Petition for Writ of Certiorari — Hostrop v. Board of Junior College District No. 515

Supreme Court brief1976

Ask Donna

What actually matters in this document.

Text

Vicar Ait I | - sea -—

7 soc Court, U. & |

I PREME UT. ‘be S pa | - TT)

ir JAN 21 1976

Pima) r-

mere (LOT LREL ROUAK, JR, CizaK |

Supreme Court of the Gnited States _

OCTOBER TERM, 1975

No. 75-1035

BOARD OF JUNIOR COLLEGE DISTRICT NO. 515,

COUNTIES OF COOK AND WILL AND STATE OF

ILLINOIS, A BODY POLITIC AND CORPORATE, AND JAMES

GRIFFITH, ANTHONY HANNAGAN, DORIS HILL,

WILLIAM JACKSON, LESTER KLOSS, SHIRLEY MEL-

LECKER anp THOMAS PORTER, INDIVIDUALLY AND AS

MEMBERS OF THE BOARD OF TRUSTEES,

Petitioners,

vs.

RICHARD W. HOSTROP,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ANTHONY SCARIANO

1450 Aberdeen

Chicago Heights, Illinois 60411

Attorney for Petitioners

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

PO yas tee

TABLE OF CONTENTS

NN NN icra wid a wale ulne hae Peau eee tae Gs

ME a cree oii cc eres Buc he eo

Reasons for Granting the Writ

The Decision of the United States Court of Appeals

for the Seventh Circuit Is in Direct Conflict with

Applicable Decisions of This Court ..............

NI “0k Sor ale bho koi es Tess ode cakeee.

Appendices:

“A” Opinion of the Court of Appeals ............

“B” Opinion of the District Court ...............

“C” Prior Opinion of the Court of Appeals ........

“D” Prior Opinion of the District Court ..........

TABLE OF AUTHORITIES

Cases

Board of Trustees v. Cook County College Teachers Union,

22 Ill. App. 3d 106C, 318 N. E. 2d 193 (1st Dist.,

ud es ee wa wane mes Coe eas ons 12

Daiehite v. United States, 346 U. S. 15, 73 S. Ct. 956

AEN SSESRISER Seo FE CREED ee aa 11

Federal Trade Commission v. Cement Institute, et al.,

333 U. S. 683, 68 S. Ct. 793 (1948) ............. 7, 8,9

Gagnon v. Scarpelli, 411 U. S. 778, 93 S. Ct. 1756

RE Gane te kg aA ha no Kea We © 0: 8

Gibson v. Berrybill, 411 U. S. 564, 93 S. Ct. 1689

EPI RUSE SS nS At ea a 8

Holtz v. City of Milwaukee, 17 Wisc. 2d 26, 115 N. W.

I eae as aia ie iim ind a8 ow 4 Gd Oo 11

Hostrop v. Board of Junior College District 515, 337

ee ew OO ED nv eae ce cae 5

Hostrop v. Board of Junior College District 515, 471 F. 2d

488 (7th Circ., 1972), cert. den., 411 U. S. 967, 93

a a See cena ids hts xi O40 Kaw 5

Hostrop v. Board of Junior College District 515, 399

. Sap. GSP Ce. GD OR. OPS)... .... 2... 6220... 5

Hostrop v. Board of Junior College District 515, 523 F. 2d

ES ee La Wikis dik ane a aela wwe odaew ae 6

Indian Towing Co. v. United States, 350 U. S. 61, 76

er nek bak Gah wid kd nb ack o's ae oe 11

In re J. ?. Linahan, Inc., 138 F. 2d 650 (2nd Circ., 1943) 8

Morissey v. Brewer. 408 U. S. 471, 92 S. Ct. 2593

rs eat a ain uw od aba Bie © 8

ALSO SESE PE ORE BE GBT POLO

iii

Mullane v. Central Hanover Bank and Trust, 339 U. S.

es Pe Oe eh, ee CED nn octaves vcsoceveces 10

Perry v. Sinderman, 408 U. S. 593, 92 S. Ct. 2700 (1972) = &

Pickering v. Board of Education, 391 U. S. 563, 88 S. Ct.

ce une 5,8

Pierson v. Ray, 386 U. S. 547, 87 S. Ct. 1213 (1967) ..10, 13

Scheuer v. Rhodes, 416 U. S 232, 94 S. Ct. 1683

EE We tee deer KSC OA 0 Gaede so bAe sv auke 10, 13

Sniadach v. Family Finance Corp., 395 U. S. 337, 89 S. Ct.

SE I 5 8 oy raw a AS tie eas ob daa wed as os 10

Spand v. Mounds View School District No. 621, 264 Minn.

ee, 11

Tenny v. Brandhove, 341 U. S. 367, 71 S. Ct. 783

ET ase PE ia ee kN de SPER Ee Re Keke hear 10

United States v. Grinnell Corp., 384 U. S. 563, 86 S. Ct.

See aN Tee new ak bee wale Se We x 8,9

Withrow v. Larkin, 421 U. S. 35, 95 S. Ct. 1456 (1975)

eT Te eT OEE eC TE TOT Ee OOP e 7,9, 10

Weiss v. Fote, 7 N. Y. S. 2d 579, 167 N. E. 2d 63 (1960). 11

Willis v. Department of Conservation and Economic Devel-

opment, 55 N. J. 534, 264 A. 2d 34 (1970) ........ 11

Wood v. Strickland, 420 U. S. 308, 95 S. Ct. 992

ote eta kag aa iai a els bok wo lk bake ves 10, 13

Other

Davis, Administrative Law Text (1970), Sec. 25.01-25.03,

RS ia she Fal eG wk EE 8 ate koe a hak oe ae Hu, i

Jaffee, Suits Against Governments and Offices, 77 Harvard

Law Review 209, 223-224 (1964) ................ 11

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1975

BOARD OF JUNIOR COLLEGE DISTRICT NO. 515,

COUNTIES OF COOK AND WILL AND STATE OF

ILLINOIS, A BODY POLITIC AND CORPORATE, AND JAMES

GRIFFITH, ANTHONY HANNAGAN, DORIS HILL,

WILLIAM JACKSON, LESTER KLOSS, SHIRLEY MEL-

LECKER anp THOMAS PORTER, INDIVIDUALLY AND AS

MEMBERS OF THE BOARD OF TRUSTEES,

Petitioners,

vs.

RICHARD W. HOSTROP,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

To the Justices of the Supreme Court of the United States:

Petitioners respectfully pray that a wzit of certiorari issue

to review the judgment of the United States Court of Appeals

for the Seventh Circuit, reversing in part the decision of the

United States District Court for the Northern District of Illinois.

OPINIONS BELOW

The Opinion of the United States Court of Appeals for

the Seventh Circuit is reported officially at 523 F. 2d 569

(1975), and is reproduced as Appendix “A” to this Petition.

The opinion of the District Court is reported officially at 399

F. Supp. 609 (1974).

When this cause was first filed, the District Court dismissed

the Complaint for failure to state a claim upon which relief

can be granted. That opinion was reported officially at 337 F.

Supp. 977 (1972) and is reproduced as appendix “D” to this

Petition. That decision was reversed by the United States Court

of Appeals for the Seventh Circuit in a previous opinion, re-

ported officially at 471 F. 2d 488 (1972). That opinion is also

reproduced as Appendix “C” to this Petition.

JURISDICTION

The Opinion of the United States Court of Appeals for the

Seventh Circuit was handed down on September 24, 1975.

Timely Petitions for Rehearing were filed by both parties.

Those petitions were denied by an order dated October 30,

1975. A copy of that order is reproduced as Appendix “E”

to this Petition. The jurisdiction of this Court rests on 28

U.S. C. and 1254(1).

QUESTIONS PRESENTED

1. Whether the requirements of procedural due process pro-

hibit elected members of a Community College Board of

Trustees, who have exclusive responsibility under state law to

do so, from discharging an admittedly incompetent and deceit-

ful College President solely because the close working relation-

ship between them required that the Board members witness

first hand their Executive Officer’s incompetence and deceit?

2. Whether a public body’s execution, in good faith, of a

legislative command, which results in an alleged denial of a

discharged President’s constitutional rights, subjects that public

body to liability for damages?

APPLICABLE CONSTITUTIONAL PROVISIONS

AND STATUTES

Section | of Article XIV of the Amendments to the Con-

stitution of the United States provides as follows: “. . . No

state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or property,

without due process of law; nor deny to any person w ‘hin its

jurisdiction the equal protection of the laws.”

Chapter 122 Ill. Rev. Stat., Section 103-26 (1969) pro-

vides: Chief administrative officer, personnel and teachers—

Appointment and Salaries. [The Board of Class I Junior College

Districts shall have the duty] to make appointments and fix the

salaries of a chief administrative officer, who shall be the execu-

tive officer of the board, other administrative personnel and all

teachers. In making these appointments and fixing the salaries,

the board may make no discrimination of sex, race, creed, color

or national origin.

Chapter 122 Ill. Rev. Stat., Section 103-32 (1962) provides:

Tenure Policies. To establish tenure policies for the employ-

ment of teachers and administrative personnel, and the cause

for removal. ...

Chapter 122, Ill. Rev. Stat., Section 103-42 (1969) provides:

Employment of Personnel. To employ such personnel as may

be needed, to establish policies governing their employment and

dismissal, and to fix the amount of their compensation. In the

employment, establishment of policies and fixing of compensa-

tion the board may make no discrimination on account of sex,

race, creed, color or national origin.

STATEMENT OF THE CASE

The Plaintiff had been employed by the Defendant Board of

Junior College Trustees since the Spring of 1967. From the

inception of his position as College President, the Plaintiff had

been granted a contract of employment, the first of which ex-

tended through June 30, 1968. In April of 1969, the Defend-

ants granted Plaintiff a new contract which expired in June

of 1971. When the April, 1970 school Board election generated

concerns about the continuity of lay leadership at the College,

the Defendants extended the Fiaintiff's then existing contract

an additional year, or until June 30, 1972. Unknown to the

Petitioners herein, the Plaintiff had surreptitiously deleted a

material term of the new contract, whereby he promised to

devote full time to his duties.

Later in the spring of 1970, the Petitioners became fully

aware of the Plaintiff's deception, as well as numerous derelic-

tions of duty. The Plaintiff deliberately withheld information

from his employers, mismanaged his assigned duties, and was

guilty of gross insubordination and deceit while attempting

to sabotage Board policy. During the spring and early summer

of 1970, at regular Board meetings, the Plaintiff and the Peti-

tioners agonized over these very charges. Throughout this

period of time the Plaintiff also met informally with the Peti-

tioners, and, at a six hour session held on June 20, 1970, the

Petitioners took up with the Plaintiff all of the charges they had

against him. At that time, the President was allowed to respond,

and in two lengthy written replies to the Trustees, the Plaintiff

attempted to answer all charges with documentary evidence.

The parties again met on July 13, 1970, to no avail. Resolving

nothing, the Petitioners scheduled a hearing with the Plaintiff

at a Special Meeting of the Board of Education on the evening

of July 23, 1970. The Plaintiff had ample advance notice of

charges against him, was notified of the hearing, and had

obtained counsel; but on the advice of that counsel, he refused

to attend. His employment was therefore terminated.

mrmrogewer

crn weeks Ali cou

In January of 1971, Plaintiff instituted this suit, alleging,

inter alia, that he was wrongfully terminated in violation of

his federal constitutional rights of free speech and procedural

due process of law. The Petitioners moved for summary judg-

ment, and the District Court, treating said motion as a Motion

to Dismiss, dismissed the complaint for failure to state a claim

upon which relief may be granted. Hostrop v. Board of Jr.

College District 515, 337 F. Supp. 977 (N. D. Ill. 1972).

The District Court held that, while Plaintiff could not con-

stitutionally be terminated for speaking his mind, he could be

terminated for insubordination, owing to the close working

relationship between the Plaintiff and the Petitioners, thereby

relying on Pickering v. Board of Education, 391 U. S. 563

(1968).

The Plaintiff appealed, and the United States Court of Ap-

peals reversed, holding that Plaintiff's complaint contained al-

legations which, if true, constituted violations of Plaintiff's First

Amendment rights absent specific proof of damage to the said

close working relationship as required by Pickering. Hostrop v.

Board of Jr. College District 515, 471 F. 2d 488 (7th Circ.

1972). The Court of Appeals remanded the case for a trial on

the necessary factual issues. Defendants petitioned this Court

for a writ of certiorari, which petition was denied. 411 U. S.

967 (1973).

