Petition — Bowling v. Mathews

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Supreme Court, U. S

} FILED

29 1979

IN THE _

SUPREME COURT OF THE vues 2008

OcToBeR Term, 1978-7"

m Fe°-17Es

LAWRENCE E. BOWLING,

Petitioner,

Vv.

DAVID MATHEWS et al.,

Respondents. |

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

LAWRENCE E. BOWLING, Pro Se

66 Heritage Hills

Tuscaloosa, Alabama 35406

Tel. No. 205-345-5754

Of Counsel:

WYTHE W. HOLT, JR.

School of Law

University of Alabama

P. O. Box 1435

University, Alabama 35486

Tel. No. 205-348-7656

TABLE OF CONTENTS

Page

GS DOM. ots becciashndb heen easel 2

QUES. POEs ok seca dccs aeccbous 3

CONSTITUTIONAL AND STATUTORY PROVISIONS 4

STATEMENT OF THE CASE... 2. cccccccncces 4

REASONS FOR GRANTING THE WRIT.......... 12

I. Unconstitutional Fifth Circuit Rule. 12

II. Conflict With Decisions of This Court 21

A. First Amendment rights............. 22

eB OE ee 25

C. Desiaratery celia€ «os ok cscs kcvunes 28

A BRGRE BOLSRE: i's xc a5 eek 28

E. Dismissal of certain defendants.... 29

III. Conflict With Other Circuits...... 30

IV. Conflict With Alabama Supreme Court 31

GOLDER ci nacevscuhewin ee eeu Ubeeoas 32

gg ee eee eee ee ee Al

A. Opinion of the Court of Appeals,

p> ae Fe 2, Se ee ry ee: Al

B. Opinion of the Court of Appeals,

MOUSE TR, BRiSe «0s cassusavunun eee A6

C. District Court's order remanding

cause to University, 2-1-74....... A8

D. District Court's order granting

salary, denying reinstatement,

declaratory judgment,etc. ,6-20-74. A9

E. District Court's order denying °

reinstatement, declaratory judg-

ee ee OD PE aS All

F. District Court's order dismissing

as to defendant Sands, 5-22-75... Al3

G. District Court's summary judgment

for defendants, 8-18-76.......... Al4

H. Judgment of the Court of Appeals,

Speia 34, US7S. «isch cee Al6

I-J. Judgments of Court of Appeals,

Jameery G, 39 es vksecauantoeee Al7-18

K. Court of Appeals' denial of peti-

tion for rehearing en banc....... Al9

L. Constitutional and statutory

provisions ftawelwed.....sacasvaes A20

ABBREVIATIONS USED IN THIS PETITION... ii

TABLE GP AUTRE TEMG s 60s ic i ctwennuees ii

ABBREVIATIONS USED IN THIS PETITION

A = Appendix to the petition.

Bd. Ex. = Exhibit attached to Findings, Conclu-

sions and Decision of the Board of Trustees,

designated in the Record in Bowling v.

Mathews, Appeal No. 75-3879, as Doc.3(H)8,

filed in the District Court on April 14,

1976.

Doc. = document, as numbered in Record certified

to the Court of Appeals.

PX = Petitioner's (Universi — o st —

RX = Respondent's (Bowling's ibits in Record.

M = Record in Bowling v. Mathews ,Appeal No.75-2949.

2M = Record in Bowling v. Mathews, Appeal No. 76-3879.

2M Doc.3(G)7 = Transcript of Proceedings Before

the Board of Trustees, December 13, 1975, filed

in District Court, April 14, 1976. ne

2M Doc.3(H)8 = Findings, Conclusions and Decision

of the Board of Trustees, filed in District

Court, April 14, 1976.

S = Record in Bowling v. Scott, Appeal No. 75-1426,

in which only the documents were numbered con-

secutively, as certified on appeal.

1T = Transcript of the First Hearing.

2T = Transcript of the Second Hearing.

TABLE OF AUTHORITIES

Cases: Page

Armstrong v. Manzo (1965), 380 U.S. 545....16,25-28

Bass v. Hoagland (CA5 1949), 172 F.2d 205.... 1/7

Beacon Theatres v. Westover (1959), 359 U.S.500 13

Bowling v. Mathews (CA5 1975),511 F.2d 112...10,16

Bowling v. Mathews (CA5 1979), 587 F.2d 229

MT har ign a hen ea e's 00 6 11,16,17,18-28

Bowling v. Scott (CA5 1979), 587 F.2d 229. .17,18-28

Carey v. Piphus (1978), 98 S.Ct. 1042........ 28

Clemons v. Board of Education of Hillsboro

ER eee 30

Cramp v. Board of Public Instruction (1961),

Si vic wn veers devesanie 24

Curtis v. Loether (1974), 415 U.S. 189........ 13

Dairy Queeen v. Wood (1962), 369 U.S. 469..... 13

Damico v. California (1967), 389 U.S. 416 ...12,14

Ellis v. Dyson (1975), 421 U.S. 426.......... 12,28

Ferguson v. Thomas (CA5 1970), 430 F.2d 852

SA paw kat wate es 9,10,11,14,15,16,17,18

Fluker v. Alabama State Board of Education

Ce Bras ee ee so CGNioe ed ss heer wae 15

Gibson v. Be fil Cis7s), 413 U.S. 366... ... 12,21

Givhan v. Western Line Consolidated School

District’ (1979)... Fe B.C. Wades cia seve sass 22

Grayned v. City of Rockford(1972), 408 U.S.104 24

' Healy v. James (1972), 408 U.S. 169........... 22,23

v. Greenvilled Airport Commission (CA4

ee: Ok ON OS ere ne 30

Houghton v. Shafer (1968), 392 U.S. 639...... 12,14

Johnson v. Zerbst (1938), 304 U.S. 458....... 17

King v. Smith (1968), 392 U.S. 309........... 12,14

Lorillard v. Pons (1978), 98 S.Ct. 866....... 13

McNeese v. Board of Education (1963), 373

ee: GOS os cee wh hwee Chae bane cl ers cea s 12

Mitchum v. Foster (1972), 407 U.S. 225....... 13

Monroe v. Pape (1961), 365 U.S. 167....... 12,14, 28

Morrissey v. Brewer (1972), 408 U.S. 471..... 19

Papish v. Board of Curators of the University

of Missouri (1973), 410 U.S. 667........ 22 ,23,24

Pernell v. Southall Realty (974), 416 U.S. 363 13

Preiser v. Rodriguez (1973), 411 U.S.475..... 13

Procunier v. Martinez (1974), 416 U.S. 396... 24

Scheuer v. Rhodes (1974), 416 U.S. 232....... 30

Service v. Dulles (1957), 354 U.S. 363....... 25,27

Shelton v. Tucker (1960), 364 U.S.479 rs ae Sh

Speiser v. Randall (1958), 357 U.S. 513...... 16

Stapp v. Avoyelles Parish School Board (CA5

ETE 5 SU OE ek FONG cd ChE Seas 15

State Tenure Commission v. Madison County

Board of Education (1968), 213 So.2d 823... 31

Steffel v. Thompson (1974), 415 U.S. 452.... 12

Stevenson v. Board of Education (CA5 1970),

BD. Wie BAR: Coho ecr ash eek eave es Deka aas 14

Stewart v. Pearce (CA9 1973), 484 F.2d 1031.. 31

Thompson v. Madison Co. Board of Education

ae AEF ad, GTO Bee Wicd es He vs bab beens 15

Union Tool Co. v. Wilson (1922), 259U.S. 107..26,27

iii

Vitarelli v. Seaton (1950), 359 U.S. 535....25,27

Viverette v. Lurleen B. Wallace Jr. College

ee 29s Oey OE, Fe Bee ea bse on Vo geese ces 14

White v. Roughton (CA7 1976), 530 F.2d 750.. 31

Wilwording v. Swenson (1971), 404 U.S. 249.. 12

Wood v. Strickland (1975), 420 U.S. 308..... 28

‘

United States Constitution:

PE Ec OE Fe Mee as pew veseuaee 4,20,21,A20

eA OS aes pete Oh ankad con sais passim

eae er re ere passim

ee aa aus en nkpcas Re oewss oes @s 5

SE PL SS iNwiawe cbW 56a RE eed s0en a passim

et ak Oe Cee ik claw. Ge&E $10.12

SP Meenas SE wo a co a bee Ade Oe wes 5,10,12,14

ee yn a sk es oS dee 0 hw eee 14

Be Sees, CS he KA kek vues van 4,5,10,12,14,28

MR ge Se) | ee 4,5,10,12,14,28

ee Ce I eee uw at 4,5,10,12,14,28

Miscellaneous :

Federal Rule of Civil Procedure 56........ 30

American Association of University Profes-

sors, AAUP Policy Documents and Reports. 24

University of Alabama Faculty Handbook,

1968, p. 38, Policy on Termination of

| ee ae oe ee 21, 23-25 ,A22

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 197

No.

LAWRENCE E. BOWLING,

Petitioner, —

Vv.

DAVID MATHEWS et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner Lawrence E. Bowling respect-

fully prays that a writ of certiorari issue

to review the judgment and opinion of the

United States Court of Appeals for the

Fifth Circuit, affirming a summary judgment

and other orders of the United States Dis-

trict Court for the Northern District of

Alabama, in Bowling v. Mathews and Bowlin

v. Scott, which were consolidated on appeal.

lRespondents are the following individually and

officially charged officers of the University of

Alabama: David Mathews, President; Richard Thigpen,

past Executive Vice President; Paul E. Skidmore,

General Counsel; Howard B. Gundy, past Academic

OPINIONS BELOW

The opinion of the Court of Appeals

dated January 8, 1979, and reported at 587 F.

2d 229, is reprinted at Al. The opinion of

the Court of Appeals dated April 14, 1974,

and reported at 511 F.2d112,is reprinted at

A6. Orders of the District Court are at-

tached as follows: Order of February 1, 1974,

remanding the cause to the University, A8;

Orders of June 20, 1974, and January 28,1975,

denying reinstatement and declaratory judg-

ment, A9-12; Order of May 22, 1975, granting

final dismissal as to defendant Sands, Al3;

Order of August 18, 1976, granting summary

judgment to the remaining defendants, Al4.

