# Amicus Curiae Brief — Board of Regents of State Colleges v. Roth > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0062%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 408 U.S. 564 ## Text ry IN THE - } ‘supreme Court of the Binited rates _ eee eee No. /I- 162 BoarRp OF REGENTS OF STATE COLLEGES. et al. Petitioners, _Davip F. Rotru.: Respondent. @ ON WRIT OE CERTIORARI TO THE. UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF FOR THE NATIONAL EDUCATION ASSOCIATION AND ROBERT P. SINDERMANN, AMICI CURIAE so Saas RUBIN , Joe, D. Gewir7z - : 1201: 16th Street, N.W. Washington, D.C. 20036 ‘Attorneys for National . Education Association ~MicuarEL H. GorresMAN Grorce H. COHEN : 4. . Dennis D. CLaRK f | _ Bredhoff, Barr, Gottesman. ' Cohen & Peet . 1000 Connecticut Avenue. N. W. Washington, D. C. 20036 \. WarREN BURNETT | | _ Ricuarp J. CLARKSON Burnett & Childs . . P. O. Box 3707 | Odessa. Texas 79760 ; _ Attorneys for Robert Sindermann - INTEREST OF THE. AMICI CURIAE, eeee east a eae dea vaes SUMMARY OF ARGUMENT Pecans hesea gee tees Co ate ees ARGUMENT ......... ea see bins Seeigeead ie sG4 peo begeaeeas ; Infroduction ......... yaeaw eae dee een oe er eer ‘I. The First Amendment Right to‘a CATING en cence sane II. The Due Process Right to a Hearing ................, ie A. The Teacher’s Interest ..... he ae eee faedetaesueeaese $ 1. Looe OF CONTENTS | B. The State’s Interest .............. ere er (1)- The State’s Interest in Summary Ad judication bee as o (a) The Alleged Expansion of Federal Control Over , the Grounds for. Non-Renew al, and the Alleged Increase in Judicial Involvement i in the Faculty Selection Process .............0..02 00000005 (b) The Alleged’ Incapacity of Colleses ane Univer- sities to Conduct Hearings ...0.............. (c) The Alleged Administrative Burden ........ e% (d)- The Alleged Deterrent to Non-Retention oye as (e) The Asserted Need to, Avoid Inter-Personal Con- . ISG Sete esuaewense no ouaicud sesso acdans . (f) fPhe Asserted Risk of Over-Caution iri the Hir- ME OE oie ogres biked eee eehen eee (2) The Public Interest. i in Providing Hearings ........ (a) The Public Interest in Academic Freedom .... (b) The Public Interest in the Retention of Superior Teachers ...........000c ee teccceeteceececees “(c) Reduction of the Jiadicial Bankes Seaees ses .. (d) The Public Interest in Accountability ..... ee ~ CONCLUSION .......... Good edhe dae reeves olay APPENDIX: Partial Listing of Pending and Decided Cases In- — volving Non-Renewal for Exercising First Amendment Rights TABLE OF CITATIONS Cases haigied Car Cases, 074 U.S. 564 (1927) pee evounce ene neuees Bell v. Burson, 402° U.S. 535 (1971) .....0000.. 00... eee. _ Cafeteria Workers uv. McElroy, 367 U.S. 886 (1961) ...... 3, 4, Goldsmith v. United States Board. of Tax Appeals, 270°U. S. 117 (1926 ) i Keyishian v. Board of cannes, 385 U.S. 589 (1967) ...%.. 3; 9 | _ Lucia v. Duggan, 303 F. Supp. 112 (D. Mass. 1969) ........... _ Murray v. Blatchford, 307 F. Supp. 1038 (D.R.I. 1969) ......... . North American Co. v. S.EC., 327 U.S. 686 (1946) ....... oe i us | i a . : oe . Page Orr v. Trinter, No.- 71-249. -.... ee aa ee een Sues hemes “14, 27 Perry v. Sindermann, No. 70-36 22.2.0 0 00000. ee ee ewan ee 2;6 . Pickering v. Board of Education, 391 U/S. 563, (1968) ......00.. 8 Rolfe v. County Board of Education, 391 F.2d 77 (6th Cir. 1968). 17. ' Schware v. Board of Bar hy miners, 353 U.S. 232 (1957) . ne ‘ 17 Slochower v. Board of Education, 350 U:S. 551 (1956) ...... we 7 Smith v. Board of. Education, 365 F.2d 770 (8th Cir. signi ee | Smith v. manele 361 U.S. 147 (1959)... 2. eee -. 10 Sniadach v. Family: Finance Corp., 395 U.S. 337 oe) seointen 11 South Carolina v. Katzenbach, 383 U.S. 301 (1966) ..2.. Sous 10 - Speiser v. Randall, 357 U.S. 513° (4958) ...... errer fea a 9, 13 v _ Wieman v. ill cial 34 U.S. 183 (1952) Sag hsnaane ae shen 17 : _ Statutes 7 a 42 USC. § 1983.00.00. eee lee. Te ae 3.8 Cahf. Educ. Code § 13443 (West 1969) taney eue pee gesnnawcees i Texas Code Ann..§ 21- 204 (1969) ........ ee ee ee 21 . Wisc. Stats. § 118.22 (1969) 0.0.2.0... sin ja hue ee a as or . Miscellaneous BNA Collective Bargaining Negotiations and Contract. page 40:4. UNIO ee ee we oe ne Oe ee eee oon ta . OF = _ Caplow and McGge , The Academic Marketplace, page 38 (Arichor _ Books edition, Doubleday & Company, New York, 1965) ......- 14 Clark, Faculty Authority, 47 A.A.U. P. Bulletin 293: (1961) ...... 25 Domenicone v. School Committee, R.I. Commissioner of Educa: ° ~ tion, May 20; 4970 seuss tte bes dewen due eeve ees tae Bene eae 13 Joint Comrfittee on Education; -Washington State ' Levislature, Washington State’s Continuing Contract and Discharge Laws for’ Certificated Commoh ‘School Employees: A Preliminary Report to tlhe Washington. State Legislature by, the Joint ad a on * Education (December.17, #971) ....:.0:.........00.