The week prior to trial, Plaintiff moved to amend his com-

plaint to allege an action based upon breach of contract, thereby

filing a demand for trial by jury. The trial Judge allowed the

amendment, but struck Plaintiff's jury demand as untimely. The

ensuing bench trial lasted seven days, and resulted in the trial

Judge’s memorandum opinion which held for the Petitioners on

all issues. Hostrop v. Board of Junior College District 515, 399

F. Supp. 609 (N. D. Ill., 1972). The Court specifically held

that Plaintiff's fraudulently induced contract of employment

was void, thereby depriving the Plaintiff of any property right

which would give rise to an entitlement of a hearing. The Court

POOR COPY

also found that the Plaintiff had breached his contract in that

the dismissal was not motivated by Plaintiff's expression of views

in a certain Ethnic Studies Memorandum. As a matter of fact,

the District Court held, Plaintiff's termination was fully justified

and was the culmination of a series of confrontations and in-

cidents which included the timing and concealment of the Ethnic

Studies memorandum and seven other listed incidents. These

events, the court went on to hold, substantially impeded the

Board’s normal functions, critically impaired the close personal

relationship between the parties, and completely destroyed the

Board’s confidence in Plaintiffs loyalty and abilities. Further-

more, the Trial Judge found that the Board had offered the

Plaintiff an informal and sufficiently impartial hearing but that

the Plaintiff deliberately refused to attend, thereby waiving any

rights to a hearing he may have possessed.

The Plaintiff appealed, and but for the issue of the impartiality

of the hearing offered Plaintiff, the Court of Appeals held for

the Petitioners on all issues. Hostrop v. Board of Jr. College

District 515, 523 F. 2d 569 (7th Circ., 1975). Significantly,

the Court of Appeals held the Trial Court's finding that

Plaintiff was terminated for just cause which amounted to a

destruction of the close working relationship between the parties,

thus impairing the Board’s functions. Yet the Court of Appeals

found that the Petitioners had prejudged the ultimate issues

prior to the meeting of July 23, 1970, at which they voted to

dismiss the Plaintiff. In so doing, and without a finding that

the Trial Court’s factual conclusions were clearly erroneous,

the Appellate Court reversed that part of the District Court's

opinion which held that the Board was prepared to offer an

informal, impartial hearing, and remanded the case for a hearing

on the appropriate damages for the transgression of intangible

rights denied the Plaintiff. The same Court denied both parties’

timely petitions for a rehearing.

LEE ARETE TE ELE TENS SOTTO TT OE eo Re SE

REASONS FOR GRANTING THE WRIT

The Decision of the United States Court of Appeals for the

Seventh Circuit Is In Direct Conflict with Applicable Deci-

sions of This Court

A. The decision of the Court below totally disregards and

is in conflict with this Court’s holdings in the cases of Federal

Trade Commission v. Cement Institute, et al., 333 U. S. 683

(1948) and Withrow vy. Larkin, 421 U. S. 35 (1975).

The Court of Appeals conceded, as the District Court found,

ihat Plaintiff was offered a hearing before the Defendant Board

of Trustees on the issue of Plaintiffs continued employment

as Chief Administrative Officer of the College. However, the

Court of Appeals excused the Plaintiffs knowing and voluntary

choice not to attend the hearing, on advice of counsel, by finding,

without discussion, and contrary to the factual conclusions of the

trial Judge without holding such findings of fact to be clearly

erroneous, that “the Board preiudged [Plaintiff's] case before

making a hearing available to him.” Having found the Board to

be no longer a decision maker of “apparent impartiality”, the

Court of Appeals concluded that the Plaintiff did not waive

his right to a hearing by choosing not to attend the scheduled

hearing of July 23, 1970.

The Petitioners respectfully submit that the decision of With-

row V. Larkin, 421 U.S. 35 (1975) is controlling as it is this

Court’s latest pronouncement with respect to the parameters of

the Due Process Clause’s requirement of an impartial tribunal.

In Withrow, this Court also gave continued vitality to the deci-

sion of Federal Trade Commission v. Cement Institute, et. all.,

333 U. S. 683 (1948), and reaffirmed that decision’s basic

and long-standing precepts regarding the type and quantum of

bias or prejudgment which may or may not be constitutionally

tolerable. The Withrow and Cement Institute cases do not re-

quire that any and every form or measure of bias or prejudgment

should disqualify a decision maker. On the contrary, both

cases clearly stand for the proposition that, as well may the

investigative and adjudicatory functions of a decision making

body be combined in the same tribunal, so may there exist a

certain type and a certain level of prejudgment, bias, or both

on the part of the decision maker, all at harmony with the

protections guaranteed by the Due Process Clause.

To be sure, there are forms of “bias” which seem to escalate

the probability of unfairness to a constitutionally intolerable

level: pecuniary interest, Gibson v. Berrybill, 411 U. S. 564

(1973), or personal animus, Pickering v. Board of Education,

391 U.S. 563, at pp. 578-579 n. 2 (1968). There are also shades

of “prejudgment” which involve unacceptable risks of unfair-

ness. Gagnon v. Scarpelli, 411 U. S. 778 (1973): Morrissey

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

Just as certain, however, is that there exists a niche in the

scheme of constitutional and administrative law for a type of

prejudgment which may indeed involve predetermination of

adjudicative facts, if not ultimate issues. Prejudgment or pre-

conceptions founded on evidence adduced during the course of a

“proceeding” is always permissible. Federai Trade Commission

v. Cement Institute, et al., 333 U. S. at pp. 700-703: United

States v. Grinnell Corporation, 384 U. S. 563, at p. 583 (1965).

Indeed, in Perry v. Sinderman, 408 U. S. 593, at p. 603 (1972)

this Court remanded a teacher’s discharge for a possible hearing

before the identical tribunal which had already unanimously

dismissed him for the very same substantive reasons and adjudi-

cative facts, which would constitute the charges to be considered

in such a hearing. [See also In re J. P. Linahan, Inc., 138 F. 2d

650 (CA2, 1943).] It is only that preconception based on

“extra-judicial” matters such as personal animus, pecuniary

interest, and extra-judicial facts, which would disqualify a

decision maker.

Without any analysis of the type, the quantum, and the effect

of Petitioners’ “prejudgment”, the Court of Appeals has sub-

RE I Lt FL a PEE a : Sa a ee ar ee ee

BLEE

stituted its own standard of “apparent impartiality” for this

Court's more thorough test of whether the Board would be

“disabled from hearing and deciding on the basis of the evidence

to be presented at the contested hearing.” Withrow requires that

a tribunal be presumed capable of judging a controversy fairly

“on the basis of its own circumstances”. Withrow v. Larkin, 421

U. S. 35 (1975). Nowhere does the Court of Appeals below

refer to a basis, specific or otherwise, from which a deter-

mination may be made as to the effect of the Petitioners’ pre-

judgment of fact and the ultimate issue on the ability of the

Petitioners to “judge the controversy fairly on the basis of its

own circumstances” at the offered hearing. Nor has any Court

ever made a determination that the petitioners were unable to

judge the controversy on the basis of its “own circumstances”.

While the Withrow and Cement Institute cases permit prior

contact with evidence even in am ex parte context, the precon-

ceptions herein complained of were formed by the Petitioners in

an adversary process and were founded solely on the very cir-

cumstances and evidence that, of necessity, would have been

adduced at the July 23, 1970, hearing had the Plaintiff chosen

to attend. The continuing development and presentation of

“evidence” to the petitioners resulted not from an ex parte inves-

tigation, but from first hand observation in the conduct of a

close working professional relationship with the Plaintiff. During

the waning months of that relationship, as his incompetence

and deceit became increasingly apparent, Plaintiff on many

occasions responded to concerns of the Board members, and

engaged in a campaign of “confession and avoidance”. These

concerns ultimately became the grounds for the dismissal which

were upheld by both the trial Court and Court of Appeals. At

the very least. Plaintiffs written and oral responses to Board

members, and his attempts at “confession and avoidance” con-

stituted a sufficiently adversary process that the development

of pre-hearing opinions by the Petitioners was constitutionally

permissible within the intendment of the Withrow, Cement

Institute, and Grinnell cases. Under the circumstances of this

EE SER TIE Lh I I ALOR OLDE LEI ELE EEE LOL ES ILO NET a AE

POOR COPY

~EED THF OUGH

SOY NE Dy at Sein. |

one

case, the pre-July 23, 1970 continuum of meetings and exchanges

may have itself satisfied the hearing requirements of due process.

Mullane v. Central Hanover Bank & Trust, 339 U. S. 306

(1950).

Having been duly notified of the charges against him and of

the pendency of the July 23, 1970 hearing, and having ob-

tained counsel, the Plaintiff had the same opportunity that was

afforded the Cement Industry in the Cement Institute case, and

which was also afforded Dr. Larkin in the Withrow case, name-

ly, to participate in an adversary hearing, to produce evidence,

to cross-examine witnesses, and to argue as to the legal effect

of proven or prejudged facts. Such opportunity to rebut facts

and to mitigate the ultimate effect of those facts by argument

is all that Due Process requires in these situations, notwith-

standing the concurrent existence of a tolerable type and level

of prejudgment of fact or the ultimate issue. Withrow v. Larkin,

421 U. S. 35, at n. 24; Sviadach v. Family Finance Corp.,

395 U. S. 337, at p. 343 (1969). Procedural due process is

the watchdog of fundamental fairness. The numerous and

varied requirements of procedural due process have been

born of the Constitution to ensure, as much as possible,

and under the circumstances of each case, that a fair

decision shall be reached. The Petitioners respectfully submit

that, considering the ongoing close professional relationship

between the parties, and the hearing which the petitioners had

offered to the Plaintiff, the Plaintiff cannot now complain that

he was denied due process after first refusing an adequate

hearing, and only later scouring the record in search of a pro-

cedural deficiency.

B. In holding the Board of Trustees liable for a violation

of Plaintiff's right of due process, the Court of Appeals disre-

gards this Court’s decision in Tenny v. Brandhove, 341 U. S.

367 (1951); Pierson v. Ray, 386 U. S. 547 (1967); Scheuer

v. Rhodes, 416 U. S. 232 (1974); and Wood v. Strickland,

420 U. S. 308 (1975). The above-cited cases hold that public

EEE GRRL GIRO IT BN EE wit SERPS A EPSP PG DLL ERS See

maT Te mre

officials subject to suit for depriving an individval of constitu-

tional rights might assert common-law immunities in their de-

fense, if the policies embodied by the doctrine of immunity

invoked are applicable to the facts of the particular case.

At common law, legislative units of government are afforded

protection against damage suits which attempt to redress indi-

vidual rights allegedly violated as a result of the implementa-

tion of their policies. This insulation from liability represents

a judicial determination that to entertain such suits would

result in encroachment on peculiarly legislative tasks. Granting

such immunity serves to protect the separation and balance of

power between the different branches of government. Weiss v.

Fote, 7 NYS 2d 579, 167 N. E. 2d 63 (1960); Willis v. Depart-

ment of Conservation and Economic Development, 55 NJ 534,

264 A 2d 34 (1970); Holtz v. City of Milwaukee, 17 Wis. 2d 26.

at p. 40, 115 N. W. 2d 618, at p. 625 (1962); Spand v. Mounds

View School District No. 621, 264 Minn. 279, at pp. 292-293,

118 N. W. 2d 795, 803 (1962); Davis, Administrative Law

Text, § 25.05, at pp. 480-483 (1970); and Jaffee, Suits Against

Governments and Officers, 77 Harvard LR 209, at pp. 223-224

(1964). Official entities charged with implementation of these

policies may be subject to suit if they fail to exercise due care in

discharge of executory responsibilities. Indian Towing v. United

States, 350 U. S. 61 (1957). However, they share the legisla-

tive immunity when their execution of duty pursuant to statute

does not result in an independent or original basis upon which

carelessness might be established."

1. In Dalehite v. United States, 346 U. S. 15, 73 S. Ct. 956

(1953), this court held the government was immune from suit be-

cause the cause attacked certain discretionary determinations. This

immunity was extended to subordinates who had implemented the

policy. “It necessarily follows that acts of subordinates in carrying

out the operation of government in accordance with official discre-

tion cannot be actionable. If it were not so, the protection of

§ 2680(a) would fail at the time it be needed, that is, when a sub-

ordinate performs or fails to perform a causal step, each action or

non-action being directed by the superior, exercising, perhaps abus-

(Footnote continued on next page.)

Pee, ws > Serpe oe Aenea th kiaee Tee ee oie Sa i ao |

Sn ISRAEL NT Shakes SURES ANRITSU IRREY STRESS BLS REA GH REGO

ot out on Oe, kt oe ae a

POOR COPY

The Court of Appeals held that Plaintiff was denied due

process because the Defendant Board had decided to terminate

his employment prior to affording him an opportunity to address

the charges which became the basis for his dismissal. Any lack

of due process which occurred resulted only from a failure by

the legislature to provide for a delegation of Board responsibil-

ities at a time when it should recuse itself.