JURISDICTION

The first judgment of the Court of Ap-

peals was entered on April 14, 1975. Al6. The

last judgments of the Court of Appeals were

entered on January 8, 1979. Al7-18. Time for

filing a petition for rehearing en banc was

extended to February 21, 1979. A timely peti-

tion for rehearing en banc was denied on March

13, 1979. Al9. The jurisdiction of this court

is invoked under 28 U.S.C. § 1454(1).

Vice President; Floyd H. Mann, Special Assistant to

the President; Willard Gray, past Associate Academic

Vice President; Douglas E. Jones, Dean, College of

Arts and Sciences; James B. McMillan, past Chairman,

Department of English; Dwight L. Eddins, past Chair-

man, Department of English; First Hearing Committee

Members Annabel D. Hagood, Robert E. Johnson, John

S. Pancake, and C. Dallas Sands; present and past

Members of the Board of Trustees George C. Wallace,

LeRoy Brown; Daniel T. McCall, Jr.; Winton M. Blount;

Eris F. Paul; Yetta G. Samford,Jr.; John T. Oliver,

Jr.; John A. Caddell; Ehney A. Camp, Jr.; Samuel

Earle G. Hobbs; Thomas S. Lawson; and Ernest G.

Williams; and J. Rufus Bealle, Executive Secretary

to the Board of Trustees.

QUESTIONS PRESENTED

1. Whether, in an action by a discharged

tenured professor suing named state offi-

cials for equitable relief and damages for

deprivation of rights protected by the

Fourteenth Amendment and 42 U.S.C. §§ 1983,

1985, and 1986, including First Amendment

rights and voting rights, a District Court

may deny plaintiff's right to a plenary

trial, including discovery and trial by

jury, remand the cause to defendants for a

second discharge proceeding, and, on the

basis of that hearing record, grant sum-

mary judgment for defendants on both the

equitable and the legal issues.

2. Whether a tenured teacher, found by

the Court to have been discharged without

due process, is entitled to reinstatement

prior to another discharge proceeding.

3. Whether a termination policy provid-

ing for discharge of tenured teachers for

undefined and unrestricted "adequate cause"

is unconstitutionally vague and overbroad.

4. Whether dismissal charges referring

to periods of one to seven years prior to

last year of employment and alleging con-

duct for which there had been no warning

deny due process, as held by the Supreme

Court of Alabama.

5. Whether defendants charged with con-

spiracy and deprivation of civil rights

may be dismissed prior to answer, dis-

covery, or evidentiary hearing, on a plea

of quasi-judicial immunity in non-judicial

action. :

CONSTITUTIONAL PROVISIONS,

STATUTES, AND REGULATIONS INVOLVED

U.S Constitution, Article I, §§ 9 and 10;

U.S. Constitution, Amendments I, VII,

and XIV;

U.S. Code, Title 42, Sections 1983,

1°85 (3), and 1986;

University of Alabama, Policy on Termi-

nation of Appointment, Faculty Handbook,

1968, p. 38.

The texts are set forth in Appendix L,

infra at A20-23.

STATEMENT OF THE CASE

This case arises because certain officers

of the University of Alabama (1) solicited

a tenured senior full professor, Dr.Lawrence

E. Bowling, for a political contribution in

a presidential election, (2) discriminated

against him in salary increments and course

assignments because of his refusal to con-

tribute, (3) discharged him without any

charges or opportunity for hearing, because

of his complaints concerning the solicita-

tion, discriminations, and conditions of

his emoloyment, and (3), after reinstating

him following his declaration of intent to

file court action, permanently suspended

him from all his professional duties, with-

out any prior notice, charges, or opportun-

ity for a hearing, and (4) thereafter dis-

charged him pursuant to a hearing which the

District Court found to have denied due

process. The original complaint demanded

reinstatement, back pay, and compensatory

and punitive damages in excess of $10,000

against individually and officially named

defendants charged with violating rights

protected by the First, Ninth, and Four-

teenth Amendments and by 42 U.S.C. §§ 1983,

1985(3), and 1986. Trial by jury was timely

demanded. The District Court's jurisdic-

tion rested on 28 U.S.C. §, 1331 and 1343,

Specifically, in October, 1964,, English

Department Chairman James B. McMillan

served on petitioner, at his campus post

of duty and during working hours, a solici-

tation fora political contribution to sup-

port the "election of President Johnson and

Senator Humphrey" in the presidential elec-

tion. M53 (See abbreviations, p. ii, supra.)

Petitioner refused to contribute, and

McMillan thereafter began and continued a

course of discrimination against him in

the assignment of classes and salary incre-

ments. In the spring of 1967, petitioner

brought these discriminations to the atten-

tion of the President and the Vice Presi-

dents and also called attention to the fact

that, because of McMillan's ineffective

leadership of the department, relatively

few students were enrolling in English.

M4,156, 177, 193. He requested, but never

received, a grievance hearing on these

issues. Instead, without any prior notice,

charges, or hearing, he was ordered to sub-

mit to a psychiatric examination or be dis-

charged. M 178, 195-200. He requested a

statement of charges; the request was de-

nied; he refused to submit to the examin-

ation and was informed that his employment

would be terminated as of July 1, 1967.

Petitioner sought the: services of an

internationally recognized psychiatrist,

who advised him: "What you need is not a

psychiatrist but a lawyer. ... Go back to

your ufiiversity and tell those officials

that you'll see them in court." Peti-

tioner did as advised, and the President

immediately reinstated him in his position

on August 18, 1967. M180;2T 1265-1269, 1896-

1897, PX 51. But unknown to petitioner,

"there were discussions about whether Pro-

fessor Bowling should have any further

salary increases or any more leaves of

absence". 2T RX 1-A at 313. Plaintiff re-

ceived no salary increase for 1967-68, the

academic year following this matter, and

no salary increase after 1970. M180,q% 15X.

In the fall of 1971, petitioner began

researching an article on "High Athletics

and Low Academics at the University of

Alabama". Its point was that, by strict

discipline in football, the school had

won the rating of Number One; whereas,

in academics, the University Administra-

tion's general attitude of permissiveness

had resulted in low ratings in many

regional and national surveys and reports.

M5,157. On September 13, 1971, petitioner

interviewed University Counsel George

Driver concerning these matters. Id. Im-

mediately thereafter, on the same day,

Chairman McMillan and Dean Douglas E. Jones

began harassing petitioner concerning a

report on his leave for the previous aca-

demic year. 2T 964[A]-167; PX 19-A, 18-A.

Petitioner also brought these matters to

the attention of two members of the Board

of Trustees, on September 25,27. M157,417E.

On January 1, 1972, McMillan was replaced

as Chairman by Associate Professor Dwight

L. Eddins, who, on January 11, "requested"

that petitioner teach a section of English

9, an elementary course normally taught by

part-time graduate assistants. PX 15. Peti-

tioner stated that teaching this course

would violate the terms of his employment

but that he would teach it if ordered to

do so. 2T 692,Eddins's testimony. On Janu-

ary 12, Law Professor C. Dallas Sands ad-

vised Dean Jones concerning discharge pro-

ceedings in this case; and on January 13,

Jones took a firm stand against petitioner.

M38. Also on January 13, Eddins told peti-

tioner to resign and made two threats: (1)

if petitioner would not resign, Eddins

would always discriminate against him in

the assignment of courses and (2) if peti-

tioner should ever reveal this threat,

Eddins would swear that petitioner was

lying. RX 68. Immediately thereafter, peti-

tioner informed Jones that he would teach

the class without any order. RX 70,at 232-

233; Jones's testimony. On January 14,

petitioner delivered to Jones a letter

(M62), confirming this fact. But Jones

wrote a letter (PX 14), advising Eddins to

assign "this particular section of Eh 9 to

another teacher pending further action in

this matter", and the class was "re-assigned

to a graduate student". 2T 609:6. Both Ed-

dins and Jones testified that petitioner

did not "refuse" to teach the class. 2T

691-693, 912:13-15, RX 70,at 201:16-18.

On February 8, 1972, Eddins, with advice

of his superiors, permanently suspended

petitioner from all his teaching duties,

without any prior notice, charges, or op-

portunity for a hearing. M64, PX 7. No

hearing was ever allowed on that suspen-

sion. Eddins continued making the threats

of discrimination and perjury, and peti-

tioner made a sound recording of them on

February 21, 1972, transcribed as RX 68.

At the first hearing, Eddins swore that he

did not make such threats. Confronted with

the sound recording, he admitted that it

was true and accurate. RX 66 at 425-428,

456-457.

On February 28, 1972, without any prior

notice, charges, or opportunity for hearing,

Dean Jones ordered petitioner to resign

or "face charges". Petitioner requested

charges and names of witnesses, but Jones

refused to supply either. RX 81-A. Peti-

tioner refused to resign.

On March 13 and 16, 1972, petitioner re-

quested that President Mathews supply cer-

tain information and release a recent re-

port of the Southern Association, which

petitioner needed in connection with the

article he was writing on athletics and

academics. M201,202. Mathews did not re-

spond. On March 29, 30 and April 3, peti-

tioner discussed these matters with Trus-

tees Williams and Caddell and gave them

copies of reports of the American Council

on Education and the Association of Research

Libraries, and a College and University

Environmental Scales survey, all ranking

the University low academically. M187. On

April 8, the Board of Trustees adopted a

Resolution authorizing President Mathews

"to handle matters of***dismissal***with

regard to faculty and staff members". 2M

Doc.3(H)8,p.26. On April 11, Dean Jones

filed dismissal charges against petitioner.

M259. The -harges covered the whole period

of petitioner's employment, on none of

which he had received any previous com-

plaint. A hearing was held in May and June,

and Dean Jones discharged petitioner as of

August 13, 1972. Petitioner appealed to

President Mathews, who denied the appeal

on January 24, 1973. M9.

