Petition for Writ of Certiorari — Allen v. Rampey
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UPREME COURT, U.
In the | wi
SUPREME COURT OF THE UNITED STATES
OcToBER TERM, 1974
No. %4- 68 8
WALT ALLEN, ET oe
Petitioners,
VERSUS
W. Leroy RAMPEY, ET AL..,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS TENTH
CIRCUIT
LARRY DERRYBERRY
Attorney General of Oklahoma
JAMES H. Gray
Assistant Attorney General
Jor C. LOCKHART
Assistant Attorney General
112 State Capitol Building
Oklahoma City, Oklahoma 73105
JOHN R. WALLACE
Rosert S. Ger, of
WALLACE AND OWENS
P. O. Box 1168
Miami, Oklahoma 74354
Counsel for Petitioners
November, 1974
UTTERBACK TYPESETTING COo.. 519 W CALIF.. OKLAHOMA CITY. PH. 235-0030
TABLE OF CONTENTS
— -———
Opinions Below
Jurisdiction
Questions Presented .
Constitutional Provisions Involved
Statement of the Case
Reasons for Granting the Writ:
I.
II.
III.
IV.
The Court of Appeals has silently overruled
Board of Regents of State Co'leges v. Roth, 408
US. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) by
adding new First Amendment rights which im-
properly involved federal courts in the adminis-
tration of educational institutions
The Court of Appeals reversed the trial court on
issues not presented in the trial court -.....___.
The burden of proof was eee — on
defendants
The majority opinion of the Court of Appeals is
contrary to Federal Rules of Civil Procedure 52
(a) and Zenith Corporation v. Hazeltine, 395 U.S.
100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969) and
cases cited therein
Conclusion
APPENDICES
Appendix “A”—Conclusions of Law and a of
Fact of the Trial Court -
ata. uer
PAGE
19
21
i-xiv
Bisissniaines Beis eadiacsini
a a
TABLE OF CONTENTS CONTINUED PAGE
Appendix “B”—Judgment of the Trial Court XV-XVii
Appendix “C”—Majority Opinion of the United
States Court of Appeals, Tenth Circuit XViii-XXXV
Appendix “D”—Appendix to the Majority Opinion of
the Tenth Circuit XXxVi-li
Appendix “E”—Dissenting suai of Seth, Circuit
Judge lii-lix
Appendix “F"—Dissenting — of Lewis, Chief
Judge ie
Appendix “G’—Dissenting Opinion of Barrett, Cir-
cuit Judge Ste heel ees _ |xi-]xxix
Appendix “H”—Order Denying Petition for Rehear-
ing _ )xxx-]xxxi
TABLE OF AUTHORITIES
—_——_——
CASES: ®
Board of Regents of State Colleges v. Roth, 408 U.S.
564, 92 S.Ct. 2701, 33 L.Ed. 548 (1972) 17, 18, 26
Healey v. James, 408 U.S. 169, 202, 92 S.Ct. 2338,
2356, 3 L.Ed.2d 266 (1972) Spee acs See a 9
Hetrick v. Martin, 480 F.2d 705 (1973) _.. 18-19
Perry v. Sindermann, 498 U.S. 593, 92 S.Ct. 2694, 33
L.Ed.2d 570 (1972) 20
Pickering v. Board of Education, 391 ‘US. "563, 88
S.Ct. 1731, 20 L.Ed.2d 811 (1968) - oe 14, 15
Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5
L.Ed.2d 231 val _ . 13-14
& [Sie SEDER eT geemetereey, renr™
—lii—
AUTHORITIES CONTINUED PAGE
United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct.
1673, 1678, 1679, 20 L.Fd. 672 (1968) . ss
Watts v. Board of Curators, University of Missouri,
495 F.2d 384 (8th Cir., 1974) cma 21
Zenith Corporation v. Hazeltine, 395 U.S 100, 89
S.Ct. 1562, 23 L.Ed.2d 129 (1969) oe
CONSTITUTIONAL PROVISIONS:
First and Fourteenth Amendments of the United
States Constitution ; SO on com 3
STATUTES:
28 U.S.C. $1254, June 25, 1948 c. 646, 62 Stat. 928.
28 U.S.C. §$2201 and 2202 =a lle
42 U.S.C. $1983 _ __~
OTHER AUTHORITIES:
Rule 52(a) of the Federal Rules of Civil Procedure
wm bo
WO eee, MnO on.
ee ee
$+ erent
In the
Supreme Court of the United States
OcToBER TERM, 1974
Ne. ——
WALT ALLEN, ET AL.,
Petitioners,
VERSUS
W. Leroy RAMPEY, ET AL.,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS TENTH
CIRCUIT
To the Honorable, the Chief Justice and Associate Justices
of the Supreme Court of the United States.
The petitioners, Walt Allen, Gary Bryant, Hildred
Meinders, Scott Ousley, Mary E. Roddy, Joel L. Carson,
John B. Jarboe, Individually and as members of the Board
of Regents of Oklahoma College of Liberal Arts; Bruce
Carter, Individually and as President of the Oklahoma Col-
lege of Liberal Arts, Cecil Feree, Individually and as Assis-
tant to the President of Oklahoma College of Liberal Arts,
Their Successors, Assigns, Agents and Representatives,
pray that a writ of certiorari issue to review the judgment
of the United States Court of Appeals for the Tenth Cir-
cuit entered in the above-entitled cause on August 16, 1974
OR TTR SPE ERP ES TILE LITER TR LETT BNI
Brita rscivinse se: Pee ae LESS at it Re ren
5 :
Ms 23
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a
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The respondents are W. Leroy Rampey, Bryan Ledger-
wood, Ingrid Poele, Christopher Bolton, Hugh. W. Jeffers,
Leon G. Cherrington, Jerry Holt, William Maness, William
Merrill, George Rapplean, Robert Richardson, Mark E.
Tanton, David Ward and G. Joseph Wimbish.
!
OPINIONS BELOW
The Findings of Fact and Conclusions of Law by the
District Court are printed in Appendix A. The Judgment
of said Court is printed in Appendix B. The Opinions of
the Court of Appeals for the Tenth Circuit are printed in
Appendices C, D,'E, , G, and are reported at 501 F.2d 1090.
The Order Denying the Petition for Rehearing is printed
in Appendix H.
JURISDICTION
The Opinions of the United States Court of Appeals
(Appendices C, D, E, F, G) were entered on the 16th day
of August, 1974. A timely petition for rehearing was denied
- on September 25, 1974 (Appendix H). The jurisdiction of
this Court is invoked under 28 U.S.C. $ 1254 June 25, 1948,
c. 644, 62 Stat. 928.
‘QUESTIONS PRESENTED
The principal question presented by this Petition for
Writ of Certiorari is:
1. May a Court of Appeals silently overrule Board
of Regents of State Colleges v. Roth, 408 U.S. 564, 92
S.Ct. 2701, 33 L.Ed.2d 548 (1972) by adding new First
Amendment rights which improperly involve Federal
Courts in the administration of educational institu-
tions?’
Graven . . em sree seen - Sennen ——
on
Other questions which will be presented briefly in this
Petition are:
2. May a Court of Appeals reverse the trial court
on issues which were not presented in the trial court?
3. May the burden of proof be placed on a defend-
ant in a case involving the First Amendment to the
U. S. Constitution?
4. Does Rule 52(a) of the Federal Rules of Civil
Procedure govern a Court of Appeals in a case involv-
ing the First Amendment to the U. S. Constitution?
CONSTITUTIONAL PROVISIONS INVOLVED
First and Fourteenth Amendments to the Constitution
of the United States.
STATEMENT OF THE CASE
The Oklahoma College of Liberal Arts is a College
created by statute of the State of Oklahoma. Pursuant to
that statute, it is governed by a Board of Regents. At all
times material herein, the Board cf Regents consisted of
seven of the petitioners above named. The President of
the College and the Assistant President of the College are
the other two petitioners above named. Petitioners will
hereinafter be referred to as defendants.
Eleven of the respondents (hereinafter referred to as
plaintiffs) were faculty members and three were admin-
istrative employees of the Oklahoma College of Liberal
Arts. When the plaintiffs were not offered new contracts
of employment for the school vear 1973-1974, they filed a
complaint in the United States District Court for the West-
ern District of Oklahoma seeking injunctive relief and a
Lies a
A SEAR EEII eae SeenUnRENARC ARN ttee
cuits
declaratory judgment. Their claims were brought pursuant
to 28 U.S.C. $$ 2201 and 2202, together with 42 U.S.C.
$ 1983.
From 1965 on, tension had gradually increased among
the faculty of the College as to the direction that new pro-
grams of education should take until in 1971 the tension
reached serious proportions.
In November of 1971, a team from the National Coun-
cil for Accreditation of Teacher Education visited the Col-
lege to investigate the situation and placed the College
under a “show cause” for a period of 3 years.
In February of 1972, a team from the North Central
Association for the Accreditation of Colleges and Secondary
Schools made its examination and issued a report finding,
among other things:
“Conflict between the factions in the faculty results
in serious faculty morale problems, lack of communi-
cation between the elements of the faculty and the
faculty and the administration, and is channeling a
tremendous amount of energy into discussions of dif-
ferences of opinion rather than the improvement of
the instructional program and the institution” (R. Vol.
Ii, p. 135).
Accordingly, the College was placed on academic probation.
On May 3, 1972, Dr. Martin, then President of the Col-
lege, submitted a report to the Board of Regents recom-
mending the Board:
(1) Temporarily revoke the College Constitution and
suspend the Faculty Association and Senate until such time
as we can “move back into more responsible faculty par-
A WI Bak aE onan re.
onan
ticipation”; (2) Revoke tenure to “resolve the internal prob-
lems of the institution”; and (3) “Review the performance
of all faculty members” to determine “dismissal, terminal
contracts or probation .. .” (R. Vol. II, p. 265).
Upon the adoption of these recommendations, Dr. Mar-
tin then submitted his resignation so that a new President,
not involved in the previous internal dissension, could
implement them.
In submitting his resignation, Dr. Martin stated:
“The causes of turmoil within the faculty are many
and complex, the significant fact is that they are de-
structive of the institution. In talking with Chancellor
Dunlap, Dr. Gibb and Dr. Kamerick of the North Cen-
tral Team were outspoken in saying that the chances
of the institution accomplishing the goals for which it
was created were extremely slight unless these faculty
differences could be resolved.” (R. Vol. II, pp. 269-270)
On July 1, 1972, Dr. Bruce G. Carter became President
of the College. Of his appointment, Dr. J. Martin Klotsche,
the consultant recommended by the North Central Associa-
tion, says in his report dated November 27, 1972:
“A new interim President was appointed effective
July 1, 1972. His term has recently been extended for
an additional year so it can now be assumed that there
will be stability in the president's office for at least 18
months. . . . The president has the confidence of the
majority of the Board although his appointment was
not unanimous. The matter is further complicated in
that he does not have the full support of all faculty
nor all of the students. Yet he is experienced as an
administrator, has no personal stake in his position as
president (as he has already reached retirement age)
—
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sill
and is committed to the purposes and goals of tne insti-
tution. It is not an easy assignment for him and he
does not underestimate the magnitude of it.
“It is not easy to identify the high degree of polar-
ization which exists on the campus at this time. There
are sharp divisions on campus in both faculty and
student body over program directions.
“As a result, Oklahoma College of Liberai Arts is
now a divided campus with sharp differences.
“Factions do not speak to each other. There is wide-
spread distrust and suspicion.” (R. Vol. II, pp. 49-50)
Of his third visit to the campus on April 2-3, 1973, the
North Central consultant reports:
“Division within the faculty remains and no appre-
ciable gains have been made in bridging misunder-
standings between the administration and the faculty.
It should be underscored, however, that the present
problems precede the present administration.” (R. Vol.
II, p. 52.) (Emphasis supplied. )
On Aprii 22 and 23, 1973, Dr. Carter prepared a final
list of faculty and staff that he would recommend to the
Board of Regents for contracts for the school year 1973-
1974. With one exception, none of the names of the plain-
tiffs were on this list.
On April 24, 1973, the plaintiffs met in Oklahoma City,
some 60 miles from the site of the College, held a press
conference and issued a press release prepared by their
attorney. The administration and Board of Regents were
bitterly attacked and their resignations requested.
On April 26th, at the regular meeting of the Board of
Regents, Dr. Carter submitted the list prepared on April 22,
but struck one name.
The Board of Regents by a vote of 5 to 2 approved the
Carter recommendations as to whom should be offered new
contracts for the school year 1973-1974.
Plaintiffs immediately filed suit and a non-jury trial
was begun on May 30, 1973. At the conclusion of the trial,
the Trial Judge made findings of fact and conclusions of
law (Appendix A, infra) finding that the plaintiffs were
not denied new contracts for the school year 1973-1974 as
a reprisal for the exercise of First Amendment rights.
The Court of Appeals reversed by a 4 to 3 decision
(Appendix C, infra). Three of the judges approved the
Findings of Fact and Conclusions of Law by trial court
(Appendices E, F, G, infra). The majority opinion holds
that the Board of Regents failed to renew the employment
contracts of plaintiffs for unconstitutional reasons.
REASONS FOR GRANTING THE WRIT
I
THE COURT OF APPEALS HAS SILENTLY OVERRULED
BOARD OF REGENTS OF STATE COLLEGES v. RCT4, 408
U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) BY ADDING
NEW FIRST AMENDMENT RIGHTS WHICH IMPROPERLY
INVOLVE FEDERAL COURTS IN THE ADMINISTRATION OF
EDUCATIONAL INSTITUTIONS.
For the purposes of this first proposition, defendants
will accept as correct the findings of fact, but not the con-
clusions of law, in the majority opinion. It is the position
of defendants that the conclusions of law or holding in the
ith kT MANS Wl id LSA SNR NER pls, en
a
majority opinion, constitute newly created principles or
rights arising under the First Amendment which will sub-
stantially increase the review and involvement of the fed-
eral courts in the administration of educational institutions.
As set forih in greater detail in the “Statement of the
Case” (supra, pp. 3-6) it is not disputed that on July 1, 1972,
serious division, dissension and polarization existed within
the faculty of the Oklahoma College of Liberal Arts which
had led to its being placed on academic probation by two
different national accrediting bodies. On July 1, 1972, Dr.
Bruce G. Carter was retained by the Board of Regents of
the College as the new interim President to restore har-
mony by reducing the division and dissension, thus hope-
fully permitting the College to be removed from probation.
In April of 1973 the Board of Regents, acting on the recom-
mendation of the new President, declined to renew the
contracts of fourteen plaintifis whose tenure or due process
righis, if any, are not now an issue in this case.
In disapproving the Board of Regents’ efforts to solve
the College’s problems, the majority opinion holds in its
concluding paragraph:
“Since, therefore, the First Amendment Rights of
the plaintiffs, as enunciated in such decisions of the
Supreme Court as Sindermann and Pickering, supra,
were violatai by terminating plaintiffs on account of
disapproved associations, or disapproval of statements
made, or on account of President Carter’s disagree-
ment with plaintiffs’ philosophies, or his belief that
plaintiffs lived in a different world from his, the judg-
ment of the district court must be reversed and the
cause must be remanded for further proceedings con-
a es
sistent with the views expressed herein.” (App. C, p.
XXxvV, infra).
Breaking the majority holding down into its con-
stituent elements, the majority finds that the Board of
Regents did not renew the contracts of plaintiffs because
the new President:
(a) Disapproved of associations of plaintiffs;
(b) Disapproved statements of plaintiffs;
(c) Disagreed with plaintiffs’ philosophies;
(d) Believed that plaintiffs lived in a different world.
(a) We will discuss first the holding that the Board
of Regents did not renew plaintiffs’ contracts ' ecause
they disapproved of the associations of plaintitts.
At first glance such a reason for the new President not
recommending renewal of plaintiffs’ contracts might seem
a violation of the First Amendment. Mr. Justice Rehn-
quist’s statement in his concurring opinion in Healy v.
James, 408 U.S. 169, 202, 92 S.Ct. 2338, 2356, 3 L.Ed.2d 266
(1972), ir referring to the Constitutional limitations on the
government’s acting as administrator of a college, that
“The Court’s quotations from Tinker v. Des Moines
Independent Community School District, 393 U.S. 503,
506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969), to the
effect that First Amendment rights must always be
applied ‘in light of the special characteristics of the . . .
environment,’ ” (l.c. 408 U.S. 202, 203)
would indicate that no principles or rights can be applied
in the abstract but must be applied to a factual situation.
—10—
When applied to the case at bar we submit it is not a viola-
tion of First Amendment rights.
In the case at bar the evidence is undisputed as to the
serious division and dissension existing in the faculty when
the new President took office on July 1, 1972 (Statement,
pp. 5, 6, supra), but no one had specifically identified those
members of the faculty involved in the division and dis-
sension. So that this could be done fairly and without
prejudice arising from the previous turmoil within the col-
lege a new President, and a new Assistant to the President
were hired. They had had substantial previous college
administrative experience but no connection with this col-
lege.
