Petition — Adamian v. Lombardi

Supreme Court brief1980

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In the Supreme Court

OF THE

United States

Octoser TERM, 1979

“79-1440

Pau S. ADAMIAN,

Petitioner

Vs.

Dr. Louis E. Lomsarpt, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHarLEsS Ki. SPRINGER

333 Flint Street

Reno, Nevada 89501

(702) 323-2728

Attorney for Petitioner

SOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. © S.F., CA 94111 © (4135 981.7882

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SUBJECT INDEX

NINN ce doen te eee as

at. vx Me pda vd Dicky Cees

Questions presented ._...

MIR III oo pce ini ne = A dng ceo wee

Statement of the case ...................

Reasons for granting the writ ...........

1. Petitioner had been denied his right

right of recourse to the courts, Law o

of appeal, and his

f the case doctrine 14

2. Court of Appeals ruling on facial invalidity is farsa

erroneous and should not be allowed to stan

Dor ae Gee Gee Cw... so ee ee ks

RS Rk ee I) ey a RE

as the

TABLE OF AUTHORITIES CITED

: Cases

Page

Adamian v. Jacobsen, 523 F.2d 929 (1975) .......... 1, 2, 10, 11, 16

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ............... 16, 17

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ......... 17

Electrical Research Products v. Gross, 120 F.2d 301 (9th Cir.

Fe ANCES S 3 sa a Paar age a oa ane SR 15

Gooding v. Wilson, 405 U.S. 518 (1972) ............ ..... 17, 18

Jablon v. Trustees of California State Colleges, 482 F.2d 997

CN he ke tt des bait ais Le stead ics Lid ge 16

Lanzetta v. New Jersey, 306 U.S. 451 (1939) .............. 17

Nucor Corp. v. Tennessee Forging Steel Service, Inc., 513 F 2d

IN I dj ie nad va ds os ss NONI OAD os SCA 15

Richardson v. Board of Regents, 70 Nev. 144, 261 P.2d 515

AEE EUR ASS CU a re le a 9, 10, 16

Statutes

Be ae ee 2

er ee ey anid. dow Sk w wise ar olds t

Se 4

ES ar i Se ee 4

Rule

Federal Rules of Civil Procedure, Rule 54(b) ............ 4,8

Constitution

United States Constitution: |

Peek NE ooo ec ke. Laer rar

I hl ees oe

Other Authorities

American Association of University Professors Advisory Letter

Ne ee ey a iby ceeds Chee ds 9

University Code of the University of Nevada, Chapter IV,

I eae Lien each eas ae 5, 6, 8, 9, 11, 12, 14, 16

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In the Supreme Court

OF THE

United States

OcToBER Term, 1979

No.

Pau S. ADAMIAN,

Petitioner

VS.

Dr. Louis KE. Lomsarpt, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

To the Honorable Chief Justice and Associate Justices

of the Supreme Court of the United States:

Petitioner, Paul S. Adamian, respectfully prays that a

writ of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Ninth Cir-

cuit entered in this proceeding and the denial of the petition

for rehearing entered December 18, 1979.

OPINIONS BELOW

The opinion of the Court of Appeals of which petitioner

seeks review is reported at 608 F.2d 1224; a copy of which

is presented as Appendix H. A previous opinion of the

Court of Appeals in this matter, Adamian v. Jacobsen, 523

F.2d 929, is appended as Appendix E. The District Court’s

opinions are unreported. Copies are appended as Ap-

pendices. The denial of the petition for rehearing entered

December 18, 1979, is also unreported and is attached as

Appendix I.

JURISDICTION

The Court of Appeals’ judgment was entered on October

16, 1979. A petition for rehearing was denied on December

18, 1979. This petition is being filed within 90 days of said

date. This Court has jurisdiction to review the judgment in

question by writ of certiorari pursuant to 28 USC § 1254(1).

QUESTIONS PRESENTED

1. Petitioner in a disciplinary trial by a hearing com-

mittee was found not to have committed acts which gave

adequate cause for dismissal. The governing board dis-

agreed, held its own hearing, heard testimony from its own

members who had witnessed the event out of which ac-

cusations arose, had its counsel present at the hearing,

refused to let Petitioner or his counsel attend or confront

and cross examine witnesses, made contrary decisions to

the Hearing Committee on witness credibility and other

matters and ordered Petitioner dismissed. Petitioner raised

all of these matters as due process issues before the Court

of Appeals. The Court of Appeals refused to consider the

issue of denial of due process.

QUESTION: May the Court of Appeals deny to

an Appellant his right to have decided important and

substantial due process issues which are dispositive of

his right to retention as a tenured professor?

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2. A statute in the form of a University code provision

was declared to be and is conceded to be facially vague and

overbroad. On appeal from summary judgment on the issue

the Court of Appeals remanded with instructions “to de-

termine whether the regents’ construction of Section 2.3

is the same as that of the American Association of Uni-

versity Professors,” as expressed in a 1963 advisory letter.

QUESTION: Are the individual regents or the

Nevada Courts the authoritative agency to construe

statutes in the form of a University Code; and if the

regents have authority to make such construction, is

it binding when made years after the “extramural

utterances” complained of were engaged in?

3. One of the regents on the University governing

board testified under oath that the regents’ actions in try-

ing Petitioner before the regents, absentia, were “moti-

vated by desire to punish” the progressor and thereby “to

discourage further war protests at the University.”

QUESTION: After acquittal of charges arising out

of war protest by a Hearing Committee empanel to try

accused college professor, does the governing board

of the University have the power to retry the professor

in the presence of a direct, unretracted statement by a

member of the board that the board was motivated

by a desire to punish, deter and discourage further

war protests at the University?

4. A limiting construction by the AAUP is held to have

cured facial invalidity. The limiting construction construed

the portion of the statute dealing with “appropriate re-

straint.” Petitioner was found to have failed to respect

the opinions of others, another part of the statute. The

interpretation of “appropriate restraint” can hardly be

claimed to cure the vagueness of failure to “respect the

opinions of others.”

QUESTION: May a limiting construction on one

portion of a statute cure vagueness and overbreadth

of another portion of the statute?

5. Summary Judgment was entered in favor of Peti-

tioner on July 20, 1973. Time for appeal ran 30 days there-

after. On August 30, 1973, the District Court entered a

Rule 54(b) Order restating the July 20, 1973 Order. Re-

spondents filed notice of appeal on the same day contending

that the appeal time started over again.

QUESTION: Under 28 U.S.C. § 1292 does the time

for filing an appeal commence again after the filing of

a restated Rule 54(b) order in the form appended?

STATUTES INVOLVED

The statutes involved are these.

1. The First Amendment to the Constitution of the

United States and the Fourteenth Amendment of the Con-

stitution of the United States;

2. 42 U.S.C. § 1983; 42 U.S.C. §¢ 1971 et seq.;

3. 28 U.S.C. $1292.

STATEMENT OF THE CASE

About ten years ago, Professor Paul Adamian partici-

pated in a University appreved demonstration protesting

the Kent State deaths and the Vietnamese war.

Two members of the University of Nevada (Regent An-

derson and Regent Hug, now Judge Hug of the Ninth Cir-

euit Court of Appeals) witnessed the event and were

particularly outraged by a delay in the V.I.P. military

motorcade which delay they believed to be caused by

Adamian.

The outcome was that out of the many students and

professors engaged in the demonstration, Adamian alone

was charged with violating Chapter IV, Section 2.3 of the

University Code which reads:

“The faculty member is a citizen, a member of a

learned profession, and a representative of the Uni-

versity. When he speaks or writes as a citizen, he will

be free from University censorship or discipline, but

his special position in the community imposes special

obligations. As a man of learning and as an educator,

he know that the public may judge his profession and

this University by his utterances. At all times, he

strives to be accurate, to exercise appropriate restraint,

to show respect for the opinion of others, and to make

every effort to indicate that he is not a spokesman for

this University.”

The two specifications of the general charge were that

Adamian was part of an “attempt to stop a motorcade” and

that he “did participate in the disruption of the (ROTC)

ceremony.”

In accordance with the University Code a special Hear-

ing Committee was impanelled to try Adamian.

After the trial, the Hearing Committee concluded that

any delay in the motorcade occasioned by Adamian was

necessary to avoid “threatened bodily injury” by motorcade

vehicles’ traversing a pedestrian way and that these actions

“do not violate the University Code.”

The nature and result of the trial are best exemplified

in the words of the Committee:

“The committee at the time of the hearing on October

13, 1970, and in this review, based its examination of

the facts and its interpretation of the facts on the

testimony which was presented to it. The committee

considered all of the evidence that was presented and

it considered the credibility of the witnesses in the

context of the hearing. The committee’s decision in

cases of conflict are based on the preponderance of the

evidence. If facts existed which would justify the ter-

mination of Dr. Adamian under the university code,

it is the opinion of the committee that those facts were

not presented to it for its consideration at the hearing.”

(Our emphasis)

Referring to the Section 2.3 the Hearing Committee did

find that because of Adamian’s position as a professor his

continued presence in the group of demonstrators after

the University President had asked them to quiet down

was a violation of the code section which admonishes pro-

fessors “to show respect to the opinions of others.”

It is here noted that no other admonition contained in

Section 3 (“When he speaks or writes as a citizen,” he is

admonished by the Code (1) to “strive to be accurate,”

(2) to “exercise appropriate restraint” and (3) “to make

every effort to indicate that he is not a spokesman for the

University”) was found to be violated.

Although nothing in the charges indicated that termina-

tion of employment was being sought, the Committee con-

aa RS

cluded unanimously that Adamian’s activities were not

cause for termination and that a letter of censure should

issue by reason of his failure “to show respect for the

opinions of others.”

The Board of Regents, without further hearing, objected

to the Committee’s findings and sent it back to them with

instructions to reconsider the matter in the light of the

Regents’ objections.

The Committee reconsidered as directed and returned

additional findings which indicated that the Regents’ ob-

jections were in many respects based upon testimony which

was taken out of context by the Regents and which were

based on evidence and assumptions which were not estab-

lished at the trial. The Committee unanimously reaffirmed

its prior findings.

Thereafter the Regents held their own hearing on the

matter. The transcript of the trial was reviewed, the two

Regents who were present at the scene presented their

“remarks during this (Regent’s) meeting concerning what

they observed at the Governor’s Day ceremony,” and coun-

sel for the Regents was present during the proceedings.

(Reporter’s Transcript, 5-24-76 hearing, p. 17)

Adamian was not permitted to be present at the Regents’

hearing. Adamian’s counsel was not permitted to be present

at the Regents’ hearing. No opportunity to cross examine

the Regents concerning their testimony on “what they ob-

served at the Governor’s Day ceremony” was given, and

no opportunity was given to object to the composition of

this new hearing tribunal of Regents (among whose mem-

bers sitting in judgment) were two who were not only

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percipient witnesses but who presented their observations

to the tribunal either as witnesses or as deliberative argu-

ment or both.

' Not unexpectedly, the Regents found Adamian guilty.

No findings were made that he failed “to show respect for

others” whilst he “speaks or writes as a citizen” or that

he violated any of the remaining admonitory phrases

enumerated above. It was simply decided “that, adequate

cause existing, his employment as a member of the Faculty

of the University of Nevada, Reno is terminated this date.”

On July 23, 1971, Adamian filed an action in the Unived

States District Court for the District of Nevada alleging

violation of constitutional protections afforded by the

Fourteenth and First Amendments to the United States

Constitution.

Adamian moved for partial summary judgment. On April

16, 1973, a memorandum decision was entered by the Dis-

trict Court wherein it was declared that Chapter 4, Section

2.3 of the University Code, which was relied on to justify

termination, was unconstitutional on its face because of

overbreadth and vagueness. On July 20, 1973 summary

judgment was entered directing immediate reinstatement

of Adamian with back pay. (Appendix C)

Respondents filed their notice of appeal on August 30,

1973, after the appeal time had expired, claiming that a

54(b) order filed on the same day, which restated the

July 20, 1973 order, started the appeal time running all

over again. The Ninth Circuit agrees with this position.

Restated August 30, 1973 Order is appended as Appen-

dix D.

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On September 24, 1975, the Court of Appeais for the

Ninth Circuit reversed summary judgment and remanded

with instructions “to hear testimony from the regents in

order to determine whether the regents’ construction of

Section 2.3 is the same as that of the American Association

of University Professors.” (Appendix E)

In this decision, no mention was made of any issue other

than propriety of summary judgment for facial invalidity,

the Court’s reasoning apparently being that if the regents

who found Adamian guilty had at some time read AAUP

Advisory Letter No. 11, issued in 1963, and their “con-

struction of Section 2.3 is the same as” the AAUP news-

letter, then, somehow, the concedely vague and overbroad

section is validated. The newsletter was not before the

District Court, is not in the Record on Appeal, and no

one quite knows how it got into the Circuit Court’s opinion

of September 24, 1975.

On remand each regent was asked if his “construction

of the University Code” was the same as that appearing

in the 1963 letter. Each said: “Yes.”

The irony of the remand charade is highlighted by the

candid admission of one regent that he had not seen the

AAUP letter until the day before the remand hearing.

Presentation of this statement is hampered by under-

signed counsel’s inability to understand what the “construc-

tion” of an AAUP letter by individual regents has to do

with a vague statute whether construction is at the time

of enactment, the in abstentia regents’ trial of Adamian

or at the time of the remand hearing. In Nevada such code

provisions have the effect of law. Richardson v. Board of

Regents, 70 Nev. 144, 261 P.2d 515 (1953). The only

agency which has authority for a “construction” of the law

in Nevada is the Supreme Court of the State of Nevada.

Even if such were not the case, there is still no “con-

struction” by the Board of Regents as related to the AAUP

or in any other manner; and most certainly the after-the-

fact construction by the individual regents’ statements at

the remand hearing did nothing to provide “fair notice”

to Adamian during his trials in 1970 before the Hearing

Committee or before the Board of Regents.

Even if the AAUP letter theory is accepted as curing

overbreadth and vagueness, such construction by the terms

of the AAUP letter precludes its being an accusatory basis

for termination for the following reasons:

1. The “construction” given by the AAUP letter relates

only to the admonition relating to “appropriate restraint.”