%.... 22~ NEA Research Div., School-Board Procedurés Upon Non-Renewal of Teachers’ Contracts (Sept., 1971) ( ne Memo 1971-. VD fa mwieas ese tees eeeeeueues Geese ou 13, 21° NEA Research -Div., Teacher Job Shortage Ahead, 49 NEA Re: 4 ‘search Bull: 69 (1971) OP er eee ee Pree eee re ee 13 _O Neil, Of Justice Delayed and Justice Denied: The W elfare Prior - Hearing?Cases, 1970: Sup. Ct. Rev. 161 ............7..004.. 28 Statement of Robert a Ww ashington a Star, » Apri 12, | 1971, ee oe rg eee a ee Yee een, seer 13 “Van Alstyne, The Constitutional Rights of Teachers and Professors, 1970 Duke Law Journal 841 (1970) ...................005. 9. ‘Wolfle & Kidd, The Future ‘Market for Ph. D.’s, Science, Vol. if i: Ae. VAUBUS B90) ons 605 ste hl erence wee eee: 13 IN THE ‘Supreme Court of the Unites States ~ No. 71-162. Boarb’oF REGENTS OF StaTE COLLEGES, et al, Petitioners, v., es. 4 Davo F. Roru, ‘Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS°FOR THE SEVENTH CIRCUIT _ BRIEF FOR THE NATIONAL EDUCATION - | ASSOCIATION AND ROBERT P. SINDERMANN, , Tae AMICI CURIAE’ - 7 i oe. Interest of the Amici Curiae The National Education Association, (N EA) is the largest "teacher organization in the United States, with a member- © _ ship of more than one million professional educators, many ~ of whom are non-tenured teachers {ri public’ educational in- . stitutions, both at the higher education and elementary and high-school levels.’ _ | One of NEA’s primaty purposes is to protect the consti- tutional rights and academic freedom of teachers, To that “ _ end, NEA has participated -as umicus curiae in numerous cases where these values were at stake, and has conducted» surveys. throughout the‘ United States to determine the ex- ‘tent to which these values are being preserved. NEA has. acquired: a nationwide perspective. ‘based upon its experi- ence, which it believes will be of assistance to the Court. Nis is critical ofthe authorities who will decide their future em- Ad Robert Sinfermann is the respondent in Perry v. Sinder- ° mann; No. 70-36, a case which has been set for oral*argu- . ment with the instant case, and which raises issues similar - : to those presented here. The btief for petitioners in the i instant case, as well as the _ briefs*filed by amici supporting, petitioners, advance a num- & _ber of arguments against affording hearings to non-tenured teachers facing non-renewal—arguments not advanced by the petitioners in Sindermann and accordingly not discussed in the briefs filed.in that case by. Sindermann and NEA: ° .NEA and Sindermann file this amicus brief to present their _ views on these newly-advanced arguments. _ ’ * «SUMMARY OF ARGUMENT) -— The teacher’s right to a statement of. reasons and a hear- ‘ing prior to non-renewal derives from two. constitutional sources: the First Amendment, and: the dug process . clause of the Fourteenth Amendment. 1. History and a burgeoning federal caselo d reveal that — non-renewals frequently are prompted—as thdy. were ‘both hére and in Sindermann—by teacher activitids which’ at - Jeast, arguably are protected by the First Amendment. When - : teachers can receive a non-renewal notice without being told the reasons, and without a hearing, few will be bold enough to speak out on controversial’ issues especially if, such speech ployment. A\ principal purpose ‘of the First Amendment is to assure that society will receive those views. When teacheys fear to speak, society loses the important contribution Which they can make on issues, of - public significance, particularly their suggestions fori improving the way public educational institutions are run. Petitioners acknowledge that teachers, may ‘not be inset renewal. fot exercising their First Amendment rights, but - they i insist that an.adequate remedy exists—the ve ee ee . “0 bring a lawsuit under 42 U.S.C. § 198%. In reality, that remedy does not remove the “chilling effect” of the threat of summary termination. The costs of. litigation, and the -— real danger that the teacher who sues will brand himself too -controversial to secure other employment, will deter most teachers from using that remedy, And even where it is in- ' voked, the termiriated teacher must endure severe hardship - while awaiting a decision, and his fellow teachers will have learned that job loss is the price for advocacy. | | “The danger of that chilling effect upon the exercise of _’ First Amendment rights must bé guarded against with ‘sen- sitive-tools.” Keyishian y. Board of Regents, 385 U.S. 589, -604 (1967). Procedures affording teachers a statement of | « reasons and a pre-termination hearing furnish an essential - buffer