It is true as the majority opinion finds that these twe
new men did use the fact of association as evidence to ascer-
tain those who were causing dissension. It is further true
that the two new men and the Board disapproved the effect
this association had on the college, since the resulting divi-
sion and dissension had, in their opinion contributed to the
College being placed on probation.
The majority does not find and it is not true that such
an association was ever publicly or privately criticized.
When the contracts of those in the association were
not renewed by the Board, in essence, it affected the asso-
ciation, but the reason for non-renewal of the contracts of
employment was not the fact of association but the serious
adverse effect on the College of the actions of those in the
association.
We respectfully submit that a Board of Regents is not
required by the First Amendment to renew contracts of
te HRN ERI RISE Ue ada FED
=
employment of teachers and staff associating together in
divisive conduct contributing to a college being placed on
probation.
(b) The majority opinion further holds that the
Board of Regents did not approve the renewal of
plaintiffs’ contracts because the Board disapproved of
statements of the plaintiffs.
Once again, without elaboration this might be a prin-
ciple which would constitute a violation of constitutional
rights. Certainly free speech is a constitutional right. But
all speech is not protected. United States v. O’Brien, 391
U.S. 367, 377, 88 S.Ct. 1673, 1678, 1679, 20 L.Ed.2d 672
(1968).
The critical statements were used by the new Presi-
dent solely to identify those causing the division, dissen-
sion and polarization in the college with its resulting pro-
bation. In some way the Board and the new President had
to locate the cause of the division and dissension that inde-
pendent agencies and the prior president had found to exist
but could not isolate. Critical statements plus associations
were two of the methods used to identify the persons caus-
ing the trouble within the College.
We would remind this Court that both the trial court
and all seven judges of the Court of Appeals agree that the
only public statement, the only press conference, was not
the cause of the failure to renew plaintiffs’ contracts of
employment.
Thus, we must look solely to private or at least semi-
private statements. None are cited in the majority opinion.
|
2 OP PROMISE a OK Ue
— |)
Thus, we must turn to “Appendix-Summary of the Testi-
mony of Dr. Carter.” (App. D, infra)
There we find the only criticism of staternents voiced
by Dr. Carter were those which Dr. Carter used as a basis
for identifying the person as a part of the group causing
the previously existing division and dissension.
In the case of Dr. Ward, the participation in the press
conference evidenced his participation with the group who
had created the previous division and dissension. But even
then, no criticism was voiced of what he said.
Thus, while it may be true that the new President
disapproved of some of plaintiffs’ statements, no public or
private criticism was ever voiced. In a sense, action was
taken which might have the effect of reducing criticism
when plaintiffs’ contracts were not renewed. But the sole
reason for Dr. Carter even referring to the criticism in his
cross-examination was to explain how he identified those
causing the dissension and division which had previously
caused the college to be placed on probation.
To hold that the members of a group who have con-
tributed to a school being placed on academic probation
cannot be identified by their statements is to insert a totally
new “right” in the First Amendment.
(c) and (d) The majority also held that when the
Board of Regents declined to renew plaintiffs’ contracts
because the Board
(c) disagreed with plaintiffs’ philosophies and
(d) believed that plaintiffs lived in a different
world,
the plaintiffs’ constitutional rights were violated.
DPE Me OL SMOG BLN AH 0 APO CP RAS ath
Dr. Carter testified that these factors along with many
others did cause him to identify plaintiffs as a group of
dissidents, did cause him to omit their names from the list
of those teachers and staff that he recommended to the
Board of Regents for reemployment. If it is constitutionally
impermissible for the governing bcard of an educational
institution to consider the philoscphical concepts of a non-
tenured teacher, that he lives in a different world and other
related matters, then the Court of Appeals is correct and
Certiorari should be denied.
However these holdings and similar dicta by the Court
of Appeals in its majority decision, are in the opinion of
petitioners, the primary reason that Certiorari should be
granted.
If governing boards of educational institutions are not
permitted to make decisions as to the proper philosophical
concepts of non-tenured teachers, are not permitted to de-
cline to rehire non-tenured teachers who disagree with the
Board’s concept of the mission of the College, then who does
make such a decision? We suggest that the net result of
such a holding would be that federal courts will be fiooded
with cases based on allegations that the principles an-
nounced by the Court of Appeals have been violated.
This Court recognized not only the propriety but the
desirability of a state, not a federal court determining what
should be taught in educational institutions when, speaking
through Mr. Justice Stewart, it reaffirmed earlier holdings,
saving:
“A teacher works in a sensitive area in a school-
room. There he shapes the attitude of young minds
PN HI OSE OR MEINE RIE SER
towards the society in which they live. In this, the
state has a vital concern. Adler v. Board of Educa-
tion, 342 U.S. 485, 493, 72 S.Ct. 380, 385, 96 L.Ed. 517.
There is ‘no requirement in the Federal Constitution
that a teacher’s classroom conduct be the sole basis
for determining his fitness. Fitness for teaching de-
pends on a broad range of factors.’ Beilan v. Board of
Education, 375 U.S. 399, 406, 78 S.Ct. 1317, 1322, 2
L.Ed.2d 1414.” Shelton v. Tucker, 364 U.S. 479, 485,
81 S.Ct. 247, 250, 5 L.Ed.2d 231.
We would also refer this Cour: to the first four pages
of the dissenting opinion of Circuit Judge Seth (App. E,
infra) in which he analyzes in more detail the dicta in the
Court of Appeals majority opinion as well as the holdings
that the petitioners have discussed. Judge Seth concludes
that the action of the Board of Regents might have violated
tenure provisions but since none existed it certainly vio-
lated no constitutional provisions.
The Court of Appeals in its majority opinion properly
cites Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct.
1731, 20 L.Ed.2d 811 (1968), wherein this Court, in a state-
ment frequently cited with approval, said:
“At the same time it cannot be gainsaid that ‘ne
State has interests as an employer in regulating the
speech of its employees that differ significantly from
those it possesses in connection with regulation of the
speech of the citizenry in general. The problem in any
case is to arrive at a balance between the interests of
the teacher, as a citizen, in commenting upon matters
of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public
services it performs through its employees.” (l.c. 391
U.S. 568, 88 S.Ct. 1734)
OD a ies
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The Circuit Court notes the “balancing” test required by
Pickering but says:
“There is not the slightest suggestion in the evidence
that the plaintiffs in exercising their rights constituted
any threat to the valid authority of President Carter
in the conduct of his duties. Nor does it appear that
these plaintiffs were in a relationship with Dr. Carter
which required personal loyalty or devotion. Cf. Pick-
ering v. Board of Education, 391 U.S. 563, 574 (1968)”
(App. C, p. xxxiv, infra).
Under this proposition we agree with this finding of
fact although we do not agree that Pickering, supra, re-
quires such a relationship in order to apply the “balancing
test.” Dr. Carter, the new President, could not be threat-
ened because under the evidence offered by plaintiffs he
was an interim President already on full retirement pay
as the former president of another college. He could not
expect nor desire loyalty or devotion since he would be
president only a short time. His job was to recommend to
the Board of Regents a procedure to eliminate the existing
turmoil which had placed the College on probation and
then return to his retirement.
But the above quotation does demonstrate why the
Court of Appeals misconceives the application of First
Amendment rights to the case at bar.
The determining factor in the violation of the First
Amendment is the reason or the motive of the Board of
Regents for the non-renewal of these plaintiffs’ contracts of
employment. If the reason or motive of the Board was to
prevent freedom of speech or freedom of association with
, onifien
others then we would agree the First Amendment rights
of plaintiffs were violated. —
But the Court of Appeals in its majority opinion does
‘not approach the problem in that way. The Court uses the
phrases “freedom of speech” and “freedom of association”
as a means of criticizing the new President for the methods
_ he used in identifying those that had caused the College to
be placed on probation.
The Court of Appeals in its majority opinion agrees
that dissension exists, but says,
“The evidence in our case does not establish that
sas as a group or individually were troublemak-
* (App. C, p. Xxxii, infra)
Although we strongly disagree, for the purposes of this
proposition we will assume the evidence does not establish
that plaintiffs were troublemakers. But this is not the issue
in constitutional rights. The issue is, did the Board of Re-
gents have the right to make an honest mistake of fact as to
who had caused the College to be placed on probation.
The Court of Appeals in its majority opinion appar-
ently believes the probation of the College had been caused
by others than plaintiffs. It insinuates that the probation
was caused by the new President, Dr. Carter. But this is
obviously impossible since the events causing the probation
admittedly transpired prior to the advent of Dr. Carter.
The Court of Appeals in its majority opinion, as Judge
Seth correctly. points out, tries the case of non-renewal of
plaintiffs’ contracts under tenure theories, although at the
outset it states tenure: does not exist. Because it does not
pp Siem we ether a ae? One Tans a CAM mes PUTS
a
feel that Dr. Carter is correctly apprised as to the trouble-
makers, it attempts to phrase its majority opinion under
First Amendment rights using charges such as “freedom of
speech” and “freedom of association.” Recognizing, how-
ever, that there was really no evidence that the Board acted
for either of these reasons, it also innovates in addition to
those discussed in subpoints (c) and (d) new so-called
First Amendment rights such as:
“disagreed with plaintiffs philosophies”
“believed plaintiffs lived in a different world”
“refusal to conform to patterns and molds”
“personality control”
Even though (for the purposes of this proposition
only) we accept these as valid criticisms of the new Presi-
dent of the College, it is obvious they apply only to the
question of tenure. They have little bearing on the motive
of a Board of Regents confronted with the extreme situa-
tion of a college about to go under and searching for a
solution,
The Court of Appeals in its majority opinion circum-
vents this Court’s holding in Board of Regents of State Col-
leges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed. 548
(1972). There, this Court held that (absent certain excep-
tions, none of which occur in the case at bar) a non-tenured
teacher in a college did not have a property interest suf-
ficient to require the administration to state the reasons for
failure to renew his contract or to give hima hearing.
Although the new President of the College in the case
at bar was not required to explain why the Board of Re-
=
gents failed to renew plaintiffs’ contracts, the Court of Ap-
peals in its majority opinion requires such an explanation
cf the new President and finds his reasons for identifying
plaintiffs as dissidents and troublemakers as “frivolous.”
Thus the Court of Appeals says there is no evidence that
plaintiffs are troublemakers.
But as Reth, supra, holds, there does not need to be
evidence that plaintiffs are troublemakers, unless they are
tenured. In making this decision the Court of Appeals is
obviously deciding, contrary to Roth, supra, that it should
weigh the evidence as to the identification of plaintiffs as
troublemakers. To repeat, the Court of Appeals uses some
standard First Amendment phraseology and then creates
some brand new First Amendment phraseology of its own
while it overlooks the fact that the college in question was
in deep trouble.
The motive of the Board of Regents was to solve that
trouble and not to take reprisal for exercise of First
Amendment rights.
In Hetrick v. Martin, 480 F.2d 705 (1973) the Court
was confronted with another effort to silently overrule
Board of Regents of State Colleges v. Roth, supra, by add-
ing, as in the case at bar, new First Amendment rights
under the guise of so-called “academic freedom.” There the
Court said:
“Whatever may be the ultimate scope of the amor-
phous ‘academic freedom’ guaranteed to our Nation’s
teachers and students, Healy v. James, 408 U.S. 169,
180-181, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), see gener-
ally Developments in the Law—Academic Freedom.
supra, it does not encompass the right of a nontenured
teacher to have her teaching style insulated from re-
view by her superiors when they determine whether
she has merited tenured status just because her meth-
ods and philosophy are considered acceptable some-
where within the teaching profession. A contrary hold-
ing would effectively emasculate the holding in Board
of Regents of State College v. Roth, supra, by render-
ing every nonrenewal decision a likely candidate for a
court suit, and we decline to accomplish the sub silen-
tio overruling of that recent Supreme Court decision as
well as our own in Orr v. Trinter, 444 F.2d 128 (6th
Cir. 1971), cert. denied, 408 U.S. 943, 92 S.Ct. 2847, 33
L.Ed.2d 767 (1972).” (1.c. 709)
In conclusion of Proposition I it is respectfully submit-
ted that the Court of Appeals by requiring Dr. Carter to
State his reasons for non-renewal has in effect made “ten-
ure” a First Amendment right rather than a contractual
right and clothed the same in old and new constitutional
phrases pertaining to academic freedom. Unless reversed
this decision will more and more involve federal courts in
the review and actual administration of State educational
institutions.
THE COURT OF APPEALS REVERSED THE TRIAL COURT
ON ISSUES NOT PRESENTED IN THE TRIAL COURT.
The Court of Appeals correctly states:
“Originally the plaintiffs apparently believed that
the press conference had been the cause of their having
been fired since the terminations were related in time,
but the record does not support this.” (App. C, p. xx,
p. lxii, infra)
iA Mit he kahit ei tahoe wha cea Tasca abscess nibs “4
—20—
While plaintiffs’ complaint was broadly phrased in
First and Fourteenth Amendment language, all of the evi-
dence introduced by plaintiffs in their case-in-chief per-
tained only to the issue that their contracts were not re-
newed because of their press conference.
Defendants’ witness Dr. Carter was cross-examined at
great length on how he had identified plaintiffs as dissi-
dents prior to the press conference. From these answers,
the Court of Appeals selects a few isolated instances of
identification from criticism and builds a totally new fac-
tual case involving new First Amendment rights.
Judge Barrett states in his dissent,
“We have, in my opinion, reversed the judgment of
the Trial Court on grounds not pled or relied upon in
Plaintiffs-Appellants’ Complaint or urged or argued
either at trial or before this court on appeal.” (App. G,
p. lxii, infra)
Since plaintiffs are all gainfully employed in as good
or better positions there should have been no trial de novo
in the Court of Appeals but the case should have been re-
manded to the trial court in order that as this Court said in
Perry v. Sindermann, 498 U.S. 593, 92 S.Ct. 2694, 35 L.Ed.2d
570 (1972) there co.ld be full exploration of and evidence
offered on the issue. The right to be heard, the right to due
process should apply equally to both the plaintiffs and the
defendants.
OF» MONO ee
-_
THE BURDEN OF PROOF WAS IMPROPERLY PLACED ON
DEFENDANTS.
In their case-in-chief plaintiffs offered evidence only to
support the proposition that they had not been rehired by
the College because of a press conference occurring two
days before the regularly scheduled meeting of the Board
of Regents. Both the trial court and the Court of Appeals
agreed that the evidence was conclusive that the decision
not to rehire the plaintiffs had been made in advance of the
press conference.
The Court of Appeals, in rejecting the other findings of
the trial court, does so by disbelieving the direct statements
of defendants’ witness Carter because, in the opinion of the
Court, the statements are “frivolous.” From negative infer-
ences drawn from these statements, and without other sup-
porting evidence, the Court of Appeals finds that plainti‘ts’
First Amendment rights were violated for reasons other
than a press conference. Thus the Court finds against the
defendants because the defendants failed to prove that they
had not violated the First Amendment rights of plaintiffs.
In Watts v. Board of Curators, University of Missouri,
495 F.2d 384 (8th Cir. 1974) the Court said,
“ .. a college has a right to expect a teacher tu fol-
low instructions and to work cooperatively and harmo-
niously with the administration. It is the burden of the
teacher to show that the decision not to renew a con-
tract was in fact a pretext, and that the decision was
actually based on the Board’s disapproval of the exer-
cise of a constitutionally protected right by the teacher.
a Baie yoornainonitsill]
hed het).
Beircnsrvcnintnesmind Ayer Aaa RA AINRA ei kan Gem ARS a LA a I A RR Ml RO cE REL MATS WARDEN a Soa tan HU MA Si
=
Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
803-804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)” (1.c. 389).
IV
THE MAJORITY OPINION OF THE COURT OF APPEALS IS
CONTRARY TO FEDERAL RULES OF CIVIL PROCEDURE
52(a) AND ZENITH CORPORATION v. HAZELTINE, 395
U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969) AND CASES
CITED THEREIN.
The rule to be followed in review by an appellate
Cuurt is well stated by Mr. Justice White in the case of
Zenith Corporation v. Hazeltine, 395 U.S. 100, 89 S.Ct. 1562,
23 L.Ed.2d 129 (1969):
“In applving the clearly erroneous standard to the
findings of a district court sitting without a jury, ap-
pellate courts must constantly have in mind that their
function is not to decide factual issues de novo. The
authority of an appellate court, when reviewing the
findings of a judge as well as those of a jury, is circum-
scribed by the deference it must give to decision of the
trier of the fact, who is usually in a superior position
to appraise and weigh the evidence. The question for
the appellate court under Rule 52 (a) is not whether
it would have made the findings the trial court did, but
whether ‘on the entire evidence [it] is left with the
definite and firm conviction that a mistake has been
committed.’ United States v. United States Gypsum
Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746
(1948)” (Additional citations omitted.) (1.c. 395 U.S.
123).
In reviewing the facts of this case the majority opinion ap-
pears to have gone beyond this “clearly erroneous” rule and
has, without so stating, conducted a de noro review upon
ot Deer ieemee
ppbA Merete a es
ee . OE ee Te ee
~ =
request of plaintiffs. It is not enough that the Court feels
that having heard the evidence themselves they would
have reached a different conclusion (Zenith, supra). Yet,
the Court makes its own numerous findings of facts without
the benefit of observing the demeanor of the witnesses, etc.