The only finding at either Adamian trial was that he did

not “show respect for the opinions of others,” never

that he failed to exercise “appropriate restraint.” See

Adamian v. Jacobsen, 523 F.2d 929; Appendix E, in which

the letter is quoted thus:

“It is the view of this Office that the term ‘appropri-

ate restraint’ as used above refers solely to choice of

language and to other aspects of the manner in which

a statement is made.”

The quotation further elaborates on the construction

of “appropriate restraint” and does not even mention

“respect for the opinions of others” or any of the other

admonitions.

2. A construction of “appropriate restraint” cannot

help much in the case of a person who has not been found

guilty at any time by any agency (Hearing Committee,

Regents or the Courts below) of failure to exercise appro-

priate restraint “when he speaks or writes as a citizen.”

3. The AAUP letter permits “academic consideration”

of such failures to exercise appropriate restraint “only

when remarks raise ‘grave doubts’ concerning his fitness

for his position.” (Quoted again from Adamian v. Jacobsen,

above.) Not only has there been no finding of failure to

exercise appropriate restraint; even if there had been,

no tribunal, judicial or administrative agency has sug-

gested establishment of the required criterion of the AAUP,

“grave doubts concerning his fitness for his position.”

4. The AAUP letter “cautions” that “disciplining of a

faculty member for exercising the rights of free speech

guaranteed to him by the Constitution of the United

States” should be taken “only under extraordinary cir-

cumstances.” If the inapplicable AAUP document were

applied, it in itself precludes termination under the facts

presented in this case. In a footnote in Adamian v.,

Jacobsen, above cited, it is acknowledged:

“(T)he Association emphasizes that such a lack of

restraint does not per se justify dismissal, but only

when it raises ‘grave doubts’ concerning the profes-

sor’s fitness for his position.”

“In May, 1976, the district court proceeded to take

testimony on the question whether the Regents’ interpre-

tation of Chapter 4, Section 2.3 of the University Code

was the same as that of AAUP. Seven of the Regents

testified that their construction was the same as that given

by the AAUP. The district court thereupon found that to

be the fact and, consequently, that Section 2.3 is not uncon-

stitutionally overbroad.” Adamian v. Lombardi, 608 F2d

1224, Ninth Cireuit, October, 1979; Appendix H. (Emphasis

supplied.)

The quoted section makes it very clear tuat all that was

deemed necessary to cure the facial invalidity was the

testimony of seven regents that “their construction was the

same as that given by AAUP.” This is very difficult to

comprehend.

In addition to holding the questioned statute consti-

tutionally unobjectionable, Adamian v. Lombardi (1979)

held that Adamian could not be protected by the First

Amendment when he was guilty of “intentionally disrup-

tive acts,” something he was never accused of. Part of the

problem here is that the facts stated in the Opinion in

Lombardi are taken entirely from the findings resulting

from the Regents’ iv absentia trial, in which he is found

guilty of improperly stopping the motorcade, leading

demonstrators, making loud noises, “creating a danger of

violent confrontations” and various other culpable activi-

ties of which he was acquitted in the admittedly proper,

due process trial held by the Hearing Committee.

If Section 2.3 is facially constitutionally valid; and if

the Regents can properly hold a trial in which plaintiff

and his attorney are not allowed to be present and cross

examine and confront witnesses; and if the Regents may

judge credibility of witnesses and make findings on wit-

nesses’ testimony (including testimony of Regents them-

selves) which are contradictory to findings resulting from

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the due process trial held by the Hearing Committee; and

if Adamian can be terminated without a finding that he

failed to “exercise appropriate restraint” and that such

failures created grave doubts concerning his fitness for

his position; then we must consider that his dismissal is

proper.

There is just as much reason for the court below to

borrow an American Civil Liberties Union pamphlet as

an AAUP letter. In the pamphlet “Academic Due Process”

it is provided:

“9. In the absence of a defect in procedure, the

conclusions of the hearing committee should be taken

as final by the administration and governing board in

all matters relating to the teacher’s competence and

integrity.” (Appellant’s Repiy Brief, p. 11, Adamian

v. Lombardi).

The cumulative unfairness, the gross injustice and the

terrifying abuse of free speech in this case is epitomized

and summarized by the sworn testimony of Regent Lom-

bardi that the Regents’ actions in retrying Adamian were

“motivated by a desire to punish” him and thereby “to

discourage further war protests at the University of

Nevada.” (Transcript of May 24, 1976 Hearing, pp. 16 and

17) This atrocity has never been commented upon by the

district court, the court of appeals or even opposing counsel.

Other than what Adamian contends to be an erroneous

finding of constitutional validity of the statute and a com-

pletely unjustifiable finding of “intentionally disruptive

acts,” the court below has addressed none of the issues

raised by Adamian and has, in fact, repudiated the neces-

sity of considering them. In Adamian v. Lombardi, the

court expressly excluded all other issues stating that “the

scope of review is narrowed to the limitations of the re-

mand,” i. e. “whether the Regents’ construction of Section

2.3 is the same as that of the American Association of

University Professors.” This leaves entirely untended to

the crucial, critical and dispositive issues of substantive

and procedural due process. (Without any sign of having

considered the issues the court in Lombardi does “hold that

Professor Adamian was not denied freedom of speech, nor

of assembly, nor equal protection.” Not listing denial of

due process among these is convincing evidence of our as-

sertion that Adamian’s claim of denial of due process has

never been considered at the trial of appellate level.

A great injustice is being done here.

Petitioners filed a petition for rehearing. The court

denied the petition on December 18, 1979.

REASONS FOR GRANTING THE WRIT

1. Petitioner had been denied his right of appeal, and

his right of recourse to the courts. Law of the case

doctrine

Petitioner was dismissed as a tenured professor as a

result of a trial held by the University of Nevada Board

of Regents in his absence. He complains to all that due

process rights were denied because he was not allowed to

be present, was not allowed to confront witness-Regent

Anderson and witness-Regent Hug, because although coun-

sel for the university was present he was denied represen-

tation of counsel at the Regents’ trial, because he was

denied an impartial tribunal by reason of members of the

Board of Regents’ holding a position adverse to his, mak-

Catalina

ing statements in his absence to the Regents at the Regents’

trial, because the Regents did not have the power under

any circumstances to judge the credibility of witnesses

and make other findings and judgments on the evidence

contrary to and contradictory to the Hearing Committee’s

findings; because even had the Regents restricted their

proceedings to a review of the Hearing Committee’s tran-

script, they had no power to “reverse” it, especially in

light of the prejudicial composition of the board; and be-

cause Regent Lombardi’s statement that the Regents were

motivated by a desire to discourage protest and block the

exercise of free speech rights infects the entire proceedings

with prejudice, unfairness and denial of due process.

None of these claims has been heard. None of these claims

has been commented upon by any court. None of the issues

raised by these claims has been judicially determined. Pe-

titioner has been denied his right to recourse to the courts

to resolve differences if the record is allowed to stand in

its present state. See Nucor Corp. v. Tennessee Forging

Steel Service, Inc., 518 F.2d 151, 153 (8th Cir. 1975);

Electrical Research Products v. Gross, 120 F.2d 301, 308

(9th Cir. 1941).

2. Court of Appeals ruling on facial invalidity is pat-

ently erroneous and should not be allowed to stand

as the law of the Circuit

The Court of Appeals’ ruling that a statute ruled to be

facially vague and overbroad is constitutionally valid if

members of the governing board of a university testified

that their construction was the same as an AAUP letter

is patently erroneous and cognizance should be taken at

the level of the Supreme Court. This is especially true in

light of the following circumstances:

2.1. No authoritative construction. In the Jacobsen

case, the court held that the facial validity of Section 2.3

is to be determined not only by the language of the statute

but also by reference to the “authoritative construction”

given “by the state agency which issues and enforces it.”

The court cited Jablon v. Trustees of California State Col-

leges, 482 F.2d 997 (9th Cir. 1973) which does involve a

constitutional attack on grievance procedures in a college

(on issues of due process), but reference to interpretation

by the governing board is used only to determine whether

the board has complied with its regulations.

Citing Jablon is “stretching” things a bit, and we find no

cases in which a First Amendment challenge was met by a

court’s reliance on an agency interpretation. Richardson v.

Board of Regents, cited above, is authority for the proposi-

tion that the Code provision has the effect of law; there-

fore the only authoritative construction can be and must be

a judicial one. Since this important issue remains unde-

cided, it is worthy for consideration and decision by the

Supreme Court.

2.2. The Board of Regents’ construction of § 2.3 came

years after Adamian had failed to exercise appropriate

restraint, or whatever. Even assuming that the eventual

construction was sufficiently narrow, it cannot properly be

applied to Adamian as he did not have a “fair warning” of

this construction. There is no clear answer to this question

as the Court’s language is contradictory and confusing.

The latest example of the confusion surrounding this

issue is seen in. Broadrick v. Oklahoma, 413 U.S. 601, 613

OS Ae ta, ee ete,

(1973) where, in a single paragraph the Court appears to

have indicated contrary positions:

“The consequence of our departure from traditional

rules of standing in the First Amendment area is that

any enforcement of a statute thus placed at issue is

totally forbidden until and wiless a limiting construc-

tion or partial invalidation so narrows it as to remove

the seeming threat or deterrence to constitutionally —

protected expression. Application of the overbreadth

doctrine in this matter is, manifestly, strong medicine.

It has been employed by the Court sparingly and only

as a last resort. Facial overbreadth has not been i-

voked when a limiting construction has been or could

be placed on the challenged statute.” (Kmphasis

added).

The Court’s puzzling assumption that the defendant

possesses prescience is undermined by a number of other

Court opinions. For example, Lanzetta v. New Jersey, 306

U. S. 451 (1939), involved a challenge of a recently enacted

“rang” statute. Following the defendant’s conviction, but

prior to the Supreme Court’s opinion, the state court in-

terpreted the statute in State v. Gaynor. The Court did not

find the interpretation to be sufficiently narrow but noted

that ever if it were sufficiently narrow, appellants were

convicted before the opinion in State v. Gaynor. It would

be hard to hold that, in advance of judicial utterance upon

the subject, they were bound to understand the chal-

lenged provision according to the language later used by

the court. Jd. at 456.

In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942),

the Court upheld the. constitutionality of a “fighting words”

statute. But as the Court noted in Gooding v. Wilson, 405

U. S. 518 (1972), (in an analysis of Chaplinsky) :

The Supreme Court of New Hampshire however,

long before the words [were spoken] sharply limited

the statutory language ... to “fighting words.” Jd. at

522-23 (Emphasis added).

It appears reasonable for Petitioner to ask the Supreme

Court to express its opinion on the issues of the appropri-

ateness of the construction of the administrative agency

and the manner and time in which the construction was

made.

3. Expiration of Appeal Time. The procedural and ju-

risdictional issue of whether an appeal time can be revital-

ized by a court’s filing a “restated” summary judgment

should be determined by the Supreme Court in the interest

of Circuit uniformity.

4. An Injustice. There is a terrible injustice in this

case that is apparent to almost anyone who reviews its

incidents. All other considerations aside, it is right and

proper that it be reviewed by the Supreme Court.

CONCLUSION

For reasons stated, a writ of certiorari should issue to

review this judgment and opinion of the Court of Appeals

for the Ninth Circuit.

Dated: This 10th day of March, 1980.

Charles E. Springer

Attorney for Petitioner

(Appendices follow)

Appendices

Appendix A

In the United States District Court

for the District of Nevada

Paul S. Adamian,

Plaintiff,

Vs.

The University of Nevada, the Board of

Regents of the University of Nevada,

Dr. Louis E. Lombardi, Fred M. Ander-

son, Procter E. Hug, William W. Mor- > Civil R-2530

ris, Helen R. Thompson, James H. Bil-

bray, Archie C. Grant, Paul McDermott,

Harold J. Jacobsen, Mel Steninger,

Molly Knudtsen, and John Does I, II,

III, IV, V, VI, VII and VIII,

Defendants.

MEMORANDUM OPINION

[Apr 17 1973]

The plaintiff, a tenured professor of English of the

University of Nevada, was discharged by action of the

University’s Board of Regents for attempting to stop a

motorcade and for attempting to disrupt ceremonies of

the Governor’s review of ROTC activities, which cere-

monies were conducted on the Reno campus of the

University.

Plaintiff, alleging that jurisdiction exists under the Civi

Rights Act, Title 28, U.S.C., § 1343, and Title 42, U.S.C.,

A-2

§ 1983, brought this action against the University of

Nevada, the Board of Regents of the University of Nevada,

Dr. Louis EK. Lombardi, Fred M. Anderson, Procter E.

Hug, William W. Morris, Helen R. Thompson, James H.

Bilbray, Archie C. Grant, Paul McDermott, Harold J.

Jacobsen, Mel Steninger, Molly Knudtsen, and John Does

I through VIII.

Parties Defendant

On December 23, 1971, Judge Philip C. Wilkins dismissed

the action as to the University of Nevada and the defen-

dant Board of Regents because these state agencies are

not a “person” within the meaning of the Civil Rights

Act, 42 U.S.C. 1983. Whitner v. Davis, 410 F.2d 24 (9th

Cir. 1969). Judge Wilkins also dismissed the John Doe

defendants. The Regents are being sued, both individually

and in their representative capacities. Plaintiff seeks from

this Court an order directing that plaintiff be reinstated

with back pay and an award of damages for the violation

of his civil rights. The Court is being asked to:

1. Order the members of the Board of Regents now in

office, in their representative capacities, to reinstate the

plaintiff and compensate him for loss of earnings.

2. Award the plaintiff damages for the violation of his

civil rights against those Regents, in their individual capac-

ities, then in office, responsible for his discharge.