between advocacy and job loss—a buffer which will Temove that. chilling ‘€flect, Hypothetically,. these: First Amendment interests could be served by requiring hearings _ only in those cases where-a teacher’s non-renewal is con- — -templated, at least in part, because of speech or conduct arguably protected by the First Amendment. Realistically, however, such a scheme would be insufficient; for the school bent upon ridding ‘itself of a teacher for expressing unpopu- . -lar-views would then be tempted to conceal its true purpose’ in order to escape the obligation to provide a hearing; and _ teachers, knowing this to be the case, would fear to speak out » _ oni controversial issues. Only by furnishing a. statement of reasons and a pretermination hearing in all non-renewal- cases can the First Amendment interests be adequately. pro- tected. 9 : : : 2. This Court has repeatedly emphasized that where the. State proposes to interfere with “important interests” of the citizen it must first provide procedura | ; doctrine constitutes a second, wholly separate, source of ¢ hearing rights for cenchels As petitioners recognize, the. teacher's right to procedural due process turns upon. the balancing test eniinciated in Cafeteria Workers v. McElroy, . Lae : er i ue process. This — 2 * a - * 367: US. 86. (1961), i.e. upon weighing. the teacher's i in- . i are ‘terest in retaining his job against the State’s interest. in sum- mary adjudication. © - ° =. . 4— 4, The Aeacher’s interests are clear. -Non- renewal dei . aoe ? teacher. and his family of their sole source of income, “4. andterminates that association with colleagues an and students | a = mar “which plays a major part in the téacher’s enjoyment of his . ‘career. Moreov er, the‘non-renewed teacher, unless lie elects — ++. to abaridon his career, inevitably must bear the cost of relo- Fy _ cating—he arid his family must-move to a new. city, find new: = * vhousing,;:make tw friendships, and start’a new life. Finally, A, : empirical evidence. demonstrates that in the academic world * * .. ,non-rériewal frequently spells the end of 3 a teacher’s career | , oo the stigma of non-renewal. renders the teacher ibaa aes So ables 2 ces dake > Caan The asserted countervailing State | interests all stem from . ito " a misunderstanding of what a due process hearing entails. ae It does not alter the substantive grounds upon which the os! | State may premise non- renewal. Such factors as mediocrity, '. incempetency, the-availability of better qualified personnel, reduction in teaching force, and shifts in curriculum remain | valid grounds for non- renewal, irrespective of -whether 4. os 2) right to hearing exists. Nor does a hearing ‘i impose a burden } upon-the State to“prove” its grounds for non-renewal. The ~. . funétion of the hearing i is to enable the teacher to-be heard. _ a2 2 before he ‘suffers: a_ severe injury, not to create a forum in __/ “which the State. must “prove” its reasons. Thus, in terms of ““ = both substance and the burden of proof, the distinction be- . tween’ tenured: and non-tenured teachers would’ be pre- ‘ - served. Hearings will, not: impose unmanageable administra- _ -tive burdens upon_the State, as demonstrated by the grow: _. ing number of S (including both Wisconsin and Texai, where petitioners here and in Sindermann are located) which provide them by stattite, to elementary and: high school _. teachers threatenéd with non- renewal. A recent study inthe , —State-of ‘Washington, where non- -renewal hearings are i . *, . mas \ - ~ ae . vided by statute, confirms that the administrative burden is “minimal. Other objections advanced by. petitioners and the amici supporting ‘petitioners are. likewise invalid, as. we show - inthe Argument. ° eee ree er Furthermore,’ in. assessingthe State’s interest, recogni- tion must be given to the important public benefits which hearings would provide. The public has an interest in. the: retention of superior teachers, an interest which is threat- _ ened when—~as here and in Sindermann—non-renewal is | predicated upon grounds unrelated to teaching caliber. Hearings increase thé likelihood‘ that superior teachers will not_be terminated unwisely. Hearings also will reduce the enormous burden which non-renewals today place. upon the . judigiary, by diverting such cases from the courtroom to the campus. Hearings will convince the State in some instances that non-renewal would be unjustified, and in others they will convince the teacher that non-renewal is justified; ‘and - that.litigation is unwarranted. Hearings will also. promote . accountability of public officials, and agsure that decisions - are made intelligently and ‘fairly.’ Finally, the hearing proc- ess.will remove téacher’s fears of speaking on public issues, a gain of inestimable value to the public. Te In sum, the Cafeteria Workers balance tips heavily in ‘favor of according: statements ‘of reasons and hearings to» .teachers prior to non-renewal. : ARGUMENT | INTRODUCTION _ a This case presents a, classic ilhustration of the need for Notice and ‘hearing prior to the non-renewal of faculty mem-. bers. A campus riot occurs, and the’ University summarily suspends 94 black- students who were arrested in the riot. Roth, .a young, non-tenured Associate Professor of Political lence, is outspokenly critical of the University’s handli . of the incident, advocating that the students should not | . e 6 have been Suspended en masse, and that they. should — re- - instated subject to individual deteniinations of guilt. There. after, Roth. is notified that: his employment will not be re-: newed for the-following year. He is néither told the reason. for non-renewal nor offered a hearing. The University’s file (obtained by Roth only after he sued ) discloseythat-shortly befors the decision not to renew (and following Roth’s in- . ~ volvement in the black students controversy) the tenured - members of his department prepared their written evalua- tion, rating him a superior teacher,. and unanimously “highly recornmend(ing]” his reappointment - (App, 131- °135}.. The Dean, however, submitted -an extensive *mem- ° orandum recommending that Roth not be renewed, and pre: - vailed upon the tenured members to reconsider and with- draw their prior recommendation. One of the Dean’s stated reasons was that Roth’s criticism of the University’s han- dling of the conten y. = g. as “authoritarian. and auto- cratic” —reflected “a very unscholarly approach to the truth and the search for knowledge that make it doubtful he has _ the qualities of scholarship desirable ina faculty member hs [S]urely we can hire a.replacernent for Dr. Roth who will follow university policies in . . demonstrating a greater, respect for the truth” (App. 127, 129. 130). Against this setting, and te somewhat similar setting in - Perry v. Sindermann, No. 70-36, this Court is called upon to determine whether, and to what extent, non-renewal must be preceded by notice and hearing. We.discuss herein the two separate sources from which we believe the right to such procedural protections derives: from the First Amendment, and from the due process clause of the Four- teenth Amendment. . I. THE FIRST AMENDMENT RIGHT TO A HEARING In this case, as in Sindermann, the recard demonstrates that First Amendment considerations were implicated i in the non-renewal. Roth was non-renewed, at least in part, be- _ cause of his criticism of the University’s handling of a stu- dent riot. The NEA’s experience, reflected in a growing _ volume of litigation, is that frequently decisions not to renew a non-tenured teacher’s employment are prompted by teach- er activities which at. least arguably are protected by the First Amendment. NEA is aware of dozens of recently de- cided or pending cases in which Courts have determined or teachers have claimed that non-renewal was prompted, by such activities, and these undoubtedly represent but a small _ fraction of the total number." Moreover, studies confirm that throughaut American history teachers have lost their jobs for advancing “unpopular” views (See NEA amicus brief in _ Sindermann, pp. 4-11). Only rarely, however, is:a teacher tld that it is his advocacy which has prompted : his ; non-renewal (Sindermann is such a case): More often, as — here, the authorities assert that they have no obligation to advise the teacher of the reasons for non-renewal, and no - résponsibility to provide a hearing. . ot In such af atmosphere, few non-tenured teachers will ‘be _—bold enough to speak out on controversial issues, Particu- larly when their views will be unwelcome to the: authorities who, will decide their future employment. Necessarily, the cases which come to this Court have involved those teachers —the Pickerings, Sindermanns, and~Roths— who have spoken out despite the threat to their job security. From "these examples, this Court may derive a mistaken ‘notion _ that academic freedom is flourishing on American camp- _ uses. Regrettably, that is not the case, nor historically has it been.” . . . . . ' Many cases of which NEA is aware are listed in an Appendix to ~ this brief. , "ee - ® NEA amictis brief in Sindermann, pp. 4-11. In Sindermann, sym- =Pathetic fellow teachers were so intimidated by the College’s hostility to Sindermann’s activities that they feared even to substitute for Kim while he was absent to testify before the State legislature on ‘their be- - half (Brief for Respogdent in Sindermann, pp. 4a, 7a). See also com- ‘Ment, Constitutional Wichts of Public Employees: Progress Toward - Protection, 49 N.C. L, Rev. 302, 314 (1971). - | oo 3 When teaches are silenced, the public is denied: its “inter- est in having free and unhindered debate on-matters of pub- lic importance—the core value of the Free Speech Clause of ‘the First Amendment,” Pickering v. Board of Education, 391 U.S. 563, 573 (1968). The manner in which public educational institutions are run “is'a matter of legitimate public concern on which the judgment of the school admin- istration,. . . cannot... be taken as conclusive.” (Id. at ' 571). Rather: “On such a question free. and ‘open debate is vital to informed decision-making by the electorate. Teachers » _ are, as a Class, the members of a community most likely to have informed and definite opinions as to how [their institutions ought to be administered]. Accordingly, it ’ As essential that they be able to speak out freely on such questions without fear of retaliatéry dismissal. ”. (Ed. at 971-572). | Petitioners, and the amici supporting petitioners,‘ ac- knowledge that teachers may not be denied renewal for exercising their First Amendment rights. But they insist that an adequate remedy exists—the opportunity to bring ~ a lawsuit under 42 U.S.C. § 1983. For most téachers. that ‘remedy i is ephemeral. “The outspoken teacher who is denied - renewal without a statement of reasons can only guess whether his First Amendment activities have played: ‘a role in his job loss. He must decide to bring a lawsuit, incurring great personal expense, just to-find out whether he has a cause.of action. And even if he knows he has a meritorious * lawsuit, the barriers to suing are substantial, Many teach- ers cannot afford to suc; others will: fear to'do so lest they brand themselves too controversial to secure other employ- ment—the fate which befell Sindermann (See Brief for Re- spondent in Sindermann, pp. 9a-i4a). All will suffer the | economic hardship and social stigrna of unemployment for - the months or years until a legal decision is obtained. In the - = interim, the remaining teachers will have learned the lesson - 357 U.S. 513 (1958). ; that the price for advocacy is loss of employment.:’ In sum, ‘the availability of a § 1983 action following non-renewal does not remove the “chilling effect” upon academic free- dom of. the threat of summary termination, Van Alstyne, . The Constitutional Rights of Teachers and Professors, 1970: Duke Law Journal 841, 859-860 (1970). “The danger of that chilling: effect upon the exercise of First Ameridment rights must. be guarded against with sen- sitive tools.” Keyishian v. Board of Regents, 385 U.S. 589, _ 604 (1967). Procedures affording teachers a statement of reasons for, contemplated non-renewal, and an opportunity -. * for a pre-termination hearing, furnish an essential buffer between advocacy. and job loss. Few Universities will openly declare that they are contemplating non-renewal for’ the exercise of First Amendment rights.* A requirement that the reasons for non-renewal be disclosed, rather than shrouded in ‘secrecy; may deter non-renewals so motivated. To be - sure, the danger exists that pretexts. will be used to. camou- flage impermissible non-renewals; but surely most univer- sity administrators would pause before stooping to. such tac- tics, and the hearing provides a forum in which those who. do use pretexts may be exposed. Finally, in situations where a teacher’s conduct falls close’to the balance line struck in Pickering, the hearing affords the teacher a full exploration, prior to non-renewal, of whether his activities are protected: by the First Amendment. Precisely because of these prophy- lactic effects, the right to hearing is an essential ‘bulwark against the stifling of academic freedom. S peiser v. Randall, ’ Pax ep, | * As reflected in the amicus brief for The American Council on Edu- cation,et al. (pagé 5), most colleges are committed to functioning as “havens of unfettered discussion . . . a refuge where new concepts can _ be discussed and developed free from’the social constraints. which often - inhibit discussion in the world of business and government.” ‘Such " polleges are unlikely to deny. renewal for engaging in. “unfettered dis- cussion” .if the reason for non-renewal must be disclosed. 