Beginning at p. xxx of the Court of Appeals majority
opinion (Appendix C, infra) we find the Court’s discussion
of why it rejects the findings of fact by the trial court and
makes new findings of its own.
First the Court of Appeals states there is a lack of evi-
dence to support the trial court’s finding that the plaintiffs
might have been responsible for the College's having been
put on probation. In support of this rejection the Court of
Appeals correctly points out that the impartial sources who
found that dissension and division existed in the College
causing it to be placed on probation, did not identify the
plaintiffs as the cause of this probation. But then the Court
of Appeals goes on to add,
“The trial court’s findings ignore the most important
testimony in the case, that of Dr. Carter, which is ap-
pended hereto and which, on its face, reveals that the
problem was largely with the attitudes and actions of
Carter himself.” (App. C, p. xxx, infra)
The weakness of the Court of Appeals total decision is
typified in this particular finding of fact. The impartial
sources which the Court of Appeals first correctly quotes,
all found without exception that the dissension causing the
College to be placed on probation existed prior to July 1,
1972, the date of first contact of Dr. Carter with the College
(Statement of Case, pp. 4, 5, 6, supra).
Finally, immediately after the above quotation the
Court of Appeals states,
“Bearing in mind that the thrust of the court’s ruling
in favor of the défendants is that the plaintiffs were
‘divisive’ and thus not in agreement with the adminis-
tration, the question is whether the court’s findings or
conclusion that the plaintiffs were ‘divisive’ are to be
sustained in the light of the explanations given by Dr.
Carter as to what he meant by ‘divisiveness.’” (App.
C, p. xxxi)
The trial court did not find that the plaintiffs were di-
visive. The trial court found only that the reason for the
recommendation by Dr. Carter and the decision by the
Board to not renew the plaintiffs’ contracts was that these
persons thought the plaintiffs were creating the division
which caused the College to be placed on probation (App.
A, pp. iii, iv).
The trial court realized, as the Court of Appeais in iis
majority opinion does not, that the issue is the motives of
the new President of the College and the Board of Regents.
Neither the trial court, the Court of Appeals nor this Court
are called upon to decide who caused the College to be
placed on probation. The sole issue is whether or not these
plaintiffs failed to have their contracts of employment re-
newed because the Board of Regents thought they had con-
tributed to the College being placed on probation. It is re-
spectfully submitted that such a motive or reason for action
is constitutionally permissible whether the decision of the
Board of Regents was factually correct or not.
BD ate Ry EE 9 ARATE ITT GR PEL USS EN A RN te
—25—
CONCLUSION
A state college had been placed on academic probation
due, among other things, to dissension within the faculty.
Thereafter the governing Board declined to renew the con-
tracts of employment of certain non-tenured teachers and
administrative employees.
The trial court found that the decision not to renew the
contracts of employment was for the primary reason that
the governing Board thought the persons in question con-
tributed to the academic probation of the College.
Four judges of the Court of Appeals, sitting en banc,
disregarded the reason for non-renewal of the contracts, as
found by the trial court, because they concluded that the
persons in question were, in their opinion, not the cause of
the academic probation. In so doing, the Court of Appeals,
in effect, made tenure a new First Amendment right but
gave it several new names.
Three judges of the Court of Appeals agreed with the
Trial Judge that, since tenure was not involved, the only
issue was whether or not the governing Board had consti-
tutionally permissible reasons for its action, even though
the Court might have reached a different conclusion if ten-
ure had been involved.
If, in the future, federal courts are to consider tenure
not as a contractual right, but as a First Amendment right,
the scope of review by federal courts of the actions of gov-
erning boards will be substantially increased.
—26—
It is respectfully submitted that the opinion by a bare
majority of the Court of Appeals is contrary to the Board
of Regents v. Roth, supra, and is of sufficient importance to
all educational institutions that the Petition for Writ of
Certiorari to the Court of Appeals for the Tenth Circuit
should be granted. ;
\
Respectfully submitted,
Larry DERRYBERRY
Attorney General of Oklahoma
JAMES H. GRAY
Assistant Attorney General
Joe C. LOCKHART
Assistant Attorney General
112 State Capitol Building
Oklahoma City, Oklahoma 73105
JoHN R. WALLACE
Rosert S. GEE, of
WALLACE AND OWENS
P. O. Box 1168
Miami, Oklahoma 74354
Counsel for Petitioners
‘
November, 1974
aw RiaataD nem +S Cetin OR RNAS on a Rican he = . —w
APPENDIX “A”
—
THE COURT: In this case, there are fourteen Plain-
tiffs. Eleven being instructors at the Oklahoma College of
Liberal Arts at Chickasha, Oklahoma. Three being adminis-
trative personnel at the same institution. They have sued
the members of the Board of Regents of the institution and
the president and the assistant to the president of the
institution.
The Plaintiffs’ complaints basically are that on or
about April 26th of this year, their employments with the
institution were not renewed by the Board of Regents and
that this failure to renew their contracts of employment
was because or as a reprisal for their having exercised their
first amendment rights to speak critically of the president,
the regents and the course of direction of the institution.
There is also involved in the case a claim, as far as
some of the Plaintiffs are concerned, that they have
achieved tenure and that whether or not a failure to renew
their employment contract was based on their first amend-
ment rights, that they are entitled to a prior hearing with
reference to a failure to renew their contract.
The Defendants essentially deny that the failure of the
regents to renew these fourteen contracts of employment
was because of or a reprisal for the Plaintiffs having exer-
cised their first amendment rights in which they spoke
against certain individuals and the course the college was
taking.
As to the tenure question, the Defendants acknowledge
that one of the Plaintiffs, W. Leroy Rampey, had achieved
tenure prior to April 26, 1973 and that therefore he was
entitled to a prior hearing with reasons furnished as to why
his contract of employment was not renewed. And the De-
[APPENDIX]
fendants have announced, as you have heard, their willing-
ness to accord such a hearing to this Plaintiff.
The Defendants, however, deny that any of the other
Plaintiffs, as of April 26, 1973, had achieved tenure under
the laws of the State of Oklahoma and that therefore, none
of them are entitled to a prior hearing before there is a
failure to renew their contract of employment.
Considering first, the first amendment question which
is a threshhold concern to the Court, the legal principles in-
volved have been recently enunciated in the case of Perry
versus Sinderman, reported in 33 Law Edition 2nd 570.
This case was decided in June, on June 29th, 1970.
The case says, “For at least a quarter century, this
Court being the United States Supreme Court, has made
clear that even though a person has no right to a valuable
governmental benefit, and even though the Government
may deny him the benefit for any number of reasons, there
are some reasons upon which the Government may not act.
It may not deny a benefit to a person on a basis that in-
fringes his constitutional protected interests, especially his
interest in freedom of speech.”
The case further says, “This Court has held that a
teacher’s public criticism of his superiors on matters of
public concern may be constitutionally protected and may
therefore be an impermissible basis for termination of his
employment.”
This case did not undertake to review the pros and
cons of this issue. It didn’t do this for the reason as to why
and how the case came up to them.
An earlier circuit court opinion, in Moore versus Win-
field City Board of Education at 452 Fed. 2nd, 726, fifth cir-
cuit case, the decision coming down in 1969, provides that,
“The constitutionally protected right of a public school
teacher to criticize the schoo] administration and to com-
—iii—
[APPENDIX}
ment on matters of sults concern is a limited right. A
right which must be balanced against the need for orderly
school administration. Thus, the contention by appellant
that the first amendment’ mandates or reinstatement, the
CTA speech in any degree influenced the board to terminate
here is an incorrect statement of the applicable law.”
It well could be that Perry versus Sinderman has
somewhat modified the language of the Moore case. But
however you look at it, this Court is faced with a fact ques-
tion. There isn’t any way you can escape the proposition
that we are dealing with a fact question.
It is undisputed that the fourteen contracts were not
renewed and this action was taken on April 26th, 1973. The
fact question is whether this failure to renew was denied
these fourteen, because they exercised their first amend-
ment, rights or whether this failure to renew the fourteen
contracts was based on other reasons which are constitu-
, tionally valid.
It is appropriate for the Court in determination of this
fact question to listen to all of the evidence and consider all
the circumstances and to draw reasonable inferences.
In one sense of the word, I am having to search the
minds perhaps of the president and then to the five mem-
bers of the Board of Regents who made the decision as to
what was the reason for a failure to renew these contracts.
Plaintiffs would have me conclude that it was because
of the press conference of a previous Tuesday and perhaps —
also urge that aside from the press conference that prior
thereto, some of the Plaintiffs exercised their first amend-
ment rights to criticize the school administration and that
this, are the, two of the reasons for their contracts not being
renewed.
The Court finds and concludes as a factual matter from
all the evidence and circumstances presented in this case.
PNA BAe we Rs RE ts bed RDN, LAIN ON Vs Bd LOO OF, ATR EE,
oe oe
(APPENDIX)
that the college president did not icine a failure. Did
not recommend the non-renewal of the contracts of the
fourteen Plaintiffs as a reprisal for their exercising their
first amendment rights of free speech, ei. .er by reason of
the press conference or anything 'uttered prior thereto.
The Court further finds and concludes as a factual mat-
ter from all the evidence and circumstances presented in
this case, that the five voting members of the Board of Re-
gents, who thereby failed or refused to renew the fourteen
employment contracts did’ not take this action as a reprisal
for the Plaintiffs having exercised their first amendment
rights of free speech and criticizing the college official and
administration either by virtue of the press conference or
on occasions prior thereto.
I doubt that it is impossible, in the ordinary affair of
dealing with a human person or the human mind to be able
to say that anyone can draw a clean line and put the first
amendment on one side and the other reasons on the other
side and say that one per ange might not encroach upon the
other.
It is quite positive in my opinion that the president and
the assistant to the president and the five members of the
Board of Regents were aware of the press conference of the
previous Tuesday and they were aware of previous criti-
cisms as they were also aware of the many other things
that were prevalent at the institution and which involved
the fourteen Plaintiffs. |
To me, the evidence is quite convincing that Dr. Carter
had intended not to recommend thirteen of the fourteen
prior to the press conference. To me, the testimony of An-
nette Black cinches this point. :
She struck me as telling the unquestioned truth. She
typed the list before the press conference. It was Dr. Car-
ter’s list. Dr Carter, prior to the press conference had sin-
gled out at least thirteen of the fourteen for non-renewal
— |
[APPENDIX)
and I don’t think the press conference was responsible for
his actions prior thereto.
I think the independent study list sometimes referred
to in the trial as the execution list, likewise, I think was,
played a significant part in the atmosphere of whether or
not certain contracts were going to be renewed.
If there were no other reasons to refuse to renew these
contracts, then the press conference or any other first
amendment uttetances, it would no doubt be necessary to
conclude that the non-renewals are attributable and were a
reprisal for the exercise of the rights under the first amend-
ment. And as I have indicated under the Sinderman case.
vou may not do this.
The Sinderman case does not say that you may not
fail to renew a contract for other constitutionally valid
reasons.
The Court cannot remove from vision all of the other
reasons for non-renewal that the evidence has brought for-
ward in this case.
This college was under probation from the NCA and
the NCATE, in advance as to the latter, and shortly after
Dr. Carter's becoming president as to the former, and even
as to the former visitation which resulted in the, preceded
his taking over the presidency.
I am quite sure that colleges don’t get on probation for
nothing. There is something wrong in the institution and it
is necessary to find out what was wrong in the institution.
It is the Defendants’ views that one of the things, if
not the principal thing, wrong with the institution was the
lack of cooperation of the Plaintiffs. The hostility of the
Plaintiffs towards the administration. The devisiveness
within the faculty attributed by the Defendants to the
Plaintiffs. And avowed inability to communicate back and
forth, not only between the fourteen Plaintiffs and the ad-
OE ET .
a. ee er ee es ae
—
[LAPPENDIX}
ministration, but the fourteen Plaintiffs and the balance of
the faculty and staff. Not as to all of the fourteen, but as to
one, a desire to consolidate jobs. The matter of general atti-
tude, when all of this is considered in the light of the evi-
dence that the fourteen had been meeting for five weeks in
secret, when they had seen fit to engage an attorney and
even have him prepare their press statements, all indicates
that there were other reasons for non-renewal of employ-
ment contracts. Reasons not in any way constitutionally
invalid.
The evidence convinces me beyond any doubt that at
least thirteen of the fourteen had become well identified by
the president and perhaps even the five majority voters on
the board of regents.
The president had been there for eight or nine months
I guess and it isn’t surprising to me that one with any ex-
perience at all would have much difficulty in isolating peo-
ple who had seen fit to group themselves together as they
did and I am not at all sure that the press conference wasn’t
rigged for the purposes of thwarting non-renewal of their
employment contracts so they could continue their activi-
ties.
It just isn’t the law that you can manufacture a first
amendment right. If this was so, then all an instructor
would have to do during a one year contract would be to
criticize the president. Then if his contract was not renewed
he would say this is because of this criticism and you must
renew it, because if you don’t, you violate my constitutional
rights because I criticized you and because I criticized you,
that has to be the reason why you don’t renew. This is ri-
diculous on its face, certainly it can’t be the law.
As I have indicated, I have to make a decision as to
whether the underlying principle, basic substantial reasons
for non-renewal were because freedom of speech was exer-
cised or for other reasons. And I think the other reasons are
oie!
(APPENDIX)
not only predominant, but I think they were the basis of
non-renewal to the exclusion of any and all other reasons.
In this connection, the Court does feel that it is im-
portant to point out a difference between the college presi-
dent making a recommendation of non-renewal and the ac-
tion of the majority of the Board of Regents in deciding not
to renew.
It is quite obvious to the Court that Dr. Carter is the
raain target of the Plaintiffs and this is quite unfortunate
for all concerned, including the institution and including
the State of Oklahoma. But, he is the president. But the
point that I would make is that it is the Board of Regents
that made the decision and I am unable to agree with coun-
sel for the Plaintiffs that this Board of Regents or the five
members thereof or the whole board, for that matter, were
unawere of these things present. That, the Court concludes,
formed the basis for these non-renewal actions.
The Court also is aware, in this connection, that none
of these actions were in contracts of employment, were not
renewed, involved any charge of dishonesty or immorality
or in any way foreclosed the freedom of the Plaintiffs to
take advantage of other employment opportunities.
Finally, therefore, the Court finds and concludes that
the recommendations of Dr. Carter in the vote of the five
board members not to renew the fourteen contracts for the
employment of the Plaintiffs, were not based on the Plain-
tiffs’ exercise of their first amendment rights, either at the
press conference or at any other time.
This finding and conclusion includes Dr. Ward.
It is my opinion that the recommendation of the presi-
dent and the majority vote of the board was based solely on
other constitutionally valid reasons as aforesaid.
—viii—
[APPENDIX]
Now, with reference to tenure, the Supreme Court in
the Sinderman case hands down what we call the Roth case.
This Board of Regents versus Roth, 33 law edition, 2nd, 548.
The Roth case did not treat with first amendment
rights. This was treated with in the Sinderman case. Roth
only treated the case of non-tenured teachers. It didn’t have
any tenure at that institution at all.
The case held that the teachers without tenure had no
property rights beyond their one year contract of employ-
ment; that therefore, they were not entitled to a statement
of reasons for a failure to renew the contract and they were
not entitled to a prior hearing. This is what Roth says.
Roth refused a balancing of weights and turned it sim-
ply on the fact that they had no property rights beyond
their one year contract. Therefore, no one was deprived of
any constitutional rights, either of liberty or property.
Chief Justice Berger concurred in Roth, both Roth and
Sinderman, and filed a special, it wasn’t a special, it was
just a concurring opinion.
The Chief Justice of the United States Supreme Court
said, with reference to this matter of tenure, “That point,
the point of tenure, is that—correction, that point is that the
relationship between a state institution and one of its teach-
ers is essentially a matter of state concern and state law.
The Court holds today that a state employed teacher who
has a right to re-employment under state law arising from
either an express or implied contract has in turn a right
guaranteed by the fourteenth amendment to some form of
prior administrative or academic hearing on it because for
non-renewal of his contract. Thus, whether a particular
teacher and a particular context has any right to such ad-
ministrative hearing. hinges on the question of state law.
not federal law.”
ee ee 2 ene ee in
—j|x—
{APPENDIX}
And then quoting from Roth, the Chief Justice Berger
said, “Property interests are created and their dimensions
are defined by existing rules or understanding that stem
from an independent source such as state law.”
State law in this case starts with Title 70, Oklahoma
Statutes, 3606 and particularly with reference to subsection
thereunder. Providing that, “The Board of Regents of the
Oklahoma College of Liberal Arts shall have the super-
vision, management and control of the college and it shall
have the following additional powers and duties, can estab-
lish and maintain plans for tenure.”
Now, any plans of the duly constituted Board of Re-
gents of the college by this delegation of authority would
constitute and be state law.