Although the Board of Regents as a state agency is not

a “person” within the Civil Rights Act, the Regents them-

selves are “persons” and can be sued both as individuals

and in their representative capacities. The rule is explained

A-3

in Harkless v. Sweeny Independent School District, 427

F.2d 319 (5th Cir. 1970), cert. den. 400 U.S. 991, where

the Court said:

“Turning then to the officials, the trustees and the

superintendent, it seems well settled that § 1983 author-

izes a suit against them. Federal judicial power has

long been invoked to compel state officials to discharge

their constitutional duties. * * *

“In numerous cases since Monroe v. Pape, the

Supreme Court has permitted relief under § 1983

against state officials sued as such, without mention

of that case. * * *

“We find no prohibition in Monroe v. Pape against

the exercise of federal judicial power through § 1983

to redress constitutional wrongs through requiring

appropriate official acts by officials sued in their repre-

sentative capacities. We therefore conclude that 4 1983

includes school district trustees and school superin-

tendents, acting in their representative as well as their

individual capacities, within the meaning of ‘person’

as the term is used in § 1983 for the purposes of the

equitable relief sought here.”

The Ninth Circuit lays down the same rule. In Whitner

v. Davis, 410 F.2d 24 (9th Cir. 1969), at pages 30 the Court

said: j

“Individuals, sued in their capacity as trustees of a

state agency, are not protected by the Eleventh Amend-

ment any more than the agency itself is protected by

that Amendment. Moreover, the allegations and prayer

of plaintiff’s complaint make it clear that this is not

intended to be exclusively a suit against the State of

Washington. Plaintiff seeks monetary damages and

unspecified equitable relief against the personal de-

A-4

fendants as individuals as well as in their capacities

as president and trustees of the college or Attorney

General of the state.”

The rule is also followed in Williams v. Eaton, 443

F.2d 772 (10th Cir. 1971), and Hayes v. Cape Henlopen

School District, 341 F.Supp. 823 (D.C. Del. 1972). It is

not necessary for the plaintiff to amend the complaint to

include the present members of the Board of Regents who

are being sued in their representative capacities. The pres-

ent Regents are already properly before this Court because

the plaintiff has sued all of the Regents in their representa-

tive capacities. This is accomplished by FRCivP 25(d) (1)

which states in pertinent part:

“When a public officer is a party to an action in his

official capacity and during its pendency dies, resigns,

or otherwise ceases to hold office, the action does not

abate and his successor is automatically substituted as

a party. Proceedings following the substitution shall

be in the name of the substituted party, but any mis-

nomer not affecting the substantial rights of the par-

ties shall be disregarded.”

The applicability of Rule 25(d)(1) to the instant case is

explained in the Advisory Committee’s Note of 1961 to

Subdivision (d) found in 3B Moore’s Federal Practice,

Section 25.01(13) :

“Thus the amended rule will apply to actions against

officers to compel performance of official duties or to

obtain judicial review of their orders. It will also apply

to actions to prevent officers from . . . enforcing uncon-

stitutional enactments. . .. Excluded from the opera-

tion of the amended rule will be the relatively infre-

A-5

quent actions which are directed to securing money

judgments against the named officers enforceable

against their personal assets .. .”

Therefore, the Regents being sued in their representative

capacities are those Regents who presently are members of *

the Board of Regents. Those Regents who are being sued

in their individual capacities are those Regents who were

members of the Board of Regents at the time of plaintiff’s

dismissal.

Overbreadth and Vagueness

The plaintiff has moved for partial summary judgment

on the claim against the Regents in their representative

capacities seeking reinstatement and back pay. The plain-

tiff argues that the University regulation upon which the

Regents relied to terminate the plaintiff is unconstitution-

ally vague in violation of due process under the Fourteenth

Amendment: Plaintiff further claims that because the regu-

lation is unconstitutionally overbroad, as well as vague, it

infringes upon his rights of free speech and assembly pro-

tected by the First Amendment, which by the Fourteenth

Amendment is made applicable to the states.

The section of the University Code upon which the

defendants based their determination to terminate the

employment of the plaintiff was Chapter IV, Section 2.3,

which reads as follows:

“The faculty member is a citizen, a member of a

learned profession, and a representative of this Uni-

versity. When he speaks or writes as a citizen, he will

be free from University censorship or discipline, but

A-6

his special position in the community imposes special

obligations. As a man of learning and as an educator,

he knows that the public may judge his profession and

this University by his utterances. At all times he

strives to be accurate, to exercise appropriate restraint,

to show respect for the opinions of others, and to make

every effort to indicate that he is not a spokesman for

this University.”

The defendants admit that the University Code is given

the effect of law in the State of Nevada. In State v. Board

of Regents, 70 Nev. 144 (1953), the Nevada Supreme Court

held:

“In our opinion this rule (university tenure regula-

tions), having been duly established, has the force and

effect of statute.”

Therefore, in deciding the constitutionality of Section 2.3,

the Court will not be concerned with the question whether

disciplinary rules must meet the same vagueness and over-

breadth criteria as statutes and ordinances. The instant

case is distinguishable from cases like Sword v. Fox, 446

F.2d 1091 (4th Cir. 1971), which holds that the same speci-

ficity of language is not required for college disciplinary

rules as is required for statutes. In the instant case, the

section of the University Code under scrutiny has the effect

of a statute.

For this challenge to the substantive constitutionality of

the University Code section, whether or not the plaintiff

received procedural due process and whether or not the

plaintiff's conduct could conceivably be said to be pro-

scribed by Section 2.3, is irrelevant. Although this Court

does not reach the question, if it be assumed that the

plaintiff's conduct was not constitutionally protected and

A-7

such conduct could be prohibited by a properly drawn

regulation, the plaintiff cam nonetheless challenge the sub-

stantive constitutionality of the section under which he

was terminated. As the Court stated in Soglin v. Kauffman,

418 F.2d 163 (7th Cir. 1969) :

“Likewise, the nature of the conduct attributed to

plaintiffs has no effect on their standing to challenge

the application of the misconduct doctrine as the basis

for the proceedings taken against them. They are

entitled to contend that the disciplinary proceedings

were invalid deprivations of due process because based

upon nonexistent or unconstitutionally vague stan-

dards. It is well settled that a statute threatening the

exercise of freedoms because of overbreadth is subject

to attack.

‘* * * with no requirement that the person making

the attack demonstrate that his own conduct could

not be regulated by a statute drawn with the requi-

site narrow specificity. Thornhill v. Alabama, 310

U. S. 88, 97-98, 60 S. Ct. 736, 741-742, 84 L. Ed. 1093;

NAACP v. Button, 371 U. S. [415], at 432-433, 83

S. Ct. at 337-338, 9 L. Ed. 2d 405; ef. Aptheker v.

Secretary of State, 378 U. S. 500, 515-517, 84 S. Ct.

1659, 1668-1669, 12 L. Ed. 2d 992; United States v.

Raines, 362 U.S. 17, 21-22, 80 S. Ct. 519, 522-523,

4 L. Ed. 2d 524. We have fashioned this exception to

the usual rules governing standing, see United States

v. Raines, supra, because of the “* * * danger of

tolerating, in the area of First Amendment free-

doms, the existence of a penal statute susceptible of

sweeping and improper application”. NAACP v.

Button, supra, 371 U. S. at 433, 83 S. Ct. at 338.’”

Dombrowski v. Pfister, 380 U. S. 479, 486-487, 85

S. Ct. 1116, 1121, 14 L. Ed. 3d 22.

A-8

The rule is also explained by the Supreme Court in

Coates v. City of Cincinnati, 402°U.S. 611 (1970):

“The ordinance before us makes a crime out of what

under the Constitution cannot be a crime. It is aimed

directly at activity protected by the Constitution. We

need not lament that we do not have before us the

details of the conduct found to be annoying. It is the

ordinance on its face that sets the standard of conduct

and warns against transgression. The details of the

offense could no more serve to validate this ordinance

than could the details of an offense charged under an

ordinance suspending unconditionally the right of as-

sembly and free speech.”

Therefore, the plaintiff’s conduct, as well as the pro-

cedures followed by the Regents, is irrelevant with regard

to this constitutional challenge.

The plaintiff argues that the section is constitutionally

infirm because of its vagueness, i.e., it violates the due

process clause of the Fourteenth Amendment. In the alter-

native, since freedom of speech and assembly are involved,

the plaintiff argues that the section violates the First

Amendment as embodied in the Fourteenth by reason of

its vagueness and overbreadth. When the First Amendment

is involved in the scrutiny, the standard becomes more

exacting.

The “vagueness” test under the due process clause of

the Fourteenth Amendment is explained in Connally v.

General Construction Co., 269 U.S. 385 (1926):

“A statute which either forbids or requires the doing

of an act in terms so vague that men of common intelli-

gence must necessarily guess at its meaning and differ

as to its application violates the first essential of due

process of law.”

A-9

This has remained the standard of vagueness down through

the years. In the instant case, men of common intelligence

would certainly be confused about the conduct allowed or

proscribed in the section in question.

When the First Amendment element is added, the uncon-

stitutionality becomes certain. The District Court, in Soglin

v. Kauffman, 295 F. Supp. 978 (W.D. Wis. 1968), aff. 418 F.

2d 163, lucidly explained the additional scrutiny required

when First Amendment freedoms were involved:

“Moreover, the vagueness doctrine is not to be con-

ceived as being limited solely to the concept of fair

notice as an element of substantive due process. The

vagueness doctrine embodies a First Amendment con-

cept as well:

‘The objectionable quality of vagueness and over-

breadth does not depend upon absence of fair notice

to a criminally accused or upon unchanneled delega-

tion of legislative powers, but upon the danger of tol-

erating, in the area of First Amendment freedoms,

the existence of a penal statute susceptible of sweep-

ing and improper application.’ NAACP v. Button,

371 U. S. 415, 432-433, 83 S. Ct. 328, 338, 9 L. Ed. 2d

405 (1963).

‘Vague laws in any area suffer a constitutional in-

firmity. When First Amendment rights are involved,

we look even more closely lest, under the guise of

regulating conduct that is reachable by the police

power, freedom of speech or of the press suffer.’

Ashton v. Kentucky, 384 U. S. 195, 200, 86 S. Ct.

1407, 16 L. Ed. 2d 469 (1966).

“Whether a given rule ‘involved’ First Amendment

rights so as to require that it be looked to ‘more

closely’ is often relatively easy to determine: a rule

against bank robbery does not; a rule regulating pub-

lic gatherings probably does. A rule against ‘miscon-

A-10

duct’ is so grossly vague that possible involvement of

First Amendment rights cannot be ignored. It is not

permissible to ‘presume that the statute curtaiis con-

stitutionally protected activity as little as possible.’

NAACP v. Button, supra, 371 U.S. at 432, 83 S. Ct. at

337.”

The regulation pursuant to which the plaintiff was termi-

nated is so overbroad that it could authorize a tenured pro-

fessor’s termination for utterances: which were inaccurate,

a situation held constitutionally impermissible by Pickering

v. Board of Education, 391 U. S. 563 (1968). The wide

range of constitutionally protected activities which could

be infringed by this regulation seems unlimited. The in-

adequacy of the regulation is apparent on its face. The

regulation is so vague that men of common intelligence

could differ as to its meaning and some of the apparently

proscribed conduct is conduct which is constitutionally per-

missible. The combination of the vagueness and the over-

breadth make the section invalid on its face. The section

violates the due process clause of the Fourteenth Amend-

ment by reason of its vagueness and violates the First

Amendment as embodied in the Fourteenth Amendment by

reason of its vagueness and overbreadth.

The Court makes no finding as to the conduct of the

plaintiff which resulted in the plaintiff’s termination. Under

a properly drawn regulation that gives full protection to a

professor’s constitutional rights, the plaintiff may well have

been properly discharged. The Court does not reach the

issue of whether the plaintiff’s conduct was constitutionally

protected because, regardless of what the plaintiff did, he

could not be dismissed under the unconstitutional regula-

tion. The Court finds only that the plaintiff was terminated

A-11

by the Board of Regents for allegedly violating Chapter

IV, Section 2.3, of the University Code. Because the section

upon which the Regents relied is substantively unconstitu-

tional, the Regents cannot rely on it and the plaintiff must

be reinstated and compensated for loss of earnings.

It is clear that this Court has the power under 42 U.S.C.

1983 to order the reinstatement of the professor. Such re-

instatement relief will be granted the plaintiff in his suit

against the Regents in their representative capacities.

Harkless v. Sweeny Independent School District, supra;

Hayes v. Cape Henlopen School District, supra; Ramsey v.

Hopkins, 447 F. 2d 128 (5th Cir. 1971). Can the Court, con-

sistently with the Eleventh Amendment, order the Regents,

being sued in their representative capacities, to pay the

plaintiff back pay? The Court, in Harkless, supra, explained

it this way:

“Section 1983 was designed to provide a comprehen-

sive remedy for the deprivation of federal constitu-

tional and statutory rights. The prayer for back pay

is not a claim for damages, but is an integral part of

the equitable remedy of injunctive reinstatement. Re-

instatement involves a return of the plaintiffs to the

positions they held before f. alleged unconstitutional

failure to renew their contracts. An inextricable part

of the restoration to prior status is the payment of

back wages properly owing to the plaintiffs, dimin-

ished by their earnings, if any, in the interim. Back pay

is merely an element of the equitable remedy of rein-

statement.” (Citations omitted.)

Therefore, the back pay is not a judgment for damages

running against the state via the Regents in their repre-

sentative capacities, but is, rather, part of the equitable

relief this Court can order. Other cases recognize back

A-12

‘

pay as an integral part of the equitable remedy of rein-

statement. Jinks v. Mays, 464 F.2d 1223 (5th Cir. 1972);

McFerren v. County Bad. of Ed. of Fayette Co., Tenn., 455

F.2d 199 (6th Cir. 1972); Horton v. Lawrence County Bd.

of Education, 449 F. 2d 793 (Sth Cir. 1971); Smith v.

Hampton Training School for Nurses, 360 F. 2d 577 (4th

Cir. 1966) ; Schreiber v. Joint School Dist. No. 1, Gibraltar,

Wis., 335 F. Supp. 745 (E.D. Wis. 1972). The amount of

back pay would be the wages owing from the date of dis-

missal to the present date of reinstatement diminished by

the plaintiff’s earnings, if any, during the period of his

dismissal. Ramsey v. Hopkins, supra, and Harkless v.