10 ° "Hypothetically, these First Aasadaneis interests could be - satisfied by requiring hearings only in those cases where a _teacher’s non-renewal ‘is contemplated, at least in part, be- |: cause of speech or conduct arguably protected by the First Amendment. Realistically, however, the protection afforded by such a scheme would be insufficient, for the school bent upon ridding itself of a teacher for. expressing » unpopular | _ views would’then be tempted to conceal its true purpose in order to escape.the obligation to. ‘provide a: heafing; and teachers, knowing this to be the case, would fear to speak out on controversial issues. : The only way to protect ade-. quately the First Amendment rights of teachers is by afford- ing a statement of reasons and an opportunity for a preter- ‘mination hearing in all non-renewal cases. ‘That this means hearings will bé required in cases which ultimately prove to be wholly without First Amendment implications does not make. the procedure overbroad: regulation . of an entire field in order to assure against injuries in - particular in- stances which would result from non- -régulation is a com?” ‘mon device in American jurisprudence. See, e.g., Smith v. California, 361 U.S. 147, 152-154 (1959); South Carolina v. Katzenbach, 383 U.S. 301, 329 (1966);; Netth- Aniphous 7 . Co. v. S.E.C., 327 U.S. 686, 710- 711 (1946) : . Assigned Car | Cases, 274° U. S: 564, 582483 (1927), The key to the pro- priety of such an across-the-board approach is a determina- tion that—as here—the evil cannot be protected against by* a narrower approach. Ibid. In any event, the right to a hearing is diate in this case even if the Court were to take a narrower view. Here it. was apparent, when Dean Darken submitted his recom- mendation to the University President, that Roth’s arguably — _protected activities were among the reasons for the- recom- mendation. Thus,..the President, before acting upon the _ recommendation, should haye notified Roth of the proposed _ action and the ‘reasons therefor, and-afforded him an op- _portunity to be heard. No such hearing having been af- 4 11 forded, the non-renewal contravened the First Amendment. The same result is dictated in Sindermann, where the Col- lege openly stated that Sindermann’s. arguably protected _activities were a cause of his non-renewal, but afforded him _ no hearing.* 4 . s *G Il. THE DUE PROCESS RIGHT’TO A HEARING | Phere is a second constitutional source of the teacher’s right to a hearing when facing non-renewal of his contract:. the Due Process Clause of the Fourteenth Amendment. This Court has repeatedly emphasized that where the State pro-- poses to interfere with “important interests” ‘of a citizen it | - . must first afford him procedural due process. See, e.g. Bell v. B rson, 402 U.S. 535,-539 (1971). As petitioners recog. “nize, the application of that principle tg this case turns upon the balancing test enunciated in Cafeteria Workers v. McEl- roy, 367 U.S. 886 (1961), ite. upon weighing the teacher’s interest in retaining his job against the State’s interest in _ ‘summary. adjudication. Petitioners’ evaluation of those com- ” _ parative interests, however, leaves much to be desired. a A. The Teacher’s Interest Petitioners seek to minimize the effect of non-renewal up-- _ on.the teacher: “In our view, the harm experienced . : . may . . . be expressed as inconvenience and the cost of relo- cating” (Brief for Petitioner, p. 20). “Inconvenience” seems a mild word to describe the hardships visited upon: teachers and their families when deprived of their sole source of in-- _ come. This Court has rather described one in stich circum- stances as being “drive[n]’. . . to the wall,” Sriadach v. | _ ‘Family Finance Corp., 395 U.S. 337, 341-42 (1969). Like- wise, “inconvénience” fails to convey the loss’ of that asso- - ciation with colleagues and students which plays a major - part in the teacher’s enjoyment of his career. ‘Apart from — *Wée have argued that free speech considerations emanating from -* the First Amendment dictate the right to a hearing. The same result can be derived from the Due Process Clause. Since speech is “liberty”, it cannot be infringed without procedural due process. . . / a - . — 4% , ‘ : D see . . i — / ? . : / . -% 12 sich ‘inconveniences,” as petitioners acknowl ie, hes is the. “cost of relocating,” which almost inevitably. follows non-renewal in higher education: If Roth cannot teach at Oshkosh, either he must abandon his caréer or he arid his family must move to a new city, find new housing, make new friendships, and start .a new life. Contrary to ao asscrtion (Brief, p. 19) these hardships ‘are scarcely “t same” as those suffered by the cook in Cafeteria Wor frs— ~who was offered another job by her employer in th - Same city. : The courts - below emphasized the harmful effect Which non-renewal has upon a teacher’s professional reputation and ability to pursue his career. Petitioners,concede (Brief, p. 19) that under Cafeteria Workers “if the discharge car- ries with ye apenndllne foreclose future employment opportuniges, due process may require notice and hearing © pee, to emacs But petitioners ‘suggest that (Id., p.. 19):4 ome , . “Employment opportunities. are more influenced . by economic and enrqllment trends than by the meré - fact of non-renewal.. We’ venture that in the academic ‘community little or no was cae eas is — to a non- renewal.” | This staternent belies both. common sense and the reali- _ ties of the academic world. Roth was one of only 4 teach- ers not renewed by- his University; 438 other non-tenured teachers were renewed (App. 124).