The Board has an obligation to hire and discharge personnel

according to what it determines is in the best interest of the

school district it operates. This duty is non-delegable. Illinois

Revised Statutes, Ch. 122, Secs. 103-26, 103-32, and 103-42;

Board of Trustees v. Cook County College Teachers Union,

22 Ill. App. 3d 1060, 318 N. E. 2d 193 (1st Dist. 1974).

Any bias which the Board developed regarding Plaintiff's

fitness and competence as President of the College resulted from

the frequent contact it necessarily kept with the President to

dictate educational policy which it formulated and to determine

whether its policies were being properly effectuated. When it

became clear that Plaintiff was ineffective in discharging the

critical duties of his office, the Board attempted to fulfill its

statutory obligation with respect to its exclusive control over

its personnel, and thus terminated his employment. The District

Court found that the Board was justified in discharging Plaintiff

and the Court of Appeals affirmed this determination.

The Board did offer Plaintiff a hearing prior to his termin-

ation before the only tribunal which could render a binding

ing, discretion.” 346 U. S., at 36. 28 USC, 2680(a), under which

Dalehite was decided, provides that claims “based upon an act or

omission of an employee of the government, exercising due care, in

the execution of a statute or regulation, whether or not such statute

or regulation be valid, or based upon the exercise or performance or

the failure to exercise or perform a discretionary function or duty on

the part of a federal agency or an employee of the government,

whether or not the discretion involved be abused,” is not actionable.

This section of the statute represents the canonization of a common-

law immunity. Davis, Administrative Law Text, § 25.03, at 474, 475

(1970).

ELIE, RELI LEE NE LENE LE CAGE FE

nan

decision as to whether Plaintiff should be discharged. The only

way the Board might have attempted to comply with constitu-

tional requisites as determined by the Court of Appeals would

be by not terminating Plaintiff. Legislative design prevented

the Board from delegating a duty which it could not, according

to the Court of Appeals, execute in accord with the Constitution.

In terminating the Plaintiff for cause and by offering him a

hearing, the Board was not found wanting in the exercise of

due care with reference to Plaintiff's constitutional rights. The

Court of Appeals, applying the standard announced by this

Court to determine due care in suits alleging violation of con-

stitutional rights Pierson v. Ray, 386 U. S. 547, at p. 555

(1967); Scheuer v. Rhodes, 416 U. S. 232, at pp. 245-249

(1974); Wood v. Strickland, 420 U. S. 308, at pp. 317-322

(1975), held that the Board’s action did not deny Plaintiff his

basic, unquestioned constitutional rights at the time it was

effected and that it was not executed with malicious intent.

Thus, the common-law immunity available to official agencies

that implement legislative policy in good faith should have been

applicd to immunize the Board as an entity from damages.

The board’s lot should not be so unhappy that it “must choose

between being charged with dereliction of duty if [it does not

discharge an ineffectual administrator] and be mulcted in dam-

ages if [it does]. Pierson v. Ray, 386 U. S. 547, at p. 555.”

CONCLUSION

For the aforementioned reasons and each of them, the Peti-

tion for a Writ of Certiorari should be granted. The Petitioners

respectfully suggest that, as an additional reason for granting

the instant Petition, this Court take cognizance of its order

POOR COPY

granting a Petition for Writ of Certiorari to the Supreme Court

of the State of Wisconsin in the case of Hortonville Education

Association V. Hortonville Joint School District, No. 1, 74-

1606, Certiorari granted 96 S. Ct. 34 (1975).

Respectfully submitted,

ANTHONY SCARIANO

1450 Aberdeen

Chicago Heights, Illinois 60411

Attorney for Petitioners

RUGRATS F CREAT RU

APPENDIX A

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

September 24, 1975

523 F. 2d 569

Before FAIRCHILD, Chief Judge, SwyGERT and TONE, Cir-

cuit Judges.

Tone, Circuit Judge. Plaintiff, a former president of a public

junior college who was discharged by the college board in

July, 1970, brought this civil rights action, alleging that he

was wrongfully terminated in violation of his federal constitu-

tional rights of free speech and procedural due process and his

contract rights. In a bench trial the District Court found the

issues in favor of the defendants. We hold that the District

Court’s findings of fact on the first amendment issue are not

clearly erroneous, but that plaintiff's procedural due process

right was violated by the failure of the defendants to afford

him a hearing and he is therefore entitled to recover damages

against the board but not the individual defendants, who are

protected by official immunity. We remand for a hearing on

damages, which need not be before a jury.

In his amended complaint against the board and its mem-

bers, plaintiff asserted, in Count J, a claim for the alleged

infringements of his rights described above and, in Count II,

a claim for conspiracy to deprive him of those rights. The Dis-

trict Court dismissed this complaint for failure to state a claim

upon which relief could be granted, but this court reversed that

judgment and remanded for trial. Hostrop v. Board of Junior

College Dist. 515, 471 F. 2d 488 (7th Cir. 1972). cert. denied,

411 U. S. 967 (1973) (Hostrop 1). On the eve of trial the

POOR COPY

BLEED THRE OUGH

District Court allowed further amendment of the complaint to

add a Count III, specifically alleging breach of plaintiff's con-

tract rights. The court refused, however, to permit a jury trial

of that claim, no jury demand having been filed for the original

claims.

First AMENDMENT RIGHTS

Hostrop I held that plaintiff had stated a violation of his

first amendment rights by his allegations that the primary rea-

son for his dismissal was his writing of the memorandum on

the ethnic studies program described in that opinion 471 F. 2d

at 491-494. The District Court found as a fact, however, as

follows:

“. . . I find that Hostrop’s dismissal was not motivated

by his expression of views in the Ethnic Studies memo-

randum. I conclude that, as a matter of fact, his termina-

tion was fully justified and was the culmination of a series

of confrontations and incidents which include . . . the

timing and concealment of the Ethnic Studies memoran-

dum [and seven other listed incidents].”

Even if the exercise of a right protected by the first amend-

ment were only one of several reasons for dismissal, the dis-

missal would be unlawful, so we consider that possible reason

without reference to others. As we construe the District Court’s

findings, however, plaintiff was not dismissed because of his

exercise of first amendment rights. The court’s phrase, “the

timing and concealment of the Ethnic Studies memorandum,”

read in the light of the evidence, must be taken as referring

to the circumstances surrounding the disclosure of the memo-

randum to the board: Plaintiff initially gave copies of the mem-

orandum only to his “cabinet,” and instructed them not to

discuss it with anyone else. Only when he learned that a copy

of the memorandum had found its way into the hands of the

student newspaper and was to be published the next day did

he furnish copies to the board members. The evidence indicates,

ETT EN IRE NT EY Pe

BLEE!|

and the District Court could properly have found, that the board

members were disturbed because a memorandum proposing

the repudiation of their commitment to continue the ethnic

studies program for another year was withheld from them until

the fortuitous leak to the newspaper compelled its disclosure to

them, which occurred less than three weeks before the date

proposed in the memorandum for effectuation of this highly

controversial action; and this “timing and concealment” rather

“his expression of views” in the memorandum constituted one

of the reasons for the board’s action. This we think is the mean-

ing of the District Court’s finding, which we cannot say is

clearly erroneous. These facts do not show a violation of plain-

tiff's first amendment rights.

II.

PROCEDURAL DUE PROcEss RIGHT

Liberty Right

This court held in Hostrop I that plaintiff has stated a depri-

vation of liberty under Board of Regents v. Roth, 408 U. S.

564 (1972), in his allegation that the board had damaged his

reputation by charging him with lack of veracity, 471 F. 2d at

494, but the District Court found from the evidence that Hos-

trop himself had made public the board’s charges when it had

no intention of doing so. The court held that his standing in the

community was therefore not injured by any action of the board,

if it was damaged at all. We agree. Plaintiff's argument that

he had to disclose the reasons to quell the rumors which were

circulating does not establish that his reputation was injured

by board action. Once the board decided to terminate plaintiff,

the most it could do to prevent injury to his reputation was

maintain silence as to its reasons. See Shrick v. Thomas, 486

F. 2d 691, 693 (7th Cir. 1973). The board is not responsible

for plaintiff's decision that it would be better for his reputation

to publish the reasons.

eset bis ECE ETAT RN PRL LRN LET tM NI SIL OFS IGEN TLL TENS IPN RE CP

POOR COPY

_EED THROUGH

Property Right

Hostrop I also held that plaintiff's complaint alleged facts

showing a deprivation of a property right. 471 F. 2d at 494.

The District Court found, however, that plaintiff had no legiti-

mate claim of entitlement to his job because he had deceived

the board members by omitting from the form of renewal con-

tract he submitted to them for approval a clause the earlier

contract had contained requiring him to devote full time to his

job as president. Defendants assert, as additional reasons that

plaintiff does not have such a claim, that plaintiffs contract

was void because its term exceeded one year, and that the

deletion of the full-time clause prevented the meeting of minds

requisite to the making of a contract.

We think plaintiff had a claim of entitlement amounting to

a property interest within the meaning of Board of Regents v.

Roth, supra, 408 U. S. at 577-578, and Perry v. Sindermann,

408 U. S. 593, 601-602 (1972), even assuming that, as the

District Court found, he deceived defendants by the manner

in which he submitted the form for the new contract. Apart

from the fact that the earlier contract, covering the period

July 1, 1969 to June 30, 1971, would still have been in effect

if the new contract had not superseded it, the new contract was

at most voidable for fraud, not void. So long as there was a

genuine dispute on the issue of fraud, plaintiff had a claim of

entitlement that gave him a right to a hearing. The same is

true with respect to the issue raised by the contention that

there was no meeting of the minds, assuming that issue to be

analytically different from the fraud issue.

Defendants’ argument that both contracts were void because

their terms exceeded one year is also without merit. Even if there

were a one-year limitation under Illinois law, a contract would

not, we think, be invalid in its entirety but only for the period in

excess of one year. But our examination of Illinois law persuades

us that the making of a contract for a term in excess of one

year was within the authority of the board.

In arguing that both plaintiffs original and superseding two-

year contracts were void ab initio, defendnts rely on Illinois cases

holding it beyond the power of a school board to employ teachers

for a period beyond a school year, a rule originally based on a

construction of the statute, Stevenson v. School Directors, 87

Hl]. 255, 257-258 (1877), and on the principle that one board

should not be able to bind a later board, id. at 258-259; Davis v.

School Directors, 92 Ii. 293, 296 (1879). In the case at bar,

the board, prior to the April 1970 board election, purported to

extend plaintiffs contract until June 30, 1972, or two years

beyond its term. After the mid-April election, the new board did

not object to plaintiff's new contract and permitted him, on July

1, 1970, to commence serving under it. This adoption of the

contract by the new board meant that plaintiff had a valid con-

tract at least through June 30, 1971. This is so regardless of

whether plaintiff was working under his original (1969-1971)

or his superseding (1970-1972) contract.

Moreover, we think that the board was empowered to enter

into contracts for a duration of longer than one year. In 1927,

the Illinois General Assembly conferred on school boards the

power to contract with teachers, principals, and superintendents

for a period of three years, after expiration of a two-year proba-

tionary period. See Sloan v. School Directors of District No. 22,

373 Ul. 511i, 26 N. E. 2d 846 (1940). In Sloan the Illinois

Supreme Court determined that the Stevenson and Davis cases,

supra, were no longer applicable because “they were decided

before the enactment of” the 1927 law. 373 Ill. at £14, 26 N. E.

2d at 847. Subsequently the Illinois Supreme Court said of the

statute: “The purpose of the General Assembly in enacting the

statute is apparent, for it is in the best interest of the schools that

competent and capable teachers be continued in their employ-

ment. It adds to the stability of the employment and works to

the advantages not only of the public but to the teachers and

those employed with the administration of school affairs.” Pack

v. Sporleder, 394 Ill. 130, 140, 67 N. E. 2d 198, 203 (1946).

The law was later changed to enable school boards, after a

probationary period, to contract for “contractual continued serv-

ice.” See Ill. Rev. Stat. ch. 122, § 24-11 (1969).

The tenure statute does not apply to a president of a

college, but it was against the background of this statute

that the Illinois General Assembly created the Junior College

Boards by the Public Junior College Act, Ill. Rev. Stat. ch.