Sweeny Independent School Dist., supra.

Plaintiff’s motion for partial summary judgment is

granted.

Qualified Governmental Immunity

The defendants argue in support of their motion for sum-

mary judgment that they acted in good faith when they

voted to terminate the plaintiff’s employment contract and

therefore are within the defense of qualified governmental

immunity. At the outset, it must be emphasized that any

qualified immunity would shield the Regents only in their

individual capacities. The immunity would prevent an

award of damages against the individual Regents, but the

immunity does not shield the Regents being sued in their

representative capacities from equitable relief. In Roth v.

Board of Regents of State Colleges, 310 F. Supp. 972 (W.D.

Wis. 1970), the Court said:

“The purpose of common law immunity enjoyed by

the judiciary and legislature, here sought to be ex-

A-13

tended in a qualified form to the defendant Board and

university president, is to preserve the integrity and

independence 6f those bodies, and to insure that judges

and legislators will act on their free, unbiased con-

victions, uninfluenced by apprehensions of conse-

quences . . . Such considerations do not support ex-

tending, nor have courts extended, the doctrine to

shield officials from the type of equitable relief here

requested [reinstatement of professor ].”

The most cogent explanation of the qualified govern-

mental immunity which would shield the defendants from

personal liability for their good faith acts is found in

Bennett v. Gravelle, 323 F. Supp. 1031 (D.C. Md. 1971),

where the Court says, at page 212:

“The Supreme Court has not definitively spoken on

the applicability of the doctrine of governmental im-

munity in actions brought under section 1983 against

local governmental agency officials, such as the de-

fendants in this case. Nevertheless, while such officials

may not be entitled to the absolute immunity which

has been accorded to all legislators and judges, they

are still entitled to a limited or a qualified immunity.

This interpretation is in accordance with the general

intent and tenor of the Act. As was stated in Job-

son v. Henne, 355 F. 2d 129, 133 (2d Cir. 1966), ‘to

hold all state officers immune from suit would very

largely frustrate the salutary purpose of this provi-

sion.’ But to take away all immunity would seem to

give the section a meaning that Congress did not

intend. Sée Hoffman v. Halden, 268 F. 2d 280, 300

(9th Cir. 1959). In Cobb, supra [Cobb v. City of Mal-

den, 202 F. 2d 701 (1st Cir. 1953)], the Court stated:

a roughly accurate generalization that members of

a city council, and other public officers not in the

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exceptional category of officers having complete im-

munity, would have a qualified privilege, gives them

a defense against civil liability, for harms caused

by acts done by them in good faith in performance

of their official duty as they understood it. Id., 202

F. 2d at 707.

“The Court in Pierson [Pierson v. Ray, 386 U. S.

047, 554, 87 S. Ct. 1213, 1218, 18 L. Ed. 2d 288 (1967) ],

in addition to reaffirming the common law immunity

of judges, specifically held that the defense of good

faith and probable cause was available in an action

under section 1983 to police officers who had arrested

the petitioners, acting under a statute which was sub-

sequently held to be unconstitutional but which the

officers had probable cause to believe was valid, 386

U.S. at 555-557, 87 S. Ct. 1213. The Court thus made

it clear that state officers, although not entitled to an

absolute and unqualified immunity, have at least a

limited immunity for acts done by them in good faith

within the scope of their official duties. Good faith

and probable cause are defenses not because of any

language in section 1983, but because section 1983 must

be read in a manner consistent with the background of

common law immunities.

“In Cobb, Judge Magruder stated that ‘the Act

merely expresses a prima facie liability, leaving to the

courts to work out, from case to case, the defenses by

way of official privilege which might be appropriate to

the particular case.’ 202 F. 2d at 706. In Francis v.

Lyman, the learned judge said that ‘we think it no

longer appropriate’ to ‘give effect to the statute in its

literal wording.’ 216 F. 2d 583, 587 (1st Cir. 1954);

instead, it is the duty of the court to ‘fit the statute

as harmoniously as may be into the familiar and gen-

erally accepted legal background, and to confine its

A-15

application, within reason, to those situations which

might possibly have had the approval of the Con-

gress if it had specifically adverted to the particular

cases, bearing in mind the basic purposes which gave

rise to the legislation in the first place.’ Id. at 587.”

(Emphasis supplied.)

This qualified immunity has been phrased differently in

many courts. In Hayes v. Cape Henlopen School Dist., 341

F. Supp. 823 (D.C. Del. 1972), the Court said, at page 829:

“As public officials exercising discretion while per-

forming their duties, the individual defendants possess

a qualified privilege precluding liability for the per-

formance of official responsibilities if undertaken in

good faith.”

In McLaughlin v. Tilendis, 398 F. 2d 287 (7th Cir. 1968),

a probationary teacher brought a civil rights action to gain

reinstatement after dismissal allegedly solely because of

union membership. The Court explained the limited appli-

cation of the qualified immunity :

“To hold defendants absolutely immune from this type

of suit would frustrate the very purpose of Section

1983 ... At best, defendants’ qualified immunity in

this case means that they can prevail only if they can

show that plaintiffs were discharged on justifiable

grounds. Thus here a successful defense on the merits

merges with a successful defense under the qualified

immunity doctrine.”

The Ninth Circuit approach seems to deal with good

faith and whether the officials’ acts were discretionary.

In Hoffman v. Halden, 268 F. 2d 280 (9th Cir. 1959), the

Court of Appeals held:

A-16

“... We are content to... extend immunity to a state

officer for his discretionary acts within the scope of his

authority.”

In adopting the “immunity for discretionary acts” ap-

proach, the Ninth Circuit relied on several common law

immunity cases which were not Civil Rights cases. It is

important to note that in Hoffman the Court said:

“This approach says we will not inquire, subjectively

—into their state of mind—where they are exercising

a discretionary function.”

If the rule of the Ninth Circuit is simply one of immunity

for discretionary acts, this Court would merely have to

decide whether the firing of the plaintiff was a discretion-

ary act within the scope of the Regents’ authority. It would

seem that under this approach the good faith of the Re-

gents would be irrelevant, and the Court could grant sum-

mary judgment for the Regents in the suit against them

in their individual capacities if the Court found their

actions to be discretionary within the scope of their au-

thority. The immunity for discretionary acts approach

was followed in Silver v. Dickson, 403 F. 2d 642 (9th Cir.

1968), and as recently as 1971 in Boreta v. Kirby, 328 F.

Supp. 670 (N.D. Cal. 1971), where the Court said:

“The determination of whether defendant Figoni

[Investigator for the California Department of Bever-

age Control] can claim governmental immunity is de-

pendent upon whether his alleged actions can be con-

sidered discretionary acts and whether they were

done within the scope of his authority.” (Emphasis

supplied.)

A-17

There was no mention of a good faith defense in either

case.

The Ninth Cireuit case which adopted the immunity for

discretionary acts approach for Civil Rights cases, Hoff-

man, was decided eight years before the Supreme Court

addressed the issue in Pierson v. Ray, 38 U. 8S. 547, 554,

87 S. Ct. 1218, 1218, 18 L. Ed. 2d 288 (1967). The Supreme

Court in Prerson made it clear that state officers, although

not entitled to an absolute and unqualified immunity, have

at least a limited immunity for acts done by them in good

faith within the scope of their official duties. In Silver and

Boreta, which adopted the test of Hoffman, the courts

do not discuss Pierson, which antedated them. Every cir-

cuit, except possibly the Ninth, has adopted the good faith

test for qualified governmental immunity. If the good faith

test, rather than the immunity for discretionary acts test,

is followed, this Court cannot grant summary judgment to

the Regents in the suit against them in their individual

capacities because of the factual issue of good faith and

malice. As was stated in Endicott v. Van Petten, 330 F.

Supp. 878 (D.C. Kan. 1971):

“Since the immunity issue depends upon the deter-

mination of whether the defendants acted in good

faith, it must await factual determination at a later

date, in the face of a specifically plead allegation that

defendants’ actions were willful and malicious, obvi-

ously excluding a good faith basis.”

One Ninth Circuit case has recognized the apparent im-

propriety of the immunity for discretionary acts test fol-

lowing the Pierson decision. In Donovan v. Retnbold, 433

F. 2d 738 (9th Cir. 1970), the Court said:

A-18

“Their alternative contention is that state officials

are immune from liability for discretionary acts done

within the scope of their authority. Silver v. Dickson

(9th Cir. 1968) 403 F. 2d 642 and Hoffman v. Halden

(9th Cir. 1959) 268 F. 2d 280 cautiously extend im-

munity to some state officials performing some kinds

of discretionary acts. Thus in Silver, immunity was

extended to members of a state parole board in the

performance of their discretionary duties in denying

parole. In Hoffman, immunity was recognized for a

jailor or keeper who refused to release a prisoner

held on warrant or commitment. Neither case stands

for the broad principle that all public officials are

immune from Civil Rights Act liability if their acts

were discretionary and were done within the scope of

their official duties.”

Then follows a footnote which states:

“The Supreme Court has never adopted this doc-

trine. Aside from judicial and legislative immunity,

the Court seems to offer public officers only the de-

fense of ‘good faith’. See Pierson v. Ray...”

The Boreta case, which came after Donovan, is a Dis-

trict Court case which applied the discretionary act test

without even mentioning “good faith” or the Pierson and

Donovan cases. Since Donovan is the most recent Ninth

Circuit Court of Appeals case and it recognizes that the

“Court seems to offer public officers only the defense of

‘good faith’”, this Court believes it should not follow the

Ninth Cireuit cases of Hoffman, Silver, and Boreta, but

apply in the instant case the “good faith” test for quali-

fied governmental immunity, rather than the discretionary

act test. It would appear that the discretionary act test

A-19

goes too far in emasculating the Civil Rights Act and is

contrary to the Supreme Court in Pierson.

Therefore, this Court adopts the good faith test for

qualified governmental immunity as most recent courts

have, and therefore denies the Regents’ motion for sum-

mary judgment as to their individual liability because of

the unresolved genuine issue of material fact.

Certain Regents Entitled to Summary Judgment

Defendants William W. Morris, Helen R. Thompson and —

Mel Steninger seek summary judgment in their favor on

the grounds that they were not members of the Board of

Regents when the plaintiff was terminated. Defendant

James H. Bilbray seeks summary judgment in his favor

on the grounds that although a member of the Board of

Regents when the plaintiff was terminated, he voted

against termination. Defendant Archie C. Grant seeks sum-

mary judgment in his favor on the grounds that although

a member of the Board of Regents when the plaintiff was

terminated, he was not present when the Board of Regents

acted to terminate plaintiff. Each of the above said defend-

ants is entitled to summary judgment in his favor, as to

any possible individual liability to plaintiff. Those of the

above said defendants that are now members of the Board

of Regents shall remain defendants herein in their repre-

sentative capacities only. Those who are no longer mem-

bers of the Board of Regents are dismissed.

A-20

Plaintiff’s counsel will prepare and submit to defend-

ants’ counsel for approval as to form and substance and

lodge with the Clerk of the Court appropriate findings of

fact, conclusions of law, and partial summary judgment

within 20 days from the date of this order.

DATED: April 16, 1973.

ROGER D. FOLEY

District Judge

Appendix B

In the United States District Court

for the District of Nevada

;

Paul 8S. Adamian,

Piaintiff,

Vs.

The University of Nevada, the Board of

Regents of the University of Nevada,

Dr. Louis E. Lombardi, Fred M. Ander-

son, Procter IX. Hug, William M. Morris, Civil R-2530

Helen R. Thompson, James H. Bilbray,

Arehie C. Grant, Paul McDermott,

Harold J. Jacobsen, Mel Steninger,

Molly Knudtsen, and John Does I, II,

III, IV, V, VI, VII and VIII.

Defendants.

[July 20, 8:32 A.M., 1973]

SUPPLEMENTAL OPINION, FINDINGS OF FACT,

CONCLUSIONS OF LAW, AND SUMMARY

JUDGMENT

SUPPLEMENTAL OPINION

On April 16, 1973, this Court filed its memorandum

opinion granting plaintiff’s partial motion for summary

judgment and denying defendants’ motion for summary

judgment.

On June 22, 1973, defendants filed a motion for rehearing

on the denial of defendants’ motion for summary judgment.

B-2

Plaintiff has failed to respond to defendants’ motion for

rehearing. Defendants state in part:

“FRCP, Rule 56(e), as interpreted by the Ninth

Cireuit, does not permit the Plaintiff to rely merely

upon his pleadings to show that a genuine issue of

material fact exists regarding the issue of good faith

when Defendants have filed sworn affidavits alleging

good faith and Plaintiff has failed to file opposing

affidavits. Therefore, the issue of good faith should

be resolved in favor of Defendants.”

The motion to reconsider is granted. This Court agrees

with defendants’ contentions set forth above. This Court

now holds that defendants are entitled to summary judg-

ment against plaintiff. In its memorandum opinion filed

April 19, 1973, the Court overlooked the fact that the

plaintiff had not complied with Rule 56(e), FRCP. This

Court now holds that there are no genuine issues of ma-

terial fact as to the good faith issue in view of defendants’

affidavits and the failure of plaintiff to file opposing af-

fidavits.

FINDINGS OF FACT

The Court finds the following facts to be admitted by the

pleadings or established beyond dispute in the files and

records of this action:

The plaintiff PAUL S. ADAMIAN was discharged from

his position as a tenured professor of English at the Uni-

versity of Nevada, Reno campus, by action of the University

Board of Regents on December 12, 1970.

B-3

II.

The present members of the Board of Regents are Harold

J. Jacobsen, Flora Dungan, Fred M. Anderson, M.D.,

James L. Buchanan II, Nedra Joyce, Louis E. Lombardi,

M.D., William W. Morris, Mel Steninger and Helen R.

Thompson.

IIT.

The defendants University of Nevada and the Board of

Regents, as well as the defendants designated by John

Doe fictitious names, have been previously dismissed from

this action.

IV.

