Fooden v. Board of Governors

Mr. Justice Ward, dissenting:

I cannot accept the majority’s agreement with the argument of the Board that there was no material issue of fact presented here. To do so is to say as a matter of law that it was not relevant and material whether the plaintiff-teachers had not been re-appointed for the academic year 1969-1970 because they had been active in union affairs and had initiated faculty discussion concerning the educational policies and programs of Chicago State College for minority groups. Such a position is untenable.

The discretion of the Board to re-employ or not to reemploy a teacher is broad but a decision not to re-employ cannot rest on constitutionally interdicted grounds. (Shelton v. Tucker, 364 U.S. 479 , 5 L. Ed. 2d 231 , 81 S. Ct. 247 ; Freeman v. Gould Special School Dist. (8th cir.), 405 F.2d 1153 ; Johnson v. Branch (4th cir.), 364 F.2d 177 ; and see Frakt Non-tenure Teachers and the Constitution, 18 U. of Kan. Law R. 27 et seq.; Developments Academic Freedom, 81 Harv. L. Rev. 1045 , 1065 et seq.) Thus, if the decision of the Board not to rehire the plaintiffs Salomon and Lalor for the academic year 1969-1970 rested on the ground that they had been active in union affairs and in initiating faculty discussions of the college’s educational policies it would have been in violation of constitutionally assured rights of free speech and freedom of asociation. (See Pickering v. Board of Education, 391 U.S. 563 , 20 L. Ed. 2d 811 , 88 S. Ct. 1731 ; McLaughlin v. Tilendis (7th cir.), 398 F.2d 287 ; American Federation of State, County and Municipal Employees v. Woodward (8th cir.), 406 F.2d 137 ; Sindermann v. Perry (5th cir.), 430 F.2d 939 , cert. granted 39 L.W. 3545; Roth v. Board of Regents of State Colleges (7th cir.), (July 1, 1971) ; Rainey v. Jackson State College (5th cir.), (Dec. 22, 1970).) The plaintiffs alleged that was the sole basis of the Board’s decision not to rehire and the allegation was not denied in the affidavit filed in support of the motion for summary judgment. Thus, a material issue of fact remaining unresolved, summary judgment should have been denied.

I consider that on the record here the allegations made on information and belief were certainly sufficient to withstand a motion for summary judgment. (See Whitley v. Frazier, 21 Ill.2d 292 .) A reading of Smith v. Township High School Dist. No. 158, 333 Ill. 346 , which the majority cites, discloses that insofar as they are relevant the holdings support the plaintiffs’ position. When the plaintiffs in Whitley sought to amend a petition to contest an election which contained allegations based on information and belief this court said: “We are not concerned, however, with the sufficiency of the petition to withstand a motion to dismiss, but only with its sufficiency for purposes of subsequent amendment. On such an issue it is the substance of the allegations which should control. It is true, in the opinion in the Hulse case [332 Ill. ¿00] contains intimations that if an original petition alleges everything on information and belief only, it would be too defective to be cured by amendment after the 30 days have expired. We think, however, that in these questions of practice the court should look to the essence of the allegations rather than to their form; and that insofar as present purposes are concerned the information-and-belief recitation may be treated as a matter of form only. In Smith v. Township High School Dist., 335 Ill. 346 , where a similar question was presented, this court observed that 'A statute, however, which requires a statement of the points upon which an election will be contested should receive a reasonable construction in order to accomplish the purpose intended. To hold that a petition to contest an election should only contain such allegations of fact as are within the contestant’s personal knowledge would be impracticable, for the very nature of the proceeding compels him largely to rely upon information obtained from other persons, and it is obvious that as to such information the contestant can only make oath that he believes the allegations to be true.’ This reasoning is equally applicable to the issue presented in the case at bar and a like result must follow. * * * The implication in the Hulse case, if defendant’s interpretation of it is correct, embodies too strict a rule on this question of pleading, is highly technical and can no longer be taken as correctly stating the law.”

The purpose of summary judgment procedure is not to try an issue of fact but to determine whether one exists between the parties. Whether claims such as the one made by the plaintiffs here are well founded is typically a matter peculiarly within the knowledge of the one against whom the claim is made. Considering the intendment of the summary judgment process, such a claim made on information and belief should be sufficient on a record as we have here to withstand a motion for a summary judgment. The rationale of this court in Whitley, should be applied here.

Finally, I would observe that in any event this is not a case of allegations made on information and belief being confronted by “positive, detailed averments of fact in an affidavit.” The Board’s affidavit ignored the plaintiffs’ allegation of constitutional denial I have described; it did not confront and deny it.

Mr. Justice Goldenhersh joins in this dissent.