122, §$ 101-1, et seg. (1969).' Rather than determining the

tenure policy for the junior colleges, as it had done for the

public schools, the General Assembly provided that the board

itself, which appoints the chief administrative officer, id. § 103-

25, should “establish tenure policies for the employment of

teachers and administrative personnel,” id. § 103-32. We think

that the General Assembly intended, in using this language, not

to reinstate for junior colleges the rule of the Stevenson and

Davis cases, but to give the board authority to establish its

own policies with respect to tenure, which in its broadest sense

includes the limited tenure afforded by a contract calling for a

term in excess of one year.

The defendant board has in fact established tenure and em-

ployment policies in its Policies and Procedures, paragraphs

4.35, 4.25, and 2.20. Teachers are appointed annually until they

receive tenure and then on a continuous basis. Administrative

personnel other than the president are appointed subject to the an-

nual recommendation of the college president and approval of

the board. The president can be appointed for more than

one year:

“The President of the College is selected by the Govern-

ing Board and under whatever terms are mutually agreed

upon at the time of appointment. It will be the duty of the

1. Here and elsewhere in this opinion we refer to the 1969 edi-

tion of the Illinois Revised Statutes because that edition contained the

version of the School Code in force at the time of the events in issue

here. The changes reflected in the present law, Ill. Rev. Stat. ch. 122,

§§ 101-1, et seg. (1973) are not material here. The references to

“Junior Colleges” have for the most part been changed to references

to “Community Colleges.”

DTA x52

BLEE

~EED THROUGH

Board to renew the contract of the President of the Col-

lege or to notify him in writing prior to the first of January

in the last year of his incumbency that his services will not

be required after the expiration of his present contract.

“The compensation of the President of the College will

be fixed by the Board at the time he is appointed. By

mutual consent the compensation of the President may be

adjusted before the start of any academic year.” Policies

and Procedures 2.20.

We therefore conclude that under the enabling statute and

the board’s own rules adopted pursuant to the statute, the board

had authority to contract with the president of the college for

a period of more than one year.

Denial of Hearing

Our review of the evidence leaves us with the definite and

firm conviction that plaintiff was never offered a fair hearing

on termination, and that, in fact, the board prejudged his case

before making any hearing available to him. There can be no

real dispute that before the special session of the board on July

23, 1970, when plaintiff was to be afforded a hearing, the board

had already decided to terminate him, and had in fact made a

commitment to another person to hire that person as interim

president. The board having prejudged the matter of plaintiff's

termination before the July 23 meeting, and being no longer

therefore “a tribunal possessing apparent impartiality,” as re-

quired by Hostrop 1, 471 F. 2d at 495, plaintiff did not waive

his right to a hearing by absenting himself from that meeting.

The termination of plaintiffs employment without affording

him the notice and hearing required by Board of Regents v.

Roth and Perry y. Sindermann is actionable despite the District

Court's findings and conclusion, which we do not disturb, that

the conduct of plaintiff was such as to constitute cause under

state law for termination of his employment. This is made clear

by the last sentence of footnote 15 of Hostrop I, where the court

recognized that despite the existence of “grounds to break an

POOR COPY

employment contract,” doing so “by violating an employee’s

due process rights to notice and hearing” is nevertheless action-

able. 471 F. 2d at 494 n. 15.

Il.

THE CONSPIRACY CHARGE

Plaintiff contends that, as alleged in Count II of his amended

complaint, the board members, in addition to violating his civil

rights, conspired to do so in violation of 42 U. S. C. § 1983.

The District Court, having found no violation of plaintiff's rights,

also found against plaintiff on the conspiracy issue.

The doctrine of civil conspiracy extends liability for a tort,

here the deprivation of constitutional rights, to persons other

than the actual wrongdoer, W. Prosser, The Law of Torts § 46

at 293 (4th ed. 1971), but it is the acts causing damage to the

plaintiff that give rise to liability for damages, not the consp:racy

itself.

“The damages for which recovery may be had in a civil

action is not the conspiracy itself but the injury to the plain-

tiff produced by specific overt acts. [Citations omitted.] The

charge of conspiracy in a civil action is merely the string

whereby the plaintiff seeks to tie together those who, acting

in concert, may be held responsible for any overt act or

acts.” Rutkin v. Reinfeld, 229 F. 2d 248, 252 (2d Cir.

1956), cert. denied, 352 U. S. 844 (1956).

As stated in Jones v. Bales, 58 F. R. D. 453, 458 (N. D. Ga.

1972), affd, 480 F. 2d 805 (Sth Cir. 1973) (per curiam):

“For a claim under 42 U. S. C. § 1983, a conspiracy

is not a vital element. Nevertheless, a conspiracy may be

used as the legal mechanism through which to impose

liability on each and all the defendants without regard to

the person doing the particular act. Mizell v. North

Broward Hosp. Dist., 427 F.2d 468, 472-473 (Sth Cir.

1970); Nesmith v. Alford, 318 F.2d 110, 126 (Sth Cir.

1963) [cert. denied, 375 U.S. 975 (1964)]”

RERES AT PAT Pe SRS CR FEST OE TE TTT MET

BLEE

In the case at bar plaintiff has shown that defendants agreed

and acted in concert in denying plaintiff a hearing. Indeed a

board is incapable of acting in any other manner. Each defend-

ant, however, is still only liable for the overt act of depriving

plaintiff of his property interest without a hearing, which is the

same liability that exists under the substantive charge of Count

1. The conspiracy count thus adds nothing to the substantive

count.

IV.

RELIEF FOR DUE PROCESS VIOLATION

The Defendant Board

The defendant board, as distinguished from its members, “is

a body politic and corporate” which “may sue and be sued in

all courts and places where judicial proceedings are had,” III.

Rev. Stat., ch. 122, § 103-11 (1969); that is, it is a municipal

corporation, Norfolk & W. Ry. Co. v. Board of Education, 114

F. 2d 859, 863 (7th Cir. 1940) (relying upon Board of Educa-

tion Vv. Upham, 357 Ill. 263, 191 N. E. 876 (1934).? As such

it is not amenable to suit under 42 U. S. C. § 1983. City

of Kenosha v. Bruno, 412 U. S. 507, 513 (1973); Monroe

v. Pape, 365 U. S. 167, 187-192 (1961); see Strickland

Vv. Inlow, 485 F. 2d 186, 191 (8th Cir. 1973), rev’d on other

grounds sub nom. Wood Vv. Strickland, 420 U. S. 308 (1975).

Plaintiff having alternatively invoked 28 U. S. C. § 1331, how-

ever, and the requisite jurisdictional amount being concededly

present, the board can be sued under that statute.* Calvin v.

Conlisk, 520 F. 2d 1, pp. 8-10 (7th Cir. 1975); see City of

2. The board in Aurora Education Ass’n vy. Board of Education,

490 F. 2d 431, 435 (7th Cir. 1973), cert. denied, 416 U. S. 985

(1974), which the court said was “not a municipal corporation,”

was organized under an Illinois statute, now Ill. Rev. Stat., ch. 122,

§ 10-10 (1973), different from the ones under which the boards in

this case and the Norfolk & Western case were organized.

3. The eleventh amendment does not affect this suit. Moreover,

the Illinois legislature, by permitting the board to be sued “in

all courts” appears to waive any immunity a board would other-

ai a= = | Pt EE ae FOSSA Oe RR PS i es SP RET SS

POOR COPY

LEED THROUGH

Al10

Kenosha v. Bruno, supra, 412 U. S. at 514 (1973) (majority

opinion) and 412 U. S. at 516 (concurring opinion of Brennan

and Marshall, JJ.); see also Bodensteiner, “Federal Court Jur-

isdiction of Suits Against ‘Non-persons’ for Deprivation of Con-

stitutional Rights,” 8 Val. U. L. Rev. 215, 224-229 (1974).

Accordingly, the board is answerable for the violation of plain-

tiffs procedural due process right.

The Defendant Board Members

Shortly before oral argument was held in the case at bar,

the Supreme Court handed down its opinion in Wood v.

Strickland, supra, 95 §. Ct. 992 (1975), which laid down the

principles we are bound to apply in determining the individual

liability of state officers in the position of the individual defend-

ants here. Although that case dealt with board members’ in-

dividual responsibility for disciplinary proceedings against stu-

dents, its discussion of immunity is equally applicable to conduct

of board members affecting the rights of teachers and adminis-

trators. The Court there held that to be entitled to immunity

from individual liability for damages on the ground of good

wise have. Moreover, the eleventh amendment does not extend

immunity to political subdivisions of the state. Lincoln County v.

Luning, 133 U. S. 529 (1890); Port of Seattle v. Oregon & W. R.

Co., 255 U. S. 56, 71 (1921); see Edelman v. Jordan, 415 U. S.

651, 667 n. 12 (1974). Compare Brennan vy. University of Kansas,

451 F. 2d 1287, 1290 (10th Cir. 1971), which holds a state uni-

versity immune under the eleventh amendment because under state

law it was an agency functioning as an alter ego of the state. (In

Illinois, the Board of Trustees of the University of Illinois is treated

as “separate and distinct from the State” and is “no part of the State

government.” People v. Barrett, 382 Ill. 321, 343, 46 N. E. 2d

951, 962 (1943).) See also, Aerojet-General Corporation v. Askew,

453 F. 2d 819, 829-830 (Sth Cir. 1971), cert. denied, 409 UV. S.

892 (1972). Also compare Hamilton Mfg. Co. v. Trustees of State

Colleges in Colorado, 356 F. 2d 599, 601 (10th Cir. 1966), which

was an action on a state debt, and DeLevay v. Richmond County

School Board, 284 F. 2d 340 (4th Cir. 1960), which holds a county

school board to be an agency of the state immune under the eleventh

amendment.

ENOL TERE LES PR ws SOT Ne ae RENT ET aE

BLEEL

nsaeeNBE Soar rere enrames cet BRON aS SL ARNIS SME OMENS GF ETA SPE CRE

EED THROUGH

All

faith for an act violating constitutional rights a board member

must meet two tests: First, he must be acting, not “with the

malicious intention to cause a deprivation of constitutional rights

or other injury to the [plaintiff],” but “sincerely and with a belief

that he is doing right.” Second, if he meets the first test, he is

liable only “if he knew or reasonably should have known” that

his act “would violate the constitutional rights” of the plaintiff.

Id. at 1000-1001.

There is no evidence in the record at bar suggesting that the

defendant school board members acted with malicious intent to

violate plaintiff's constitutional rights and not sincerely with

the belief that they were doing right. The question left after

reviewing the facts of record is whether they reasonably should

have known that the action they were taking would violate plain-

tiffs constitutional rights. That question must be answered in

the light of the law as it existed in July 1970, when the action

was taken. At that time Pickering v. Board of Education, 391

U. S. 563, 574-575 (1968), holding that a faculty member

could not be dismissed for exercising protected first amend-

ments rights, had been decided, and the defendant board mem-

bers were chargeable with knowledge of the principle established

by that case. Apart from whether they should have known of

the applicability of the principle to one in plaintiff's position,

a question we need not decide, Pickering is not applicable be-

cause the District Court has found, in findings we cannot say

are clearly erroneous, that plaintiff was not dismissed for exer-

cising first amendment rights.

The constitutional right violated was plaintiff's procedural due

process right to a hearing before termination, and it is the status

of the law in 1970 with respect to this right upon which the

immunity of the board members turns. The first definitive hold-

ing that termination of teachers’ property interes:s in their em-

ployment contracts with state institutions required due process

hearings was Board of Regents of State Colleges v. Roth, supra,

408 U. S. 564, 576-578 (1972). Plaintiff does not argue other-

POOR COPY

ere |

Al2

wise. His argument is that the board’s own written rules, called

“policies,” required notice and hearing before termination. The

“policies” relied upon, however, did not require a pre-termina-

tion hearing under the circumstances of this case and therefore

did not put the members of the board on notice that plaintiff

was entitled to a hearing, even assuming that knowledge of a

rule of the board is to be equated with knowledge of a constitu-

tional principle for present purposes. The first, which concerns

non-renewal of the president’s contract and requires written

notice by January 1 of his final year of a decision not to rehire

him, applies to terminations on expiration of a contract, not

termination for cause, and therefore did not apply to the situa-

tion the board thought it was confronted with in July 1970. The

second “policy,” entitled “Dismissal of Tenured Staff,” requires

written notice and a hearing, if requested, but does not apply to

an untenured administrator such as plaintiff.* The board’s

“policies,” therefore, afford no support for plaintiff's contention

that the board members reasonably should have known he was

entitled to a hearing.

We must accept and apply the principle that a school board

member is not “charged with predicting the future course of

constitutional law,” Wood v. Strickland, supra, 95 S. Ct. at

1001, quoting from Pierson v. Ray, 386 U. S. 547, 557 (1967).