The defendants who were members of the Board of

Regents on December 12, 1970, dismissed the plaintiff upon

a determination that he had violated the provisions of

@hapter IV, Section 2.3, of the University Code, which

provides :

“The faculty member is a citizen, a member of a

learned profession, and a representative of this Uni-

versity. When he speaks or writes as a citizen, he will

be free from University: censorship or discipline, but

his special position in the community imposes special

obligations. As a man of learning and as an educator,

he knows that the public may judge his profession and

this University by his utterances. At all times, he

strives to be accurate, to exercise appropriate restraint,

to show respect for the opinions of others, and to make

every effort to indicate that he is not a spokesman for

this University.”

B-4

In determining that the plaintiff had violated Chapter

IV, Section 2.3, of the University Code, the defendants who

were then members of the Board of Regents determined

that the plaintiff had attempted to stop a motorcade and

attempted to disrupt ceremonies of the Governor’s review

of ROTC activities on the Reno campus of the University.

The Court makes no findings as to whether such deter-

mination was correct, the facts relating thereto being in

dispute between the parties.

VI.

There are no genuine issues of material fact as to the

good faith of the persons who comprised the Board of

Regents of the University of Nevada on December 12, 1970,

in determining that the plaintiff should be discharged from

his position as a tenured professor at such University.

CONCLUSIONS OF LAW

Based upon the foregoing facts and the applicable au-

thorities, the Court makes the following conclusions of law:

The Court has jurisdiction over this controversy pur-

suant to the provisions of Title 28 U.S.C. § 1343 and Title

42 U.S.C. § 1983. |

Il.

The defendants are sued in their capacity as representa-

tives of the University of Nevada and in their individual

capacities. By reason of the automatic substitution pro-

visions of Rule 25(d)(1) of the Federal Rules of Civil

B-o

Procedure, the Regents being sued in their representative

capacities are those Regents who presently are members

of the Board of Regents, and the Regents being sued in

their individual capacities are those Regents who were

members of the Board of Regents at the time of plaintiff’s

dismissal.

III.

Chapter IV, Section 2.3, of the University Code of the

University of Nevada has the same force and effect under

the laws of the State of Nevada as does a statute, and is

subject to the same criteria regarding overbreadth and

vagueness required by the due process clause of the Four-

teenth Amendment to the United States Constitution as

are statutes.

IV.

Chapter IV, Section 2.3, of the University Code is con-

stitutionally infirm by reason of vagueness which would

cause men of common intelligence to be confused about

the conduct allowed or proscribed thereby, and therefore

cannot be the basis for disciplinary action even if the con-

duct giving rise to such action could have been properly

proscribed under a properly drawn regulation.

¥-

Chapter IV, Section 2.3, is additionally constitutionally

infirm and unenforceable because its terms and provisions

are so overbroad as to reach conduct which is constitu-

tionally protected, and therefore violates the due process

clause of the Fourteenth Amendment and the provisions

of the First Amendment as embodied in the Fourteenth

Amendment.

B-6

VI.

By reason of the substantive unconstitutionality of the

section of the University Code upon which the Regents

relied in discharging the plaintiff, the Regents cannot con-

stitutionally rely thereon and the plaintiff must be rein-

stated and compensated for the loss of earnings occasioned

by his improper dismissal.

VIL.

This Court has the power to order the defendants sued

in their representative capacities to reinstate the plaintiff

and may further order such defendants to pay to the plain-

tiff all his back pay, consisting of wages owing from the

date of dismissal to the date of reinstatement, diminished

by the plaintiff’s earnings, if any, during the period of his

dismissal.

VIII.

The proper test as to whether those defendants sued in

their individual capacities are entitled to rely upon a claim

of governmental immunity to defeat the plaintiff’s claim

is not whether they were performing a discretionary func-

tion but, rather, whether they acted in good faith or were

guilty of malice in discharging the plaintiff. There are no

genuine issues of material fact in dispute between the

parties which require that the motions of the defendants

for summary judgment be granted.

B-7

IX.

The defense of qualified governmental immunity is not

available to any of the defendants sued in their representa-

tive capacities.

DATED: July 19, 1973.

Roger D. Foley

District Judge

Appendix C

In the United States District Court

for the District of Nevada

)

Paul S. Adamian,

Plaintiff,

Vs.

The University of Nevada, the Board of

Regents of the University of Nevada,

Dr. Louis E. Lombardi, Fred M. Ander-

son, Procter I. Hug, William W. Morris, > Civil R-2530

Helen R. Thompson, James H. Bilbray,

Archie C. Grant, Paul McDermott,

Harold J. Jacobsen, Mel Steninger,

Molly Knudtsen, and John Does I, II,

Il, IV, V, VI, VII and VIII.

Defendants.

[July 20, 8:31 A.M., 1973]

SUMMARY JUDGMENT

Upon consideration of the defendants’ motion for sum-

mary judgment and the plaintiff’s motion for partial

summary judgment pursuant to Rule 56 of the Federal

Rules of Civil Procedure, and upon consideration of the

record herein, and good cause appearing therefor,

IT IS ORDERED that the plaintiff’s motion for partial

summary judgment against the defendants sued in their

representative capacities be, and the same is, hereby

granted.

~ C-2

IT IS FURTHER ORDERED that the defendants

HAROLD J. JACOBSEN, FLORA DUNGAN, FRED M.

ANDERSON, M. D., JAMES L. BUCHANAN II, NEDRA

JOYCE, LOUIS E. LOMBARDI, M. D., WILLIAM W.

MORRIS, MEL STENINGER and HELEN R. THOMP-

SON, as representatives of the Board of Regents of the

University of Nevada, shall forthwith reinstate the plain-

tiff PAUL S. ADAMIAN to his position as a tenured pro-

fessor of English at the University of Nevada, Reno cam-

pus, with all the benefits, increments, status and wages

which have accrued to such position since December 12,

1970, as though the plaintiff had never been discharged

from such position.

IT IS FURTHER ORDERED that the defendants

HAROLD J. JACOBSEN, FLORA DUNGAN, FRED M.

ANDERSON, M. D., JAMES L. BUCHANAN II, NEDRA

JOYCE, LOUIS E. LOMBARDI, M. D., WILLIAM W.

MORRIS, MEL STENINGER and HELEN R. THOMP-

SON shall forthwith, by proper resolution adopted at a

duly convened meeting of the Board of Regents of the

University of Nevada, approve the payment from appro-

priated funds to the plaintiff in an amount equal to the

salary he would have received from the date of his dis-

charge until the date he is reinstated on the payroll of

the University of Nevada, in accordance with this order,

with interest at the rate of 7% per annum, reduced by

any salary the plaintiff may have received during the

period of his discharge.

C-3

IT IS FURTHER ORDERED that the motion for sum-

mary judgment made on behalf of the defendant members

of the Board of Regents who comprised the Board of

Regents of the University of Nevada on December 12,

1970, against whom relief was sought in their individual

capacities by plaintiff, is granted, but denied as to the

relief sought in their representative capacities.

DATED: July 19, 1973.

Roger D. Foley

OEE EER HAE E EEE SESE OEO®

District Judge

e~- ——

Appendix D

In the United States District Court

for the District of Nevada

Paul 8S. Adamian,

Plaintiff,

VS.

The University of Nevada, the Board of

Regents of the University of Nevada,

Dr. Louis Ef. Lombardi, Fred M. Ander-

son, Procter E. Hug, William W. Morris, Civil R-2530

Helen R. Thompson, James H. Bilbray,

Archie C. Grant, Paul McDermott,

Harold J. Jacobsen, Mel Steninger,

Molly Knudtsen, and John Does I, II,

(fl, IV, V, VI, VII and VIII.

Defendants.

[August 30, 1:45 P.M., 1973]

FINAL JUDGMENT ON LESS THAN ALL CLAIMS

An Order, having been entered herein, granting partial

summary judgments, and this Court, having certified that

there was no just reason for delay and expressly directing

the entry of final judgment pursuant to Rule 54(b) of the

Federal Rules of Civil Procedure, final judgment is there-

fore entered, as follows:

1. It is ordered that defendants HAROLD J. JACOB-

SEN, FLORA DUNGAN, FRED M. ANDERSON, M.D.,

D-2

JAMES L. BUCHANAN II, NEDRA JOYCE, LOUIS E.

LOMBARDI, M.D., WILLIAM W. MORRIS, MEL STEN-

INGER and HELEN R. THOMPSON, as representatives

of the Board of Regents of the University of Nevada, shall

forthwith reinstate the plaintiff PAUL S. ADAMIAN to

his position as a tenured Professor of English at the Uni-

versity of Nevada, Reno campus.

2. That Summary Judgment is granted to defendants

WILLIAM W. MORRIS, HELEN R. THOMPSON and

MEL STENINGER in their individual capacities on the

grounds that they were not members of the Board of

Regents of the University of Nevada when the plaintiff was

terminated.

3. .That Summary Judgment is granted to defendant

JAMES H. BILBRAY, in his individual capacity, on the

grounds that, although he was a member of the Board of

Regents of the University of Nevada when the plaintiff

was terminated, he voted against the termination.

4. Summary Judgment is granted to defendant

ARCHIE C. GRANT, in his individual capacity, on the

erounds that although he was a member of the Board of

Regents of the University of Nevada when plaintiff was

terminated, he was not present when the Board of Regents

acted to terminate the plaintiff.

5. Summary Judgment is granted to defendants LOUIS

EK. LOMBARDT, FRED M. ANDERSON, PROCTER R.

HUG, PAUL MeDERMOTT, HAROLD J. JACOBSEN

and MOLLY KNUDTSEN, in their individual capacities,

who were members of the Board of Regents of the Uni-

D-3

versity of Nevada on December 12, 1970 and voted for the

termination of plaintiff, on the grounds that there are no

genuine issues of material fact as to the good faith of

those defendants, who comprised the Board of Regents on

December 12, 1970, in determining that plaintiff should be

discharged from his position as a tenured professor of such

University.

DATED this 30th day of August, 1973.

Roger D. Foley

District Judge

Appendix E

United States Court of Appeals

for the Ninth Circuit

Paul S. Adamian,

Plaintiff-Appellee,

Vs.

Harold J. Jacobsen, Flora Duncan, Fred

M. Anderson, M.D., James L. Buchanan

II, Nedra Joyce, Louis KE. Lombardi, No. 73-2921

M.D., William W. Morris, Mel Steninger,

Helen R. Thompson, as constituting the

present Board of Regents of the Univer-

sity of Nevada,

Defendants-Appellants.

[September 24, 1975]

OPINION

Appeal from the United States District Court

for the District of Nevada

Before: MERRILL, CARTER and CHOY, Circuit J udges.

CHOY, Circuit Judge:

Paul 8S. Adamian, a tenured Assistant Professor of

English at the University of Nevada at Reno, participated

in a demonstration during Governor’s Day ceremonies in

the campus stadium in 1970, protesting the Cambodia inva-

sion and the Kent State University killings. On prior appli-

cation of the demonstrators, the Board of Regents (the

H-2

Board) had given them permission to march three times

around the stadium track. The protest went beyond the

march, however. Adamian (yelling, “Let’s stop this mother

....’) and others tried to stop a motoreade bringing officials

for the ceremonies into the stadium; led by Adamian the

demonstrators then made loud noises to disrupt the cere-

monies. Still later, Adamian left the stands, joined a group

on the field and motioned other demonstrators on to the

field, thus creating a danger of violent confrontation be-

tween two bodies of people.

The Board directed that charges be brought against

Adamian. He was summoned before a Faculty Senate

hearing committee which found that his conduct had vio-

lated chapter 4, section 2.3, of the University Code, and

thus constituted “adequate cause” under the Code for his

dismissal. Although the committee recommended that his

employment not be terminated unless he indulged in similar

conduct in the future, the Board rejected the recommenda-

tion and ordered Adamian’s dismissal.

Adamian brought this civil rights action in district court,

claiming that the University had deprived him of his first

amendment rights of speech and assembly. On July 20, 1973,

the district court held that section 2.3 was invalid because

vague and overbroad. The court entered partial summary

judgment for Adamian, and ordered the present members

of the Board of Regents in their representative capacities

to reinstate Adamian. It also ordered back pay for Adamian

in an amount to be later determined. On August 30, 1973,

the court certified its order of reinstatement as a final judg-

ment, pursuant to Fed.R.Civ.P. 54(b). The members of the

Board appeal from that order. We reverse and remand.

E-3

Jurisdiction on Appeal

The July 20 order granting an injunction was an ap-

pealable interlocutory order. 28 U.S.C. § 1292(a)(1). Be-

cause the regents did not file an appeal from this order

within 30 days as required by 28 U.S.C. § 2107. Adamian

argues that the regents’ appeal is untimely. But an inter-

locutory appeal is permissive, not mandatory, and the

regents were free to await the August 30 final judgment

and to appeal under 28 U.S.C. § 1291. Caradelis v. Refineria

Panama, S.A., 384 F.2d 589, 591 n.1 (5th Cir. 1967) ; Bing-

ham Pump Co. v. Edwards, 118 F.2d 338, 339 (9th Cir.),

cert. denied, 314 U.S. 656 (1941).

University Code, Section 2.3

The University Code of the University of Nevada re-

quires that tenured professors be dismissed only for ade-

quate cause, and the Board of Regents concluded that

“adequate cause existing, [Adamian’s] employment as a

member of the Faculty of the University of Nevada, Reno

is terminated this date.” The term “adequate cause” must

be interpreted in the context of traditional standards of

faculty behavior; its vagueness is a necessary result of

the many forms of faculty conduct which might justify dis-

missal. The Supreme Court’s discussion of “cause” for

dismissal from the civil service applies equally to aca-

demic tenure: |

We do not believe that Congress [here, the state] was

confined to the choice of enacting a detailed code of

employee conduct, or else granting no job protection

at all.

Arnett v. Kennedy, 416 U.S. 134, 159 (1974).