Justice Berger goes on to say this, “Because the avail-
ability of the fourteenth amendment right to a prior ad-
ministrative hearing turns in each case on a question of
state law, the issue of abstention will arise in future cases,
meaning in the federal courts, contesting whether a par-
ticular teacher is entitled to a hearing prior to the non-
renewal of his contract. If relevant state contract law is un-
clear a federal court should, in my view, abstain from
deciding whether he is constitutionaliy entitled to a prior
hearing and the teacher should be left to resort to state
courts and the questions arising under state law.”
Now, as I said, we start with 70 Oklahoma Statutes
3606, and it is my obligation to see whether this and any-
thing under it is clear or whether it is unclear.
If it is clear, I should proceed. If it is unclear, accord-
ing to the Chief Justice of the United States Supreme
Court, and the Roth decision, I should abstain. I should let
the state courts decide what the state law is on this state
question in this state relationship.
La eS NCI hile irate sila wate
"a, 4 ere Te
—-X—
(APPENDIX)
Now, you start about the basic statute of 70 Oklahoma
Statutes 3606, it is not clear. I have asked several knowl-
edgeable people whether this statute says you must have
tenure or whether it is optional with the board. I get mixed
and confused and uncertain answers. It is really anybody's
guess. The state courts ought to decide that this statute says
to this Board of Regents, that you have the duty to estab-
lish plans for tenure. If this is what it means. You can’t take
it away. You have got to have tenure in some fashion. But
even worse than the statute, is the matter of what the col-
lege has done.
It has been pointed out there have been three faculty
handbooks. All three of them are ambiguous and I won't
take the time to point out how the two preceded the one im
force and effect. The times involved here are ambiguous,
but I will take the time to point out how I conclude that the
permanent faculty tenure provisions of the college evolve
are unclear and are ambiguous.
Paragraph C, after the expiration of a probationary pe-
riod, a faculty member has permanent or a continuous
tenure.
Now some latch onto this to say this means it is auto-
matic. The very next paragraph says, “The awarding of
permanent tenure to a faculty member is a matter of great
concern to the college. The college should have the oppor-
tunity to decide on the suitability of any faculty member
prior to the awarding of tenure.”
This seems to indicate non-automatic tenure. It’s got to
be awarded. It doesn’t say who awards it. So, in practice,
what do we find in the case, we find some letters. Mr. Ram-
pey’s and others. All they say is the administration has
awarded you permanent tenure.
It goes on to provide that unless the faculty member
has been notified of the beginning of his last year of pro-
bation, and the probationary period as prescribed in this
<A
oS ee
—_;
[APPENDIX]
permanent faculty tenure, the maximum period for not
more than four years and a minimum period of not less
than one year.
So, unless the faculty member has been notified at the
beginning of his last year of probation, which would be his
fourth year, that there is some question about his future
tenure status, permanent tenure will be granted at the end
of the maximum probationary period.
Now what does this mean? This means automatic. You
don’t say anything to an instructor at the start of his fourth
year. But, it also says it will be granted and who is going to
grant it? Is it automatic or does it have to be awarded? I
conclude the statute is ambiguous, unclear, with the perma-
nent faculty tenure of the college, is unclear and it is am-
biguous. And we are not aiding in any sense, by conduct, by
practice or procedure under this tenure policy. If you listen
to some of the testimony, it has to be done by the Board of
Regents because recommendations went to the board and
were tabled.
Yet, the letter to Mr. Rampey and the other people
granting tenure didn’t say anything about the Board of Re-
gents granting tenure. It said the administration granted
tenure. Well, who is the administration? The president, aca-
demic dean? Who is it? We have no definite guidelines
ihrough practice and procedure as to just,whether or not
tenure is automatic or whether it must be awarded and if
so by whom.
Now, you have got, you have got a little better policy
on tenure now than the past February 16th, 1972. This has
cleared the matter up a bit, but this is a procedure where
one makes a request for tenure and must serve the mini-
mum period and this request will be reviewed by the disci-
pline director and the committee will make a final recom-
mendation to the board.
But, how do you square this with the board abolishing
tenure? They abolish tenure not only by its own language
aS OD ot aa
IU Te TRE Ee eee
—xli—
(APPENDIX)
as to Rampey and anyone else who had it, but abolished it
for future tenure. Even though the Defendants are not will-
ing to concede that Rampey had tenure and they can’t take
it away from him, but that is not the language of the board
resolution. You read it, it is extremely clear. It takes awav
existing tenure.
I have a serious question in that connection as to
whether under the law the board has got a right to take
away existing achieved accomplished tenure and I have a
further question and this is a state law question, as to
whether they have a right to abolish tenure or whether
they must, at all times, have a tenure plan. You can read
the statute as requiring them to do it. As a duty to maintain
a tenure plan. If it is a duty they can’t take it away. Here
they have taken it away completely and haven’t even re-
placed it with anything, even though they avow they will
in the future.
I have concluded, therefore, in this situation and under
the laws announced by Chief Justice Berger that I should
abstain on this matter of tenure and leave the Plaintiffs as
Chief Justice Berger said to the state court he let them
decide as a matter of state law what the statute means.
What the obligations and duties of the Board of Regents
are. What their policy means, whether their action to
abolish it was legal or not. These are state questions.
I should abstain. This is my decision.
Now, with reference to the policy on administrative
personnel, I think everybody is agreed that this is not a
tenure but it is kin to tenure.
I don’t find the fault with the policy statement on ad-
ministrative personnel that I find with permanent faculty
tenure. This seems to be pretty clear. But, there is one point
about it. This is still a state relationship between adminis-
trative personnel and the college under state law as the in-
AE EAE Pee “8 AUS Ra Lr Dad Tee A LATA HAR AIELN RNEES ON BY A ng an NC lita thn Tn ete ha
—xiii—
[APPENDIX]
structors in a college under state law have a state rela-
tionship.
It is my judgment that this policy was in force and
effect on April 26, 1973. The Board of Regents passed it and
it was the policy. The Defendants urged that it had been
abandoned by nonuse and they’re not fully—I am not fully
convinced that this is so. I have concluded that since this
facet of the case as to state law is clear, that I should not
abstain here because this policy statement on administra-
tive personnel is clear. But I do find and conclude from the
policy statement itself and from the evidence before me
that by its own terms, it did not apply to the three adminis-
trative personne] Plaintiffs on April 26. 1973.
This is because the policy says that it will be invoked
and utilized only in normal situations. If you don’t have a
normal situation, the policy doesn’t apply.
The testimony of the Plaintiffs themselves, acknow]-
edge that in April of 1973 and prior in 1973, the college did
not enjoy normal situations. Dr. Ledgerwood so testified.
All the Defendants testimony has been to the same effect.
The college situation just wasn’t normal. I don’t think any-
body can seriously question that. And I don’t think anyone
should seriously question it by limiting it to those months
ahead of us in the year 1973. Something went awfully
wrong with this college way before Dr. Carter got there.
As two organizations would not have seen fit to put the
college on probation.
Now, I therefore conclude with reference to the ad-
ministrative personne] that they were not entitled to a prior
hearing under state law, in the college policy applicable to
them for the reason that a normal situation did not prevail
on the college campus. The policy statement therefore is
not applicable.
CR ne OT TO ge Re eed
—xiv—
[APPENDIX]
The foregoing findings of fact and conclusions of law
required by the federal rules of civil procedure, are my
decisions, number one, Mr. Rampey is entitled to a hearing
with reference to a renewal of his employment contract by
virtue of his admitted tenure status and the acknowledg-
ment of the Defendants that he is entitled to such a hearing.
It is my second decision that the failure to renew all
fourteen of the contracts was not accomplished by those in
authority in violation of any of the federal constitutional
rights of the fourteen Plaintiffs, and specifically and™ par-
ticularly their first amendment rights.
The same applies to the three administrative Plaintiffs.
They were not non-renewed by reason of or as a basis for a
reprisal for their exercising the first amendment rights.-
Next, the Court abstains from making a determination
as to the state law with reference to permanent tenure for
instructors at this institution and leave the Plaintiffs to the
state courts to determine this.
Lastly, the Court decides that state law, however, is
clear as to rights to a prior hearing on behalf of the ad-
ministrative personnel. But that under the terms of the
policy statement and the evidence of this case they were _
not entitled to such a prior hearing.
Counsel for the Defendants will prepare an :ppropriate -
judgment to this effect and submit it to opposing counsel
and submit it to me within five days from this date, at this
time. Court is in recess.
(Thereupon, these proceedings were concluded.)
~
pane: eee
(APPENDIX)
APPENDIX “B”
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
W. LEROY RAMPEY, L. BRYANT
LEDGERWOOD, INGRID POOLE,
CHRISTOPHER BOLTON, HUGH W.
JEFFERS, LEON G. CHERRING-
TON, JERRY HOLT, WILLIAM
MANESS, WILLIAM MERRILL,
GEORGE RAPPLEAN, ROBERT
RICHARDSON, MARK E. TANTON,
DAVID WARD, and
G. JOSEPH WIMBISH,
Plaintiffs,
-VS- No. CIV-73-310-D
WALT ALLEN, GARY BRYANT, FILED
HILDRED MEINDERS, SCOTT JUN 11 1973
OUSLEY, MARY E. RODDY, REx B. HAWKS
JOEL L. CARSON, JOHN B. Clerk,
US. District Cour:
By VERA EDDLEMAN
Deputy
JABROE, Individually and
as Members of the Board of
Regents of Oklahoma College
of Liberal Arts, BRUCE
CARTER, Individually and as
President of The Oklahoma
College of Arts, CECIL
FEREE, Individually and as
Assistant to the President
of Oklahoma College of
Liberal Arts, their successors,
assigns, agents and representatives,
Defendants.
—xvi—
JUDGMENT
On the 30th day of May, 1973, there came on for hear-
ing before the undersigned United States District Judge,
the trial of the action on the merits. Said trial kaving been
advanced and consolidated with the hearing on plaintiffs’
Motion for Preliminary Injunction.
[APPENDIX]
All plaintiffs appeared personally and by their counsel,
Stephen Jones. All defendants appeared personally and by
their counsel, Larry Derryberry, Attorney General, State
of Oklahoma, James Gray and Joe Lockhart, Assistant
Attorneys General. In addition, defendants Walt Allen and
Joel L. Carson each entered their appearance pro se.
All parties announced ready and the Court having ex-
amined the pleadings and briefs of the parties and after
hearing the evidence and arguments of counsel and being
fully advised in the premises, finds and orders:
1. Plaintiff W. Leroy Rampey is entitled to a hearing
to determine whether there exists sufficient legal cause
for the nonrenewal of his contract of employment for the
1973-74 academic year.
2. The failure to renew the contracts of each and all
of the fourteen (14) plaintiffs was not accomplished as a
reprisal to or in violation of any constitutional right of said
plaintiffs including the right to the exercise of free speech
under the First and Fourteenth Amendments to the United
States Constitution.
3. The Court abstains from making a determination
as to any issues of State law relating to alleged permanent
tenure status of instructional personnel of the Oklahoma
College of Liberal Arts by reason of the ambiguity and lack
of clarity in said State law.
4. With respect to the three plaintiff administrative
personnel, L. Bryant Ledgerwood, Christopher Bolton and
Hugh W. Jeffers, the Court finds that the State law is clear
with respect to the right of such administrative personnel
—xvii—
[APPENDIX}
to a hearing prior to the nonrenewal of their employment
contracts. However, the Court further finds that under the
express terms of the applicable policy, the provisions
thereof are effective only in normal situations, and since
the evidence is convincing that the situation during the
time complained of was not normal, said policy did not
entitle the: named administrative personnel to a hearing
prior to the nonrenewal of their employment contracts.
All other relief prayed for by plaintiffs is denied.
It is so ORDERED this 11th day of June, 1973.
s/ Fred Daugherty
FRED DAUGHERTY, UNITED
STATES DISTRICT JUDGE
ENTERED IN JUDGMENT DOCKET ON JUN 11 1973
ADELAIDE HOLSTON, DEPUTY
Approved:
s/ James H. Gray |
JAMES H. GRAY
ASSISTANT ATTORNEY GENERAL
s/ Joe C. Lockhart
_ JOE C. LOCKHART
ASSISTANT ATTORNEY GENERAL
ATTORNEYS FOR DEFENDANTS
s/ Stephen Jones
STEPHEN JONES °
ATTORNEY FOR PLAINTIFFS
‘
[APPENDIX]
I —
—xviii—
APPENDIX “C”
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
1
No. 73-1609
W. LEROY RAMPEY, L.
BRYAN LEDGERWOOD,
INGRID POOLE, CHRIS-
TOPHER BOLTON, HUGH
_ W. JEFFERS, LEON G.
CHERRINGTON, JERRY
_ HOLT, WILLIAM MANESS,
_ WILLIAM MERRILL,
GEORGE RAPPLEAN, ROB-
ERT RICHARDSON, MARK
E. TANTON, DAVID WARD
and G. JOSEPH WIMBISH,
V.
WALT ALLEN, GARY
BRYANT, HILDRED MEIN-
DERS, SCOTT OUSLEY,
MARY E. RODDY, JOEL L.
CARSON, JOHN B. JARBOE,
Individually and as members
‘of the Board of Regents of
Oklahoma College of Liberal
Arts; BRUCE CARTER,
Individually and as President
)
)
)
)
)
)
)
)
)
)
)
)
)
- Plaintiffs-Appellants, )
)
)
)
)
)
)
)
)
)
)
)
)
of the Oklahoma College of +)
‘FILED
United States Court of Appeals
Tenth Circuit
' AUG 16 1974
HOWARD K. PHILLIPS
Clerk
Appeal from the United States
District Court for the
Western District of
Oklahoma
(D.C. No. CIV-73-310-D)
—EE——E————— i
—xix—
[APPENDIX]
Liberal Arts, CECIL FEREE, )
Individually and as Assistant )
to the President of Oklahoma )
College of Liberal Arts, )
Their Successors, Assigns, )
Agents and Representatives, )
)
)
Defendants-Appellees.
Stephen Jones of Jones, Williams, Bane & Klingenberg for
Plaintiffs-Appellants.
Joe C. Lockhart, Assistant Attorney General (Larry Derry-
berry, Attorney General of Oklahoma, and James H. Gray,
Assistant Attorney General, on the brief), for Defendants-
Appellees.
Before LEWIS, Chief Judge, HILL, SETH, HOLLOWAY,
McWILLIAMS, BARRETT and DOYLE, Circuit Judges,
sitting en banc.
DOYLE, Circuit Judge.
The 14 appellants, plaintiffs in the district court, seek
reversal of a judgment denying relief for alleged violations
of civil rights. The claims were brought pursuant to 28
U.S.C. §§ 2201 and 2202, together with 42 U.S.C. § 1983.
The complaint sought injunctive relief together with a
declaratory judgment (no damages) determining the ter-
mination of the plaintiffs’ employment to be null and void
and violative of their rights to freedom of expression and
due process under the First and Fourteenih Amendments
of the Constitution of the United States. Eleven of the
plaintiffs were faculty members and three were administra-
tive officers of the Oklahoma College of Liberal Arts, a
statutorily created Oklahoma state institution located at
Chickasha.
On April 26, 1973 the defendant Bruce Carter, Presi-
dent of the college, recommended to the memters of the
<a
4 RN oe Pe ene eee Oe cr ee ee” We eee eS ee ee Sn ie eee ere Pee Ree woe
tAPPENDIX) sca
Board of Regents that the employment of the 14 plaintiffs
be terminated. A majority of the Beard (five to two) ac-
cepted this recommendation, and in carrying it out gave
no reasons for their action. The complaint alleged that the
terminations were the result of the exercise by the plain-
tiffs of their constitutional rights of freedom of expression
guaranteed by the First Amendment.
According to further allegations, the plaintiffs held a
press conference and issued a release to the media on April
24, 1973, just prior to their termination. At the press con-
ference they criticized the policies of some members of the
Board of Regents.
Originally the plaintiffs apparently believed that the
press conference had been the cause of their having been
fired since the terminations were related in time, but the
record does not support this. The trial court also focused
on the press conference, but the evidence at trial gues far
beyond this.*
* It is to be noted, however, that the complain: broadly framed the
issues for trial, alleging that the terminations resulted from plaintiffs’
exercise of their First Amendment rights. The we ge does allege
First Amendment violations stemming from reprisal for the press con-
ference. The complaint also alleges in general that plaintiffs were fired
“because they exercised their right to freedom of specch and expression
in criticizing Defendants and disagreeing with their policies.” These criti-
cisms of the administration referred to by the plaintiffs encompassed
statements made prior to the press conference. Paragraph 13 of the com-
plaine states:
Said conduct by Defendants in terminating the Plaintiffs was in
violation of Plaintiffs’ rights under the First and Fourteenth
Amendments to the United States Constitution in that Plaintiffs
were terminated because they exercised their right to freedom of
speech and expression in criticizing Defendants and di i
with their policies. Said termination of Plaintiffs for these reasons
is a denial of a benefit to Plaintiffs in a manner which infringes
upon Plaintiffs’ constitutional right to free speech. Criticism of
Defendants’ policies are an impermissible basis for termination of
Plaintiffs’ employmen: under the Firs: and Fourteenth Amend-
ments.