Since, as the Court stated in Strickland, “[a] compensatory

award will be appropriate only if the school board member has

acted with such an impermissible motivation or with such dis-

regard of the student's [or administrator’s] clearly established

constitutional rights that his action cannot reasonably be char-

acterized as being in good faith,” 95 S. Ct. at 1001, no com-

pensatory award can be justified by the evidence in the case at

bar. See also Briscoe v. Kusper, 435 F. 2d 1046, 1058 (7th

Cir. 1970), in which we said:

4. Ill. Rev. Stat. ch. 122, § 103-32 (1969) empowers the board

“[t]o establish tenure policies for the employment of teachers and

administrative personnel.” The policy established by the defendant

board (Policies and Procedures 2.00) is, “The President of the Col-

lege serves at the pleasure of the Board.”

ELT ITEP SEE I NEL BELLIED 8S TN

BLEE

Al3

“Although found unconstitutional by this Court, the p-ac-

tices of the Board were neveriheless within the ambit of

permissible discretion as it appeared at that time. . . . Under

these circumstances, personal liability for damages should

not attach, regardless of whether such state action tech-

nically contravened the Fourteenth Amendment.”

The defendant board members’ defense of immunity from

liability for money damages must be sustained.

Relief

Having determined that the board’s denial of a pretermina-

tion hearing was an actionable wrong for which it, but not

its individual members, is answerable, we turn to the ques-

tion of the form and measure of appropriate relief.

Five years have elapsed since plaintiff's employment was

terminated. His employment contract, even if it had continued

in force, would long since have expired. Under these circum-

stances, injunctive relief would be manifestly inapp-opriate, cf.

Zimmerer V. Spencer, 485 F. 2d 176, 179 (Sth Cir. 1973),

and we do not understard plaintiff to contend otherwise. Nor,

in view of our other holdings, is there any reason for a declara-

tory judgment.

Although we conclude that plaintiff is entitled to damages,

decision as to the appropriate measure presents problems. The

District Court has found, in findings we cannot say are clearly

erroneous, that plaintiff was terminated for reasons amounting

to just cause. Given the nature of these findings, viz., that

certain conduct of plaintiff identified by the District Court

“substantially impeded the Board’s normal functions, critically

impaired the personal working relationship between the parties,

and completely destroyed the Board’s confidence in Plaintiff's

loyalty and abilities,” it is inconceivable that even if plain-

tiff had been accorded his procedural due process rights he

would have been allowed to continue in office. We have al-

ready pointed out, in holding that the defendant board members

osu cones: VN ROE TEE LINES 2 UES TI TENET BILE IIE ARERR PONTE HERI Re aby

LEED THROUGH

POOR COPY

Al4

are entitled to immunity, that in failing to give plaintiff a

notice and hearing they did not act maliciously and, in view of

the state of the law in 1970, could not reasonably have been

expected to know that they were violating plaintiff's constitu-

tional rights. In view of all these circumstances, justice would

not be served and plaintiff would be given a windfall at the

expense of the taxpayers of the school district if we were to

hold that he is entitled to the same damages that would be

recoverable if the contract had been terminated without just

cause, although we recognize that one court has adopted this

approach, without, however, much discussion of its reasons,

see Zimmerer Vv. Spencer, supra, 485 F. 2d at 179. Another

court has seen it fit to provide reimbursement up until the

time that the constitutional deprivation was adjudicated, see

Horton v. Orange County Bd. of Educ., 464 F. 2d 536 (4th

Cir. 1972), a measure of damages which would render the

amount of recovery wholly fortuitous since it would be de-

pendent upon when the District Court could hear the case,

and which would encourage dilatory tactics.

The wrong done plaintiff was not the termination of his

employment, for that has been determined to have been justified,

cf. Garcia v. Daniel, 490 F. 2d 290 (7th Cir. 1973), but the

deprivation of his procedural due process right to notice and a

hearing. Plaintiff is entitled to damages for that constitutional

violation. Although the amount of damages for such an injury

cannot be determined by reference to an objective standard,

recovery of non-punitive damages for the deprivation of in-

tangible rights for which no pecuniary loss can be shown is

not without precedent. Courts have traditionally assessed such

damages for tortious injury. Examples in civil rights litigation

include the awarding of damages for the deprivation of voting

rights, see Nixon v. Herndon, 273 U. S. 536 (1927); see

Wayne v. Venable, 260 F. 64 (8th Cir. 1919), for the abridg-

ment of equal opportunities to housing, see Jeanty v. McKey

& Poague, Inc., 496 F. 2d 1119 (7th Cir. 1974); Seaton v.

PIPE SOT IL OLLI OIE LET PRL SPT LIE LN II ITE TLE Ei AIRES) MIU SRE RENE Be TUTE ERLE AE RNS

BLEE

Al5

Sky Realty Co., Inc., 491 F. 2d 634 (7th Cir. 1974), for

illegal arrests, see Basista v. Weir, 340 F. 2d 74 (3d Cir.

1965); Rhoads v. Horvat, 270 F. Supp. 307 (D. Col. 1967),

and for violation of the right against unlawful searches and

seizures, see Sexton v. Gibbs, 327 F. Supp. 134 (N. D. Tex.

1970), affd, 446 F. 2d 904 (Sth Cir. 1971), cert. denied,

404 U. S. 1062 (1972); cf. Bell v. Hood, 327 U. S. 678,

684 (1946). See also Smith v. Losee, 485 F. 2d 334, 352-

353 (10th Cir. 1973) (Doyle, J., dissenting). We think the

case at bar presents an analogous damage problem.

The question of damages is an issue of fact which should be

decided by the trial court. See Wayne v. Venable, supra, 260

F. at 66. It is therefore necessary to remand the case for a

determination of the damages fairly attributable to the failure

to afford plaintiff the due process hearing to which he was

entitled. The civil rights cases just cited indicate that the

non-punitive damages to be awarded may be special, in the

sense that they are related to the particular mental distress or

other injury to the plaintiff, and general, in the sense that the

damages are inherent in the nature of the wrong. Thus the

factors which the trial court should consider in making its

award will include the nature of the constitutional deprivation

and the magnitude of the mental distress and humiliation suf-

fered by the plaintiff, as well as any other injury caused as a

result of being deprived of federally protected rights, but not, in

view of Alyeska Pipeline Service Co. v. Wilderness Society,

421 U. S. 240 (1975), attorneys’ fees. Under the circum-

stances, plaintiff should also recover his costs, both in the

District Court and in this court.

CONTRACT RIGHTs.

Count III], added to the complaint on the eve of trial, asserts

a state-law contract claim against the board. Since damages are

measured in the same way under that count and Count I, the

ee | *B) SEARO Te RR RG AN EE EB A ai a COR Na THAR na Rea Re hie tN OTN NE mG NIK PEW NEE ig

~EED THROUGH

POOR COPY

Al6

two counts are alternatives. We therefore need not rule on

liability under Count III unless the District Court erred in strik-

ing the jury demand filed with that count, in which case plain-

tiff would be entitled on remand to a jury trial of the issue

of damages.

Plaintiff had not made a jury demand in connection with his

original or amended complaints, filed in January and April,

1971. On February 4, 1974, the court set the case for trial on

April 29 of that year. On February 20, 1974, over three years

after the commencement of the action, plaintiff obtained leave

to file an amendment, adding Count III, in which he sought

damages for breach of contract and demanded a jury trial.

Pursuant to defendants’ motion, the court struck the amend-

ment with leave to amend within ten days. Plaintiff did not

amend within that time but waited until April 29, 1974, the

date set for trial, to seek leave to file a new amendment con-

taining the contract claim and a jury demand. The court

granted leave to file the amendment but struck the jury demand

as untimely, gave defendants 48 hours to answer, and proceeded

to trial on May 2, 1974.

The trial judge may well have had discretion under Rule

15(a), Fed. R. Civ. P., to refuse to allow the amendment on

the date set for trial except on condition that the jury demand

be withdrawn. Compare: Chicago Pneumatic Co. v. Hughes Tool

Co., 192 F. 2d 620, 631 (10th Cir. 1951); Parissi v. Foley,

203 F. 2d 454, 455-456 (2d Cir. 1953); rev'd on other grounds

sub nom. Parissi Vv. Telechron, Inc., 349 U.S. 46 (1955); and

Bercovici v. Chaplin, 56 F. Supp. 417, 418 (S. D. N. Y. 1944)

with Alcoa S. S. Co. v. Ryan, 211 F. 2d 576, 578 (2d Cir.

1954); Local 783, Allied Industrial Wkrs. v. General Electric

Co., 471 F. 2d 751, 755-756 (6th Cir. 1973), cert. denied,

414 U. S 822 (1973); and cf. 3 J. Moore, Federal Practice

€ 15.08[4] at 907 (2d ed. 1974); 5 id. at € 38.41. Plaintiff

had failed to present the amendment within the time allowed

by previous order of the court, the case was over three years

SRM MIM LEONE SSeS EG IEY SINR TORIES Ny LMAO RL a CR RM Ra acc Ce SD

BLEE

Al7

old and had been set for trial almost three months earlier, and

the court had allocated time on a busy calendar for a bench

trial, not a jury trial, which would be bound to take longer.

The court, however, did not strike the jury demand in the exer-

cise of discretion but on the ground that the demand was un-

timely under Rule 38, Fed. R. Civ. P., as appears from his

explanation of the reason for his action:

“The rules clearly provide that if a jury demand is not

made in writing at the time the complaint is filed, within ten

days thereafter, your time to demand a jury—or ten

days after you file the answer, why it is too late to file a

jury demand.”

We can hardly affirm an exercise of discretion that did not

occur, and therefore must consider whether plaintiff was other-

wise entitled to a jury trial.

The controlling question is whether Count III introduced

a new issue into the case. Rule 38(b), Fed. R. Civ. P.; 5 J.

Moore, supra, { 38.41. We think it did not, although the matter

is not free from doubt. The amendment seeking damages for

breach of contract under rights created by state law did not,

as counsel for plaintiff acknowledged in the trial court, allege

new subject matter, “just a different theory of law.” The amended

complaint, in connection with which no jury demand was made,

alleged the contracts, plaintiff's performance of his obligations

thereunder, and the board’s termination “in violation of the

Plaintiff's contractual rights, and further in violation of his

[constitutional] rights.” If the amendment here in issue had

not been filed, and we were to conclude from the evidence that

plaintiff was entitled to prevail on the contract theory but not

on the constitutional theory, we could not say the allegations

of the existing pleading were insufficient to allow recovery.

Under Rule 8(a), Fed. R. Civ. P., the pleader need not

allege the legal theory on which he relies, Siegelman v. Cunard

White Star Ltd., 221 F. 2d 189, 196 (2d Cir. 1955); 2A, J.

Moore, supra, § 8.14; and under Rule 54(c) he is to be granted

— | Molt SRR OT ELT ORANG END ALTY Te A ANNM INNES CS TENS REIN RCD IRRN GOT ACCOR AA SIR

LEED THROUGH

POOR COPY

Al8

any relief to which he is entitled even though he has not de-

manded it, 2A Moore, supra, 4 54.62. The allegations of

termination in violation of contract right which appeared in

the pleading before amendment were sufficient to raise the

breach-of-contract issue, from which it follows that the amend-

ment did not raise a new issue. Cf. Lanza v. Drexel & Co., 479

F. 2d 1277, 1310-1311 (2d Cir. 1973) (in banc). Accordingly,

the District Court did not err in striking the jury demand.

The case is remanded for a hearing on damages.

AFFIRMED IN PART AND REVERSED AND REMANDED IN Part.

EE MGR NOIRE TEMS EMG CML RO I ONT ORT RT , et LEIS PROT GH

Al9

APPENDIX B

OPINION OF THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

September 23, 1974

399 F. Supp. 609

AusTIN, District Judge.

MEMORANDUM AND JUDGMENT ORDER

On July 23, 1970, Plaintiff Richard Hostrop was discharged

as President and chief administrative officer of Prairie State

Junior College in Chicago Heights, Illinois. In early 1971,

Hostrop brought this lawsuit, seeking monetary, declaratory,

and injunctive relief against Defendants, members of No. 515

Junior College Board of Directors. Specifically, Plaintiff main-

tained that he was unconstitutionally denied a Board hearing

before termination. He further contended that his severance

resulted solely because of his preparation and circulation of a

highly controversial memorandum criticizing a Board-approved

Ethnic Studies program and that, consequently, the dismissal

was unjustified, a breach of his employment contract, and a

violation of his first amendment right to freely speak his

opinions.

This matter first came before me in February, 1972, when

I dismissed the amended complaint for failure to state a claim

upon which relief can be granted. Hostrop v. Board of Junior

College District No. 515, 337 F. Supp. 977 (N. D. Ill. 1972).

