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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1976
- **Citation:** 425 U.S. 963

## Text

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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

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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?

3

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

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5

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

6

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

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9

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

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10

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

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11

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.)

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12

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

13

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

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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

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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

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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.
I.
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,

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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.

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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.

AS

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).

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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.”

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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

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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)]”

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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-

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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.

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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-

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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.”

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“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

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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.

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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.

V.

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

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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

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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

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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

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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

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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.

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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

Sa

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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.

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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

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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.

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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
j

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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:

Pr

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).

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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

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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 |

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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.

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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).

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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.

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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

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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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0273%3A1. Public record. Not legal advice.