—xxi—
(APPENDIX?)
President Carter’s testimony disclosed that the decision
not to rehire the plaintiffs was made on April 22, 1971, after
consultation with Dr. Feree. In his testimony, the reasons he
gave for the firings were that the plaintiffs were “divisive”
because they were unwilling to come into his office and
have informal talks and because they had a tendency to
talk among themselves and with the students.** In addi-
tion, one member of the faculty was accused of criticizing
an address of Dr. Carter’s given at an assembly and to have
done so in the classroom. Carter’s knowledge of this was
based upon the hearsay statement of an unnamed student.
* (Continued )
Further, the case was not tried on any narrow issue. The evidence em-
braced First Amendment violations generally.
Nor were the trial judge's findings and conclusions restricted to the
effect of the press conference on plaintiffs’ subsequent termination of
employment. In its oral findings, the trial court delineated the First
Amendment issue as follows:
The Plaintiffs’ complaints basically are that on or about April 26th
of this year, their pe [- amg with the institution were not re-
newed by the Board of Regents and that this failure to renew their
contracts of em was because or as a reprisal for their
having exercised their first amendment rights to speak critically
of the president, the regents and the course of direction of the
institution.
Finally, the trial judge specifically passed on all other First Amend-
ment questions as well as the press conference when he said:
The Court finds and concludes as a factual matter from all the
evidence and circumstances presented in this case, that the college
president did not recommend * * * Did not recommend the non-
renewal of the contracts of the fourteen Plaintiffs as a reprisal for
their exercising their first amendment rights of free speech, either
by reason of the press conference or anything uttered prior thereto.
** He also explained as follows:
Q. Whar in general was the basis on which you decided. the negative
basis upon which you decided that the fourteen plaintiffs in this case
should not be included in your list: Just in general terms.
A. “I could answer that in one word really and that is divisiveness.”
—Xxii—
[APPENDIX]
The trial court generally followed Carter’s statements, find-
ing that the plaintiffs were “divisive.”
At the trial (which commenced May 30, 1973), testi-
mony was given by many of the plaintiffs and by President
Carter. The district court ruled ir. favor of the defendants
and against the plaintiffs, holding that the nonrenewal of
the contracts was unconnected with the plaintiffs’ exercise
of their right of free speech under the Fiist and Fourteenth
Amendments. Extensive oral findings were made, and the
testimony which was emphasized was the statement of
President Carter that it was the divisiveness of the plain-
tiffs which caused their discharge and not the holding of
the press conference. The court considered the plaintiffs’
divisiveness to be the sole reason for the firing.
As we have indicated, it appears from the record that
the decision to terminate the plaintiffs had been made, with
one exception (Professor Ward), prior to the date of the
press conference. Because of his years of service the plain-
tiff Rampey was held to have been entitled to a hearing for
the purpose of determining whether sufficient cause existed
for his separation.
The trial court recognized that the three administra-
tive employees would normally have been entitled to a
hearing but that the conditions at the institution were not
normal so that the rule providing for a hearing was neces-
sarily suspended.
The issue for our determination is whether the evi-
dence is sufficient to support the triai court’s findings that
the firings were unrelated to plaintiffs’ right te freely ex-
press themselves. If the evidence supports these findings,
the judgment would have to be affirmed. We conclude, how-
ever, that the evidence fails in this regard and that the
judgment of the district court must be reversed.
Sa oe En ee ee ae ee oe ee oe ee ee ee reer er
ee —
(APPENDIX?)
THE PLAINTIFFS’ PRIOR RELATIONSHIP
TO THE COLLEGE
The service background of the several plaintiffs differs.
Rampey, a professor in the English department, was 46
years of age at the time of trial and had been employed at
the college for more than ten years. At the time of Ram-
pey’s hiring there was a tenure policy which required a
new faculty member to be on probation for three years
and, following the completion of the three-year period,
tenure was granted. On this basis Rampey was notified in
1965 that he had achieved tenure and had the rank of as-
sistant professor. This was accomplished without the ex-
press approval of the Board of Regents. But in May 1972,
just prior to the employment of President Carter, the Board
of Regents abolished the tenure system. About a year later
Rampey was terminated without notice or any kind of hear-
ing. There had been no complaint made to Rampey or to
anyone else that his work was unsatisfactory. He explained
that the reason for his speaking out at the press conference
and prior thereto to his colleagues was because of his con-
cern about the future of the college, which had been placed
on probation by the North-Central Accrediting Association.
Rampey was unaware that President Carter was then en-
gaged in the preparation of a list of people to be hired the
following year, which list omitted the names of the plain-
tiffs.
Bryan Ledgerwoed testified that he was Dean of the
college and had first been employed in 1967 as director of
institutional research and development. Subsequently, he
became assistant to the then president. Thereafter, he was
appointed acting Dean and finally academic Dean. Ledger-
wood’s immediate concerns were the decrease in student
enrollment, the accreditation policy and the failure of those
in authority to remedy these and other problems. He also
sought to research the tenure issue and discovered, accord-
ing to his testimony, that the Board of Regents had never
ee al NE IE RO EO GE EE EERO ODO
SORE OAM ER AR ORE. EE
—xxiv—
[APPENDIX]
specifically granted tenure to individual members of the
faculty. He had learned prior to April 24, 1973 that certain
of the faculty members with contracts would not be rehired.
He also testified that he had expressed his concern about
the institution to President Carter and also to members of
the Board. In his opinion, if a faculty member were not
terminated at the end of the three-year probationary period,
he automatically acquired tenure. According to Ledger-
wood, this was berne out by the faculty handbook.
Dr. Leon Cherrington testified that he was age 46 and
that his teaching field was history, geography and inter-
disciplinary studies. His employment at the Oklahoma Col-
lege of Liberal Arts commenced in September 1966 and his
contract had been renewed each year since then for a total
of six years. When rehired for the fourth year there had
been no criticism of his teaching ability. The same is true
when he was rehired for the fifth year. He had been. se-
lected teacher of the year in 1968 and had had other honors
and was not apprehensive about being rehired. Prior to the
press conference there was no indication given that he
would not be rehired and he believed that he would be. He
spoke out only because he felt that it was necessary since
the college was in danger, as he phrased it, of “going down
the drain.” The reason he did not speak to Dr. Carter dur-
ing the year 1972-73 was because it was impossible to see
him and the faculty members were told that they were to
report directly to Dr. Feree who was Carter’s assistant.
The only plaintiffs (teachers) who had completed four
years at the college prior to the abolition of tenure were
Rampey, Cherrington, Richardson and Wimbish. Plaintiffs
Poole, Holt and Maness had completed their fourth vear in
May 1972, subsequent to the abolition of tenure.
OTHER BACKGROUND FACTS
Some of the plaintiffs had never been notified that ten-
ure had been abolished. As we view it, the tenure issue
enters into this case to the extent that it provides some in-
AI CP LEE 2 SP ENE LIE EE PGE RE EIDE DREN BE Oa AA ee PL LOOP BRED OSE IADR PO ING OEM OLIN EEO TT
—xxv—-
[APPENDIX)
sight regarding the alleged arbitrariness of the defendants.
The 11 plaintiffs who were on the teaching staff were
treated by the administration as one group; Dr. Carter par-
ticularly placed them in one category. This was undoubt-
edly because they had been a part of the so-called core
curriculum teaching staff, which meant that they used an
interdisciplinary approach to teaching. Rampey was a mem-
ber of this core curriculum staff, although he had not been
hired initially as such.
The Oklahoma statute which created the subject insti-
tution contemplated that the Regents would maintain a
tenure system. However, just prior to the appointment of
Dr. Carter on May 3, 1972, as we have previously noted,
the tenure system was abolished. We do not regard as irrel-
evant the fact that the plaintiffs who were members of the
teaching staff had been led to believe when they were hired
that they would receive tenure if they successfully com-
pleted the probationary period. It is further to be noted that
the Governor’s office had secured the resignations of sev-
eral of the former members of the Board of Regents just
prior to the appuintment of President Carter. Following the
appointment of the new board members, President Carter
was appointed.
The North-Central Association’s report, dated March 1,
1972, analyzes the condition of the school and indicates the
need for it to correct deficiencies in the library and science
laboratory facilities, to eliminate dissension within the fac-
ulty, to improve faculty-staff communications and to gen-
erally upgrade the curriculum. A subsequent meeting of the
North-Central Association held July 28, 1972 recommended
that the school be placed on probation.
Chancellor Klotsche of the University of Wisconsin
was hired as a consultant to examine and appraise the
major problems of the school and to recommend solutions.
In the second of three reports, written on January 19, 1973,
Klotsche recommended 1) establishing a faculty grievance
[APPENDIX]
committee; 2) clarifying the duties of the administrators:
3) setting up better channels of communication for inform-
ing the faculty of administrative decisions; and 4) estab-
lishing an interim sysiem cf faculty self-governance.
In a subsequent report dated April 3, 1973, Chancellor
Klotsche concluded that “no really significant steps have
been taken during this academic year to bring the institu-
tion back into some semblance of appropriate governance
with the respective role of faculty, administration and Re-
gents clearly defined.” He blamed the administration for
its failure to take action to rectify the situation and for fail-
ing to follow out the guidelines which he had recommended.
He also noted that there was an air of uneasiness on the
campus caused by rumors of the imminent termination of
some faculty members. He advised the administration
against abrupt termination of faculty cr staff members.'
The Klotsche reports are of some importance in that
they highlight the problems which were in existence at the
college and show also that the administration made no
effort to ameliorate the situation or to remove the problems
which were creating dissension. The reports also show that
there were conditions which produced the dissension on the
part of the faculty members and that such criticisms were
based on real and not illusory situations.
Still another background fact was adduced from the
meeting of the Regents held April 26, 1973, at which time
! He added:
I write in this manner on these matters since these are critical
questions as they relate to the present probationary status of the
institution with the North Central Association. One of the factors
in the decision to place OCLA on public probation was the mat-
ter of governance on the campus. Matters related to termination
notices, tenure, and due process are critical in this regard and the
necessity for clearly enunciated policy on these and related matters
will be of great interest to the Association when OCLA will nex:
be visited by a team to consider its probationary status.
(Vol. II, P. 59-60).
—xxvii—
[APPENDIX1
the terminations of the appellants became official. Mr. Joel
Carson, a board member who was a lawyer, objected
strongly to the actions taken. He pointed out that the mem-
bers accused of being “divisive” were merely seeking to ex-
ercise their right to disagree.”
(At that meeting Carter was severely criticized by board
member Carson for the former's failure to take effective
measures to improve the conditions at the school.)
The most significant testimony bearing on the issue
before us as to whether these plaintiffs were fired for exer-
cise of First Amendment Rights is the testimony of Presi-
dent Carter himself. He admitted that he had not tried to
bridge the gap between himself and the dissenting faculty
members. His position was that since the dissidents had not
shown him “any signs of warmth,” he was justified in not
wanting to talk with them or to discuss possible solutions
to the problem.
THE TESTIMONY ON CROSS-EXAMINATION
President Carter throughout his testimony character-
ized the individual plaintiffs as being “divisive” and ex-
plained what he meant by the term “divisive.”
2 He added:
Has it ever occurred to you, Dr. Carter, that what these people
whom you recommended for firing are saying . . . is “Give us some
direction; give us some sense of direction, and if we disagree with
you, we will cell you and we will see if between us we can modify
it for the greater good of the college.”
(Vol. II, P. 91).
Another member of the Board stated at an earlier meeting of the
Regents:
I would like to get up and walk out and resign off the Buard.
Why people . . . will come in here and lie and <ell this Board old
so-and-so said this and old so-and-so said that. And who are we
to judge? That's ridiculous. I would hate to teach where that was
imposed on me. You couldn't say what you wanted to. What's
happened to free speech?
(Vol. Il, P. 170).
— —s —— =e —
Se On COIN RE TN CLE ERD BEI ES es 8 ASI Bo A A POA
—XxVili—
[APPENDIX]
Carter considered Dean Ledgerwood “divisive” becaus2
on one occasion the Dean defended another faculty mem-
ber’s right to criticize the administration.
He considered the appellant Rapplean “divisive” be-
cause he characterized Carter as being ‘“‘a three time loser”
following Carter’s having been outvoted by the majority
of the students, in three ccntroversial campus issues.
Appellant Maness was “divisive” in the mind of Presi-
dent Carter because he had told Dr. Feree that the latter
could not communicate.
Wimbish was “divisive” because he spent too much
time during the final two weeks of the semester talking to
students in the dining hall. Carter said that if Wimbish had
not spent “hour after hour talking with students” he would
have been rehired.
Carter admitted that he found Cherrington “divisive”
because he allegedly criticized a chapel speech of Carter’s
in the course of a class discussion. But this information
came to Carter second-hand through a student whom Car-
ter refused to identify. There was testimony from a student
who had been in Cherrington’s class on the day of the al-
leged incident to the effect that Cherrington had not criti-
cized Carter at all but, rather, had led a class discussion
concerning the advantages and disadvantages of a liberal
arts education.
Carter testified that appellant Bolton was “divisive”
because he had sought clarification as to the scope of his
duties as director of personnel.
His appraisal of appellant Ingrid Poole was that she
was “divisive” because “We live in different worlds; we
live in different atmospheres; we have different philoso-
phies.”
Carter also explained that he found the appellants
uncooperative and “divisive” as a result of their failure to
_
——— SSSR CPOE SLD S DLR IIE
—xxix—
‘ [APPENDIX]
join certain associations such as the Oklahoma Educational
Association and the Oklahoma Higher Educational Alumni
Counsel.
There is evidence to establish that Carter considered
that the group as a whole was “divisive” because they asso-
ciated together. This is particularly true with respect to
Dr. Ward, the single individual who was not rehired on the
basis that he participated in the controversial press con-
ference.*
There is attached hereto as an appendix to the opinion
‘a more detailed account of Carter’s testimony. The only
inference to be drawn from a reading of this testimony is
that Dr. Carter demanded absolute loyalty, required faculty
members to come in and visit with him, prohibited their
discussing problems of the college among themselves and
prohibited their having informal discussions with students,
for if they did any of these things they were considered by
Carter to be “divisive.” One has to conclude that his con-
cept of being “divisive” was based on a person’s failure to
agree with him or relate to him. If there had been no dis-
play of “divisiveness” he was prone to say that the indi-
vidual faculty members lived in a different world or that
their philosophies were fundamentally different from his.
All this shows that the plaintiffs were fired for having
failed to refrain from associating with their colleagues and
for having failed to associate with President Carter. Thus,
we conclude that, in exercising their right to freely asso-
ciate with others and to criticize the administration of the
* On this Carter said:
Dr. Ward made his choice along with the other thirteen and we
had hoped we could save him. We had hoped that we could keep
him with us and we had recommended him (for reemploymen:
. and when he determined that he did not want to have any
part of us, that he wanted, went along with the dissidents. whv
then I said, if that is his choice, it suits me all right.
(Vol. Ill, P. 272-273).
ARS a Pe RO ONT Ht Oo GR PTS
—XXX—
(APPENDIX)
school (notwithstanding that such criticism was justifiable)
and in refusing to submit to the exercise of control over
them, the plaintiffs were fired.
THE TRIAL COURT'S FINDINGS
The trial court adopted the conclusion of President
Carter that the plaintiffs were “divisive” and that this was
the cause of the conflict and the firings. The court men-
tioned in its oral findings that the plaintiffs might have been
responsible for the college’s having been put on probation.‘
He mentioned that “There is something wrong in the insti-
tution and it is necessary to find out what was wrong in the
institution.” He went on to say “It is the Defendants’ views
that one of the things, if not the principal thing, wrong with
the institution was the lack of cooperation of the Plaintiffs.
The hostility of the Piaintiffs towards the administration.
The divisiveness within the faculty attributed by the De-
fendants to the Plaintiffs.”
There is a lack of evidence to support this observation.
The report of the North-Central Association, an impartial
source, did not attribute the problems to the plaintiffs. It
did mention dissension within the faculty and a lack of
communication between faculty and staff, but it did not
identify the plaintiffs with it.
Nor did Chancellor Klotsche of the University of Wis-
consin at Milwaukee attribute the trouble to the plaintiffs.
He found fundamental administrative difficulties. In fact,
the Klotsche report actually placed blame on the admin-
istration for its failure to take steps to solve the problems
which an earlier report had pointed out.
The trial court’s findings ignore the most important
testimony in the case, that of Dr. Carter, which is appended
hereto and which, on its face, reveals that the problem was
largely with the attitudes and actions of Carter himself.
+ This was speculation. It was not borne out by the evidence.
Senger SRL wear ante
—xxxi— :
, (APPENDIX)
Bearing in mind that the thrust of the court’s ruling
in favor of the defendants is that the’ plaintiffs were “di-
visive” and thus not in agreement with the administration,
the question is whether the court's findings or conclusion
that the plaintiffs were “divisive” are to be sustained in
the light of the explanations’ given by Dr. Carter as to what
he meant by “divisiveness.”
