and restrained in tone and in no way offensive or inappropriate.
Less than a month later the Regents passed over Dr. Morrisson for promotion from Associate Professor to full professor. Dr. Morrisson testified in the District Court that the promotion was recommended by his department, his dean and in some fashion at least by the Academic Vice-President but “was denied by the Board of Regents for reasons which, according to Acting President Carter, bore in part a direct relation to this case and my activities in it.” President Carter testified at the trial in this case. Dr. Morrisson’s testimony stands unrefuted.
The evidence reveals that after the Regents declined promotion to Dr. Mor-risson, he met with President Carter. At Carter’s suggestion he submitted specific written comment upon certain of his activities of the past year. Two of the matters upon which comment was suggested, and given, were Dr. Morrison’s appearances in federal and state courts, under subpoena, as a witness in proceedings involving Mrs. Duke, and his identification with the AAUP Committee report of April 2. It is hardly reasonable to suppose that his comments upon these matters would have been invited had they had not been factors in the decision of the Regents to deny him promotion. Dr. Morrisson’s comments are somewhat tangential. But they are like a breath of fresh air in this complex of responsibilities misunderstood by both sides, and they deserve repetition.
*848 3. My testimony on behalf of Mrs. Duke and Mr. Haylon in both State and Federal District Courts. Copies of the two subpoenas served on me are attached. To fail to testify would have subjected me to punishment for contempt of court. To lie on the witness stand would not have been possible for me.
4. [Comment upon the AAUP report of April 2,1971]
* * x * * *
From the very beginning we [the AAUP Committee] made one simple point: that she was entitled to a hearing before a faculty committee. At no time did we express agreement with Mrs. Duke’s views on society or her actions. You asked me during our initial discussion of this case, in September, if I endorsed Mrs. Duke’s views, as expressed in her speeches. I told you then that I did not, I testified in Judge Scofield’s court that I did not, and I tell you here again that I do not. I only support her right to have those views and to have what AAUP clearly considers a fair hearing to determine if her expression of those views had prejudiced her continued effectiveness in the classroom. That position of AAUP is a national one, it has been carefully worked out by the organization, and AAUP’s 1940 Statement on Academic Freedom has been endorsed by virtually every organization having anything to do with higher education.
* * X X X X
Thank you again, John, for our discussion of yesterday, and for agreeing to consider asking the Regents to reconsider their decision. I shall abide by your decision, and theirs, and shall continue to urge my friends to do the same.
We have encouraged institutional remedies for the sake of the institutions themselves and as a means of ending disputes short of the doors of our busy courtrooms. Wood v. Alamo Heights Ind. School Dist., 433 F.2d 355 (5th Cir. 1970); Lucas v. Chapman, 430 F.2d 945 (5th Cir. 1970); Ferguson v. Thomas, supra; Stevenson v. Board of Educ., 426 F.2d 1154 (5th Cir.), cert. denied, 400 U.S. 957 , 91 S.Ct. 355 , 27 L.Ed.2d 265 (1970). If those purposes are to be realized, the institution must do better, and we must do better, than in this ease.
. Except to the extent that biased actions may be evidence of lack of competency to hear the case.
. The District Court, because it found the President’s Cabinet disqualified as a hearing tribunal, did not need to consider the disqualification of the Board of Regents as reviewing body. In this court the majority, having rejected the decision as to the Cabinet, do not mention the patent disqualification of the Board of Regents to sit in appellate review.
. The citation in Ferguson of the Pickering footnote implies that an apparently impartial tribunal is at least one that has not been the subject of the statements by the dismissed teacher giving rise to the punitive action that is in question. AVhether that would be so in every instance we need not decide — the issue for us is whether the administration and the Board of Regents of this particular university had been “so cruelly slandered [as to be] likely to maintain that calm detachment necessary for fair adjudication.”
In Woodbury v. McKinnon, 447 F.2d 839 (5th Cir. 1971), we held that a hospital medical staff which stripped a physician of his surgical privileges was not disqualified to consider his qualifications merely because it had considered them on a previous occasion. In Fluker v. Alabama State Bd. of Educ., 441 F.2d 201 (5th Cir. 1971), nontenured teachers whose contracts were not renewed were granted hearings before the university’s Advisory Committee on Faculty Personnel, composed of three professors elected by the faculty to consider faculty grievances. We did not reach the contention that the hearing body was not properly constituted because nontenured teachers were excluded from it.
. The composition of the University Tenure Committee is not stated. The inference from requests by the faculty made to the university that the hearing be before that committee as representative of the faculty, is that it was composed entirely of faculty members.
. Under Perry v. Sindermann, 408 U.S. 593 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972), decided while this appeal has been pending, and changing the rule in the Fifth Circuit, the university would not have been required to give Mrs. Duke a hearing. This does not, however, dispose of the issue of whether, having offered her a hearing and appeal as parts of its administrative procedures for handling her claim, requirements of due process were met in the administrative process at both levels.
. Section IV, of the “Statement,” titled “Due Process for Faculty Dismissals,” provides:
“(1) These dismissal procedures apply to a faculty member who has tenure, OR TO A NONTENURED MEMBER WHOSE TERM APPOINTMENT HAS NOT EXPIRED, OR WHO ALLEGES A PRIMA FACIE CASE OF VIOLATION OF ACADEMIC FREEDOM IN THE NON-RENEWAL OF HIS CONTRACT. If he has tenure or an unexpired appointment extending beyond the period of the proposed dismissal, the burden of proof is upon The Administration to show adequate cause why he should be dismissed. If he does not have tenure, but contends that the nonrenewal of his contract constitutes a violation of his academic freedom, the burden of proof is upon the faculty member.” (Capitalization supplied; italics in original.)
. In fact, Dr. Morrisson-, -whose fate I will discuss later, publicly and in writing disapproved of her language.
. On February 26, the date of the hearing, President Carter wrote each member of the Board stating that he was enclosing a copy of the decision of the Cabinet, and apologizing for having failed to distribute copies earlier. Thus it is not even clear that the Regents saw the written decision that they were reviewing, and, if they did, it would appear that it was hand delivered on the day of the hearing.