The action of Bowling v. Mathews was filed

on February 9, 1973. On May 31, petitioner

amended his complaint as a matter of right

(M155-159), specifically charging that

certain defendants conspired to, and did, _

deprive him of equal protection of the lawsi”

and that certain other defendants knew of

this conspiracy and failed to take any pre-

ventive action. On Jume 25,he filed a motion

for permission to amend his complaint to

charge that defendants conspired to, and

did, discharge him in retaliation for his

petitioning for redress of grievances and

for exercise of freedom of speech for the

purposes of saving taxpayers' money and

improving the University academically.M172.

On October 12, petitioner timely demanded

trial by jury and filed a motion for per-

mission to amend his complaint to request

(1) a declaratory judgment on the issues

of the constitutionality of the Univer-

sity's termination policy, the statement of

charges, and the findings of the Hearing

Committee and (2) a preliminary injunction

reinstating him in his position. M308-313.

Meanwhile, he had filed numerous requests

and motions for discovery (M122,125,128,

204,285,288) and for preliminary reinstate-

ment in his position. M209,314. All of

these motions were denied. M150,203,383, 317,

318,325,326, 360.

Following the procedure outlined in the

majority opinion in Ferguson v. Thomas

(CA5 1970), 430 F.2d 852, the Court denied

petitioner's request that defendants be

ordered to answer the complaint (M321),

read the Committee Hearing transcript,

found denial of due process, and, over

petitioner's strong objections, remanded

the cause to respondents for a second hear-

ing. M382,387;2T 1839. Petitioner perfected

Appeal No. 74-1309.

While that appeal was pending, petitioner

filed motions on April 8, 1974, requesting

(1) partial summary judgment, including a

declaration of the unconstitutionality of

the termination policy, (2) reconsideration

of the order remanding the cause to the

University, and (3) a preliminary injunc-

tion for back pay and full reinstatement

pending further proceedings. M419-425. The

Court granted back pay and continuation of

salary and denied the motions in all other

respects. A10

On July 23, 1974, Dean Jones filed his

Second Statement of Charges (M512-535),

which, like his original charge®, con-

sisted almost wholly of charges relating

to periods from one to seven years prior

to the last year of petitioner's employ-

ment and to petitioner's private state-

ments to his employer and his colleagues

concerning the terms and conditions of his

employment.

On January 27, 1975, petitioner filed the

action of Bowling v. Scott, charging addi-

tional violations of rights protected by

the First and Fourteenth Amendments and by

42U.S.C. §§ 1983, 1985(3), and 1986 and de-

manding (1) a declaratory judgment on the

constitutionality of the termination policy

and the Second Statement of Charges and

(2) an injunction reinstating petitioner

in his position.S Doc.2. The District Court's

jurisdiction rested on 28 U.S.C. §§ 1331,

1343, and 2201. On January 28, 1975, he

amended his complaint to add demands for

damages against the individually and of-

ficially named defendants, trial by jury,

and determination of the legal claims

prior to determination of the equitable

claims. S Doc.4. The Court entered Orders

denying all requested relief (Al1-12), and

petitioner perfected Appeal No. 75-1426.

On April 17, 1975, the Court of Appeals

affirmed the District Court's rulings from

which petitioner had appeald in Bowling v.

Mathews, basing its affirmance upon Fergu-

son v. Thomas, supra. A6.

The second hearing did not begin until

May 1, 1975, fifteen months after it had

been ordered. A4,A8. Petitioner filed

motions to strike designated averments in

the charges, on the grounds that they were

unconstitutional because of vagueness,

overbreadth, res judicata, staleness, con-

donation, and waiver. M536-560. These

motions were denied, and petitioner moved

the District Court to restrain respondents

from proceeding with the second hearing

until the Court could render a declaratory

judgment on the constitutionality of the

termination policy and the Second State-

ment of Charges. M509-560. The Court

denied the motion. M569.

On May 22, 1975, the District Court entered

a final judgment of dismissal as to defen-

dant C. Dallas Sands (M570), and petitioner

perfected Appeal No. 75-2949.

On July 21, 1975, the Hearing Committee

"concurred" in the void prior discharge.

2M Doc.3(H)8, Ex.F,p.I1. On October 7, 1975,

Dr. Howard B. Gundy, acting for the Univer-

sity despite his previous disqualification

of himself for bias as a defendant in the

legal action (Id.Ex.U), "concurred" in the

Committee's "concurrence". On April 3, 1976,

the Trustees, who were also defendants for

damages, "approved" the "concurrence" of

the Hearing Committee. 2M Doc.3(H)8.

The District Court denied petitioner's

requests for a plenary trial, including

trial by jury, reviewed the Second Hearing

record, and, without opinion, entered sum-

mary judgment for respondents on both the

equitable and the legal issues, on the

basis of the hearing record on the equit-

able issues. Al4. Petitioner perfected

Appeal No. 75-3879, and the Court of

Appeals affirmed, on the basis of Fergu-

son_v. Thomas, supra. Al.

REASONS FOR GRANTING THE WRIT

I. Unconstitutional Fifth Circuit Rule

The United States Court of Appeals for

the Fifth Circuit has fashioned a rule of

constitutional law which denies to teach-

ers and all other school personnel the

right to a federal forum and trial by

jury, and limits the District Court to a

review of the administrative record, on

all civil rights claims arising under the

Fourteenth Amendment and 42 U.S.C. §§ 1983,

1985, and 1986. This rule departs so far

from the prescribed course of judicial

procedure as to call for an exercise of

this court's power of supervision.

Sections 1983, 1985, and 1986 expressly

provide for a plenary trial in "an action

at law" and/or "suit in equity", and 28

U.S.C. §§ 1331 and 1343 provide that

"(t]he district courts shall have origi-

nal [not appellate] jurisdiction of any

civil action commenced by any person"

under these acts and the Fourteenth Amend-

ment. This court has "long held that an

action under § 1983 is free from [the

exhaustion] requirement.'' Ellis v. Dyson

(1975), 421 U.S. 426, 432; Monroe v. Pape

(1961), 365 U.S. 167; McNeese v. Board of

Education (1963), 373 U.S. 668, Damico v.

California (1967), 389 U.S. 416; King v.

Smith (1968), 392 U.S. 309; 312; Bas va

v. Shafer (1968), 392 U.S. 639; Wilwording

v. Swenson (1971), 404 U.S. 249; Gibson

v. Berryhill (1973), 411 U.S. 564; Steffel

v. Thompson (1974), 416 U.S. 249.

This court has also consistently held

that "{i]n cases in which legal relief is

available and legal rights are determined,

the Seventh Amendment provides a right to

jury trial." Lorillard v. Pons (1978),

98 S.Ct. 866, 871; Curtis v. Loether (1974),

415 U.S. 189;Pernell v. Southall Realty

(1974), 416 U.S. 363. The Court has fur-

ther held that in an action involving

both legal and equitable claims, a liti-

gant is entitled to jury determination

of the legal issues and all facts common

to both the legal and the equitable issues,

prior to determination of the equitable

issues. Beacon Theatres v. Westover (1959),

ae oP 469; Dairy Queen v. Wood (1962), 369

In Mitchum v. Foster (1972), 407 U.S,

225, 242, the Court emphasized: ''The very

purpose of § 1983 was to interpose the

federal courts between the States and the

people, as guardians of the people's

rights---to protect the people from uncon-

stitutional action under color of state

law, ‘whether that action be executive,

eee terns ta Ok In Preiser v.

Rodriguez , 1 U.S. 475, 496, the

Court held that "the filing of a complaint

pursuant to § 1983 in federal court ini-

tiates an original plenary civil action,

governed by the full panoply of the Fed-

eral Rules of Civil Procedure."

Despite these facts, the Fifth Circuit

has fashioned, and continues to enforce,

a procedure which runs directly counter

to this court's rulings and the Civil

Rights Acts, in two most fundamental

respects, First, it requires exhaustion

of state administrative remedies; second,

it restricts the District Courts to a re-

view of the administrative hearing record.

It thus repeals the Civil Rights Acts and

reinterposes state officials between pub-

lic employees and the federal courts.

The Fifth Circuit took the first step

in the formulation of this procedure in

Stevenson v. Board of Education(CA5 1970), 426

° , "a civil rights case brought

under 42 U.S.C.A. §§ 1981 and 1983 and

28 U.S.C.A. § 1343(3), by three male Negro

high school students who were suspended

from school for refusing to shave."" Id.

at 1156. Although the panel expressed

awareness of this court's rulings in

Monroe, Damico, Houghton, and King, supra,

it held these cases inapplicable “in

school personnel and management problems."

Id. et ik3/.

In Ferguson v. Thomas, supra, the Fifth

Circuit applied its exhaustion-and-limited-

review procedure to teacher discharge

cases. A divided panel held that the Dis-

trict Court had erred in allowing a ple-

nary trial and advised that such procedure

not be permitted in similar future cases:

Federal Court hearings in cases of this

type should be limited in the first in-

stance to the question of whether or not

federal rights have been violated in the

procedures followed by the academic

agency in processing the plaintiff's grie-

vance. If a procedural deficit appears,

the matter should, at that point, be re-

manded to the institution for its compli-

ance with minimum federal or supplemen-

tary academically created standards. ...

If the procedures followed were correct

and substantial evidence appears to sup-

port the BPoard‘s action, that ordinarily

ends the matter. [Id. at 858; emphasis

added]

In the recent case of Viverette v. Lur-

leen B. Wallace Jr. College (CA5 1979),

587 F.2d 191, 193, the Fifth Circuit fur-

° ’

ther extended the Ferguson procedure to

apply to all civil rights actions involv-

ing "employees" of "educational institu-

tions" and summarized the procedure as

follows:

In reviewing the decision of an edu-

cational institution to discharge one

of its employees, a federal court is

limited to a two-tier level of inquiry:

whether the procedures followed by the

school authorities comported with due

process requirements, and, if so, whe-

ther the action taken is supported by

substantial evidence, Ferguson v.

Thomas, 430 F.2d 852, 858 (och Cir.