SUMMARY OF APPLICABLE LAW
The First Amendment guarantees freedom of expres-
sion in a wide variety of relationships and conditions. But
a fundamental area in which this constitutional freedom is
recognized is in the right of association. Some of the nu-
merous cases recognizing this are collected in Healy v. ,
James, 408 U.S. 169, 181, 92 S.Ct. 2338;.2346 (1972). In that
case the Court said: i
Among the rights protected by the First Amend-
ment is the right of individua!s to associate to further
their personal beliefs. While the freedom of association
is not explicitly set out in the Amendment, it has long
been held to be implicit in the freedoms of speech,
assembly, and petition. See, e.g., Baird v. State Bar of
Arizona, 401 U.S. 1, 6, 91 S.Ct. 702, 705, 27 L.Ed.2d 639
(1971); NAACP v. Button, 371 U.S. 415, 430, 83 S.Ct.
328, 336, 9 L.Ed.2d 405 (1963); Louisiana ex rel. Gre-
million v. NAACP, 366 U.S. 293, 296, 81 S.Ct. 1333,
1335, 6 L.Ed.2d 301 (1961); NAACP v. Alabama ex rel.
Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488
(1958). ’
Apparently the only factor counterbalancing this right
is prevention of disruption. See Pickering v. Board of Edu-
cation, 391 U.S. 563, 88 S.Ct. 1731 (1968).
In Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247,
251 (1960), the Supreme Court noted the sensitiveness of ©
the academic community and the importance of upholding
—xxxii—
[APPENDIX] -
the rights of freedom of expression in this atmosphere. In
that case the court said: “... the vigilant protection of con-
stitutional freedoms is nowhere more vital than in the com-
munity of American schools.”
Also, in Keyishian v. Board of Regents, 385 U.S. 589.
604, 87 S.Ct. 675, 684 (1967), the right as it exists in the
school setting was discussed. It was there, pointed out that
the school is a marketplace for exchange of ideas in Amer-
ican society and that the limitations on free speech can
chill this free exchange. The Court said at p. 604:
When one must guess what conduct or utterance may
lose him his position, one necessarily will “steer far
wider of the unlawful zone * * *.” Speiser v. Randall,
357 U.S. 513, 526, 78 S.Ct. 1332, 1842, 2 L.Ed.2d 1460.
For “[t]he threat of sanctions may deter * * * almost
as potently as the actual application of sanctions.”
N.A.A.C.P. v. Button, supra, 371 U.S. at 433, 83 S.Ct.,
at 338.
Thus, present and future oe of expression as well as
prior freedom is protected.
There is some authority that limits criticism. See, for
example, Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972),
cert. denied, 411 U.S. 972 (1973). There the instructor was
guilty of frequent criticisms and belittling of other staff
members. He was engaged in frequent disputes with his
superiors over course content and counseling. It was not
surprising that the Seventh Circuit refused to protect these
excesses. Nothing like these instances are present here. The
evidence in our case does not establish that plaintiffs as a
group or individually were troublemakers.
Our case is indistinguishabie on its facts from Smith v.
Losee, 485 F.2d 334 (10th Cir. 1973), wherein we held that
a faculty member’s rights had been violated when his con-
tract was not renewed because of his anti-administration
attitude and his outspoken criticism of and negative atti-
tude toward the administration. See 485 F.2d at 339.
lena penne eager
—xxxiii—
[APPENDIX}
In Pickering, supra, the Supreme Court recognized the
importance of allowing a teacher to speak out freely on
matters of public concern without fear of retaliatory dis-
missal. The Court held that the review standard calls for
a balancing of the teacher's interests in commenting on
controversial issues against the state’s interests in promot-
ing the efficient operation of the Service it performs for the
public. The Court held that the teacher's right to express
his criticism of the administration Was paramount, noting
that the relationship between the school board and the
teacher was not one which called for personal loyalty and
confidence.
Perry v. Sindermann, 408 USS. 593, 92 S.Ct. 2694
(1972), which followed Pickering, is a case in which the
Supreme Court condemned the action of the cellege in not
renewing the plaintiff’s contract on account of his public
criticism of the policies of the administration even though
the plaintiff did not have tenure. The Court said that his
allegations presented a bona fide constitutional claim.
Tinker v. Des Moines Independent Community Schoo}
District, 383 U.S. 503, 89 S.Ct. 733 (1969) recognized the
breadth of the right here involved, holding that it extended
to the wearing of black arm bands.
At bar the appellants have made a very substantial
showing that they were exercising First Amendment rights,
and the record fails to disclose that their activities were in
any way excessive or unduly burdensome to the school.
In the last analysis, it was the plaintiffs-appellants’
refusal to conform to President Carter’s patterns and molds,
all of which were personal and subjective on his part, which
was the cause of their being fired. Surely the right to be
free from this kind of personality contro! is a constitution-
ally protected right under the First Amendment since it is
a species of expression. One had to become a person who
was in his image and likeness if he or she wished to serve
—xxxiv—
[APPENDIX]
as a member of the faculty at OCLA. By his own testimony
Carter is shown to have been jealous of his power and in-
secure in his position as well as unable to tolerate any dis-
sent, criticism or disagreement, all of which he called
“divisiveness.” Yet there is no evidence that the appellants
constituted any threat to the cperation of the college—to
Carter personally, perhaps, but not the college.
The evidence supported the view that the appellants’
classes were well regarded by the students. Consider, for
example, the classes of appellant Holt about whom Carter
stated “He would not and could not do his job” and he
“didn’t fit into the atmosphere of the college at all.” At the
same time, the students voted him the outstanding teacher
of the year in 1969 and requested that he be the commence-
ment speaker that year.
While a college president is entitled to respect and
authority within his sphere, this does not extend to the
exercise of absolute control over the associations and ex-
pressions of the faculty members. Whether they demon-
strate loyalty to him personally, whether tley relate to him
personally and whether they have a similar philosophy is
not, as we view it, a requisite and he cannot demand such
attitudes at the expense of the individual rights of the fac-
ulty members and there can be little question but that such
cemands infringe the rights of the faculty members to ex-
press legitimate views in the course of formulating ideas
in an academic atmosphere. There is not the slightest sug-
gestion in the evidence that the plaintiffs in exercising their
rights constituted any threat to the valid authority of Pres-
ident Carter in the conduct of his duties. Nor does it appear
that these plaintiffs were in a relationship with Dr. Carter
which required personal loyalty or devotion. Cf. Pickering
v. Board of Education, 391 U.S. 563, 574 (1968).°
> The Supreme Court said in part:
This Court has also indicated, in more goncral terms, that state-
ments by public officials on matters of public concern must be
—xxxv—
CAPPENDIX}
Finally, the trial court's determinations have ignored
Dr. Carter’s explanations as to his concepts of “divisive-
ness.” These explanations were frivolous. Nor can the
court’s finding that Dr. Carter had correctly appraised the
general attitudes of the plaintiffs furnish any legal basis for
a finding of “divisiveness” or antagonism. Also, the trial
court’s emphasis on the press conference and its ignoring
or putting to one side the stifling of their expressions was
unjustified. The judgment of the court based upon these
findings must be considered out of harmony with the evi-
dence and clearly erroneous.
Since, therefore, the First Amendment rights of the
plaintiffs, as enunciated in such decisions of the Supreme
Court as Sinderman® and Pickering, supra, were violated
by terminating plaintiffs on account of disapproved associa-
tions, or disapproval of statements made, or on account of
President Carter’s disagreement with plaintiffs’ philoso-
phies, or his belief that plaintiffs lived in a different world
from his, the judgment of the district court must be re-
versed and the cause must be remanded for further pro-
ceedings consistent with the views expressed herein.
—
& (Continued)
accorded First Amendment Protection despite the fact that the
Statements are directed at their nominal superiors. * * *
© The Supreme Court there said:
It [the government} may not deny a benefit to a person on a basis
that infringes his constitutionally protected interests—especially,
his interest in freedom of speech. For if the government could
deny a benefit to a person because of his constiruri protected
speech or associations, his exercise of those freedoms would in
effect be penalized and inhibited. This would allow the govern.
ment to “produce a result which {it} could not command directly.”
Speiser v. Randall, 357 US. 513, 526, 78 S.Ct. 1332, 1342, 2 LEd.
2d 1460. Such interference with Constitutional rights is imper-
missible.
408 US. 593, at 597.
—xXXxvVi—
[APPENDIX}
APPENDIX “D”
APPENDIX—SUMMARY OF THE TESTIMONY OF
DR. CARTER
I.
INTRODUCTION
Dr. Carter’s testimony consists mostly of generaliza-
tions and internal contradictions, most of which emerges as
inconsequential, leaving the reader with the impression that
he had no substantial reason for the firings. Carter does
clearly acknowledge that the persons in question were not
dismissed for financial or budgetary reasons. (R. 409). Nor
were they dismissed because of their academic or profes-
sional qualifications or achievements, since Carter acknowl-
edges that most of the plaintiffs were “excellent teachers;”
(R. 376) that in response to cross-examination about one
teacher, Carter stated he didn’t “question his ability or
talents” (R. 366); and in regard to questioning about a
different teacher, he displayed a iack of awareness about
the teacher’s specific achievements, and acknowledged that
he had not looked at the teacher’s personnel file before
reaching a decision to recommend his dismissal. (365). The
absence of any other discussion about professional abilities
in the record clearly indicated that this factor was not a
reason for the dismissals of the plaintiffs.
Il.
Dr. Carter prefaced his testimony concerning the rea-
son for dismissal of the fourteen plaintiffs by stating:
“Well, I had been employed as President of the college by
the Board of Regents to go into a sick college, to go into a
situation that was devisive, that was very bad, very critical,
a powder keg...” (R. 269-70). When asked to give his
reason for dismissal of the plaintiffs, he stated: “I could
answer that in one word really and that is devisiveness.”
(R. 270). In keeping with this position, Dr. Carter refers
edbded.
—Xxxxvii—
C[APPENDIX}
frequently in his testimony to the dismissed plaintiffs as
the “dissidents.”
Dr. Carter elaborated on this concept of “divisiveness”
at several points during his testimony. Referring to the
five-week and ten-week summer teaching assignment lists,
he stated: “We had determined that those who were de-
visive, those who would not cooperate, those who would
not work with us, that we would not employ them during
the ten weeks period of time.” (R. 277). He later stated:
“I have been studying all year as to the ones that I felt we
could live with and build a college with and during the
course of the year, we had discussed, Dr. Feree and I had
discussed certain ones and we had mutually arrived at a
decision on some of them that we could not depend on.
They were devisive.” (R. 287). (Other parts of the record
reflect, however, that Carter made his decisions about who
to eliminate quite early in the year.) He referred to “about
half” of the teachers as having “very bad” attitudes (R.
292), and further stated: “.. . you go over them months
and months and months and you live with them and you
see their attitude and their atmosphere and their climate
around which they build and surround themselves...” (R.
294). In explaining why he never called any of the “dissi-
dents” in to discuss their grievances, Carter stated: “I
thought about doing it many times. I kept thinking, and by
the way, a number of the faculty members did come in and,
that are not among this group, and little by little, why
they came in and visited with me and talked with me and
said, what can we do to help and what can we do to co-
operate.
“And so, these individuals did not, and there was hos-
tility in every action and every movement and criticism in
classes and working with students and the students in turn
would reflect their answers.” (R. 354).
Il.
Despite these broad generalizations about the dis-
missed group as a whole, Dr. Carter often found it impos-
—Xxxviii—
[APPENDIX}
sible to specify what this “divisiveness” consisted of in
individual cases or examples. He would either mouth more
generalizations, give instances which appeared to repre-
sent misunderstanding or personality defects on his own
part, or most importantly, refer to situations where he chose
to condemn or categorize a teacher because of exercise of
speech, or associating with someone who spoke out on an
issue. A list of references which Carter made concerning
various teachers and staff members who were dismissed
will illustrate this better than comment:
A. Rampey—‘“Mr. Rampey was one of those who never
entered my office. He never made any effort in the world to
go along with me or to cooperate or to work with me in
any way. So, he was one of the early ones that I figured
was devisive and was working against the administration.”
(R. 292).
“Mr. Rampey was the one that made the talk and said,
you cannot communicate. And Dr. Feree had met with this
particular group, why, he is the one that spoke out and
said, why you can’t even communicate.” (R. 354).
“General attitude, general feeling of hostility.”
Q. How was that general attitude and hostility expressed?
“Well, that would be difficult to say.” (R. 354-55).
B. Dr. Ledgerwood—(Academic Dean)—In response
to a question as to when he had decided to terminate the
Dean, “Yes sir, that was pretty early.”
Q. How early?
A. As soon as I found out that too many leaks, too much
association with the dissidents.”
Q. Who are the dissidents, or who were the dissidents?
A. “I read the list of them that I feit like, the earlier ones
that I had felt like that we would have to get along without
if we were going to build a college.”
—xxxix—
[APPENDIX]
Q. He was associating then with Rampey, Poole, Cher-
rington, Richardson and Tanton?
A. “Yes, sir.”
Q. I assume he was also associating with other people on
the faculty. Is that not true?
A. “It wasn’t just a question of his association with them.
I lost my confidence in him earlier. . .” (But Carter does
not give further explanation at this point as to why he “lost
confidence” in Ledgerwood.) (R. 307-08).
“Dr. Ledgerwood had been my friend for a long time
and we had known each other and I think I made a recom-
mendation to him when he got his job. And I needed help,
I needed it, because this whole situation was volatile. It
was very bad to begin with and there were many many
occasions when Dr. Ledgerwood could have helped me
when I felt like he didn’t. And I talked to him as the dean
of the college, as soon as Mr. Cherrington had been critical
of what I had said in an assembly and I talked with Mr.
Ledgerwood and this was early in my administration. And
I asked him what he thought about it and he said, well, he
thought it was all right, or words to that effect. He didn’t,
he felt like maybe that Mr. Cherrington had a right to be
critical of me in the class before his group...” (R. 355).
“. ..and I noticed that his committees would be selec-
tive. We appointed one or two committees and I asked him
to appoint the committees and I felt like the students he
appointed on the committees were hostile students, as far
as I was concerned. . .” (R. 355-56).
“Well, as I said, there were many times during the
course of the year when I felt like he could have assisted
me and helped me when he did not do this.”
Q. And you consider that devisive?
A. “Yes, sir.” (R. 356).
OOD PRN LF DLT IE EOS nal Ss OT cl IIIB PEN
—
LAPPENDIX]
C. Cherrington—“. . . the first meeting, for instance,
that Mr. Cherrington had with his class after my assembly
that he ran me down considerably and had his students
vote on me and was totally uncocperative the first weeks
I was there.”
Q. Did you hear that personally?
A. “No, sir, I did not. But several students came to me
about it. No, I did not, I was not in the class.”
Q. Did you confront Mr. Cherrington with it?
A. “I talked to Gene. I talked to the Dean of the college
about it and I told him that I felt like that it was not the
place of the teacher to criticize the president of the college
and to disagree, publicly, in his classes with what I had
said in the chapel assembly that particular morning. I did
not talk to Mr. Cherrington, but I did talk to Dr. Ledger-
wood.” (R. 288-89).
(Dr. Carter could not identify who the students were who
had informed him about this incident which allegedly oc-
curred.) (R. 388)
D. Wimbish—“Well, I had hoped to reemploy Mr.
Wimbish and had intended to until two weeks before, on,
seems to me like he was cooperating reasonably well and
had gone along fine and then the last few weeks he spent
all his time talking with students and I thought, stirring up
trouble. So, he was one of the very latest ones that I made
my mind up on.”
Q. Dr. Carter, you are using the expression, he was talk-
ing with students, and I—do you have an opinion that every
time a faculty member talks to students he is stirring up
trouble?
A. “Oh, no, no, no.”
Q. What do you mean?
—xli—
[APPENDIX)
A. “Well, he was spending his time in the dining room
talking to students, talking to them to get them to go along
with the dissidents.”
Q. How do you know he was doing that?
A. “Well, I listened to one or two students that heard
him, what he was talking about and according to them, and
working with them and then the director of the dining hall
Services gave a report on the fact that he was over there.
hour after hour, day after day.” (R. 314-15).
“, .. as I said, up until two weeks before I had hoped to re-
employ Mr. Wimbish, for instance, but he spent that last
two weeks over in the dining hall, hour after hour after
hour talking with students and working with students. . .”
(R. 295).
E. Poole—“I had earlier decided that we could not
build a college around Mrs. Poole.”
Q. When did you decide that?
A. “Oh, probably by Christmas.” (R. 308).
Q. How about Ingrid Poole, how was she devisive?
A. “Well, Mrs. Poole came to my office three times. I can
say that she did that.”
Q. In other words, she did attempt to communicate with
you?
A. “That is right, that is right.”
Q. All right, sir.
A. “and I would probably Say that it was a matter of, we
live in different worlds. We live in different atmospheres.
Different philosophies.”