K-4

Nevertheless, when a statute or regulation by its vague-

ness or overbreadth threatens to deter the exercise of first

amendment freedoms, we require of it greater precision

and specificity than would be necessary to fulfill fifth or

fourteenth amendment due process requirements. “Ade-

quate cause” is certainly too imprecise a standard if ex-

pressive activity is understood to fall within its scope. If

we were faced with a federal statute or regulation, we

would cure this imprecision by construing it to exclude

any application to constitutionally protected speech or

conduct. Arnett, 416 at 162; United States Civil Service

Commission v. National Association of Letter Carriers,

413 U.S. 548, 571 (1973). We cannot so construe a state

regulation, however; we are required to base our judg-

ment of its facial validity only on its meaning as author-

itatively construed by a state court or agency. Gooding

v. Wilson, 405 U.S. 518, 520 (1972).

The University Code, chapter 4, section 2.3, clarifies the

meaning to be given “adequate cause” when that term is

applied to a professor’s expressive activity:

The faculty member is a citizen, a member of a learned

profession, and a representative of the University.

When he speaks or writes as a citizen, he will be free

from University censorship or discipline, but his spe-

cial position in the community imposes special obli-

gations. As a man of learning and-as an educator, he

knows that the public may judge his profession and

this University by his utterances. At all times he

strives to be accurate, to exercise appropriate re-

straint, to show respect for the opinion of others, and

EK-5

to make every effort to indicate that he is not a spokes-

man for this University.

Section 2.3, read in isolation, seems only to insure that a

professor will be free of censorship when speaking as a

citizen; the admonitions of the last sentence appear merely

hortatory. The Board of Regents has construed the last

sentence as stating adequate causes for dismissal, how-

ever, and we must give great deference to this construction

of a regulation by the state agency which issued and en-

forces it. See Jablon v. Trustees of the California State

Colleges, 482 F.2d 997, 999 (9th Cir. 1973), cert. denied,

414 U.S. 1163 (1974). The regents explicity charged Pro-

fessor Adamian with having violated this section, and we

accept it as defining the university’s construction of “ade-

quate cavse” for dismissal of a professor based on his

non-academic speech or writing.’

Vagueness and Overbreadth

The closely-related first amendment doctrines of vague-

ness and overbreadth permit a defendant to assert the

‘See Interpretation 3 of the 1940 Statement of Principl

upon by the Association on Nov. 7-8, 1940: ciples, agreed

If the administration of a college or university feels that a

teacher has not observed the admonitions of Paragraph (c) of

the section on Academic Freedom [section 2.3] and believes

that the extramural utterances of the teacher have been such

as to raise grave doubts concerning his fitness for his position

it may proceed to file charges under Paragraph (a) (4) of the

section on Academic Tenure. In pressing such charges the

administration should remember that teachers are citizens and

should be accorded the freedom of citizens. In such cases the

administration must assume full responsibility and the Ameri-

can Association of University Professors and the Association of

American Colleges are free to make an investigation.

Academic Freedom and Tenure: A Handbook of the American

Association of University Professors 39 (1969).

E-6

invalidity of a statute because of its potential encroach-

ment on first amendment freedoms, even in cases where

the defendant’s conduct itself is unprotected by the first

amendment. We apply these doctrines quite rigorously

when a statute is directed at “pure speech,” especially to

its expressive content. Goodwin v. Wilson, 405 U.S. 518

(1972) ; Lewis v. City of New Orleans, 415 U.S. 130 (1974) ;

Stromberg v. California, 283 U.S. 359 (1931) ;? On the other

hand, if the state has attempted to regulate conduct for

reasons unrelated to any expressive content, and the reg-

ulation has an incidental inhibiting effect on expression,

in determining its facial validity we must weight the legit-

imate interest of the state in regulating the conduct against

the potential deterrence, or “chill,” of the exercise of first

amendment freedoms. Broadrick v. Oklahoma, 413 U.S.

601, 615 (1973); Parker v. Levy, 417 U.S. 733, 760 (1974).°

The balancing required of us in deciding whether to apply.

the vagueness and overbreadth doctrines resembles that

required in determining whether a statute regulating con-

2The Supreme Court has apparently applied the overbreadth doc-

trine equally rigorously to topless dancing as a form of expression.

The Court, in an opinion by Mr. Justice Rehnquist, held facially

invalid a town ordinance banning all topless dancing, observing

that it had suggested in California v. LaRue, 409 U.S. 109, 118

(1972), that some topless dancing might be entitled to first amend-

ment protection. The Court did not engage in a Broadrick-type

analysis to determine the legitimate scope of such an ordinance in

relation to its possible application to protected expressive activity.

Doran v. Salem Inn, Inc., 43 U.S.L.W. 5039 (U.S., June 30, 1975).

3In Parker, the Court dismissed overbreadth challenges to the

military regulations prohibiting conduct “unbecoming an officer and

a gentleman” and “to the prejudice of good order and discipline in

the armed forces.” The court held that the “* “weighty countervail-

ing policies,” ’ Broadrick, supra, at 611, which permit the extension

of standing in First Amendment cases involving civilian society,

must be accorded a great deal less weight in the military context.”

417 U.S. at 760.

hi-7

duct constitutes an impermissible abridgement of first

amendment interests. See, e.g., Grayned v. City of Rock-

ford, 408 U.S. 104 (1972); United States v. O’Brien, 391

U.S. 367 (1968) ; Cameron v. Johnson, 390 U.S. 611 (1968).

Section 2.3 requires that a professor strive for accuracy,

restraint, and respect for the opinions of others. On its

face, section 2.3 is directed at “pure speech,” not at ex-

pressive conduct. The state cannot regulate any protected

speech on the basis of content. Police Department of the

City of Chicago v. Mosley, 408 U.S. 92 (1972). Even in

the case of “pure speech,” however, the deference which

must be accorded first amendment interests attenuates

when the state attempts to regulate not the expressive con-

tent of the speech, but its external effects, such as noise.

Grayned, supra; Kovacs v. Cooper, 336 U.S. 77 (1949);

contrast Saia v. New York, 334 U.S. 558 (1948).

Section 2.3 is neutral as to content; it regulates the man-

ner in which that content is expressed, much as do statutes

aimed at excessive noise. Therefore, in examning its facial

validity, we find it appropriate to apply the more rigorous

Broadrick test, 1.e., whether any overbreadth perceived is

“not only ... real, but substantial as well, judged in rela-

tion to the statute’s plainly legitimate sweep.” Broadrick,

413 U.S. at 615.

First amendment protections are not “shed... at the

schoolhouse gate.” Tinker v. Des Moines Independent Com-

munity School District, 393 U.S. 503, 506 (1969). It is true

that we will strike the balance between the interests of

the state and of the individual somewhat differently when

the citizen is an employee of the state. Pickering v. Board

E-8

of Education, 391 U.S. 563, 568 (1968) ; United States Civil

Service Commission v. National Association of Letter Car-

riers, 413 U.S. 548, 564 (1973). The desire to maintain a

sedate academic environment, “to avoid the discomfort

and unpleasantness that always accompany an unpopular

viewpoint,” is not an interest sufficiently compelling, how-

ever, to justify limitations on a teacher’s freedom to ex-

press himself on political issues in vigorous, argumenta-

tive, unmeasured, and even distinctly unpleasant terms.

Tinker, 393 U.S. at 509. See Los Angeles Teachers Umon

v. Los Angeles City Board of Education, 71 Cal. 2d 551,

455 P.2d 827, 78 Cal. Rptr. 723 (1969). Only where expres-

sive behavior “involves substantial disorder or invasion of

the rights of others” may it be regulated by the state. 393

U.S. at 513. Self-restraint and respect for all shades of

opinions, however desirable and necessary in strictly schol-

arly writing and discussion, cannot be demanded on pain

of dismissal once the professor crosses the concededly fine

line from academic instruction as a teacher to political

agitation as a citizen—even on the campus itself.

On its face, section 2.3’s requirement that a professor

exercise appropriate restraint and show respect for the

opinions of others is susceptible of interpretations which

would render it overbroad under Tinker, and would thus

deter the vigorous advocacy of unpopular political ideas.

We take notice, however, that section 2.3 was adopted

almost verbatim from the 1940 Statement of Principles

of the American Association of University Professors.

Academic Freedom and Tenure: A Handbook of the Ameri-

ean Association of University Professors 36 (1969). In

E-9

1963, the Association construed the Statement’s language

regarding academic freedom in its Advisory Letter No.

11: Extramural Utterances. Id. at 122-34:

It is the view of this Office that the term ‘appropriate

restraint,’ as used above, refers solely to choice of

language and to other aspects of the manner in which

a statement is made. It does not refer to the substance

of a teacher’s remarks. * * *

‘A violation may consist of serious intemperateness

of expression, intentional falsehood, incitement of

misconduct, or conceivably some other impropriety

of circumstance. It may not lie, however, in the error

or unpopularity, even though gross, of the ideas

contained in the utterance.’

[A] determination concerning alleged violation of the

standard of academic responsibility may not be made

except on the basis of the criteria elaborated above.

[A ]cademic consideration of the extramural utterances

of a faculty member shall occur only when the remarks

raise ‘grave doubts’ concerning his fitness for his

position....

[T]he disciplining of a faculty member for exercising

the rights of free speech guaranteed to him as a citizen

by the Constitution of the United States necessarily

raises such fundatmental issues that institutions are

cautioned to take such action only under extraordinary

circumstances. Neither the error nor the unpopularity

of ideas or opinions may provide an adequate basis for

such disciplinary action, whatever temporary embar-

rassment these views may bring to the institution.

The Association’s construction so narrows the language

of section 2.3 as to eliminate any overbreadth resulting in

E-10

facial invalidity of the section. The Handbook emphasizes

that section 2.3 does not “refer to the substance of a teach-

er’s remarks.” Moreover, the Association’s repeated assur-

ance that a professor will not be penalized for the error

or unpopularity of his ideas reassures us that the Asso-

ciation intended to assure a professor his full measure of

first amendment rights. While the Association’s construc-

tion is itself not entirely free of overbreadth problems,‘ we

believe that it cireumscribes within constitutional limits,

in so far as is practicable, those situations in which a

faculty member is subject to discipline. Any overbreadth

remaining in the Association’s interpretation of proper

grounds for dismissal falls short of Broadrick’s require-

ment of “substantial overbreadth.”

That the University has adopted the Statement of

Principles virtually word for word suggests that it also

accepts the narrowing interpretation placed on it by the

Association. We remand the case to the district court with

instruction to hear testimony from the regents in order to

determine whether the regents’ construction of section 2.3

is the same as that of the American Association of Uni-

versity Professors.

Reversed and remanded.

‘We might have some doubt whether the phrase “serious intem-

perateness of expression,” standing alone, would provide a suff-

ciently narrow standard for a professor's “extramural” speech. Never-

theless, the Association emphasizes that such a lack of restraint

does not per se justify dismissal, but only when it raises “grave

doubts” concerning the professor's fitness for his position. While

even this latter standard is somewhat susceptible to an overbroad

application, we do not believe that such a standard encompasses

so much protected speech as to render section 2.3 “substantially”

overbroad. Whatever overbreadth lingers in the section may Ge

cured on a case-by-case basis in those situations where the section

is applied to punish the exercise of protected speech.

ek Nee ce ha

ie NA Saba ee Oh late owe wee a

Appendix F

In the United States District Court

for the District of Nevada

Paul S. Adamian, :

Plaintiff,

vs.

The University of Nevada, the Board of

Regents of the University of Nevada,

Dr. Louis E. Lombardi, Fred M. Ander- | -

son, Procter R. Hug, William W. Morris, 4 Civil R-2530

Helen R. Thompson, James H. Bilbray,

Archie C. Grant, Paul MeDermott,

Harold J. Jacobsen, Mel Steninger,

Molly Knudtsen, and John Does I, II,

III, IV, V, VI, VII and VIII,

Defendants.

[June 21, 10:48 A.M., 1976]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arose from the dismissal of a college professor

who participated in a campus demonstration in May 1970,

protesting the Cambodian invasion and the Kent State

killings. Plaintiff Paul S. Adamian was a tenured Assistant

Professor of English at the University of Nevada at Reno.

Defendants originally were the University of Nevada, the

Board of Regents, the Board members in their individual

and representative capacities, and Does I through VIII.

¥-2

The Board of Regents had given a group of demon-

strators permission to march three times around the

stadium track during Governor’s Day ceremonies in May

1970. The protest went beyond the march, however.

Adamian tried to stop a motorcade bringing officials into

the stadium for the ceremonies. Led by Adamian, the

demonstrators made raucous noises to disrupt the cere-

monies. Adamian later left the stands, joined a group on

the field, and motioned other demonstrators onto the field,

creating a danger of violent confrontation between two

bodies. of people.

The Board of Regents directed that charges be brought

against Adamian. A Faculty Senate Hearing Committee

found that his conduct constituted “adequate cause” for

dismissal in that he had violated Chapter 4, Section 2.3

of the University Code which provides:

“The faculty member is a citizen, a member of a

learned profession, and a representative of this Uni-

versity. When he speaks or writes as a citizen, he will

be free from University censorship or discipline, but

his special position in the community imposes special

obligations. As a man of learning and as an educator,

he knows that the public may judge his profession and

this University by his utterances. At all times, he

strives to be accurate, to show respect for the opinions

of others, and to make every effort to indicate that

he is not a spokesman for this University.”

However, the committee recommended that his employment

not be terminated unless he indulged in similar conduct in

the future. Nevertheless, the Board of Regents rejected

the recommendation and ordered Adamian’s dismissal.

on) encllll

+o lh, ens 2 ee ee oe EL

F-3

In July 1971, plaintiff filed this civil rights action under

42 USC $1981 and 42 USC § 1985 alleging the following:

(1) Violation of his First Amendment freedom of speech

by dismissing him for protesting the Cambodian invasion

and the Kent State killings (Count 1); (2) Violation of his

First Amendment right to assemble and to petition the

government for redress of grievances by dismissing him for

participating in the demonstration (Count 2); (3) Denial

of his Fourteenth Amendment right not to be deprived of a

property interest (his tenured professorship) without due

process in that the Board of Regents dismissed him after

the Faculty Senate Committee had recommended that he

only be censured (Count 3); and (4) Denial of his Four-

teenth Amendment right not to be deprived of a property

interest without due process by dismissing plaintiff on

grounds (disruption of University function) which were

unrelated to the charges brought against him (violation of

obligations of professor when speaking as a private citizen)

(Count 4). Plaintiff seeks reinstatement as professor,

recovery of back pay, general damages of $50,000, and

punitive damages of $25,000. This court has jurisdiction

under 28 USC § 1343 and 28 USC § 1331.