1970); Fluker v. Alabama State Board of

Education, 441 F.2d 201, 208 n.15 (5th

Cir.1971); Thompson v. Madison Count

Board of bducation- 476 F.2d 676 650

(Sth Cir.1973) (Clark,J., concurring) ;

Sta v. Avoyelles Parish School Board,

545 + 2d 527, 534 (oth Cir.1977). Because

; - -

federal courts are limited in the scope

of thelr review to the procedures em-

pioyed by and the evidence before an

educational review board, it was not

improper for the district court to

grant summary judgment on the basis of

the transcript of the hearing by the

Ad Hoc Committee and the exhibits

attached thereto; in fact, de novo hear-

ings in district courts on such matters

are not favored. [Emphasis added]

This summary implies that the Ferguson

procedure has been universally approved

and adopted by all "federal courts",

whereas neither this court nor any Court

of Appeals other than the Fifth Circuit

has ever adopted this procedure.

By limiting the District Courts to a

review based on substantial evidence, the

Ferguson procedure shitts the burden of

proof from the school officials to the

teacher and also requires that he prove,

by at least a preponderance of the evi-

dence, that he should not have been dis-

charged, whereas due process mandates that

the burden is on the moving parties to

prove, by at least a preponderance of the

evidence, that the teacher should be dis-

charged. The Ferguson procedure completely

reverses and inverts the most basic prin-

ciple of all law: the presumption that

every person charged with an offense must

be presumed innocent until proven guilty.

Speiser v. Randall (1958), 357 U.S. 513,

525; Armstrong v. Manzo (1965), 380 U.S.

545, Jol-552.

The Ferguson procedure stands the Civil

Rights Acts on their head, Moreover, it

emasculates the Fourteenth Amendment and

repeals the Seventh; for it denies the

right to trial by jury, including the

right to jury determination of the legal

issues and of all facts common to the

legal and the equitable issues, prior to

determination of the equitable issues.

The Fifth Circuit has twice held that

petitioner must not only exhaust ac nini-

strative remedies but that he must ex-

haust them twice. Although the Record

shows that petitioner had fully exhausted

administrative remedies and had been fin-

ally discharged, before filing this action

(A), the District Court denied petition-

er's right to trail on this issue in a

federal forum and remanded the cause to

the University for a second discharge

proceeding, and the Fifth Circuit twice

approved this procedure. A5, A7. The first

appeal panel justified its approval of

the remand on the basis of its (erroneous)

finding that "the second administrative

hearing of which Bowling now complains was

accorded by the trial court at his own

behest", A7. The Record in Bowling v.

Mathews shows that petitioner at no time

requested a second hearing and that he

repeatedly objected to such hearing.

M423; 2T1839. He filed the action of

Bowling v. Scott to forestall that hear-,

ing, 3 Doc. Zz.

This court has held: "A court's juris-

diction may be lost ‘in the course of

the proceedings' due to failure to com-

plete the court---as the Sixth Amendment

requires---by providing counsel for an

accused who is unable to obtain counsel

If this requirement of the Sixth

Amendment is not complied with, the court

no longer has jurisdiction to proceed."

Johnson v. Zerbst (1938), 304 U.S. 458,

467-468.) Citing Johnson, the Fifth Cir-

cuit has held that a court loses juris-

diction if it fails to complete the court

by granting properly demanded jury trial:

"We believe that a judgment ... reached

without due process of law is without

jurisdiction and void ... because the

United States is forbidden by the funda-

mental law to take either life, liberty

Or property without due process of law,

and its courts are included in this pro-

hibition. The right of jury trial, if

not waived but denied after demand, the

judge usurping the function of the jury,

would seem to be similarly [as depriva-

tion of counsel was in Johnson] an uncon-

stitutional abuse of power.” Bass v. Hoag-

land (CA5 1949), 172 F.2d 205, 209. This

court denied certiorari. 338 U.S. 816.

In the instant case, the Fifth Circuit

panel re-affirmed the Ferguson procedure

as "the well-established authority of this

Circuit" and held that it forecloses the

right to jury trial: "We reject, as

inconsistent with the well-established

authority of this Circuit, appellant's

contention that minimum procedural due

process entitles him to a jury trial on

the merits of his termination. See, e.g.,

Ferguson v. Thomas, 430 F.2d 852 (5th

Cir. 1970).” A5, n.7. The panel found

that the proceedings in the District

Court and by the University "fully com-

plied with the procedural due process

standards of the Fourteenth Amendment."

A5.

That this finding is clearly erroneous

in numerous respects, in addition to de-

nial of trial by jury, is obvious on its

face. In footnote 5, that opinion quotes

from Dr. Scott's memorandum to the

Second Hearing Committee the instruction

that "the burden of proof ... shall be

satisfied only by clear and convincing

evidence". Yet, on the same page, the

opinion states that the Committee based

its findings upon "substantial evidence".

AG.

That opinion further staces that peti-

tioner was ''represented throughout these

proceedings by a Professor at the Univer-

sity of Alabama Law School." A4. Both the

hearing transcript and an affidavit of

that professor reveal that some of the

hearing sessions were scheduled at times

that Professor Holt could not be present,

2T 761, contrary to Dr. Scott's written

instruction that the Committee must sche-

dule the times of its meetings “with due

consideration for the convenience of ...

Dr. Bowling and his counsel" (2M Doc.3(H

8, Board Ex. D); that, on one occasion

when Professor Holt could not be present,

the Committee held a meeting, over his

and petitioner's protests, heard testimony

from an unscheduled witness whom the

committee had been informed that only

Professor Holt was prepared to question,

and denied petitioner's request for per-

mission to make a telephone call to Pro-

fessor Holt for his counsel. 2T 761,

1861-1837, 1950, 2010-2015; Professor

Holt's affidavit, 2M Doc. 3(H)8, Bd. Ex.T.

The panel opinion fails to note innumer-

able other violations of due process in

the second discharge proceedings, includ-

ing the following. There was a fifteen-

month delay between the date of the re-

hearing order of February 1, 1974, (A8)

and the beginning of that hearing, May 1,

1975. A&,. That delay denied due process

in two important respects. First, the

longer petitioner was deprived of his

association with students and colleagues,

the more firmly established became the

view that he was a "discharged professor",

thereby prejudicing potential members of

the second hearing committee. Second, the

delay allowed witnesses to disappear and

memories to grow dim concerning the facts

surrounding and preceding the suspension

and discharge. Morrissey v. Brewer (1972),

408 U.S. 471. Indeed, on October 9, 1973,

respondents alleged that they were unable

to answer the complaintbecause "this case

has been talked around" so much that re-

spondents were unable to distinguish be-

tween what they had done and what they

had heard. M469. Of the seven witnesses

testifying against petitioner, six re-

peatedly contradicted their own testimony

and exhibits and alleged unclear memories

as reason for their self-contradictions

and their failure to remember facts favor-

able to petitioner, in innumerable instances.

The Committee held an ex parte confer-

ence with University Counsel Skidmore and

accepted his advice that it employ as its

counsel a relative of President Mathews.

2T. 29-21, 32-33. Executive Vice President

Thigpen, Academic Vice President Gundy,

Assistant Academic Vice President Scott,

and the Trustees refused to appear and

testify before the Committee, and Thigpen

told secretaries not to testify. 2T 761-762,

831, 1524-1544, 1557-1560, 1726-1728, 1836, 1838-

1839. The Committee based its findings upon

nine ex post facto "duties of a full pro-

fessor", which it formulated and applied

yee petitioner after the hearings were

closed. 2M Doc. 3(H)&S. Bd. Ex. F, p. l.

University Counsel Skidmore misled the

Committee into misconceiving its proper

function to be merely that of endorsing

and concurring in the prior void dis-

charge, rather than that of making an

original, independent determination whe-

ther petitioner should be discharged. In

the last sentence of his closing argument,

Skidmore urged the Committee: "We respect-

fully ask that you render a recommendation

endorsing the termination of the employ-

ment of Dr, Bowling." 2T 2275. That the

Committee conceived its function in pre-

cisely this light is made clear by the

final sentence of its Report: "The Com-

mittee recommends, then, since it concurs

that Charge One and Charge Two have been

proved by the petitioner, that respondent,

Professor Lawrence E. Bowling, be dis-

missed from his position as a tenured pro-

fessor in the Department of English, Col-

lege of Arts and Sciences, The University

of Alabama."

Dr. Howard Gundy, "the University offi-

cial assigned the responsibility of making

the final institutional decision with re-

spect to [petitioner's] future employment"

(A5) was a defendant in the legal action

for damages and had previously disquali-

fied himself because of personal bias

(Bd. Ex. U), and President Mathews had

concurred in this disqualification. Bd.

Ex..V. Moreover, the individual members

of "the Board of Trustees of the Univer-

sity of Alabama, which approved the re-

commendation of the faculty hearing com-

mittee" (A5), were also defendants inthe

legal action for damages, had a vested

interest in the outcome, and were not

apparently impartial decision-makers.

Gibson v. Berryhill, supra.

The Trustees denied due process in

numerous respects, including making inde-

pendent "initial" findings, contrary to

their ruling that they would only "review

[the Committee's] initial determination"

(2M Doc.3(G)7, pp.9-10); making findings

contrary to the evidence; adopting and

applying against petitioner seven ex post

facto "duties of a Professor of English"

(2M Doc.3(H)8,p. 13) never applied against

any other teacher; and denying petition-

er's right to salary for "at least one

academic year" after notice of termination

of his employment, as provided by the ter-

mination policy. A23. The Trustees made

their decision on April 3, 1976, to termi-

nate petitioner's employment, “effective

at the conclusion of the current academic

year (May 16, 1976)." Id. at p. 46.

II. Conflict With Decisions (f This Court

Review is further warranted because the

rulings of the District Court and the

Court of Appeals conflict with decisions

of this court on the following important

issues:

A. First Amendment rights. The First

Amendment protects the right to "freedom

of speech" and the "right ... to petition

the Government for redress of grievances".

This court has recently held that a teach-

er may not be discharged for speaking pri-

vately to an employer concerning "policies

and practices of the school district".