Q. Any other way she was devisive?
MEN ESARES 6 eT arhes CE W LER NOE ORE DY ET Tet NE IE I PAAR AS A Lae Ks SENT, Ts Aa SES UN
—xlii—
[APPENDIX]
A. “Well, it is pretty difficult to bring in students and to
discuss student situations that you know are happening and
yet you can’t prove a situation like this.”
Q. You know it, but you can’t prove it?
A. “Well, you know it in your heart and mind and soul,
but then you would have difficulty proving it, yes, sir, that
is true.” (R. 357-58).
F. Holt—Q. How was he [Holt] devisive?
A. “These are very personal matters.”
Q. Well, I am not asking about personal matters. I am
asking about how he was devisive.
A. “He didn’t fit into the atmosphere of the college at all,
according to my way of thinking as president of the college
and my duties and responsibilities of the college, to protect
it, and to recommend the people that I think you can build
a college upon.” (R. 363-64).
G. Maness—Q. With respect to Mr. Maness, when had
you decided on him?
“Well, reasonably early.”
When?
“Oh, say by Christmas.”
a
Earlier?
A. “When you’re in the process of making your mind up,
you have got all year. So, you don’t come up with a definite
particular time, but he had proven that he was not going to
cooperate and work with us.”
Q. Devisive?
A. “I beg your pardon?”
Q. Devisive?
A. “Yes, sir.” (R. 312).
—xliii—
C[APPEND!IX}
“. . . We had a resignation, I believe Mr. Maness and
Dean Ledgerwood appointed Mr. Bolton to fill this particu-
lar place in the corps curriculum program and I was presi-
dent of the college and he never discussed it with me or
never said a word to me about it at all, so as far as I am
concerned the two of them got together and decided that
Mr. Bolton would be appointed and I wasn’t even notified
about it or didn’t even know about it until a week after it
happened.”
Q. When you did find gut about it. did you rescind it?
A. “No, sir.” (R. 360).
Q. ... With respect to Mr. Maness, how was he aevisive?
A. “Well, I mentioned a little bit ago that he was the one
who said to Dr. Feree, that_you cannot communicate.”
Q. Any other way?
A. “General attitude, hostility.”
* * *
“I really don’t question his ability or talents. It is a ques-
tion of his hostility and general attitude.” (R. 365-66).
H. Rapplean—“. . . his spirit of cooperation was not
good and so, we decided we wtuld get along without him.”
(R. 313).
(At page 366-67 of the Record, Dr. Carter goes through
a long discussion about three different policy issues upon
which he had taken one position which had turned out to
be embarrissing. One issue involved the use of a particular
college seal which created an uproar among the faculty and
students. The two other issues, involving pay to student
council members and a proposal for election of officers in
each student class, were defeated after Carter submitted
them to votes by the student body)... .. And so, Mr. Rap-
plean said, well, he lost three times. I wonder when he is
—xliv—
(APPENDIX)
ever going to learn anything. So, that was his general atti-
tude.” (R. 367).
I. Richardson—“I didn’t come in contact too much
with Mr. Richardson in the course of the year. I would say
it is just a general attitude of hostility and a feeling that
I have no overt action as far as he was concerned. But then
there was just a genera! lack of communication and no
rapport.” (R. 368).
J. Tanton—Q. How was he devisive?
A. “Oh, almost every action, everything he said or did.”
Q. Such as?
A. “It would be a little bit hard to pinpoint any ‘me par-
ticular idea, but you felt his hostility and his uncooperative
attitude very very definitely.” (R. 369).
K. Bolton—“Weli, I felt like that Mr. Bolton, several
times, was pretty definitely devisive, sir. He was one who
was complaining always about not knowing his job and not
knowing what he ought to do and he talked to me some-
times about this and sometimes a good many times to Dr.
Feree about it and I know we even gave him a North Cen-
tral Report that had been approved showing that this is
what a personnel director would do, or should do, and he
would say, well, what do you want me to do, and I talked
to him one time and I said, well, you have been here, you
have been personnel director. Go ahead and do what you
have been doing.”
Q. Well, he was one of those people you had not made up
your mind on before March 31st isn’t he?
A. “A great deal of this time, Mr. Bolton, to begin with,
the early months we talked and worked together, and got
along reasonably well.”
Q. Well, so then he did come in and he did talk to you
about his problems and what you expected.
—xlv— é
' [APPENDIX)
A, “Well, to, but then, as time went on, why you could
very definitely feel he was getting away without any par-
ticular question at all and one thing I want to—that I do
recall here in question with Mr. Bolton, and Dean Ledger-
wood both, and this is just one of the other examples.”
(Herein follows Carter’s account of Bolton’s advancement
without Carter’s knowledge to a position in the core experi-
mental program. This account is found above under the |
criticisms of Mr. Maness.)
* * *
Q. Well, now you're familiar with, Mr. Bolton’s career at
O.C.L.A., were you not? I mean, he had been there for four
years. |
A. “I didn’t know how long he had been there but ‘as I
said, the further we went the further he got away. In the
first place, we would ask him, we did specifically ask him
to see one or two students. He said no, the student has got
to come to see me in place of me going to see the student. |
And so, we would ask him to look’ into situations and he
would say, I am not going to do that, they are going to have
to come to me,”
Q. Excuse me, I thought these people wete discharged
because they were devisive. Now are you telling me this is
devisive or just poor administration?
A. “That is lack of cooperation, sir.” (R. 359-61).
L. Ward—Q. All right. When was Mr. Ward’s name:
stricken through? /
/
A. “Mr. Ward’s name was stricken through on the morn-
ing that we had the board meeting.”
Q. Who did this?
A. “TI did it. The fact of the matter is, I almost forgot it.”
Q. What was your reason for that, Dr. Carter?
—xlvi—
[APPENDIX]
A. “Every man, every man makes his pawn whiter he
smokes or doesn’t smoke, whether he drinks or doesn’t
drink. The choice of a wife, the choice of a job and Dr.
Ward made his choice along with the: other thirteen and
we had hoped we could save him. We had hoped that we
could keep him with us and we had recommended him
along with the others that had been’ recommended and
when he determined that he did not want to have any part
of us, that he wanted, went along with the dissidents, why
then I said, if that is his choice, suits me all right.” (R.
272-73).
_ Q. All right. Dr. Carter, I will ask you to advise the Court
to, the extent to which, if any, the press conference’s state-
ment had on your recommendation to the Bonne on the 26th
of April?
A. “Well, I would say with the exception of Dr. Ward,
absolutely none.” (R. 282).
QQ. My question is, do I understand that by April 23rd or
I am sorry, April 22nd, that is Sunday afternoon, 1973, you
had decided against recommending any of the fourteen
Plaintiffs for reemployment with the exception of David
Ward?
‘A. “Any of the thirteen, yes, sir, or the fourteen, with the
exception of David Ward, yes.”
Q. And do I further understand that your testimony is
today that you had decided to reemploy Dr. Ward, but be-
cause he participated with the other thirteen in the press
conference, you struck his name on’ Monday ‘morning?
, A. “No, sir, no, sir, I did not say that at all.”
Q. What did you, say? What did you mean?
A. “I said that each man chose his wife; his job, his occu-
pation, whether he smokes or drinks and he chose to decide
what group he would live with and he chose the dissidents
‘ ' |
!
‘
—xlvii—
[APPENDI
in rather than choosing those who would cooperate and
work with me.”
Q. How did he do that, or let me put it this way. What
did he do between Sunday, April 22nd, 1973, and the morn-
ing of April 26th when you struck his name other than the
appearance at the public press conference?
A. “He proved by doing this that he had chosen the dis-
sidents to live with rather than the, to cooperate with me
and with the rest of the school.”
Q. When you say he chose to do this, you mean he chose
to be with them and to put his name on the statement that
they read. Is that what you mean?
The Court: He has answered your question.
A. Probably so, probably so. He chose, he chose his way
of life. He chose what he wanted to do. He chose which
way he wanted to go.”
Q. Is there any other thing he did during that period of
time other than that?
A. “I am sure that, I would say no.” (R. 290-92).
Questioning by the Court:
Q. My question is, did you line him [Ward] out because
of the press conference?
A. “TI lined him out, as I said, I did not see nor hear the
press conference. I did read about it and he made his choice
and his choice was to go with this particular group, Judge,
and because he had made his choice I made my choice.”
Q. Well, my question is, did you line him out because he
participated in the press conference?
A. “I would probably have to say that I probably did. Not
because of anything that he said or done, but then he was
with the group.”
—xIviii
[APPENDIX]
Q. Well, this could make a difference. You can’t fail to
renew an instructor’s contract if it is based on first amend-
ment conduct.
A. “Judge, that didn’t enter into it as far as I was con-
cerned, at all. We had worked with him off and on all year
and it was a matter of whether or not he was going to co-
operate with me or with the dissidents. Divided group.
And when he placed himself in his own category, why he
determined his choice and if he ever said a word in the
speech deal or anything about it, I don’t know anything
about it. I really don’t.” (R. 411-12).
IV.
As illustrated by the above testimonial examples, Dr.
Carter had a good deal of difficulty in providing specifics
as to why the individual plaintiffs were “divisive” in his
eyes. This difficulty stemmed in large part from Carter’s
tendency to think of the plaintiffs as a group rather than
as individuals. Carter’s assessment of the college’s teachers
and staff, his “grading” of them as he frequently referred
to it (R. 270, 294-95), seemed to stem from an assumption
that there were two polarized camps at the college, those
that were “for” him personally, and those that were against
him. He appears to have begun his job as president with
this assumption rooted in his thinking, or to have reached
it quite early in the year:
“T had two faculty meetings. One in the summer and
one in the fall and in the fall faculty meeting I had
high hopes of pulling the faculty together. I did go in
there with a statement and so help me, and I am under
oath, as with the fact that I could weld the faculty to-
gether and that we could work together and I asked
them to cooperaie and pull together, to work together.
I asked them to pray about it. I asked them as Oral
Roberts would say, to, let’s have a miracle happen on
this campus and one of the very first things that hap-
pens, which proves to me this whole set up is pri-
—xlix—
[APPENDIX}
marily these thirteen or fourteen people, is, there is a
conspiracy or was a conspiracy. (Emphasis added.) I
pleaded with these people and they will tell you so,
in fact, one individual said that I threatened them
even. I pleaded with them to join the Oklahoma
Educational Association and the Higher Educational
Alumni Council. There are two organizations that ben-
efit higher education a tremendous lot in Oklahoma.
And almost to a man, and I have this information over
here if you need it. Almost to an individual, why this
group said, no, we will not have any part of O.E.A. or
Higher Education either one. And this was an indica-
tion earlier that to begin with, that they did not intend
to cooperate and would not cooperate.”
Q. And that was a factor in their devisiveness
which was a factor in your detemination to, in your
decision to terminate them?
A. “During the course of the year, this was added
to many, many times.”
Q. But it was a fact?
A. “Oh, yes, yes.” (R. 292-94).
Having determined in his own mind that there was a
core group of “dissidents” on campus which he could not
“build a college around,” Carter's efforts seem to have been
directed to identifying members of the staff and faculty
whom he could lump in with the vaguely defined group of
“dissidents.” When directly questioned about this by the
Court, Carter had difficulty articulating his reasons or
methods of identifying members of the group:
The Court: I think you are getting off the question
now. I would appreciate it if you would tell us how
you identified this group. How you came to know that
you had eleven out of 55 who were devisive, and iden-
tify them. How did you do this? How did you learn
me
[APPENDIX]
this? And then when you say that they were devisive,
on what do you make this statement? .. .
A. “Well, as I said, we, I asked Dr. Feree to meet
with the faculty group with this corps program group
and he did meet with them, or tried to meet with them -
and one of the members spoke up and after he :ried
to get them to cooperate and work together, and he
said, you cannot communicate. . .”
“And another illustration, for instance, as I men-
tioned, one of the faculty members that was on the
stand yesterday said that we were great friends for
thirty years and yet I have been there eleven months
today and he has never been in my office. And most of
these people have never been in my office and have
never shown me any signs of warmth or nothing but
hostility. And they have not been in my office or not
talked to me except, we would meet in the hall. Now,
I did not feel I could call them in and talk to them and
single them out and say, now you have got to cooperate
with me. You have got to help me. You have got to go
along with the program. It looks to me like we would
have isolated them and put them in an embarrassing
position and they might have felt under coercion or
threats or intimidation if I had done that...” (R.
352-53).
(It should be noted that, rather than put the teachers
he referred to in an “embarrassing position,” he chose to
terminate their jobs.)
Yet despite Carter’s tendency to view the “divisive-
ness of individual plaintiffs in terms of hostility to him-
self, the record reveals a pattern of such categorization be-
cause of instances in which individuals exercised rights of
speech or expression, or associated with others who did.
Ward’s case seems the clearest, since he was undisputedly
dismissed because of his choice to publicly express his sym-
oe
[APPENDIX]
pathy with a group of teachers who would apparently
soon be recommended for dismissal. The “chilling effect” of
permitting his dismissal to stand is obvious, for the mes-
sage would otherwise be clear to any other remaining mem-
ber of the faculty or staff who might feel that the president
had made the wrong decision in a matter which was ob-
viously of vital concern to all persons associated with the
college. Any disagreement with the president on this issue,
or perhaps any cther issue in the future, might cost them
their jobs.
Wimbish’s dismissal aiso fits this pattern, since he was
not considered for dismissal until the last two weeks of
school, when Carter felt that Wimbish began spending too
much time talking to students in the dining hall. Carter
felt such discussion represented opposition to himself, even
though his knowledge of the content or subject of the dis-
cussion came to him only through hearsay rumor from a
few students he could not identify. Wimbish lost his job
as a consequence of these student discussions.
Cherrington’s situation also fits the pattern, since Car-
ter’s only criticism of Cherringtcn was that he “ran me
down considerably” in discussion with his students after
an assembly Carter had held. Once again, Carter’s only
knowledge of the substantive content of such criticism, if
it in fact took place, came to him through hearsay reports
of students he could not identify. This incident seems to
have formed Carter’s opinion of Cherrington and cost him
his job. Any other faculty member concerned for his job
would likely be reluctant to criticize the administration
before his students, or indeed to say anything which might
be interpreted and reported back to the administration as
criticism.
{APPENDIX]
APPENDIX “E”
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
W. LEROY RAMPEY, et al,
Plaintiffs-Appeliants,
)
)
)
)
Vv. )
)
WALT ALLEN, et al, )
)
)
Defendants-Appellees.
EN BANC.
SETH, Circuit Judge, with whom LEWIS, Chief Judge and
BARRETT, Circuit Judge, join, dissenting:
I must respectfully dissent from the opinion and the
position taken by the majority. Certain statements made in
the majority opinion must be examined to demonstrate how
the conclusions therein are reached to reverse the trial
court, and the evidence upon which they are based. Some
of these statements must be quoted; for example, the ma-
jority says:
“In the last analysis, it was the plaintiffs-appellants’
refusal to conform to President Carter’s patterns and
molds, all of which were personal subjective on his
part, which was the cause of their being fired.”
The record clearly leads to such a conclusion as to the
cause, although the majority points to no specific incidents
cr criticism, no specific exercise of free speech, just the
characterization of the attitudes of the two groups, the tone
and tenor of the opposition, and the quotation above. This,
again, is really all the record shows, but this is not helpful
? “% ¥4 ene oe ~
tit Oe e
— =
[APPENDIX}
to a solution of the problem before us on constitutional
grounds.
The majority continues:
“Surely the right to be free from this kind of per-
sonality control is a constitutionally protected right
under the First Amendment since it is a species of ex-
pression. One had to become a person who was in his
image and likeness if he or she wished to sr ve as a
member of the faculty at OCLA.”
Thus freedom from “personality control,” this iast
analysis of the cause, is described as a constitutional right.
This is where I must depart from the majority because this
is a confusion of First Amendment rights with the classical
reasons advanced for teacher tenure. The majority is substi-
tuting tenure reasons for a constitutional right. This is in-
novative and would perhaps serve a worthwhile purpose. It
could serve as a protection against terminations based on
“inability to conform to the image of the president” of the
school, for being a “threat to the power of the president,”
and for “being in disagreement with a president who does
not tolerate disagreement,” or for “not conforming to the
president’s patterns and molds.” This type of protection
from “personality control” has a great deal to recommend
it, and it would appear that the various state tenure laws
have something like this in view. Thus perhaps we should
subscribe to such a concept, but I am unable to fit it into
the protections afforded by the First Amendment to the
Constitution and thus must dissent.
The majority position is centered upon the testimony
of the president of the school. The majority expressly
points to that part of his testimony upon which its opinion
is based. This statement in a separate paragraph is clear,
and sums up the position. The opinion states:
“The most significant testimony bearing on the issue
before us as to whether these plaintiffs were fired for
Perce mes ar
—liv—
[APPENDIX]
exercise of First Amendment rights is the testimony of
President Carter himse!f. He admitted that he had not
tried to bridge the gap between himself and the dis-
senting faculty members. His position was that since
the dissidents had not shown him ‘any signs of
warmth,’ he was justified in not wanting to talk with
them or to discuss possible solutions to the problem.”