In March 1972, Judge Phillip Wilkins, by assignment

from the Eastern District of California, ruled on defend-

ants’ motion to dismiss as follows: (1) Dismissed the

University of Nevada and the Board of Regents because

they are not “persons” within the meaning of 42 USC

§ 1983; (2) Dismissed Does I through VIII on ground that

use of fictitious parties is improper in federal court; (3)

Held that the complaint states a cause of action under

42 USC $1983 as to the Board of Regents as individuals

F’-4

even though plaintiff sought relief only under 42 USC

§ 1981 and 42 USC §1985; and (4) Granted defendants’

motion to strike the allegations of conspiracy in plaintiff’s

complaint because they were vague and conclusory. In

April 1972, Judge Bruce Thompson disqualified himself

and transferred the case to Judge Roger Foley.

In April 1973, Judge Foley ruled on plaintiff’s and

defendants’ cross motions for summary judgment as

follows: (1) Granted plaintiff’s partial motion for summary

judgment on the ground that Chapter 4, Section 2.3 of the

University Code was unconstitutionally vague and over-

broad and ordered plaintiff reinstated as professor with

back pay; (2) Denied summary judgment as to all defend-

ants in their representative capacity; (3) Granted summary

judgment as to certain defendants in their individual capa-

city who were not on the Board of Regents at the time of

plaintiff’s dismissal, who voted against dismissal, or who

were absent from the meeting of the Board of Regents

when the vote was taken. Adamian v. Jacobsen, 359 F.Supp.

825 (D.Nev. 1973).

In July 1973, Judge Foley granted defendants’ motion

for rehearing and ruled as follows: (1) Reaffirmed granting

plaintiff’s partial motion for summary judgment on the

ground that the University Code was unconstitutionally

vague and overbroad and ordered plaintiff reinstated, as

professsor with back pay; (2) Reaffirmed denial of sum-

mary judgment as to all defendants in the representative

capacity; but (3) Granted summary judgment as to all

defendants in their individual capacity on the ground that

(1) they have qualified immunity for acts done in good

Fe AU, «a a ty land Lins

She eee

ee eee

Pio ale Met T el wt os

F-5

faith within the scope of their official duties and (2) there

was no genuine issue of material fact as to their good faith

in dismissing plaintiff. This left as defendants only the

individual members of the Board of Regents in their

representative capacity.

Defendants appealed from the order granting plaintiff's

motion for partial summary judgment. The matter was

certified as a final judgment for appeal purposes. The order

reinstating plaintiff as professor was stayed pending ap-

peal. In September 1975, the Court of Appeals reversed

and remanded. Adamian v. Jacobsen, 523 F.2d 929 (9th

Cir. 1975). The Circuit noted that (1) section 2.3 was

adopted almost verbatim from the 1940 statement of Prin-.

ciples of the American Association of University Pro-

fessors and (2) the Association had given section 2.3 a

narrow construction which made it constitutionally valid.

The case was remanded to the district court with instruc-

tions to hear testimony from the Regents in order to

determine whether the Regents’ construction of section

2.3 was the same as that of the AAUP.

In January 1976, Judge Foley conducted the evidentiary

hearing mandated by the Circuit and ordered that: (1)

Plaintiff’s motion for partial summary judgment was de-

nied on the ground that a genuine issue of material fact

exists as to whether the Regents followed the AAUP’s

construction of section 2.3; (2) The ease be transferred to

Judge Thompson in Reno for all further proceedings.

Judge Thompson again disqualified himself and this Court

was assigned to hear the matter. In April 1976, this Court

denied defendants’ second motion to dismiss.

F-6

The case came on for court trial on May 24, 1976. Both

parties stipulated that the facts relating to the events of

May 5, 1970, may be determined by the Court from the

transcript of the administrative hearing and from the

exhibits received in evidence. The parties also agreed that

the only issue of fact to be determined at trial was whether

the Board of Regents construction of Chapter 4, Section

2.3 of the University Code was the same as that of the

American Association of University Professors at the

time of plaintiff’s termination. This opinion shall constitute

the Court’s findings of fact and conclusions of law.

II. LAW AND DISCUSSION

A. Issues of Law

The following issues of law are before this Court: (1)

Is Chapter 4, Section 2.3 of the University Code uncon-

stitutionally vague or overbroad; (2) Did plaintiff’s ter-

mination violate his Fourteenth Amendment right to sub-

stantive due process; (3) Did plaintiff’s termination violate

his Fourteenth Amendment right to procedural due process ;

(4) Did plaintiff’s termination violate his First Amendment

right to freedom of speech; (5) Did plaintiff’s termination

violate his First Amendment right to freedom of assembly ;

(6) Did plaintiff’s termination deny him his Fourteenth

Amendment right to equal protection of the laws.

B. Standard of Review

Defendants contend that plaintiff is only entitled to the

limited review set forth in Bowers v. Campbell, 505 F.2d

1155 (9th Cir. 1974). But in that case, plaintiff invoked

Se ee meets Dib See ban

- — ee ee se .

I-7

federal jurisdiction under both the Civil Rights Acts (42

USC §1981 and 28 USC § 1343) and the Administrative

Procedures Act (5 USC $701 et seq.). Here, plaintiff sues

only under the Civil Rights Acts. Therefore, this Court

holds that plaintiff is entitled to a de novo trial on the

merits.

C. Vagueness and Overbreadth

Plaintiff first contends that the university code provision

(Chapter 4, Section 2.3) that he was accused of violating

is unconstitutionally vague and overbroad. In July 1973,

Judge Foley held that Section 2.3 was invalid because

vague and overbroad. In September 1975, the Court of

Appeals reversed, noting that (1) Section 2.3 was adopted

almost verbatim from the 1940 Statement of Principles of

the American Association of University Professors and

(2) the Association had given Section 2.3 a narrow con-

struction which made it constitutionally valid. The case

was remanded to the district court with instruction to hear

testimony from the Regents in order to determine whether

the Regents’ construction of Section 2.3 was the same as

that of the AAUP. Adamian v. Jacobsen, supra at 935.

At the trial, seven members of the Board of Regents

testified that their construction of Section 2.3 was the same

as the American Association of University Professors. No

contradictory evidence was introduced by plaintiff: There-

fore, this Court finds as a fact that the Regents’ construc-

tion of Section 2.3 is the same as that of the AAUP.

Consequently, this Court holds that Section 2.3 is not un-

constitutionally vague or overbroad.

F-8

D. Substantive Due Process

Plaintiff appears to argue that he was denied substantive

due process because (1) his activities did not raise grave

doubts concerning his fitness for his position; (2) the Board

of Regents failed to make specific findings on whether he

committed the charged acts; and (3) there was an absence

of grounds for dismissal as a matter of law. However, the

guaranty of substantive due process demands only that the

law shall not be arbitrary or capricious. To be arbitrary

or capricious, the Board’s reason for dismissing plaintiff

must be either (1) trivial, (2) unrelated to the education

process, or (3) wholly unsupported by facts. Drown v.

Portsmouth Schl Dist., 451 F.2d 1106 (1st Cir. 1971).

The Board of Regents in its “Decision Concerning Dr.

Paul Adamian” (Exhibit G) found that: (1) Dr. Adamian

had occupied a position of prominence in the May 5, 1970,

demonstration which disrupted the Governor’s Day cere-

monies in Mackay Stadium; (2) Dr. Adamian with others

did attempt to stop the Governor’s motorcade into the

Stadium; (3) Dr. Adamian encouraged students to drown

out the ceremonies after the University President had re-

quested them to be quiet; (4) Dr. Adamian left the stands,

ran out onto the field where the ceremonies were taking

place, and was followed by others in the stands; (5) these

incidents posed a danger of potential violence; and (6)

the conduct of Dr. Adamian was antithetical to his obli-

gations as a member of the faculty and constituted ade-

quate cause for the termination of his employment. These

reasons for dismissal are neither trivial, unrelated to the

education process, nor unsupported by facts. The record

. BPO oh AD tt

F-9

of the administrative hearing provided the Board with

ample evidence to justify these findings. Hence, this Court

holds that plaintiff was not denied substantive due process.

Accord, Shaw v. Board of Trustees, 396 F.Supp. 872, 889

(D. Md. 1975).

EK. Procedural Due Process

Plaintiff also maintains that he was denied procedural

due process by the Board of Regents. It is true that a

tenured teacher cannot be terminated without a hearing

in which he is informed of the grounds for dismissal and

given an opportunity to challenge their sufficiency. Perry

v. Sindermann, 408 F.2d 593 (1972). However, here plaintiff

received a full and fair hearing on the charges made

against him. He was represented by counsel. He was af-

forded the opportunity to confront and cross-examine wit-

nesses against him. The undisputed testimony at trial was

that each of the regents made their decision to terminate

Dr. Adamian solely upon the transcript of the administra-

tive hearing. The Board of Regents issued written findings

subject to judicial review. Therefore, this Court holds that

plaintiff was not denied procedural due process. Accord,

Kwsella v. Board of Education, 378 F.Supp. 54 (W.D. N.Y.

1974) ; Shaw v. Board of Trustees, supra at 887.

F. Freedom of Speech

Plaintiff next contends that his termination violated his

First Amendment right to freedom of speech. The con-

trolling law is to be found in the Supreme Court’s decision

in Pickering v. Board of Education, 391 U.S. 563 (1968).

The Board in Pickering dismissed a teacher who publicly

F-10

criticized the school board in a letter to a newspaper. In

reversing, the Court held that “a teacher’s exercise of his

right to speak on issues of public importance may not

furnish the basis for his dismissal from public employ-

ment.” However, the Court distinguished a teacher’s writing

of a letter to the editor as a citizen from statements made

by a teacher that “interfered with the regular operation

of the schools.” Jd. at 573.

The instant case is similar to Whitsel v. Southeast Local

School District, 484 F.2d 1222 (6th Cir. 1973). In Whitsel,

a teacher was fired who addressed an unauthorized high

school student assembly, protesting dismissal of a student

teacher who had left the high school campus without per-

mission to attend the infamous Kent State demonstration.

The teacher spoke to the assembled students after the

school principal and superintendent had vainly ordered the

students to return to their classes. His remarks encouraged

the students to disobey the directions given to the students

by his superiors. Jd. at 1228.

The Sixth Circuit held that the statements Whitsel voiced

were outside the protection of the First Amendment. The

Court distinguished Pickering on the ground that Whitsel’s

action® “interfered with the regular operation of the

schools.” The Court pointed out that the teacher’s remarks

were not made in his capacity as a concerned citizen, but

in the capacity of a school teacher during school hours on

school property. The Court found that Whitsel’s words

“went beyond the mere advocacy of ideas and counselled a

course of action.” 7d. at 1228.

SF - en aches ARIE ER CN te ah

F-11

Professor Adamian played a prominent role in unautho-

rized student protest activities during school hours on

school property. He continued to lead raucous catcalls after

the University President had asked the audience to be quiet.

His conduct in attempting to stop the Governor’s motor-

cade, in leading raucous catcalls, and in charging onto the

field during the ceremonies encouraged students to partici-

pate in similar activities. His acts caused a substantial

and material disruption of a duly constituted university

function which created a danger of violence. This Court can

only conclude that plaintiff’s activities went beyond the

mere advocacy of ideas and counselled a course of action,

interfered with the regular operation of the school, and

consequently was outside the protection of the First

Amendment. Therefore, this Court holds that plaintiff was

not denied freedom of speech. Accord, Mabey v. Reagan.

No. 74-3413 (9th Cir. June 1, 1976).

G. Freedom of Assembly

Plaintiff further argues that his termination violated his

First Amendment right to freedom of assembly. This Court

does not agree. No action of the Board of Regents inter-

fered with plaintiff’s right to associate with whomever he

chose. Therefore, this Court holds that plaintiff was not

denied freedom of assembly. Accord, Shaw v. Board of

Trustees, supra at 890.

H. Equal Protection

Plaintiff lastly maintains that he was denied equal pro-

tection by being singled out for punishment while other

equally culpable professors were never disciplined. To

support his contention, he points to the complicity state-

ments signed by a number of students. However, none of the

F-12

signatories to the complicity statements indicate that they

were faculty members. Furthermore, the record does not

show that other professors played as prominent a role in

the demonstration as plaintiff.

Equal protection does not require that all persons be

treated equally all of the time. Rather, where no funda-

mental right or suspect classification is involved, the Consti-

tution guarantees only that differences in treatment must

have a rational basis. Reed v. Reed, 404 U.S. 71, 76 (1971).

This Court finds that Professor Adamian’s role in the

demonstration was more prominent than that of other

faculty members and, consequently, that any difference in

the treatment of plaintiff had a rational basis. Therefore,

this Court holds that plaintiff was not denied equal protec-

tion of the laws. Accord, Simcox v. Board of Education,

443 F.2d 40, 45 (7th Cir. 1971); Whitsel v. Southeast Local

School District, supra at 1229.

The Clerk shall enter a judgment for the defendants on

all counts.

DATED: June 18, 1976.

HOWARD B. TURRENTINE

Howard B. Turrentine,

COPY TO: United States District Judge

Charles KE. Springer, Esq.

333 Flint Street

Reno, Nevada 89501

Thomas G. Bell, Esq.

Special Deputy Attorney General

300 South Fourth Street, No. 700°

Las Vegas, Nevada 89101

lls Ae DIL Pil EE. St OF ia lb he

Appendix G

United States Court of Appeals

for the Ninth Circuit

Paul 8S. Adamian,

Plaintiff-Appellant,

Lt > No. 76-2866

The University of Nevada, et al.,

Defendants-Appellees.