Givhan v, Western Line Consolidated School

District (1979), 99 S.Ct. 693. This court

has long held that "Tt]he vigilant pro-

tection of constitutional freedom is no-

where more vital than in the community of

American schools", Shelton v. Tucker

(1960), 364 U.S. 479, 487; that “the prece-

dents of this Court leave no room for the

view that, because of the acknowledged

need for order, First Amendment protection

should apply with less force on college

campuses than in the community at large",

Healy v. James (1972), 408 U.S. 169; and

that “the First Amendment leaves no room

for the operation of a dual standard in

the academic community with respect to

the content of speech", Papish v. Board

of Curators of the University of Mssouri

(1973), 410 U.S. 667, O71.

Almost the whole of the averments in

the Statement of Charges (M512-535) and

of the Findings of the Board of Trustees

(2M Doc.3(H)8, pp.11-21) related to peti-

tioner's private speech to his employer

and to his colleagues concerning the

terms of his employment and "policies and

practices" of his university. See Memo-

randum of Official Observers of the Ameri-

can Association of University Professors

and the American Federation of Teachers,

2M Doc. 3(H)8, Bd. Ex. P. Even petitioner’

alleged "refusal" to teach a section of

English 9 on January 11, 1972 (M522)

(which Dean Jones testified was the reason

for initiating the discharge proceedings,

2T 697:14-18; RX 70, p.247:12-15) re-

lated to the terms of his employment.

Both Dean Jones and English Chairman

Eddins admitted that petitioner did not

"refuse" to teach the class but only

"objected" that teaching it would not

comply with the terms of his employment ;

that petitioner explicitly stated that

he "was not refusing to teach the course'

and that he would teach it if ordered to

do so; that noorder was given; that he

then agreed to teach it withouc an order;

and that it was "re-assigned to a graduate

student". 2T 609, 691-693, 912, 916; PX 15; RX

70, pp. 201, 232-233.

Contrary to the foregoing testimony by

Jones and Eddins, the Board found that on

"January 11-12, 1972, Bowling refused ...

to teach a section of English 9". 2M Doc.

3(H}8 p.14. The Board also found: "Within

the academic community a Departmental

Chairman's request of a member of the De-

partment to teach a course therein is the

equivalent of an order to do so" (Id. at

13), despite the fact that Jones admitted

that he "didn't tell [petitioner] at the

time that the request which had been made

to him was tantamount to an order, equaled

an order, was an order". 2T 916. The Board

thus held that the word "request" has an

entirely different meaning "within the

academic community" than it has "in the

community at large", contrary to this

court's holdings in Papish, Healy, and

Shelton, supra.

The termination policy (A22) provides

that "the appointment of a faculty member

who has tenure ... may be terminated for

adequate cause."' The University has never

defined or restricted this term, despite

the fact that both the Association of

American Colleges and the American

Association of University Professors have

repeatedly warned of its vagueness and

overbreadth. AAUP Policy Documents and

Reports, 1969 ff£., p.5. See S Doc.2, p.3.

Although both lower courts impliedly

held this termination policy to be con-

stitutional, neither court analyzed that

policy or cited any law supporting that

conclusion. This court has consistently

held unconstitutional innumerable terms

far less vague and broad than "adequate

cause", including "generally accepted

standards of conduct" and "indecent con-

duct or speech", Papish, supra; "aid",

"support", “counser™ "influence", Cra

v. Board of Public Instruction (1961),

365 U.S. 389, “unduly complain", "magnify

grievances", "defamatory", Procunier v.

Martinez (1974), 416 U.S. 396. In Procu-

nier, the Court held: "These regulations

Fairly invited prison officials to apply

their own personal prejudices and opinions

as standards for prisoner mail censorship

..+. Appellants have failed to show that

these broad restrictions on prisoner mail

were in any way necessary to the further-

ance of a governmental interest unrelated

to the suppression of expression." Id. at

415. In Grayned v. City of Rockford (1972),

408 U.S. : -10¥9, the Court he that

vague regulations violate due process in

three essential respects: "Vague laws may

trap the innocent by not providing fair

warning..... A vague law impermissibly

delegates basic policy matters to [hear-

ing committees and school boards] for re-

solution on an ad hoc and subjective basis,

with the attendant dangers of arbitrary

and discriminatory application. Third,

-.. @ vague statute ... operates to in-

hibit the exercise of ... basic First

Amendment freedoms."

These observations are well illustrated

in the present case. The broad and vague

term "adequate cause" gave no "fair warn-

ing" of what was prohibited, "invited"

both the Second Hearing Committee and the

Board "to apply their own personal preju-

dices and opinions as standards" for

determining the "duties" of a professor,

and was used by respondents "to inhibit

the exercise of basic First Amendment

freedoms."' Both the Committee and the

Board applied against petitioner their

separate sets of ex post facto duties

never applied against any other teacher.

Respondents have applied "adequate cause”

to punish First Amendment expression with-

out achieving a valid governmental interest

by the “least drastic means." Shelton v.

Tucker, supra.

B. Right to restoration to one's former

status when deprivation has denied due

process. This court has consistently held

that any person deprived of a significant

consitutional right without due process of

law is entitled to full restoration tohis

original status prior to any further pro-

ceedings against him. Service v. Dulles

(1957), 354 U.S. 363; Vitarelli v. Seaton

(1959), 359 U.S. 535; Armstrong v. Manzo,

supra. In Vitarelli, “petitioner filed

suit in the United States District Court

seeking a declaration that his dismissal

had been illegal and ineffective and an

injunction requiring his reinstatement".

This court found that "petitioner's pro-

cedural rights were violated in at least

three material respects in the proceed-

ings which terminated in the final notice

of his dismissal", "that such dismissal

was illegal and of no effect", and "that

petitioner is entitled to the reinstate-

ment which he seeks". Id. 537, 541, 545, 546.

In Armstrong v. Manzo, Armstrong's

former wife and her successor husband

brought suit to adopt the daughter of

Armstrong and Mrs. Manzo, without giving

notice to Armstrong. The Texas district

court held a hearing and rendered a decree

in favor of the Manzos, Informed of this

fact, Armstrong moved the court to set

aside the decree. Instead, the court held

a hearing on the motion, which was denied.

The Texas Court of Civil Appeals affirmed,

and the Supreme Court of Texas refused an

application for writ of error. On certio-

rari, this court unanimously reversed,

holding that the granting of the original

decree without notice had not only denied

due process in that hearing but also

shifted the burden of proof to Armstrong

and prejudiced him in all subsequent stages

of his case.

As a tenured senior full professor,

petitioner was permanently suspended from

all his teaching duties in the middle of

the semester, without any notice, charges,

or opportunity for hearing on the suspen-

sion. Following a dismissal hearing, to

which he had objected, he was discharged.

He filed action for reinstatement, back

pay, and damages for the unconstitutional

suspension and discharge. The District

Court refused to rule on the constitu-

tionality of the suspension, despite the

fact that it had no discretion not to do

so; for this court has held that "legal

discretion ... does not extend to a refu-

sal to apply well-settled principles of

law to a conceded state of facts". Union

Tool Co. v. Wilson (1922), 259 U.S. 107,

IlZ, But the Court did find that the

discharge proceeding contained at least

"three fatal defects", any one of which

was "sufficient to sustain the lack of

due process". M386. Having made this

determination, the District Court had no

discretion not to declare the suspension

and the discharge a nullity and to rein-

state petitioner in his former status.

Service, Vitarelli, Armstrong, Union Tool,

supra.

Instead, the Court ordered only con-

tinuation of compensation and remanded

the cause to the defendants for a second

discharge ee over petitioner's

objections. M388, 423; S Doc.2; A8, 9, ll.

Thus, the Court's rulings not only allowed

the suspension to continue but also gave

tacit approval of that suspension, thereby

shifting the burden of proof to petitioner

and prejudicing him before the Second

Hearing Committee and all successive

bodies ruling on his case,

Procedurally, this case is almost iden-

tical with Armstrong. Respondents' sus-

pension of petitioner without notice,

charges, or hearing, was equivalent to the

Texas court's rendering the original

decree against Armstrong without prior

notice. The Court's denial of petitioner's

motions to set aside the suspension and

reinstate him in his position was identi-

cal to the Texas court's denial of Arm-

strong's motion to set aside its original

decree and restore him to his original

status. And petitioner was prejudiced be-

fore the Second Hearing Committee, the

Board of Trustees, the District Court,

and the Court of Appeals, as Armstrong

was prejudiced in his subsequent proceed-

ings in the Texas courts, The words of

this court's opinion in Armstrong are

applicable, with even greater emphasis,

ow. case. See 380 U.S. at

C. Right to federal declaratory judg-

ment _on the issue of the constitutiona-

lity of the termination policy and the

second statement of charges. In Ellis v.

Dyson, supra, this court held that, in a

civil rights action under § 1983, "the

opportunity for adjudication of constitu-

tional rights in a federal forum, as

authorized by the Declaratory Judgment

Act, becomes paramount." 421 U.S. at 432.

In Bowling v. Mathews (M 311, 421),

petitioner repeatedly requested declara-

tory judgment on the issue of the consti-

tutionality of the termination policy

(A22) under which he had been discharged.

The Court refused to consider these re-

quests. M325; A9. In Bowling v. Scott,

the complaint (S Doc.2) demanded a decla-

ratory judgement on the issue of the con-

stitutionality of both the termination

policy and the Second Statement of

Charges, under which respondents were

again seeking his discharge. Again, the

Court refused to rule on this issue. All.

D. Right to damages for unconstitu-

tional deprivation. This court has held

that any unconstitutional deprivation of

rights, privileges or immunities is

actionable in the Federal courts for dam-

ages under §§ 1983, 1985, and 1986. Monroe v.

Pape, supra; Wood v. Strickland (1975),

U.S. 308; Carey v. Piphus (1978), 98

S.Ct. 1042. In Carey, the Court held that

"the denial of procedural due process should

be actionable for nominal damages without

proof of actual injury. Id. at 1054.