Assuming the accuracy of his well-pleaded allegations for pur-

poses of my decision, I found that, due to his high-level ad-

ministrative position and his intimate working relationship with

the Board, Hostrop could not receive first or fourteenth amend-

ment protection for public statements that were critical of his

—— CII R TIE CET IE TNE ARN IE OREM SR EASED RIMES Cer Ge Rs MMR RE ae S): PLONE R

BLEED THROUGH

POOR COPY

yen

A20

employer. On appeal, the Seventh Circuit disagreed and, on

December 21, 1972, reversed and remanded this action, hold-

ing that the amended complaint presented viable contractual and

constitutional claims.’ Hostrop v. Board of Junior College

District No. 515, 471 F. 2d 488 (7th Cir. 1972).

Upon remand, I conducted a seven-day hearing at which the

parties submitted evidence and arguments in support of their

various contentions. After careful consideration, I conclude that

Plaintiff has not proven the essential allegations of his amended

complaint and that judgment must be entered for Defendants.

Il. HEARING RIGHTS AND WAIVER

First, Hostrop has not shown that he merited a pretermina-

tion hearing. On appeal, the Seventh Circuit held that Plain-

tiff could recover on his due process-denial claim only if he

proved that his particular circumstances gave rise to a “liberty”

or “property” right warranting constitutional protection. On

the basis of the evidence before me, he has not demonstrated

the existence of either right. Since Hostrop made public the

Board’s grounds for discharge when it had no intention to do

so itself, I find that his “standing in the community” was not

damaged by any action of the Board. See 471 F. 2d at 494.

See also Shirck v. Thomas, 486 F. 2d 691 (7th Cir. 1973);

Jafree v. Scott, 372 F. Supp. 264, 270 (N. D. Ill. 1974); De-

5. Stee Se Cee One See One oom oe

allegations were factually well-iounded and actuaily —_

procedures due him. This argument is spurious and must end,

The Circuit decision only discussed Defendants’ attack upon the legal

— of Hostrop’s claims. Fed. R. Civ. Pro. 12(b)(6). By its

carefully-delineated terms, the appellate ruling merely asserted that

Plaintiff's amended complaint was actionable. The Court did not—

as it property could not—substantively evaluate these charges. In

“for the consideration of the causes of action ihe Plaintiff

has pleaded,” the Seventh Circuit remitted this litigation to me for

factual findings and legal conclusions and not necessarily, as Hostrop

seems to suggest, for the entry of judgment in his favor. 471 F. 2d

at 495.

-. a dial A OR es OEE EE -

A21

fendants’ Post-Trial Memorandum 8-11. Moreover, because

Plaintiff deceptively deleted a material provision of his proposed

employment contract and misled Defendants concerning his

extensive outside involvements, I further find that he had no

reasonable or “legitimate claim of entitlement to his job.” 471

F. 2d at 494. See Defendants’ Post-Trial Memorandum 11-16.

It follows that, in this instance, due process does not demand

a dismissal hearing. See, generally, Birdwell v. Hazelwood School

District, 491 F. 2d 490 (8th Cir. 1974).

Even allowing Hostrop a hearing right, I find that he waived

it by refusing to attend the July 23, 1970 Board meeting at

which he was discharged. The evidence established that his

attendance was required by school rules and policy, that he

knew of the pendency and substance of the meeting, that he

had ample advance notice of the charges against him, and that ;

he failed to be present on advice of counsel. Moreover, I find

that the Board was prepared to undertake an informal impartial

hearing into its complaints against him. In this context, Plain-

tiffs voluntary absence from a properly-noticed Board session ;

constitutes a deliberate waiver of any due process rights he may '

;

have possessed. See, generally, Johnson v. Zerbst, 304 U. S.

458, 464 (1938); Birdwell, supra. See also Defendants’ Post-

Trial Memorandum 17-29.

Il. First AMENDMENT AND CONTRACTUAL RIGHTS

Next, I find that Hostrop’s dismissal was not motivated by

his expression of views in the Ethnic Studies memorandum. I

conclude that, as a matter of fact, his termination was fully

justified and was the culmination of a series of confrontations

and incidents which include the Savage and Cooke problems, the '

Perkins and Will affair, the timing and concealment of the Ethnic

Studies memorandum, Mrs. Pommer’s salary, the operation of

the Storefront Academy, his unilateral contract deletion, his :

28 TR API

misinformation about his non-college activities, and his failure

aE eee er ee

A22

to provide the Board with requested financial reports. These

events substantially impeded the Board’s normal functions, crit-

ically impaired the personal working relationship between the

parties, and completely destroyed the Board’s confidence in

Plaintiff's loyalty and abilities. Hostrop’s discharge, therefore,

was neither a deprivation of his free speech rights nor a breach

of contract. See Defendants’ Post-Trial Memorandum.

Ill. Count II Conspiracy CHARGE

Plaintiff's Count II conspiracy charge is without foundation

and unsupported by any persuasive evidence.

IV. JUDGMENT ORDER

After weighing all relevant evidence and the contentions of

the parties, I find that Plaintiff was not entitled to a pre-dis-

missal hearing, that he waived any hearing right by failing to

attend the July 23, 1970 Board meeting, and that his termination

was justified and not the result of an unlawful deprivation of his

first amendment privileges.

On the law and facts, judgment must be rendered in favor

of Defendants.

Case dismissed.

/s/ Jupce RicHarp B. AUSTIN,

Judge, United States District Court

Dated: September 23, 1974

APPENDIX C

OPINION OF THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

December 21, 1972

471 F. 2d 488

Before SwyGerT, Chief Judge, Caste, Senior Circuit Judge,

and PELL, Circuit Judge.

CastLe, Senior Circuit Judge. Appellant Richard W. Hostrop

appeals the action of the district court dismissing his civil rights

complaint against the Board of Junior College District No. 515

and its members for failure to state a claim upon which relief

can be granted. The basic question on this appeal is whether

the rights of free expression and procedural due process tradi-

tionally given to teachers and other public employees extend

also to a college president who was hired to act as the direct

agent of a school board.

Plaintiff Hostrop’s complaint alleged the following facts, which

we shall take as true for the purposes of this appeal. Hostrop

was appointed President and chief administrative officer of

Prairie State Junior College in Chicago Heights, Illinois by the

defendants through a series of contracts which extended his

tenure until June 30, 1972." On May 25, 1970, as part of his

official duties, plaintiff prepared a confidential memorandum for

circulation among his administrative staff which requested that

the staff consider certain proposed changes in the college’s

ethnic studies program for discussion at the next staff meeting.

After an unknown person made a copy of this memorandum pub-

lic, certain defendants questioned Hostrop’s right to make such

1. Defendants challenged the validity of the contracts executed

by the Board and Hostrop in their memorandum filed with the district

court, but this issue was not resolved.

i a - «= —o

a ait a nein ee

LLP VERRIER 8 ES A NS Ion

ST Wh 98 ar hee

OL LOG PUR fg a ST

PELE FRR

A24

a proposal and told him that it was a breach of his administrative

duties and was not a matter of free expression. On July 13, 1970,

plaintiff was summoned to the office of counsel which the

Board had recently hired and told that he had the choice of

resigning or taking the consequences of being fired. The publi-

cation of the memorandum was mentioned as being a prime

reason for Hostrop’s termination, although he was told that he

would be fired without any notification of the charges against

him. Ten days later the Board met and terminated Hostrop’s

contract without giving him any hearing or opportunity to speak

in his defense. A list of charges that supposedly justified his

termination was given to Hostrop some time later.?

Plaintiff's complaint concluded that the alleged facts showed

a deprivation of his right to free speech and a denial of due

process of law, and asked that the court order the college to give

him a full and complete hearing, enjoin the defendants from re-

placing him with another person as president, and declare that

his dismissal violated his first amendment rights. A second count

of the complaint alleged the same facts as the first count plus

the facts that the defendants had violated the Illinois antisecrecy

statute and that the plaintiff had suffered both mental strain

and financial loss because of the defendants’ conduct. This

count asked for recovery of actual damages of $100,000 and

punitive damages of $500,000.

The district court dismissed the complaint for failure to state

a claim upon which relief can be granted.* Hostrop v. Board of

2. This belated submission of the reasons for dismissal listed

such things as the failure of Hostrop to devote full time to his

duties, his withholding of information from the Board, his failure to

give attention to certain college problems, and his attempt to mislead

the Board during the negotiations for the extension of his contract.

Preparation of the ethnic studies memorandum was not specifically

mentioned as a reason for dismissal, although one charge stated that

“Hostrop failed adequately and competently to deal with the adminis-

tration of the Black Studies Program, causing both the students at

the college and the Board grave concern.”

3. The record shows that defendants moved for summary judg-

ment on May 7, 1971. The deposition of Dr. Hostrop was filed with

PORE, WAAL LSS IE So UL, OT ey SE

— ee

BoE MIE ATES TINS CORAL

2 kD AEROS OPE pe ’ SES EF : —_ .

A25

Junior College District No. 515, 337 F. Supp. 977 (N. D. Ill.

1972), finding that Hostrop’s position as a college president

directly responsible to the Board required that he be loyal to

the Board and maintain its confidence in him as conditions of

his continued employment. Reasoning from a remark in Pick-

ering V. Board of Education, 391 U. S. 563 (1968), that first

amendment rights of persons in personal and intimate working

relationships with their superiors may be restricted, the court

found that Dr. Hostrop’s position vis-a-vis the Board required

that his right to make public statements or to disagree with the

Board be limited. 337 F. Supp. at 978-79. Applying the test

of Cafeteria Workers v. McElroy, 367 U. S. 886 (1961), to

balance the interests of the Board against those of Dr. Hostrop,

the court found that the need of the Board to have wide dis-

cretion in deciding to fire its presidents without asserting reasons

outweighed any need of the plaintiff to know the reasons for

his dismissal and any harm to his professional career. 337 F.

Supp. at 980.

Initially, we note that the disposition of a motion to dismiss

for failure to state a claim in a case such as this one is an ex-

tremely difficult task. As the district court recognized, resolution

of the issues requires an analysis of the working relationship be-

tween Dr. Hostrop and the Board and a balancing of the various

competing interests of each. Unfortunately, the record at this

state of the litigation does not clearly define the working rela-

tionship between the parties. It does not indicate how closely

Hostrop had to follow the dictates of the Board—how often he

met with the Board, how much power he had to formulate ed-

ucational policy with the Board's blanket approval, or whether

he had any ability to debate Board members on certain issues

the clerk of the district court on June i, 1971, and supporting

affidavits and exhibits were filed in July and October. The district

court treated the defendants’ motion as a motion to dismiss in its

opinion dated February 1, 1972, stating that no deposition had been

filed. We have not considered the contents of the deposition for the

purpose of disposing of this appeal, since it was never considered by

the district court.

}

ornare

DOE TE LT eR PE CO FOE A Te PE 2 ae

A26

that would be decided by a vote of the Board. A consideration

of these factors would indicate more clearly whether Hostrop’s

right to make his recommendations or to disagree with the Board

had to be limited, as the district court asserted, “[i]n order for

the working relationship between them to be effective.” Similarly,

the record does not identify the nature of the competing interests

or the extent to which they are irreconcilable—how a hearing

procedure would interfere with the discretion of the Board in

hiring and firing personnel, whether other administrators were

granted hearings before action was taken against them, and

what the effects of the hearings given others actually were. With

these shortcomings in the record in mind, we turn to the allega-

tions of the complaint.

I. PREPARATION OF THE MEMORANDUM

AS A GROUND FOR DISCHARGE

Plaintiff argues on this appeal that the protections that have

traditionally been given to the speech and associations of aca-

demicians* should extend also to his circulation of the ethnic

studies memorandum. It is true that the judiciary has steadfastly

construed the concept of freedom of expression broadly as a

means of prompting vigorous, robust debate,’ and that it has

consistently rejected attempts to formulate absolute rules which

would restrict the first amendment rights of whole classes of

individuals, whether they be students,® campus speakers,’ school

4. Healy v. James, 408 U. S. 169, 180-81 (1972), Keyishian v.

Board of Regents, 385 U. S. 589, 603 (1967), Wieman v. Upde-

graff, 344 U. S. 183, 196 (1952) (Frankfurter, J. concurring).

5. New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964),

Donahue v. Staunton, ........ _ f= (7th Cir.) (Slip Opinion

No. 71-1160, July 6, 1972 at 10), Kiiskila v. Nichols, 433 F. 2d

745, 748 (7th Cir. 1970).