This is followed by references by the college president to
the divisiveness of the plaintiffs.
The “most significant testimony” in the whole record
bearing on the First Amendment issue thus is the admis-
sion of President Carter that he had not tried to bridge the
gap between himself and the dissenting faculty members.
The need to “bridge the gap” was thus either the basic First
Amendment issue, or a failure to try to do so was a viola-
tion of plaintiffs’ constitutional rights. In any event, the
evidence on such a failure is described as the most signifi-
cant testimony bearing on the First Amendment issue. This
testimony, in fact, is the most significant on the issue; the
record so demonstrates, and the other evidence is less im-
portant. However, this evaluation should be instead con-
sidered as a commentary on the absence, or misdirection, of
the proof on constitutional issues rather than anything else.
Thus I must dissent from the position taken by the ma-
jority that this testimony can lead to any constitutional
conclusion. It can, of course, lead to nonconstitutional issue
conclusions. And again no one can really take exception to
a criticism for a failure to negotiate, if this is what is re-
ferred to. If the president did not bridge the gap, perhaps
this was a serious failure as president, but this appears to be
more an evaluation of a matter of school administration, or
diplomacy, or common sense. In any event it is really some-
thing we do not have to decide. It is very @‘fficult to find in
it a constitutional issue or any issue which we should de-
cide. I am unable to do so.
—
[APPENDIX]
As above indicated, the majority points to no specific
incident of criticism (not considering the press conference,
which the majority has apparently excluded as a factor in
the case), and the record contains none. One incident is re-
ferred to by the majority, but of this the opinion says:
“Carter’s knowledge of this was based upon the hearsay
statement of an unnamed student.” Thus none are left. Also
the complaint alleges no facts relative to First Amendment
rights except the press conference. It is difficult, with such
a foundation in the proof and pleadings, to understand how
the majority can overturt. the findings of the trial court, or
to understand how the plaintiffs met their burden.
The majority says that the issue before us is whether
the record supports the findings of the trial court. The trial
court found:
“The Court finds and concludes as a factual matter
from all the evidence and circumstances presented in
this case, that the college president did not recommend
a failure. Did not recommend the non-renewal of the
contracts of the fourteen Plaintiffs as a reprisal for
their exercising their first amendment rights of free
speech, either by reason of the press conference or any-
thing uttered prior thereto.”
Also the court found:
“, .. But the point that I would make is that it is the
Board of Regents that made the decision and I am un-
able to agree with counsel for the Plaintiffs that this
Board of Regents or the five members thereof or the
whole board, for that matter, were unaware of these
things present.”
And the trial court said:
‘...- [Al]nd I am not at all sure that the press con-
ference wasn’t rigged for the purpose of thwarting
OD He OE LE age age. SEO DRT SEA re >
TTA
—lvi—
{[APPENDIX]
non-renewal of their employment contracts so they
could continue their activities.
“It just isn’t the law that you can manufacture a
first amendment right. If this was so, then all an in-
structor would have to do during a one year contract
would be to criticize the president. Then if his contract
was not renewed he would say this is because of this
criticism and you must renew it, because if you don’t,
you violate my constitutional rights because I criti-
cized you and because I criticized you, that has to be
the reason why you don’t renew. This is ridiculous on
its face, certainly it can’t be the law.
“As I have indicated, I have to make a decision as to
whether the underlying principle, basic substantial
reasons for non-renewal were because freedom of
speech was exercised or for other reasons. And I think
the other reasons are not only predominant, but I
think they were the basis of non-renewal to the ex-
clusion of any and all other reasons.”
The above findings are in accordance with the record
considering the standards for appellate review. The ma-
jority opinion really does not cemonstrate otherwise, but
instead has set up new First Amendment requirements and
has found that a failure to renew for “divisiveness” is a
constitutional violation. : : oa
wee
In our Smith v. Losee, 485 F.2d 334 (10th Cir.), the
trial court made findings of fact, which were supported by
the record, that the nonrenewals were for impermissible
reasons, and the issues were considered in that context.
Smith v. Losee is not comparable to this case.
It is obvious that the staff and teachers of the school
were divided into two factions, and the division was deep.
The effectiveness of the school had become impaired
whether as an effect or as a cause, but in any event there
—lvii—
[APPENDIX]
was disruption and the situation was serious. The Board of
Regents and others had decided the problem was caused by
the division, and the Board set about to solve it. The solu-
tion decided upon was the nonrenewal of plaintiffs’ con-
tracts. This was a drastic course, but the Board apparently
felt that drastic steps were necessary. This division or re-
lated problems were apparently determined to be suf-
ficiently serious and disruptive to necessitate the suspen-
sion of the tenure by the Board of Regents. \
The school was on probation as an institution ac-
credited by the North Central Accrediting Association,\and
by the group accrediting its department of education. The
school was also facing a decline in enrollment, and financial
difficulties. The former president had left because of the
problems. The North Central Association had sent a team
to examine the school before the president here involved
had come to the college. After he had been designated as,
president, the Association asked him and some of his staff
to meet with them in Chicago. This was done, and accord~
ing to the testimony of the president, they told him there:
“They simply said that you are deficient in about
seventeen or eighteen different areas. But the main
trouble, the big trouble at che college is devisiveness
within the faculty.”
It is thus apparent that the school at the time here
pertinent was in trouble. Seventeen deficiencies would be
enough. About the only thing which had not happened was
the imposition of NCAA sanctions.
With these fundamental problems to be met, the dis-
ruption and opposition by the anti-administration group
must be examined under the balancing required in Picker-
ing v. Board of Education, 391 U.S. 563, if there are any
constitutional issues raised by the proof, and this is doubt-
ful. The balancing cannot be done in a vacuum, but in the
context of these problems. The action taken by the Board
—lviii—
[APPENDIX]
of Regents must also be evaluated as the solution selected
by them as an exercise of the duties imposed upon them.
One group had to go; the administration decided that the
anti-administration group should go. This decision does not
appear to be particularly surprising, but absent constitu-
tional prohibitions this action was within the powers of the
Board.
The balancing required by Pickering, where constitu-
tional issues are raised by the proof, is basically a matter
for determination as a fact by the trial court. The trial court
did so here and made findings of fact. This balancing or
context requirement was imposed by the Supreme Court
for just such a situation as is before us. In every case of
this nature the factors, the weights on each side of the bal-
ance, are unique to that case. The force on either side is
determined by the particular situation as an accumulation
of all the factors.
The Court in Pickering said (391 U.S. at 568):
“The problem in any case is to arrive at a balance
between the interests of the teacher, as a citizen, in
commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
employees.”
Also at page 569:
“ . . Because of the enormous variety of fact situ-
ations in which critical statements by teachers and
other public employees may be thought by their su-
periors, against whom the statements are directed, to
furnish grounds for dismissal, we do not deem it either
appropriate or feasible to attempt to lay down a gen-
eral standard against which all such statements may be
judged. However, in the course of evaluating the con-
flicting clainis of First Amendment protection and the
need for orderly school administration in the context
—lix-—
[APPENDIX
of this case, we shall indicate some of the general lines
along which an analysis of the controlling interests
should run.”
In the facts before the Court, again in Pickering, it said:
“ .. The statements are in no way directed towards
any person with whom appellant would normally be in
contact in the course of his daily work as a teacher.
Thus no question of maintaining either discipline by
immediate superiors or harmony among coworkers is
presented here.”
The divisiveness referred to frequently in the record was
the faculty division into two camps referred to by the ac-
creditation examining team. The Court in the cited case
had a particular statement to place in context; here we have
only the general tone or attitude as described above. This
makes it difficult to see anything except the impact upon the
school of the division of the faculty.
This is not an instance of disruption by demonstration,
riots, and fires, but of a different kind, also with serious
consequences. The examining teams found this to be the
most serious problem. It must be significant as evidence of
the effect of the plaintiffs’ action or inaction upon the oper-
ation of the school. We don’t have to decide which group
was right. The Board of Regents had the authority to take
a position and to carry out its decision, and this it did within
constitutional limitations.
I would affirm the judgment of the district ocurt.
i AY ~
4 ORY peepee coe RAKE GEL > ‘i TOE Wy OD ROY EET TAS BING LAR IO AO GREY
: <a
LAPPENDIX)
APPENDIX “F”
W. LEROY RAMPEY et al v. WALT ,
ALLEN et al. No. 73-1609
LEWIS, Chief Judge, dissenting:
Once again this court has attempted to draw a legal
fence line between the right of a teacher to exercise valid
expression under the first amendment and the right of a
sovereign state to operate a college in a manner in which
its elected and appointed officials think will best serve its
state interests. But to draw such a fence line is difficult, if
not impossible, for surely it must meander with consider-
able flexibility and accommodation. The majority has, how-
ever, apparently agreed to a straight line allowing totally
unrestricted academic speech, has protected it with barbed
wire and words, and has left the state entangled. I cannot
agree and must dissent for the exigencies of the case we
here consider dramatically indicate, to me, a different
boundary.
I am in complete accord with my Brother Seth's views —
in dissent. Here was a college strangling in the adminis-
trative tape of discord and disruption termed by an inde-
pendent analyst as faculty divisiveness. This imbalance was
a continuing one with the interest of the state in an efficient
college approaching, and rapidly, an absolute zero. Faced
with this dilemma the majority is convinced that the Board
of Regents, and particularly the president, simply but un-
constitutionally imposed a subjective will upon the plain-
tiffs. To me, this rationale and the reasoning of the ma-
jority opinion consists of imposing original and appellate
findings and conclusions, perhaps allowable by the record
but in no way so dictated, and in direct contradiction of
the factual determination of the trial court. The term di-
visiveness found by the trial court to premise the subject
discharges describes and includes in part the discordant ef-
—lxi—
[APPENDIX]
forts of the plaintiffs to impose their subjective views upon
the operation of the college. My Brother Seth summarizes
the case well when he states: “The Board of Regents had
the authority to take a position and to carry out its decision,
and this it did within constitutional limitations.”
APPENDIX “G”
No. 73-1609—RAMPEY v. ALLEN
BARRETT, Circuit Judge, Dissenting:
I respectfully dissent.
I.
The court lends the impression that the Complaint, to-
gether with the evidence presented and the arguments ad-
vanced by Rampey, et al., at trial, raised First Amendment
rights of free speech beyond the April 24, 1973 press con-
ference. Such is not supported by the record. The sole and
only First Amendment issue presented and urged by the 14
at trial and on appeal related exclusively to the press con-
ference. The trial court’s findings confirm that the press
conference remarks raised the only First Amendment issue
for specific trial determination:
To me, the evidence is quite convincing that Dr. Carter
had intended not to recommend thirteen of the four-
teen prior to the press conference. To me, the testimony
of Annette Black cinches this point. She struck me as
telling the unquestioned truth. She typed the list be-
fore the press conference. It was Dr. Carter’s list. Dr.
Carter, prior to the press conference, had singled out at
least thirteen of the fourteen for non-renewal . . . I
think the independent study list, sometimes referred to
in the trial as the execution list... played a significant
part in the atmosphere of whether or not contracts
were going to be renewed.
—lxii—
LAPPENDIX)
(R., Appendix Vol. 3, Supp. to Appendix, p. 565).
It just isn’t the law that you can manufacture a First
Amendment right. If this was so, then al! an instructor
would have to do during a one-year contract would be
to criticize the president. Then if his contract was not
renewed he would say this is because of this criticism
and you must renew it, because if you don’t yeu violate
my constitutional right . . . this is ridiculous on its
face ...
(R., Appendix Vol. 3, Supp. to Appendix, pp. 568-569).
Appellants’ Complaint alleges solely that non-renewal
of their contracts of employment was in reprisal for exer-
cise of their free speech rights arising out of the April 24.
1973 press conference “. . . because they exercised their
right of freedom of speech and expression in criticizing de-
fendants and disagreeing with their policies.” See para-
graphs 10, 11 and 13 of the Complaint (Appendix, Vol. I,
pp. 7-8). The court incorrectly observes that while the 14
were “originally” of the belief that “the press conference
had been the cause of their having been fired” that thev
later changed their belief. This finds no support in the rec-
ord. We have, in my opinion, reversed the judgment of the
Trial Court on grounds not pled or relied upon in Plaintiffs-
Appellants’ Complaint or urged or argued either at trial or
before this court on appeal.
While First Amendment questions of “constitutional
fact” have been held justification for appellate de novo re-
view, Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971),
still such is permitted only under exceptional circumstances
in order to prevent manifest injustice, and then only if
properly presented for judicial determination. Gomes v.
Williams, 420 F.2d 1364 (10th Cir. 1970). Issues not raised
and presented for trial court determination are not to be
considered on appeal except in order to prevent manifest
injustice. Eureka-Carlisle Company v. Rottman, 398 F.2d
—lxiii—
[APPEND?IX:
1015 (10th Cir. 1968); Schenfeld v. Norton Company, 391
F.2d 420 (10th Cir. 1968); Justheim Petroleum Company v.
Hammond, 227 F.2d 629 (10th Cir. 1955): State ex rei Wil-
liams v. Neustadt, 149 F.2d 143 (10th Cir. 1945). Trial court
findings may not be set aside on appeal unless they are
found to be clearly erroneous. See Arnold v. United States,
432 F.2d 871 (10th Cir. 1970), and cases cited therein.
The court does not come to grips with the fact that the
Trial Court's findings and conclusions are not clearly erro-
neous based upon the only First Amendment issue pleaded
and presented in an evidentiary sense by Rampey, et al.,
and urged and argued at trial and on appeal, i.e., that their
contracts were not renewed becaused of the exercise of
their First Amendment rights at the press conference. Rule
52, Fed.R.Civ.P.—the clearly erroneous rule—applies with
equal force in cases involving constitutional rights. Wil-
liams v. Eaton, 468 F.2d 1079 (10th Cir. 1972). Nothing
except our de novo “findings” of fact can be relied upon to
justify the invocation of the manifest injustice rule. Signifi-
cantly, during en banc argument, counsel for the appellants
acknowledged that each of the 14 had obtained employment
positions in the fall of 1973 comparable to those they held
at O.C.L.A.
In Schenfeld v. Norton Company, supra, Judge Mur- —
rah, speaking for this Court, said “. . . ordinarily a claimant
cannot expect to lose in the trial court on one theory and
win on appeal under another.” 391 F.2d at 424. See also
United States v. Gates, 376 F.2d 65 (10th Cir. 1967); Hidden
Splendor Mining Company v. General Insurance Company
of America, 370 F.2d 515 (10th Cir. 1966).
While an appellate court may affirm a trial court judg-
ment on a basis not relied upon, Pound v. Insurance Com-
pany of North America, 439 F.2d 1059 (19th Cir. 1971), it is
not called upon to decide whether the tria! court reached
the correct conclusion of law, but only whether it reached a
permissible conclusion in light of the evidence. even though
—Ilxiv—-
{APPENDIX}
it be in sharp conflict. Hodgson v. Okada, 472 F.2d 965 (10th
Cir. 1973).
The court, on this appeal, has made controlling infer-
ences which the Trial Court did not make, and has directed
judgment on an independent basis neither pled, urged or
argued either at trial or on appeal, violative of the com-
mands of Zenith Cor». v. Hazeltine, 395 U.S. 100 (1969). It
is not the function of the court of appeals to infer material
facts, nor may it make controlling inferences which the
trial court did not make. Hodgson v. Okada, supra. Where
different inferences may be drawn, appellate courts will not
substitute their judgment for that of the trial courts. Colby
v. Cities Service Oil Company, 254 F.2d 665 (10th Cir.
1958). The jury—or the court if tried without a jury—has
the exclusive function of observing the witnesses, apprais-
ing their credibility, determining the weight to be given
their testimony, drawing inferences from the facts estab-
lished, resolving conflicts in the evidence, and of reaching
ultimate conclusions of fact. Loew’s, Inc. v. Cinema Amuse-
ments, 210 F.2d 86 (10th Cir. 1954).
The resolution of conflicting evidence is particularly
within the province of the trial court. Marken v. Goodall,
478 F.2d 1052 (10th Cir. 1973); Davis v. Cities Service Oil
Company, 420 F.2d 1278 (10th Cir. 1970). The appellate
court must view the evidence in the light most favorable
to the prevailing party and must affirm unless the trial
court findings and conclusions are clearly erroneous. Ma-
lonev-Crawford Tank Corporation v. Sauder Tank Com-
pany, 465 F.2d 1356 (10th Cir. 1972); Scaramucci v. Dresser
Industries, Inc., 427 F.2d 1309 (10th Cir. 1970). We have
here usurped prerogatives exclusively vested in the trial
court. And we reverse on grounds which I believe to be
based upon conjecture, guess and speculation, which we
have consistently condemned. Tyrrell v. Dobbs Investment
Co., 337 F.2d 761 (10th Cir. 1964); Waters v. National Life
& Accident Ins. Co., 156 F.2d 470 (10th Cir. 1946).
wo » pO ni Oo FE OR OE OE CE AR ANE NE RE St aE aoe eatery
—lxv—
[APPENDIxX)
II.
The central dispute submitted was entirely f
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