Petitioner was permanently deprived of

all his teaching duties on February 8,

1972, in the middle of the semester and

without any notice, charges, or opportu-

nity for hearing on that deprivation,

either before or after the deprivation.

P.7 supra. Respondents have never dis-

puted these facts. In his complaint,

petitioner also charged and the District

Court found (M386, A8), that respondents

had discharged him without due process

of law, and respondents have never chal-

lenged the Court's ruling. Despite these

undisputed facts and this ruling, how-

ever, the District Court denied peti-

tioner's right to nominal damages and

his right to trial om the issues of com-

pensatory and punitive damages and en-

tered summary judgment for respondents

on all issues (Al14), and the Court of

Appeals affirmed and taxed costs against

petitioner. Al, 16, Even nominal damages,

which the courts had no discretion to

deny, would have entitled petitioner to

his costs and attorney fees.

E. Right to answer, discover and ex-

ploration of facts betore dismissal Of

defendants charged with conspsracy. The

complaint and the amended complaint in

eee Pegg! Mathews (M 1-88, 155-159)

charged that defendants conspired to, and

did, deprive petitioner of rights protec-

ted by the Constitution and laws of the

United States. As to respondent Sands,

petitioner averred that Sands was a long-

time personal friend of English Chairman

McMillan and supported him in the 1964

political solicitation which gave rise

to this action; that, on January a2. A0%e,

Sands advised Dean Jones in the matter of

discharge proceedings in the present case;

that, thereafter, Sands accepted an

appointment to serve on the First Hearing

Committee, despite the fact that the AAUP

guidelines adopted by that committee pro-

vided that such committee should be con-

posed of faculty members "not previously

connected with the case". M 37-38. These

are fact issues, which this court has

held may not be determined on a motion

to dismiss. Scheur v. Rhodes (1974), 416

Osis Sak, £0.

Contrary to this ruling and to F.R.C.P.

56, the District Court dismissed a number

of respondents (M 215, 375) and later

entered a final judgment of dismissal as

to Sands (Al3), before answer, discovery,

or exploration of facts.

III. Conflict With Other Circuits

Review by this court is warranted also

because the Fifth Circuit's decision con-

flicts with decisions of other circuits.

The Sixth Circuit in Clemons v. Board

of Education of Hillsboro (CA6 1956), 228

F.2d 653, 556-858, reversed a District Court's

denial of injunctive relief and stated:

"While the granting of an injunction is

within the judicial discretion of the Dis-

trict Judge, extensive research has re-

vealed no case in which it is declared

that a judge has judicial discretion by

denial of an injunction to continue the

deprivation of basic human rights.

Such abuse of discretion requires reversal."

The Fourth Circuit in Henry v. Green-

ville Airport Commission , 284

F, , ; : e District Court has

no discretion to deny relief by prelimi-

nary injunction to a person clearly estab-

lishing by undisputed evidence that he is

being denied a constitutional right."

The Seventh Circuit in White v. Roughton

(CA7 1976), 530 F.2d 750, reversed the

District Court and ordered immediate rein-

statement of welfare payments because the

"unwritten personal standards" applied by

defendants violated due process.

The Ninth Circuit in Stewart v. Pearce

(CAI 1973), 484 F.2d 1031, 1033, affirmed

the District Court's holding that suspen-

sion of a teacher without any hearing de-

nied due process and that a "preliminary

injunction requiring Stewart's immediate

reinstatement to his teaching duties" was

appropriate.

After finding denial of due process,

the District Court denied petitioner's

motions for "reinstatement to his teach-

ing duties" and "continue[d] the depriva-

tion of basic human rights" during the

second discharge proceeding. A110.

IV. Conflict With Alabama Supreme Court

Review hy this court is warranted also

because the Fifth Circuit has decided an

important question of an Alabama teacher's

rights of due process in a way conflict-

ing with the Alabama Supreme Court's rul-

ing on the same issue,

In State Tenure Commission v. Madison

County Board of Education (1968), 213 So.

2d 823, the Alabama Supreme Court held

that the statement of charges was “glar-

ingly defective and not due process" be-

cause “after these dates complained of,

the teacher was an approved teacher in

the school and served subsequent terms.

Such alleged violations, even if proven,

were condoned and waived for all periods

other than the last school year served by

the teacher before the written complaint

against him."" Id. at 829. Compare dissent-

ing opinion of First Hearing Committee

Member Edward M. Smith. M 77.

In the present case, almost all the

specifications on which both the Commit-

tee and the Board based their findings

related to periods ranging from one to

seven years prior to "the last school

year served by the teacher before the

written complaint against him". M 512-535.

The Board's and the courts' approval of

such charges deprives petitioner not only

of due process of Law but also of equal

protection of the laws, as applied to

Alabama teachers by Alabama's highest

court.

CONCLUSION

Because the Fifth Circuit's Ferguson

rule denies to a large and crucial seg-

ment of the American population those

basic constitutional rights of First

Amendment expression, trial by jury, and

plenary trial in a federal forum on con-

stitutional issues and because the lower

court rulings denied due process in other

fundamental respects, this petition should

be granted and those rulings should be

reviewed,

Respectfully submitted,

LAWRENCE E. BOWLING, Pro Se

66 Heritage Hills

Tuscaloosa, Alabama 35406

Of Counsel:

WYTHE W. HOLT, JR.

University of Alabama School of Law

P. O. Box 1435

University, Alabama 35486

APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

Nos. 75-1426, 75-2949 and 76-3879

LAWRENCE E. BOWLING,

Plaintiff-Appellant,

CHARLEY SCOTT et al.,

Defendants-Appellees.

LAWRENCE E. BOWLING,

Plaintiff-Appellant,

Vv.

DAVID MATHEWS et al.,

Defendants-Appellees.

January 8, 1979.

Before JONES, AINSWORTH and HILL, Circuit

Judges.

PER CURIAM:

At the heart of this consolidafsed appeal!

lies appellant's principal claim” that his

~ I these three numbered appeals, consolidated for

consideration on appeal, arise out of two actions

filed in the district court, both of which involve

virtually the same defendants and, in all material

respects, the same action.

2although the appellant's due process attack on

his termination procedure constitutes the basic

thrust of his argument on appeal, we take notice

of some twenty-three contentions raised by appel-

land in his original briefs filed on appeal, many

discharge as a tenured English Professor

at the University of Alabama violated the

due process guarantees of the Fourteenth

Amendment. Because we hold that appellant's

termination comported with both procedural

and substantive due process, we affirm the

various Lines, gor and orders of the district

court appealed from.

Appellant Bowling's troubles began with

the filing of formal dismissal charges

against him in April of 1972. Following a

two-week hearing by a faculty committee on

these charges in June of that year, appel-

lant's employment was terminated, effective

on August 13, 1973, in accordance with the

recommendation of the committec.

On February 9, 1973, appellant filed the

first of the two actions involved in this

appeal, alleging that his termination was

unconstitutional and asking for damages and

injunctive relief in the form of reinstate-

ment. The district court found the faculty

committee hearing to have been deficient in

procedural due process, and remanded the

cause to the University for a rehearing

of which do not relate to his due process argument.

We choose only to discuss appellant's due process

argument, but we have dutifully examined his other

contentions and find them to be without merit. A

few of these undiscussed contentions were resolved

adversely to appellant by a prior appeal in this

case, Bowling v. Mathews, 511 F.2d 112 (5th Cir.1975).

3The second action involved in this appeal, Bow-

ling v. Scott, No. 75-1426, filed by appellant on

January 27,1975, named virtually the same defen-

dants and contained essentially the same allega-

tions as did the complaint in the first-filed

action. Appeal is taken from various orders enter-

ed by the district judge in the second action and,

as noted in fn. 2, we affirm the orders appealed

from without discussion.

A3 A4

that afforded appellant due process. That issued a memorandum of instructions to the

order, among others, was affirmed by this committee in which he outlined various pro-

Court in Bowling v. Mathews, 511 F.2d 112 : cedural guidelines which were to be follow-

(Sth Circ. i973). ed.? Subsequent to Dr. Scott's instructions,

the committee adopted supplemental proced-

Following remand, the university served ural rules to govern the conduct of the

appellant with a new Statement of Charges, hearing; these rules were provided to all

consisting of twenty-four legal-sized pages, | parties with an opportunity to object within

which contained dual allegations that ap- five days thereafter.

pellant failed to perform his assigned

duties and committed acts inimical to the Beginning on May 1, 1975, fourteen hear-

efficient functioning of the Department of ing sessions were held by the committee,

English. This document specified, in pains- with appellant being represented through-

taking detail, the factual basis for each out these proceedings by a Professor at the

charge, the names of those witnesses expec- University of Alabama Law School. During

ted to testify in support of the charges, the course of the hearings, some twelve

and the nature of their expected testimony. witnesses were examined and cross-examined;

the University introduced into evidence

Appellant and his counsel next partici- seventy-nine exhibits and appellant intro-

pated in a series of meetings called for : duced eighty-four exhibits.

the purpose of selecting a faculty hearing ;

committee. The committee was chosen from a Following the conclusion of the faculty

master list consisting exclusively of full , committee hearing, the committee issued a

professors with tenure, but excluding, on twelve-page report finding the charges

a categorical basis,‘ those professors with against appellant to be supported by sub-

a potential bias toward appellant's cause. stantial evidence and recommending that he

Each party was allowed an unlimited number

of challenges for cause and two peremptory 5 Among the instructions contained in Dr. Scott's

challenges. memorandum were those which: (1) permitted the Uni-

versity and plaintiff to have an academic advisor

Following the selection of the committee, or counsel; (2) provided for a national AAUP obser-

Dr. Scott, the administrative official of pr (3) ee — spr ye egypt ee re

* ‘ the proceedings w copies o e transcr to be

the college designated to preside over the rae Rays 2 ge to both caer beas (4) somet hed that

selection and organization of the committee, "the burden of proof that adequate evidence exists

in support of the separate charges contained in the

4excluded from the list were all faculty members pe ger 3 e paar Bie ani — pr eile

; nvin-

employed in the College of Arts and Sciences; any cing evidence introduced devine the hearing before

administrator or area or department chairman; all the faculty hearing committee"; (5) provided for

professors on leave from the University during the broad latitude in the introduction of evidence but

spring semester of 1975; and those members of the excluded "hearsay" evidence; and (6) required that

faculty hearing committee which considered the : the committee make explicit findings.

first Statement of Charges against appellant.

be dismissed from his position as a tenured

professor. After considering the committee's

report and appellant's memorandum in oppo-

sition thereto, Dr. Howard Gundy, the Uni-

versity official assigned the responsibility

of making the final institutional decision

with respect to appellant's future employ-

ment, accepted the recommendation of the

committee and informed appellant by letter

dated October 7, 1975, that his employment

would be terminated, effective August 15,

1976. Appellant subsequently appealed to

the Board of Trustees of the University of

Alabama, which approved the recommendation

of the faculty hearing committee.