[ March 7, 1979]

ORDER

Before: DUNIWAY and CHOY, Circuit Judges

and POOLE, District Judge

Judges Duniway and Choy have concluded that they

should disqualify themselves from participating in the de-

cision of this case. Accordingly, the submission of this case

for decision is vacated, and the case will be reheard before

another panel to be selected hereafter.

Appendix H

United States Court of Appeals

for the Ninth Circuit

Paul 8S. Adamian,

Plaintiff-Appellant,

i > No. 76-2866

Dr. Louis E. Lombardi, et al.,

Defendants-A ppellees.

[October 16, 1979]

OPINION:

Appeal from the United States District Court

for the District of Nevada

Before: BREITENSTEIN* and DOYLE,** Circuit

Judges, and POOLE,*** District Judge

POOLE, District Judge:

On this, the second appeal in this matter, we review the

discharge of Paul S. Adamian, an Assistant Professor of

*Honorable Jean S. Breitenstein, Senior Circuit Judge, United

States Court of Appeals, Tenth Circuit, sitting by designation of the

Intercircuit Assignment Committee.

**Honorable William E. Doyle, Circuit Judge, United States

Court of Appeals, Tenth Circuit, sitting by designation of the Inter-

circuit Assignment Committee.

*°*Honorable Cecil F. Poole, United States District Judge for the

Northern District of California, sitting by designation.

After this appeal had been argued and submitted, Judges Duni-

way and Choy concluded that they should disquali Raneatives

from further participation in the decision. By order of March 6,

1979, submission for decision was vacated. Subsequently, the Chair-

man of the Intercuit vy eps Committee certified consent for

Judges Breitenstein and Doyle to constitute a new hearing panel

along with Judge Poole.

ee ee ee a

5 ET a aE a ne sw rae ——

H-2

English at the University of Nevada, at Reno, arising from

his conduct while participating in a campus demonstration

during Governor’s Day ceremonies, May 5, 1970, in the

university stadium. The demonstration was in protest

against the Cambodian invasion and the Kent State Uni-

versity killings. Our opinion on the prior appeal (Adamian

v. Jacobsen, 523 F.2d 828 (9th Cir. 1975)), described the

facts as follows at 931:

“* * * On prior application of the demonstrators, the

Board of Regents (the Board) had given them per-

mission to march three times around the stadium track.

The protest went beyond the march, however. Adamian

(yelling, ‘Let’s stop this mother — — —.’) and others

tried to stop a motoreade bringing officials for the

ceremonies into the stadium; led by Adamian the

demonstrators then made loud noises to disrupt the

ceremonies. Still later, Adamian left the stands, joined

a group on the field and motioned other demonstrators

onto the field, thus creating a danger of violent con-

frontation between two bodies of people.

“The Board directed that charges be brought against

Adamian. He was summoned before a Faculty Senate

hearing committee which found that his conduct had

violated chapter 4, section 2.3, of the University Code,

and thus constituted ‘adequate cause’ under the Code

for his dismissal. Although the committee recommended

that his employment not be terminated unless he in-

dulged in similar conduct in the future, the Board

rejected the recommendation and ordered Adamian’s

dismissal.”

—.

Fal ws aA cc Ce ME ae hi di A NOD he Ck ETE DAR Le OE

P a

H-3

Adamian responded by filing a civil rights action in the

district court under 42 U.S.C. § 1981 and § 1985," alleging

violation of his First Amendment speech rights and of his

Fourteenth Amendment due process rights in depriving him

of his tenured professorship, and in the manner by which,

and the reasons for which, it was accomplished. He named

as defendants the University, the Board of Regents and its

members individually. He sought reinstatement, compen-

sation for lost earnings, and damages for violation of his

civil rights. The district court dismissed the University

and the Board of Regents because neither state agency was

a “person” within the meaning of the Civil Rights Act, 42

U.S.C. § 1983. Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969).

Action continued against all Regents in their representative

capacities (I*°.R.Civ.P. 25(d)(i)) and against all Regents

(who were such at the time of plaintiff’s dismissal) in their

individual capacities.

Adamian moved for partial summary judgment, arguing

that Section 2.3 of the University Code, upon which the

Regents relied in dismissing him, was unconstitutionally

vague and over-broad, impinging upon his First Amend-

ment rights of free speech and assembly, as well as violating

his due process rights under the Fourteenth Amendment.

PRIOR RULINGS OF THE DISTRICT COURT

The district court examined the language of Section

2.3 which reads as follows:

“The faculty member is a citizen, a member of a

learned profession, and a representative of this Uni-

In ruling on a motion to dismiss, the district court treated the

action as an attempt to state a claim under 42 U.S.C. § 1983. On

the first appeal, we treated the claim likewise.

H-4

versity. When he speaks or writes as a citizen, he will

be free from University censorship or discipline, but

his special position in the community imposes special

obligations. As a man of learning and as an educator,

he knows that the public may judge his profession

and this University by his utterances. At all times he

strives to be accurate, to exercise appropriate re-

straint, to show respect for the opinions of others, and

to make every effort to indicate that he is not a spokes-

man for this University.”

In weighing plaintiff’s challenge, the Court found ir-

relevant questions such as whether plaintiff had in fact

received procedural due process, or whether his conduct

could be construed to be proscribed by the Section. It

invoked Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct.

1116, 1121, 14 L.Ed.2d 22 as authority for allowing “attacks

on overly broad statutes [involving constitutionally pro-

tected expression] with no requirement that the person

making the attack demonstrate that his own conduct could

not be regulated by a statute drawn with the requisite

narrow specificity.” It held that the code language was so

over-broad that it could authorize a tenured professor’s

termination for utterances which are merely inaccurate,

contrary to Pickering v. Board of Education, 391 U.S. 563,

88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); and so vague that

men of common intelligence could differ as to its meaning.

NAACP v. Button, 371 U.S. 415, 83 8.Ct. 328, 9 L..d.2d

405 (1963). |

The District court entered summary judgment for plain-

tiff ordering his reinstatement and compensation for his

loss of earnings. Adamian v. Uniwwersity of Nevada, 359

F.Supp. 825 (D.Nev. 1973). The Regents appealed. We

il. Ca St Ce Sia 60 PONT atin a AEE sb ITF

“as,

H-5

reversed. Adamian v. Jacobsen, 523 F.2d 929 (9th Cir.

1975).

FORMER OPINION—SECTION 2.3

Looking at the University of Nevada Code, this Court

saw that it requires that tenured professors be dismissed

only for adequate cause, and that in dismissing Adamian

the Board of Regents had found adequate cause. The opin-

ion held that, “the term ‘adequate cause’ must be inter-

preted in the context of traditional standards of faculty

behavior; its vagueness is a necessary result of the many

forms of faculty conduct which might justify dismissal.”

523 F.2d at 932. The Court had in mind the common sense

postulate that the lawmaker is not required to enact a

detailed code of employee conduct. Arnett v. Kennedy, 416

U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). But it also

noted that when such a regulation may impinge on First

Amendment freedoms, “we require greater precision and

specificity than would be necessary to fulfill Fifth or Four-

teenth Amendment due process requirements.” 523 F.2d

at 932. Judged in this light, the standard of “adequate

cause” could conceivably have broad enough sweep to

include oppressive activity and thus be vulnerable to the

possibility of infringing upon constitutionally protected

speech or conduct. .

But Judge Choy’s carefully considered opinion empha-

sized the caution that, in the analysis of a state regulation,

the judgment as to its facial validity must rest on its

meaning “as authoritatively construed by [the appropri-

ate] state court or agency [empowered to do so].” 523

F.2d at 932; and see Gooding v. Wilson, 405 U.S. 518, 92

S.Ct. 1103, 31 L.Ed.2d 408 (1972). The appropriate agency

H-6

here is the Board of Regents which found Adamian’s con-

duct to be adequate cause for dismissal when examined in

the light of Section 2.3. Most of the language of that sec-

tion appeared to us to be “merely hortatory,” but the

Regents gave it a construction—particularly as to the last

sentence—which had the effect of narrowing the standards

by which to judge conduct appropriate for tenured faculty.

That last sentence reads:

“At all times he strives to be accurate, to exercise

appropriate restraint, to show respect for the opinion

of others, and to make every effort to indicate that

he is not a spokesman for this University.”

The Regents viewed this language as requiring that a pro-

fessor seek accuracy, restraint, and that as a representa-

tive of his learned profession he display the educator’s

respect for the opinion of others. The record below sug-

gested that the Regents viewed these words as referring

not to pure speech, but to expressive conduct; as dealing

with manner, with seemliness of expression, rather than

with content. Such construction would be entitled to great

deference. Jablon v. Trustees of the California State Col-

leges, 482 F.2d 997, 999 ((9th Cir. 1973), cert. denied, 414

U.S. 1163, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974). Under these

circumstances we thought it appropriate to apply the test

which weighs the potentially “chilling effect” of possibly

imprecise words against the interests of the state in the

conduct at issue. This is the test of Broadrick v. Oklahoma,

413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973)

[involving a state “Hatch Act”], in which a majority of

the court, through Mr. Justice White, stated:

—

ae as

CD Awe

H-7

“To put the matter another way, particularly where

conduct and not merely speech is involved, we believe

that the overbreadth of a statute, must not only be

real, but substantial as well, judged in relation to the

statute’s plainly legitimate sweep.”

“Substantial,” the majority said, calls for “case-by-case

analysis of the fact situations to which its [the statute’s]

sanctions, assertedly, may not be applied.” 413 U.S. at 616,

93 S.Ct. at 2918.

Applying the above principle to this case, we noted in

our opinion that Section 2.3 had been adopted from the

1940 Statement of Principles of the American Association

of University Professors. Academic Freedom and Tenure:

A Handbook of the American Association of University

Professors 36 (1969). The Association itself had construed

the language of the Section with full consideration of its

effect on academic freedom. The Association asserted

unequivocally that it was not directed at the substance of a

teacher’s remarks, and that, as a standard, it could not

appropriately be invoked except “* * * when the remarks

raise ‘grave doubts’ concerning his fitness"f6r“his position

°° ¢” 523 F.2d at 934.

We therefore concluded that since the Association had

so narrowed the language of the Section, any substantive

overbreadth had been eliminated, and that what remained

was well outside of Broadrick’s requirement of “substantial

overbreadth.” Accordingly, we remanded to the district

court with direction to hear testimony from the Regents to

determine whether their construction had been the same

as that of the AAUP.

H-8

FINDINGS AND DECISION ON REMAND

In May 1976, the district court proceeded to take testi-

mony on the question whether the Regent’s interpretation

of Chapter 4, Section 2.3 of the University Code was the

same as that of AAUP. Seven of the Regents testified that

their construction was the same as that given by the AAUP.

The district court thereupon found that to be the fact and,

consequently, that Section 2.3 is not unconstitutionally

overbroad. The court further found as a fact that the

administrative hearing which the Regents had afforded

Adamian comported with substantive and procedural due

process.

As to Adamian’s contention that his termination violated

his First Amendment right to freedom of speech, the Court

found the case controlled by Pickering v. Board of Educa-

tion, supra, 391 U.S. at 573, and equated Adamian’s conduct

to the intentionally disruptive acts which led to the dis-

charges involved in Whitsel v. Southeast Local School

District, 484 F.2d 1222 (6th Cir. 1973) [faculty member

encouraged high school students to resist disciplinary

authority and continue unauthorized assembly protesting

discharge of another teacher, suggesting the discharge had

been improper]; and Gray v. Union County Intermediate

Education District, 520 F.2d 803 (9th Cir. 1975) [untenured

teacher attempted to interfere with agency-guardian’s

decision not to have retarded minor ward undergo a thera-

peutic abortion].

The district judge on remand made findings that:

“Professor Adamian played a prominent role in un-

authorized student protest activities during school

hours on school property. He continued to lead raucous

SE ae a Nee a I a NN he ERIE A eae AB TO TN Stee FB ae

H-9

catealls after the University President had asked the

audience to be quiet. His conduct in attempting to stop

the Governor’s motorcade, in leading raucous catcalls,

and in charging onto the field during the ceremonies

encouraged students to participate in similar activities.

His acts caused a substantial and material disruption

of a duly constituted university function which created

a danger of violence. The Court can only conclude that

plaintiff’s, activities went beyond the mere advocacy of

ideas and counselled a course of action, interfered with

the regular operation of the school, and consequently

was outside the protection of the First Amendment

Therefore, this Court holds that plaintiff was not

denied freedom of speech. Accord, Mabey v. Reagan,

No. 74-3413 (9th Cir. June 1, 1976).”

Counsel for Adamian has argued that we should now

review de novo the rulings of our earlier opinion. However,

the scope of review is narrowed to the limitations of the

remand. This Court’s prior holding has become the law of

the case, binding upon the present panel. Haldane v. Ruppe,

435 F.2d 647 (9th Cir. 1970), cert. denied, 402 U.S. 906

(1971); Clinton v. Joshua Hendy Corp., 285 F.2d 199

(9th Cir. 1960), cert. denied, 366 U.S. 932 (1961). Appellant

does not challenge the manner or fairness of the proceed-

ings of the Court below.

As did the district judge, we hold that Professor Ada-

mian was not denied freedom of speech, nor of assembly,

nor equal protection. Our review of the record discloses

no error below.

The judgment of the district court is affirmed.

Appendix I

United States Court of Appeals

for the Ninth Circuit

)

Paul S. Adamian,

Appellant,

Vs.

, No. 76-2866

The Board of Regents of the University

of Nevada, et al.,

Appellees.

[December 18, 1979]

ORDER

Appeal for the United States District Court

for the District of Nevada

Before: BREITENSTEIN and DOYLE, Circuit Judges,

and POOLE", District Judge

On October 30, 1979, appellant filed his petition for re-

hearing and suggestion for rehearing en banc. The panel

as constituted in the above case has voted to deny the

petition for rehearing and to reject the suggestion for a

rehearing en banc. :

Pe OR ee ee

The full court has been advised of the suggestion for

en banc rehearing, and no judge of the court has requested

a vote on the suggestion for rehearing en banc. Fed. R.

App. P. 35(b).

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected. :

*The Honorable Ceci! F. Poole, United States District Judge for

the Northern District of California, sitting by designation.

i a al

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.