-°Can there be any~ doubt that prospective employers will “attach significance” to that fact? And what will prospective employers be told when they inquire of Wisconsin State University ag to Roth’s © performance there? That it was wholly satisfactory? Or, as is more likely, that it was deficient in the respects set - forth in Dean Darken’s recommendation—matters which Roth was given no ) opportunity to rebut? If the latter, can - credibly be asserted that prospective employers will not . o~, be 13 “attach significance?” ‘These harms track every non-re- -newed teacher at any time, but they are greatly magnified — whien, as now, there is a burgeoning teacher surplus at all levels of education.* As. Dean Darken. put it, “surely we _ can hire a replacement for Dr. Roth” free of his alleged in- firmities (App. 129).. Will not other prospective employers feel the same way? In a teacher-surplus market, why hire someone with a black mark against him? =, a In this’ instance, commen sense is corroborated by the views of the experts in the field. The Chairman of the U.S. Civil Service Commission recently explained, “Being fired - from government carries.a stigma that Prevents many em- ployees ‘from perhaps ever finding gainful employment ~ again.”® ‘fession, forthe job is an unusually sensitive one, scrutinized closely by: the public, and prospective employers will hesi- tate to hire another school’s rejects. The Rhode Island. Commissionér of Education has fOted that m the academic world non-renewal is considered a “dismissal,” and “dis- ~ missal [of a teacher] from his position, whether it‘be during | a school year or at the end of a school year, can mean the end of his professional ¢areer.”7 A recent NEA survey . found that,89.8% of elementary and high schéol systems allow a teacher to resign before formally notifying him of non-renewal, and 47% affirmatively recommend that the teacher resign*—a practice explicable only as a reflection - 5 NEA Research Div., Teacher Job Shortage Ahead, 49 NEA: Re- | search Bull. 69 (1971); Wolfle & ‘Kidd, The Future Market for | Ph.D.’s, Science, Vol. 173, p. 784 (August‘1971). ° | 12, 1971, p. A-8. A ie .TDomenicone-v. School Committee; R.I. Commissioner of Educa- tion, May 20, 1970, pp..3, 4. 7 a: . . *NEA Reséarch Div., School-Board Procedures U pon Non-Renewal “of Teachers’ Contracts (Sept., 1971) (Research Memo 1971-72), re- * Statement of\_Rebert Hampton, Washington Evening Star, April . “printed in Brief of the NEA as Amicus Curiae in Sindermann, pp. © ; ia-8a. ee f The stigma is especially great in the teaching pro- |” - . 147 that school authorities generally regard formal non-renewal as a barrier to future _employability. Similarly, in higher education, it is “common administrativé practice” to allow - “a faculty member to resign and ‘keep his record clean.’ ” | Caplow and McGee The Aéademic Marketplace, p. 38. , (Anchor Books edition, Doubleday: & Company, New York, 1965). Finally; the actual experiences of non-renewed - teachers in cases which have found their way to-court con- firm the serious impact gf non-renewal’ upon emp!@ability. See\ Brief for Respondent in Sindermann, pp. 9-14a; Peti- _tion for Certiorari in Orr v. Trinter, No. 71-249, p. 4; ‘Lucia me 2 . Duggan, 303 F.Supp: 112, 116 (D. Mass. 1969). - Petitioners also argue (Brief; p..12) that if teachers are : accorded hearing rights upon non-renewal, the same rights : ' mevitably must be accorded to all public employees. This’ does not follow at all. The problems of relocation. which. confront the non-renewed teacher are unique, and’ the im- pact upon the future employability of other types of em- . Ployees is. not necessarily as. great as it is upon teachers. Moreover, because the teacher occupies ‘a sensitive position subjected to close public scrutiny, he is more vulnerable to arbitrary pressures for employment termination than other. civil servants. We éxpress no view as to whether other pub- lic employees are entitled to héarings when threatened with - ‘job loss, bué stmply note that a decision that teachers have such rights does not automatically compel the. same conclu- : sion for others. B. The. State’s Interest’ Just as petitioners accord too little weight to the teagher’s’ ‘ interest, . they incorrectly weigh the -State’s interest: “the State’s interest in summary adjudication is unduly magni- _ fied, and the public interests ‘which are advanced ‘by..the hearing process are wholly ignored, We discuss these factors herein. 