The district court, in granting defen-

dants' motion for summary judgment, con-

cluded that the above proceedings. fully

complied with the procedural and substan-

tial due process standards of the Four-

teenth Amendment. We agree./The Univer-

sity officials in this case have meticul-

ously adhered to the procedural safeguards

outlined in our prior opinions; moreover,

our independent review of the record before

the committee convinces us that the action

taken was supported by substantial evidence.

See Ferguson v. Thomas, 430 F.2d 852 (5th

6The Board of Trustees issued a forty-six page

report upholding the decision of the University

officials. In reaching this conclusion, the Board

carefully considered, in addition to the committee's

report, the entire record before the committee, as

well as the briefs submitted to the Board by appel-

lant. Moreover, appellant was allowed to present,

with the assistance of counsel, an oral argument

before the Board members.

7We reject, as inconsistent with the well-estab-

lished authority of this Circuit, appellant's con-

tention that minimum procedural due process entitles

him to a jury trial on the merits of his termination.

See, e.g., Ferguson v. Thomas,430 F.2d 852 (Sth Cir1970).

A6é

Cir. 1970); Green v. Board of Regents of

Texas Tech University, 474 F.2d 594 (5th

Cir. 19/3); Sta v. Avoyelles Parish

School Board, sie F.2d 3a (5th Cir.1977);

Viverette v. Lurleen B. Wallace State Jun-

1or College, ; t it.

AFFIRMED.

APPENDIX B

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 74-1309

LAWRENCE E. BOWLING,

Plaintiff-Appellant,

DAVID MATHEWS et al.,

Defendants-Appellees.

April 14, 1975.

Before BELL, THORNBERRY and GEE, Circuit

Judges.

PER CURIAM:

Appellant Bowling, a tenured professor

of English at the University of Alabama

appearing pro se, has brought various

_ suits grounded on his attempted discharge.

on the merits, he claims in general that

his termination was for attempted exercise

of rights of free speech, and further, was

wanting in procedural due process. Our task

is complicated by Dr. Bowling's practice

of attempting a separate and immediate ap-

peal from many, if not most, of the adverse

rulings of the trial court as they occur.

At present, Bowling is being paid his

salary by order of the trial court during

the process of remand and rehearing by the

University (because of procedural deficien-

cies thought by the court to have obtained

in the earlier hearing) pursuant to the pro-

cedures outlined in Ferguson v. Thomas,

430 F.2d 852 (5th Cir. 1970). This appeal

seeks to place the merits of his situation

before us, as well as a complaint of the

Ferguson procedure. The merits are not pro-

perly before us, and we decline to consider

them at this juncture. Further, observing

that the second administrative hearing of

which Bowling now complains was accorded

by the trial court at his own behest, we

do not find the court's decision to order

the university to rehear the case in error.

Ferguson, supra. There will be time for the

merits when they are drawn before us after

this hearing, as doubtless they will be.

Appellant Bowling further complains of

the dismissal of certain defendants. Many

remain, however, and the court's action in

dismissing some but not all defendants in

this multi-party action is not appealable

in the absence of an FRCP Rule 54(b) "ex-

press determination," absent here.

His complaints of the injunction, under

which he has continued to receive his sal-

ary to date, reveal no abuse of discretion

by the court below. He likewise appeals

from the refusal of the district judge to

disqualify himself. An examination of his

affidavit of disqualification establishes

that its asserted grounds are limited to

actions of the judge in the case at bar.

No questions being raised about the specific de-

tails of the court's order as opposed to the fact of

it, we have no occasion to consider or decide them.

These will not suffice. United States v.

Roca-Alvarez, 451 F.2d 843, 848 (5th Cir.

1971), rehearing granted, 474 F.2d 1274

(1973). His remaining complaints relate to

interlocutory matters not meeting any of

the tests of 28 U.S.C. § 1292.

Affirmed.

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

LAWRENCE E. BOWLING, )

Plaintiff,

-v- ) CIVIL ACTION NO.73-M-138

DAVID MATHEWS, et al., )

Defendants

ORDER

The Court has reviewed the pleadings in

this case and the transcript of the admin-

istrative hearings before a faculty review

committee. The Court is of the opinion as

set ‘forth in the Memorandum Opinion filed

contemporaneously herewith that plaintiff

was denied procedural due process in the

dismissal proceedings by the University.

Accordingly, it is ORDERED and ADJUDGED

that the responsible officials at the Uni-

versity grant to plaintiff a hearing on

the issue of his employment by the Univer-

sity which complies with the fundamental

standards of procedural and substantive

due process.

Done this lst day of February, 1974.

/s/ Frank H. McFadden

Chief Judge

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

LAWRENCE E. BOWLING, )

-v- ) CIVIL ACTION NO. 73-M-138

DAVID MATHEWS, et al. )

ORDER

This cause came on to be heard before a

regularly scheduled motion docket upon five

motions filed by the plaintiff: (1) plain-

tiff's motion to reconsider the Court's

order dismissing the complaint against

defendants Mann, Bealle, Skidmore, the

Board of Trustees, Sands, Hagood, Pancake,

and Johnson; (2) plaintiff's motion for

preliminary injunction; (3) plaintiff's

motion for partial summary judgment [includ-

ing a declaratory judgment on the constitu-

tionality of the University's termination

policy]; (4) plaintiff's motion to recon-

sider the Court's previous order remanding

the case to the University for a hearing;

and (5) plaintiff's motion to expedite

action on motions (1) through (4) above.

The Court has considered the motions and

has heard argument of counsel and is of the

opinion that the following disposition of

the motions should be made:

(1) Plaintiff's motion to reconsider the

previous order dismissing certain defen-

dants is due to be denied.

(2) Plaintiff's motion for a preliminary

injunction is due to be granted to the ex-

tent that the University should pay the

Al10

plaintiff back pay at the rate of $14,300

per annum from the date that his pay was

terminated until the University makes a

final determination of his status. All

other aspects of the motion for prelimin-

ary injunction are due to be denied.

(3) Plaintiff's motion for partial sum-

mary judgment is due to be denied.

(4) Plaintiff's motion to reconsider the

Court's previous order remanding the case

to the University for a further hearing is

due to be denied.

(5) The Court's disposition of motions

(1) through (4) above render plaintiff's

motion to expedite action on those motions

moot.

Accordingly, it is ORDERED, ADJUDGED and

DECREED as follows:

(1) Plaintiff's motion to reconsider the

Court's previous order dismissing defen-

dants Mann, Bealle, Skidmore, the Board of

Trustees, Sands, Hagood, Pancake and John-

son is hereby denied.

(2) Plaintiff's motion for a preliminary

injunction is granted to the extent that

David Mathews, as President of the Univer-

sity of Alabama, is hereby directed to pay

to the plaintiff his regular salary (at

the rate of $14,300 per annum) from the

date of the plaintiff's last payment until

a final determination of his status is made

by the University. Payment of the back

salary shall be made by June 27, 1974. All

other aspects of the plaintiff's motion

for preliminary injunction are hereby denied.

(3) Plaintiff's motion for partial summary judg-

ment is hereby denied.

(4) Plaintiff's motion to reconsider the

Court's previous order remanding the case

to the University for a further hearing is

hereby denied.

All

(5) In the light of the disposition of

motions (1) through (4) above, plaintiff's

motion to expedite action on those motions

is hereby declared moot.

Done this 20th day of June, 1974.

/s/ Frank H. McFadden

Chief Judge

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

LAWRENCE E. BOWLING, )

Plaintiff )

-v- ) CIVIL ACTION NO.

)

CHARLEY SCOTT, individually) 75-M-0098-W

and as Assistant Academic )

Vice President, University )

of Alabama; et al., )

Defendants )

ORDER

This cause came on to be heard on plain-

tiff's application for a temporary restrain-

ing order. By consent of the parties, this

application will be treated as a motion for

a preliminary injunction. The Court has

heard the oral argument of the parties and

has considered the pleadings filed in the

case and is of the opinion that the motion

is due to be overruled.

The issue presented in this case is the

constitutionality of the termination policy

of the University of Alabama that covers

tenured personnel. Plaintiff alleges that

the policy is unconstitutional on its face

Al2

and as applied to him. The case is before

the Court on plaintiff's motion for a pre-

liminary injunction forbidding defendants

from proceeding against him under the al-

legedly unconstitutional policy.

Plaintiff may not receive the relief he

seeks with this motion at the present time.

The issue here is currently before the

United States Court of Appeals, Fifth Cir-

cuit, in the appeal in the case of Bowlin

vs. Mathews, et al., C.A. No. 73-M-138-W.

Under these circumstances, the Court lacks

jurisdiction to act on the plaintiff's

motion.

Moreover, even if the Court has jurisdic-

tion, plaintiff is still not entitled to

the relief requested herein. The defendants

are acting pursuant to the Court's order

entered in the case of Bowling v. Mathews,

et al., C.A. No. 73-M-138-W, and tne Court

will not enjoin them from obeying that

order.

Accordingly, it is ORDEREJ, ADJUDGED and

DECREED that plaintiff's application for a

temporary restraining order, which has been

treated as a motion for a preliminary in-

junction by consent of the parties, be, and

the same hereby is, overruled.

Done this 28th day of January, 1975.