6. Tinker v. Des Moines School District, 393 U. S. 503, 513

(1969), Breen v. Kahl, 419 F. 2d 1034, 1036-37 (7th Cir. 1969),

cert. denied, 398 U. S. 937 (1970).

7. Brooks v. Auburn University, 412 F. 2d 1171, 1172 (5th

Cir. 1969).

er Wome aEt . . a 7 eNED OM Re ELON AP AROS CHL ROT AE SPR ’

i | ~ =~ an " a

A27

newspaper editors,* student organizers,® or teachers.’° Against

this commitment to academic freedom, defendants are asking this

court to excise a class of academic personnel who will have no

first amendment rights.

OM aS CRIT LA aig ER:

Defendants argue that college administrators like Dr. Hostrop

can be discharged whenever they circulate proposals that might

offend the sensibilities of the Boards that hired them, for their

jobs require that they do not offend the Boards. Defendants

rely upon language from Pickering v. Board of Education, 391

U. S. 563 (1968), to differentiate between teachers and ad-

ministrators, one class which may dissipate the confidence of

the school board by making certain statements, and one class

which cannot afford to:

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. . . . Appellant’s em-

ployment relationships with the Board, and, to a somewhat

lesser extent, with the superintendent are not the kind of

close working relationships for which it can persuasively be

claimed that personal loyalty and confidence are necessary

to their proper functioning.

* * * * *

It is possible to conceive of some positions in public em-

ployment in which the need for confidentiality is so great

that even completely correct public statements might furnish

a permissible ground for dismissal. Likewise, positions in

public employment in which the relationship between supe-

rior and subordinate is of such a personal and intimate

nature that certain forms of public criticism of the superior

by the subordinate would seriously undermine the effective-

ness of the working relationship between them can also be

imagined. We intimate no views as to how we would re-

8. Scoville v. Board of Education, 425 F. 2d 10, 13 (7th C:r.),

cert. denied, 400 U. S. 826 (1970).

9. Healy v. James, 408 U. S. 169, 186 (1972).

10. Pickering v. Board of Education, 391 U. S. 563, 574

(1968), McLaughlin v. Tilendis, 398 F. 2d 287, 288-89 (7th Cir.

1968).

POOR COPY

Eee 3 —e re “ASE Ot ee

A28

solve any specific instances of such situations, but merely

note that significantly different considerations would be in-

volved in such cases.

Id. at 569-70, 570 n.3. Defendants submit that personal loyalty

and confidence are necessary for the proper functioning of the

working relationship between Dr. Hostrop and themselves, and

that since the circulation of the ethnic studies memorandum

could have arguably affected this loyalty and confidence, Hostrop

can be discharged.

We do not interpret the above-quoted remarks from Pickering

so as to support defendants’ positions on this appeal, especially

when that case is placed within the context of other first amend-

ment decisions. It has been consistently held that a government

cannot punish a person for his speech alone, but only for speech

that causes substantial disruption or that hinders the functioning

of the state.’ In this perspective, Pickering should not be read

to authorize the discharge of a college president merely because

he expresses an opinion that could be interpreted as a sign of

disloyalty or an undermining of the confidence placed in him.

Instead, Pickering holds that an employee’s speech may be regu-

lated only if a public entity can show that its functions are being

substantially impeded by the employee’s statements. Donahue v.

Staunton, ............ i eer (7th Cir.) (Slip Opinion No. 71-

1160, July 6, 1972 at 14) (Swygert, C. J. dissenting). We find

that Dr. Hostrop’s suggestions about the ethnic studies program

which appear in the complaint cannot, on their face and by them-

selves, be taken as a serious impairment of the effectiveness of

the working relationship between him and the Board that the de-

fendants could discharge him merely for making the sugges-

tions.'* Absent actual proof of such an impairment, the face of

11. Grayned v. City of Rockford, 408 U. S. 104, 118 (1972),

Cohen v. California, 403 U. S. 15, 23 (1971), Tinker v. Des Moines

School District, 393 U. S. 503, 513-14 (1969), Terminiello v.

Chicago, 337 U. S. 1, 4 (1949).

12. An important distinction between Pickering and the instant

case is that teacher Pickering engaged in criticism of the school

board and that Dr. Hostrop merely made a suggestion for a change

Fa NEY PE OIE PAINT NT ee

A29 :

; :

the pleadings shows no reasons to deny Dr. Hostrop’s first :

amendment rights. It was therefore error to dismiss his com- H

plaint for failure to state a cause of action on first amendment i

grounds.’* :

In fact, the general guidelines drawn by Pickering for decid- '

ing whether an employee’s speech should be restricted support

Dr. Hostrop’s first amendment right to propose changes in the

curriculum of Prairie State Junior College. Pickering recognizes

that the position of the person seeking to express his views and

the nature of the controversy to which he is directing his com-

ments are important factors to consider in determining whether

his freedom of expression should be protected. 391 U. S. at 571-

72. The Court recognized that teachers, because of their posi-

tion in the educational system, are able to make significant con-

in curriculum. It is unclear from Pickering whether the Supreme

Court thought that criticism of a superior by an employee in a close

working relationship with him would be analogous to the speaking

of “fighting words” so that the state could discharge the employee

merely because he spoke the words of criticism, or whether the state

would have to prove that the working relationship between the two

had deteriorated because of the criticism so that the two could no

longer work effectively together.

In both Lefecourt v. Legal Aid Society, 312 F. Supp. 1105

(S. D. N. Y. 1970), aff'd, 445 F. 2d 1150 (2d Cir. 1971), and

Watts v. Seward School Board, 454 P. 2d 732 (Alas. 1969), cert.

denied, 397 U. S. 921 (1970), employees were discharged for a

series of confrontations and incidents which cumulatively destroyed

the efficiency of the governmental units for which the employees

worked. Furthermore, in both cases the action of the government

employer in discharging the employees was upheld only after a trial

court heard evidence relating to the kind of criticism involved and its

actual effects.

13. The district court did not decide whether the memorandum

was distributed publicly or privately, but thought this issue was

important because of its view that the first amendment does not

protect private communications. This point was not argued on appeal.

Past decisions have extended the first amendment to protect private

statements made by public employees, Muller v. Conlisk, 429 F. 2d

901 (7th Cir. 1970), Swaaley v. United States, 376 F. 2d 857, 853

Ct. Cl. 1967), and statements made by public employees in carrying

out their assigned duties. Downs v. Conway School District, 328 F.

Supp. 338 (E. D. Ark. 1971), Mailloux v. Kiley, 323 F. Supp.

1387, 1392 (D. Mass.), aff'd 448 F. 2d 1242 (1st Cir. 1971).

POE Ee ES EDIT aa |

POOR COPRPYyv

A30

tributions to the public debate concerning the allocation of ed-

ucational funds that precedes public votes. Here Dr. Hostrop,

because of his background and leadership position as college

president, sought to contribute to the discussion of a curriculum

issue that would be decided by vote of the Board. To silence

“vigorous and robust debate” in the formulation of educational

policy on the administrative level would certainly be contrary

to the spirit of the Pickering decision.

Plaintiff's allegation that he was discharged merely for circulat-

ing the memorandum entitles him to relief under another legal

theory distinct from his assertion of his right to freedom of

expression. Plaintiff alleged that he circulated the memorandum

as part of his official duties, and that it was only several days

after it had become public that the members of the Board told

him that he had no right to express his views in such a way and

that he would be terminated because of this expression. These

facts clearly show arbitrary action on the part of the defendants

which the due process clause was meant to prevent. Plaintiff, as

a public employee, is entitled to be protected from retaliation for

actions which he had every reason to believe were a part of

his assigned duties. The facts alleged in his complaint indicate

that he has a cause of action resulting from the deprivation of

substantive due process. Conway v. DuPont School District, 333

F. Supp. 1217, 1220 (D. Del. 1971). cf. Downs v. Conway

School District, 328 F. Supp. 338, 348-49 (E. D. Ark. 1971),

Mailloux v. Kiley, 323 F. Supp. 1387, 1392 (D. Mass.) aff'd

448 F. 2d 1242 (1st Cir. 1971).

II. DENIAL OF A PRE-DISCHARGE HEARING

The threshold inquiry in determining whether a complaint

states a cause of action based on the denial of procedural due

14. We recognize that defendants may demonstrate at trial that

Dr. Hostrop’s circulation of the memorandum was evidence of in-

subordination and actually produced the harmful effects which the

Pickering decision indicated may be grounds for discharge.

Such evidence could justify the discharge.

HELIA es ELE ML PRE AINP Tad ERE C, TREEINS a

ae | mertens _ Nes SLITS ot eR ad z z

A31

PRES EOE, in

process is whether the plaintiff has shown that the state has ;

infringed upon a personal interest protected by the fourteenth

amendment—either life, liberty, or property. Board of Regents

Vv. Roth, 408 U. S. 564, 577 (1972). Lipp v. Board of Educa-

tion, ............ > ne » (7th Cir.) (Slip Opinion No. 71-1912,

November 27, 1972 at 4 n.3). If the complaint does assert the

deprivation of a protected interest, due process of law requires

that certain procedural safeguards be extended before the state

can extinguish that interest. Defendants argue that plaintiff has

asserted no interests worthy of due process protection. They

also argue that they should have unfettered discretion to hire

and fire presidents as a means of expediently Carrying out their

statutory duties, and that this necessity outweighs any interest

of the plaintiff in receiving any kind of hearing before his ter-

mination.

WAS LEAL A MAT Sa BOT

We find that plaintiff's complaint alleges at least two pro-

tected interests which the defendants have infringed upon, and

that plaintiff was entitled to some form of hearing before his

discharge. Plaintiff's complaint makes a credible showing of a

deprivation of “liberty” as it is defined in Board of Regents v.

Roth, 408 U. S. at 573. A person is deprived of “liberty” if

the state damages his standing in the community by charging

him with an unsavory character trait such as dishonesty or

immorality. Plaintiff's complaint alleges facts showing an attack

by defendants on his veracity, for the list of charges which the

defendants submitted to justify his dismissal accused him of

misrepresentations, supplying false information, and withhold-

ing important information. In such a case, due process must

provide notice and an opportunity to refute such charges. Jd.

Plaintiff's complaint also alleges facts showing a deprivation

of “property” as it is defined in Roth, Id. at 576-78. A person

is deprived of property if the government extinguishes his legiti-

mate claim of entitlement to his job. The complaint alleges that

Dr. Hostrop had a legitimate claim of entitlement to the posi-

tion of President of Prairie State Junior College at the time he

ee I a ae _ ae oe |

A32

was discharged on July 23, 1970, for defendants had agreed

to employ him until June 30, 1972 under the terms of a series

of employment contracts. A term of employment set by con-

tract has been recognized as a property interest which the state

cannot extinguish without conforming to the dictates of pro-

cedural due process. Perry v. Sindermann, 408 U. S. 593, 601

(1972), Board of Regents v. Roth, 408 U. S. at 576-77. The

existence of such a contractually-established property interest

obligates the Board to grant plaintiff a hearing where he can be

fully informed of the reasons for his nonretention and challenge

their sufficiency.

Having found that plaintiff has asserted protected interests

that are entitled to due process procedural safeguards, we must

balance the interests of the state against those of the individual

to determine the form of hearing that Dr. Hostrop is entitled

to before his termination. Board of Regents v. Roth, 408 U. S.

at 570. The Board’s interest consists of maintaining efficiency

through the prompt removal of its chief administrator when it

reasonably believes that it can no longer work effectively with

and through that person. But it is questionable whether effi-

ciency is a compelling interest,’ so that this consideration

15. The fact that plaintiff relies upon his employment contract

to establish a property interest worthy of protection through the

due process clause does not mean that his only remedy is a contract

action in state court. A civil rights action based on the deprivation

of due process and a contract action to recover damages for a breach

are independent remedies. The civil rights action based on depriva-

tion of a property interest established by contract seeks vindication

for the arbitrary manner in which the contract was breached. A

“garden variety” contract action seeks damages only for the losses

caused by the breach once it has occurred in any manner whatsoever.

There will be occasions when one action will lie but the other will

not, as when the state has grounds to break an employment contract,

but does so by violating an employee’s dues process rights to notice

and a hearing.

16. “The price which a government must pay to protect the con-

stitutional liberties of its employees is some loss of the efficiency

enjoyed by private employers; the Supreme Court has repeatedly

decided that the value of those individual liberties is weil worth the

cost.” Illinois State Employees Union, Council 34 v. Lewis, ........

A33

should work to deny a hearing for one college president when

courts have rejected it as a rationale for denying hearings to

thousands of other employees. See, Perry v. Sindermann, 408

U. S. 593 (1972), Kennedy v. Sanchez, ....... _

(N. D. Ill.) (Opinion No. 72 C 771, October 24, 1972). Dr.