/s/ Frank H. McFadden

Chief Judge

Al3

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

LAWRENCE E. BOWLING, )

Plaintiff )

-v- ) CIVIL ACTION NO. 73-M-138

)

DAVID MATHEWS et al.

Defendants )

ORDER

This cause came on to be heard on the

motion of defendant C. Dallas Sands for

entry of final judgment of dismissal as to

him. The Court has examined the pleadings

and is of the opinion that the motion is

due to be granted. This defendant was dis-

missed from this action by order of the

Court on February 1, 1974. The Court ex-

pressly finds that there is no just reason

for delay and will direct the Clerk to

enter final judgment on behalf of this de-

fendant on the order of dismissal. Rule

54(b), Fed. R. Civ. P.

Accordingly, it is ORDERED, ADJUDGED and

DECREED that the motion be, and the same

hereby is, granted. The Clerk is directed

to enter a final judgment on behalf of de-

fendant C. Dallas Sands on the order of

dismissal entered on February 1, 1974.

Done this 22nd day of May, 1975.

/s/ Frank H. McFadden

Chief Judge

S20 f ll ee

Al4

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

LAWRENCE E. BOWLING, )

)

Plaintiff )

) CIVIL ACTION

oe )

No. 73-M-138

DAVID MATHEWS, et al.,)

)

Defendants)

ORDER

This cause came before the Court on

plaintiff's motion for partial summary

judgment and defendants' motion for

summary judgment. The Court has con-

sidered the plaintiff's motion with

accompanying briefs and affidavits, as

well as the entire record before this

Court. The Court had heretofore, on

February 1, 1974, ordered that the de-

fendants afford the plaintiff a hearing

on the issue of his employment by the

University which complied with the fun-

damental standards of procedural and

substantive due process. Pending this

hearing, plaintiff's compensation was

reinstated. Additional proceedings were

held pursuant to that order and plaintiff

was dismissed by the University. The

Court has carefully examined the record

of these proceedings, and finds that

Al6

APPENDIX H

Al15 UNITED STATES COURT OF APPEALS

said proceedings were carried out in . FOR THE FIFTH CIRCUIT

good faith and in full compliance with

the procedural and substantive due pro- October Term, 1975

cess standards required by the four-

teenth amendment to the United States No. 74-1309

Constitution. Since piaintiff's termi-

nation was in accordance with constitu-

tional standards, he is entitled to no D.C. Docket No.CA 73-138

further relief under his complaint.

Accordingly, it is the opinion of this LAWRENCE E. BOWLING,

Court that the plaintiff's motion for Plaintiff-Appellant,

parial summary judgment should be denied

and the defendants’ motion for summary versus

judgment should be granted.

DAVID MATHEWS, ET AL.,

Accordingly, it is ORDERED, ADJUDGED Defendants-Appellees.

and DECREED that the plaintiff's motion

for partial summary judgment be and the Appeals from the United States District Court

same hereby is denied. : for the Northern District of Alabama

It is further ORDERED, ADJUDGED and $ Before BELL, THORNBERRY and GEE, Circuit Judges.

DECREED that defendants' motion for

summary judgment be and the same hereby. JUDGMENT

is granted and judgment is entered on ;

behalf of the defendants. This cause came on to be heard on the

transcript of the record from the United

Costs are taxed against the plaintiff. States District Court for the Northern Dis-

trict of Alabama, and was argued by counsel;

Done this 18th day of August, 1976.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the

/s/ Frank H. McFadden order of the District Court appealed from,

Chief Judge in this cause be, and the same is hereby

affirmed; :

It is further ordered that plaintiff-

appellant pay to defendaiiis-appellees, the

costs on appeal to be taxed by the Clerk of

this Court.

April 14, 1975

Issued as Mandate: May 6, 1975

Al?

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 75-1426

D. C. Docket No. CA-75-M-0098-W

LAWRENCE E. BOWLING,

Plaintiff-Appellant,

versus

CHARLEY SCOTT, ir’. dually and as Assistant Aca-

demic Vice Presider: Iniversity of Alabama,ET Al.,

Defendants-Appellees.

Appeal from the Uniced States District Court

for the Northern District of Alabama

Before JONES, AISNWORTH and HILL, Circuit Judges.

JUDGMENT

This cause came on to be heard on the

transcript of the record from the United

States District Court for the Northern Dis-

trict of Alabama, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the

judgment of the said District Court in this

cause be, and the same is hereby, affirmed;

It is further ordered that the plaintiff-

appellant pay to the defendants-appellees

the costs on appeal, to be taxed by the

Clerk of this Court.

January 8, 1979

Al18

APPENDIX J

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 75-2949 & 76-3879

D. C. Docket No. 73-138

LAWRENCE E. BOWLING,

Plaintiff-Appellant,

versus

DAVID MATHEWS, ET AL.,

Defendant s-Appellees.

Appeal from the United States District Court

for the Northern District of Alabama

Before JONES, AINSWORTH and HILL, Circuit Judges.

JUDGMENT

This cause came on to be heard on the

transcript of the record from the United

States District Court for the Northern

District of Alabama, and was argued by

counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that

the judgment of the said District Court in

this cause be, and the same is hereby,

affirmed;

It is further ordered that the plaintiff-

appellant pay to the defendants-appellees

the costs on appeal, to be taxed by the

Clerk of this Court.

January 8, 1979

Aly

APPENDIX K

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

EDWARD W. WADSWORTH Tel .504-589-6514

CLERK 600 Camp Street

New Orleans, La. 70120

March 13, 1979

TO ALL PARTIES LISTED BELOW:

NOS. 75-1426, 75-2949, 76-3879 - LAWRENCE E. BOWLING

v. CHARLEY SCOTT, ET AL

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition( ) for rehearing, and

no member of the panel nor Judge in regular active

service on the Court having requested that the

Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 16) the petition( ) for rehearing

en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH, Clerk

By /s/ Sally Hayward

Deputy Clerk

cc: Mr. Lawrence E. Bowling

Messrs. Andrew J. Thomas

J. Frederic Ingram

Mr. Jerome A. Cooper

A20

APPENDIX L

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVLOVED

U.S. Constitution, Article I, § 9:

. No Bill of Attainder or ex post

facto Law shall be passed."

U.S. Constitution, Article I, § 10:

"No State shall ... pass any Bill of

Attainder, ex post facto Law ...."

U.S. Constitution, Amendment I:

"Congress shall make no law ... abridg-

ing the freedom of speech or of the press;

or the right of the people ... to petition

the Government for redress of grievances."

U.S. Constitution, Amendment VIL:

: "In suits at common law, where the

value in controversy shall exceed twenty

dollars, the right of trial by jury shall

be preserved, and no fact tried by a jury

shall be otherwise be re-examined in any

court of the United States than according

to the rules of the common law."

U.S. Constitution, Amendment XIV:

"... No State shall make or enforce any

law which shall abridge the privileged or

immunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws."

= Revised Statutes, § 1979, 42 U.S.C. § 1983:

. "Every person who, under color of any

AZl

statute, ordinance, regulation, custom,

or usage, of any State or Territory, sub-

jects, or causes to be subjected, any

citizen of the United States or other

person within the jurisdiction thereof

to the deprivation of any rights, privi-

leges, or immunities secured by the Con-

stitution and laws, shall be liable to

the party injured in an action at law,

suit in equity, or other proper proceed-

ing for redress."

Revised Statutes, § 1980, 42 U.S.C. § 1985(3):

"If two or more persons in any State or

Territory conspire for the purpose of

depriving, either directly or indirectly,

any person or class of persons of the

equal protection of the laws, or of equal

privileges and immunities under the laws,

or for the purpose of preventing or hin-

dering the constituted authorities of any

State or Territory from giving or securing

to all persons within such State or Terri-

tory the equal protection of the laws; or

if two or more person conspire to prevent

by force, intimidation, or threat, any

citizen who is lawfully entitled to vote,

from giving his support or advocacy in a

legal manner, toward or in favor of the

election of any lawfully qualified person

as an elector for President or Vice-

President ...; or to injure any citizen

in person or property on account of such

support or advocacy; in any case of con-

spiracy set forth in this section, if one

or more persons engaged therein do, or

cause to be done, any act in furtherance

of the object of such conspiracy, whereby

another is injured in person or property,

or deprived of having and exercising any

right or privilege of a citizen of the

United States, the party so injured or

«~

A22

deprived may have an action for the re-

covery of damages, occasioned by such

injury or deprivation, against any one or

more of the conspirators."

Revised Statutes, § 1981, 42 U.S.C. § 1986:

"Every person who, having knowledge

that any of the wrongs conspired to be

done, and mentioned in the preceding

section, are about to be committed, and

having power to prevent or aid in pre-

venting the commission of the same, neg-

lects or refuses so to do, if such wrong-

ful act be committed, shall be liable to

the party injured, or his legal represen-

tatives, for all damages caused by such

wrongful act, which such person by reason-

able diligence could have prevented .

University of Alabama, Policy on Termination:

"The policy on University termination of

appointment is as follows:

Prior to the statutory retirement age,

the appointment of a faculty member who

has tenure, or who is employed under an

appointment working toward tenure, may be

terminated for adequate cause. Except as

hereinafter provided, such a faculty mem-

ber whose appointment is terminated will

be notified of termination at least one

academic year in advance of the termin-

ation date. A faculty member appointed

as temporary, part-time, visiting, or

acting, and whose appointment has a def-

inate and specified termination date,

should consider such appointment as notice

of the non-permanent nature of his posi-

tion.

A faculty member found guilty of moral

turpitude, gross incompetency, immorality,

rank insubordination, or felony, when the

A23

facts are not in dispute, may be dismis-

sed upon short notice.

Any such charges against a faculty

member will be considered by a committee

chosen from the faculty, and may be pre-

. sented before the governing board of the

institution.

In cases where facts are in dispute,

the faculty member is permitted to have

with him an advisor of his choosing who

may act as his counsel. A record of the

hearing will be made and will be avail-

able to the parties concerned." Faculty

Handbook, 1968, p. 38.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.