Hostrop’s interests lie in protecting his first amendment rights

and future employment prospects and in avoiding dismissal

when it is not justified by the facts. We find that the resolution

of these interests requires that plaintiff be given a notice of the

charges against him, notice of the evidence upon which the

charges will be based, a hearing before a tribunal possessing

apparent impartiality, and a chance to present witnesses and

confront adverse evidence at the hearing. Board of Regents v.

Roth, 408 U. S. at 570 n. 7, Ferguson v. Thomas, 430 F. 2d

852, 856 (Sth Cir. 1970), Kennedy v. Sanchez, . _ F. Supp.

dames (N. D. Ill.) (Opinion No. 72 C 771, October 24, 1972

at 6.) See also, Lucas v. Wisconsin Electric Power Company,

466 F. 2d 638, 652 n. 30 (7th Cir. 1972). We recognize that

there are differences between college administrators and teach-

ers so that the Board may have different justifiable grounds for

dismissing its president. A court that may be called upon to

review the findings of an administrative hearing which results in

the discharge of a college president will have to take the par-

ticular duties of the president and his working relationship

with the school board into account.

We find that the plaintiff has stated valid causes of action

showing that he was deprived of his first amendment right to

free expression and his fourteenth amendment right to due

process of law. Accordingly, we remand this case to the district

court for the consideration of the causes of action the plaintiff

has pleaded.

REVERSED.

i 2 (7th Cir.) (Slip Opinion No. 71-1619, September 18,

1972 at 19).

soenetlRiomccen LL LL LL ELISE LOOP MIE EHO BANG IEE EA POE EEE EE FRESE BS SN

A34

APPENDIX D

OPINION OF THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

FEBRUARY 1, 1972

337 F. Supp. 977

AusTIN, District Judge.

MEMORANDUM OPINION

This is a suit brought pursuant to the first, fourth, fifth, and

fourteenth amendments to the United States Constitution and 42

U. S. C. 1981 et seq. Plaintiff is a former chief administrative

officer of Prairie State College and defendants are members of

the board of the college district, who terminated plaintiff's em-

ployment. They are sued individually and as a corporate body.

Before the court is defendants’ motion for summary judg-

ment, which the court believes should be considered more prop-

erly as a motion to dismiss for failure to state a claim upon which

relief can be granted. Filed with the court are plaintiff's amended

complaint (a prior motion to dismiss having been granted),

defendants’ motion, two affidavits on behalf of the defendants,

and memoranda submitted by both sides. In their memoranda

both sides refer to depositions, but none have been submitted to

this court.

In his complaint plaintiff alleges that he was fired because

of an administrative staff memorandum in which he made rec-

ommendations for changes in the Ethnic Studies Program. The

memorandum was intended to be confidential, but it is alleged

that it was made public by someone other than plaintiff. He

contends that his first amendment rights were violated since he

was fired solely because of his memorandum and that his fifth

A35

and fourteenth amendment rights were violated because he was

not given a hearing. This court finds that as a matter of law

plaintiff has raised no constitutional claims and therefore the

complaint is dismissed for failure to state a claim.

The most recent Supreme Court case concerning the first

amendment rights of public school employees is Pickering v.

Board of Education, 391 U. S. 563 (1968). In that case plain-

tiff, a high school teacher, sued the board after he was fired for

sending to a local newspaper a letter that was critical of the way

in which the school board and the superintendent handled

proposals to raise revenue. The Court held that unless he know-

ingly or recklessly made false statements, a teacher could not be

dismissed from public employment as a result of his speaking on

issues of public importance. The Court noted, however, that

factors not present in that case could result in a different finding:

The statements [made by plaintiff] 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 im-

mediate superiors or harmony among coworkers is presented

here. Appellant’s employment relationships with the Board

and, to a somewhat lesser extent, with the superintendent

are not the kind of close working relationships for which it

can persuasively be claimed that personal loyalty and con-

fidence are necessary to their proper functioning.

Id. at 569-70

It is possible to conceive of some positions in public em-

ployment in which the need for confidentiality is so great

that even completely correct public statements might furnish

a permissible ground for dismissal. Likewise, positions in

public employment in which the relationship between supe-

rior and subordinate is of such a personal and intimate na-

ture that certain forms of public criticism of the superior

by the subordinate would seriously undermine the effective-

ness of the working relationship between them can also be

imagined.

Id. at 570 n.3.

renee nneeeneeensnssnenetnsneseeteenesaesieeeeenanseeeeenea trent

POOR COPY

a1 r Ee ~_{, ws ses AE tee

PEP 9 Ug RE TP EP Up te

be ERPS ee ee EE PR Re TRE Ee ee ES

A36

While none of the parties nor this court have found a case

as the instant one involving a school administrator rather than

a teacher, if the above-quoted exception drawn by the Supreme

Court is to have any application, this court believes it must be

in a case such as the one now before it.

According to the employment contract between plaintiff and

defendant board, plaintiff agreed to “abide by all rules, regula-

tions and directions issued by the Board in carrying out the

duties of his position . . .” as chief administrative officer of the

college. The nature of the position of a college president is such

that the board must have the “confidence” in and the “personal

loyalty” of the president. In order for the working relationship

between them to be effective the right of a president to make

public statements or to disagree with the board may have to be

limited. Therefore, assuming that the memorandum which be-

came public was the basis for plaintiff being fired,’ this court

finds that this is the type of case envisioned by the Court when it

drew the exception in Pickering and that the plaintiff thus has no

first amendment rights that were violated.

This court further finds that plaintiff has raised no due process

rights that would entitle him to notice of charges and a hearing

at which he could rebut them. The Supreme Court has held

that interests must be considered to decide what due process

rights an individual has:

[CJonsideration of what procedures due process may re-

quire under any given set of circumstances must begin with

a determination of the precise nature of the government

function involved as well as of the private interest that

has been affected by governmental action.

1. It is not necessary to decide whether the memorandum in

question was distributed privately or publicly and if publicly, whether

it was done by plaintiff or someone else. If it was public it falls within

the exception established in Pickering, and if private, the first amend-

ment is not drawn into question, and moreover, the state can limit

private debate where it is detrimental to the functioning of a public

body. See e.g., Lefcourt v. Legal Aid Society, 312 F. Supp. 1105,

1113 (S. D. N. Y. 1970).

A37

Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886,

895 (1961). In that case the Court held that a cook at a

cafeteria operated by a private concessionaire in a military gun

factory could be excluded from the factory for reasons of

security without being given a hearing. The Court noted that it

“has consistently recognized that an interest closely analaguos

to [petitioner's], the interest of a government employee in re-

taining his job, can be summarily denied.” Jd. at 896.

Thus, in light of Cafeteria Workers this court must undertake

a balancing of interests to decide what, if any, procedural due

process rights may be guaranteed to plaintiff by the United States

Constitution. Since, as mentioned above, no case involving a

school administrator has been found by the parties, they have

cited to this court cases involving non-tenured teachers.

Both parties have argued that the recent case of Roth v.

Board of Regents, 446 F. 2d 806 (7th Cir. 1971), affirming

310 F. Supp. 972 (W. D. Wis. 1970), cert. granted, 40

U.S. L. W. 3194 (U.S. Oct. 26, 1971) (No. 71-162) supports

their positions. In Roth plaintiff was a non-tenured assistant

professor at a state university. After being informed that his

one year contract would not be renewed, he sued, alleging that

he was not offered another contract because of his expressions

of opinion allegedly protected by the first and fourteenth amend-

ments. In deciding whether plaintiff had any due process rights

the trial court undertook the balancing test enunicated in Cafete-

ria Workers. While noting that a university should have “con-

siderable latitude” in deciding whether a probationary teacher

should remain and that it should have “available a very wide

spectrum of reasons, some subtle and difficult to articulate and

to demonstrate, for deciding noi to retain a newcomer .. .,” the

court found in favor of the plaintiff. The court stated that the

university had no interest in a regime which made a decision

wholly without support in fact. The interest of the plaintiff in

jeopardy was his academic career. The court found that the

balancing test compelled the conclusion that under the due

POOR COPY

Pht Nel a 32) Oo)

RRS BRIN AP ERIE ie PS aN DR Oe

ie ADORED POA EMS 5 LARA AIBA Es TN DIS ARES LE Oe MOEN

A38

process clause the decision not to retain a state university non-

tenured professor may not rest on a basis wholly unsupported in

fact or on a basis wholly without reason. 310 F. Supp. at 978-

79. The university was ordered to give reasons why plaintiff was

not retained and to give plaintiff a hearing at which he could

respond to those reasons.

The Court of Appeals affirmed, 446 F. 2d 806, 809 (7th Cir.

1971) holding that

the district court properly considered the substantial ad-

verse effect non-retention is likely to have upon the career

interests of an individual professor and concluded, after

balancing it against the governmental interest in unembar-

rassed exercise of discretion in pruning a faculty, that afford-

ing the professor a glimpse at the reasons and a minimal

opportunity to test them is an appropriate protection.

The court acknowledged that other circuits have declined to

recognize such rights,” but went on to point out that the Supreme

Court has emphasized the importance of vigilant protection of

constitutional freedoms in the academic community, citing Shel-

ton V. Tucker, 364 U. S. 479, 487 (1960).

This court does not think that there need be the same “vig-

ilant protection” when an administrator is involved as may be

necessary when a teacher is. The need for teachers to have free-

dom in what they teach arises from the very heart of the first

amendment. The workshop of the administrator, however, is

not the classroom but the office and the conference room. His

primary duties are to coordinate, delegate, and regulate, not to

educate. The fact that he is the “executive officer of the board

..” Til. Rev. Stat. ch. 122, § 103-26 (Supp. 1972) (emphasis

added) illustrates the need for, and in fact the intention of the

2. 446 F. 2d at 809. The circuits are divided on the question.

In Orr v. Trinter, 444 F. 2d 128 (6th Cir. 1971), the court used

the balancing test and concluded that a non-tenured teacher had no

due process rights because of the board’s interest in free and in-

dependent action with respect to his employment. The Fifth Circuit,

however, found that a non-tenured teacher must be given a hearing if

he requests it. Sindermann v. Perry, 430 F. 2d 939 (Sth Cir. 1970),

cert. granted, 403 U. S. 917 (1971) (No. 952).

A39

legislature for, a close working relationship between him and the

board. The public retains control of the school system by elect-

ing the board, Ill. Rev. Stat. ch. 122, § 103-7 (Supp. 1972),

which in turn must manage and govern the college. Ill. Rev.

Stat. ch. 122, § 103-25 (Supp. 1972). It does this through

the chief administrative officer.

Thus, the considerations before this court are not the same

as those before the courts in Roth. It is true that, as with Roth,

the plaintiff's career may be harmed by his dismissal. The court

acknowledges that if the dismissal was for reasons that had no

factual basis, the college community as a whole is harmed by

a reduction in respect for the board and other administrators

and perhaps by a loss of good teachers as a result. Against these

considerations, however, is the fact that the policies of the board,

a publicly elected body, are carried out through the chief admin-

istrative officer. The board must therefore have wide discre-

tion in deciding whether to hire or fire a person who will be or

has been in essence its agent. The discretion, naturally, is not

unlimited, but Illinois law prohibits the most obvious forms of

constitutionally prohibited discrimination: that based on sex.

race, color, creed or national origin. Ill. Rev. Stat. ch. 122,

§ 103-26 (Supp. 1972).

Just as the Supreme Court has recognized that the first

amendment may have restricted application where “close work-

ing relationships” are involved (Pickering, 391 U. S. at 569-70),

so also this court believes that the due process clause of the

fourteenth amendment must be limited in application to those

types of relationships in public employment.

This court finds that this plaintiff has no first amendment or

due process rights which have been violated in regard to his

public employment. The complaint is dismissed for failure to

state a claim upon which relief can be granted.

/s/ R. B. AUSTIN

Judge, United States District Court

Dated: February 1, 1972

ETE PY PE aS

ROPE NE OPS WO PH

Wa no EPR ryt!

A40

APPENDIX E

ORDER OF THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT, DENYING PETITIONS

FOR REHEARING

October 30, 1975

On consideration of the petitions for rehearing and suggestion

that it be reheard en banc filed in the above-entitled cause, no

judge in active service having requested a vote thereon, nor

any judge having voted to grant the suggestion, and all of the

members of the panel having voted to deny a rehearing,

IT IS ORDERED that the petitions for a rehearing in the above-

entitled cause be, and the same are hereby, DENIED.

EE OES PST Ee ae RAP TOMEI EY ET = Sona ey Rah ARR So URE

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