15 oe . (1) The State’s Interest in Summary A djudication : The “horrors” perceived by petitioners and the arnici sup- _ porting petitioners stem largely: from a misconception as to” what a due process hearing would entail. We first outline — \. briefly 6ur/conception of the minimal] hearing procedures re-’ quired by the Constitution; and. then discuss the objections “ advanced. ; he Be. ey ee i a The hearing process, to be ‘meaningful, necessarily must. begin with notification’ to the teacher that his non-renewal - is contemplated arid that he has a right to a detailed state- ment of the reasons therefor. ‘The teacher must ‘be afforded such reasons and an Opportunity to be heard before non- _e renewal is effectuated (of course, the reasons and/or hearing need be provided only if ‘the teacher wishes them).. The - teacher must be advised of- all the evidence upon which - - non-renewal ‘is coniteniplated.~ Hé must be permitted to _ present his arguments and évidence against that result, _ and accorded the right-to-confront and cross-examine those . _ whose testiniony or reports are said to furnish the basis - for non-renewal., ‘The ultimaté decision must be: based solely on the record*made in the Nearing. 9, As we explain more fully herein, this process does not re- quire that the State have “cause”—in the sense required by State law for dismissing tenured teachers—in order to effec- is _ tuate a non-renewal. Nor does it impose any “burden” on . the State to-“prove” that non-renewal: is’ justified.’ The constitutional command. is merely that the teacher .be af- . forded a fair and meaningful opportunity ta be heard in Kis own behalf before. serious injury is visited upon him. | _ With this introduction, we turn té the specific objeetions ~ advanced -by ‘petitioners and the amici supporting ‘peti- . tioners. + ¢ _ * The lone exception is where First Amendment considerations are involved. In.such situations, the State has a burden of proving that the speech it: seeks to condemn falls outside the First Amendment’s protections, Speiser-v. Randall, 357 U.S. 513, 525-526, (1958). s 4 “ ; oe ‘ * a Thess fears are wholly imagined. - ; ‘ | _in the Faculty Selection. Process : ae The paramoui cotern of petitioners, and of. the amici ) dom ptesently enjoyed by the State in makifg_re: __ sions. As petitioners put it (Brief, P. 14): Jag ee “Although the, pivotal issue’ in Roth ‘would, seem tc to be procedural due process, this is, in fact, merely the. "1 ‘opening. of the door to judi icial inquiry as to what con- : stitutes an ‘appropriate’ reason for. non-renewal: : [T]hrough the vehicle. of the ‘aeblasatrii “: heen the Courts, Federal as well as State, will -be “called upon to decide these matters on the merits by _ determining what satisfies the requirement of an ‘ap- propriate’. reason for nan-renewal. The courts will be : > setting the criteria for the selection of the faculty and. _ will, in fact ,become'the final arbiters — _“Further, the courts by being called: upon to pass. on directly involv ed in the selection of the faculty and the the sufficiency of, the regson for non-retention will be | ‘administration of the schools. The courts will not only. _be determining the criteria for the’ composition of the faculty, but will actually: be selecting the faculty by af- firming or reversing the administrative decision.” The federal Constitution already imposes certain limita- | tions upon the State’s freedom in non- reriewal cases. The’ - - State may not predicate, non- renewal, upon the exercise of | constitutional rights ;"° nor may it deny renewal re reasons — ” aviskion v. Boath of Regents, 385 U.S. 589 (1967) ; Shelton Vv v. * Tucker, 34 U.S. 479 (l 9@0). See: Brief for Respondent in Sixderman, pp: 17- 20. . a + ces ad 2 Se Se ae a 2 ~. violative ,of the. equal. protection. clause; nor may its decision be “arbitrary,” ie, for geasons “wholly without ' [evidentiary] support”? or for Yeasons which bear no ra- tional connection to theState’s interests.* But these sub- staritive limitations exist, and their transgression, subjects the . - State to federal judicial intervention, irrespective of. whether © _. there is a right to an administrative hearing. Indeed, where. these considerations are involved a hearing is likely’ to reduce . —~ the chance of federal involvement, either: by convincing - the ° State that.a contemplated : non-renewal should not ‘be pur- sued, or by convineing the teacher that the’ State’s action is. not. constitutionally infirm ang cannot be overturned. ‘in . court. : - These: sabstantive Sianitations, of course, touch only*s a frac- s @ ti the myriad reasons why States deny renewal. The ‘re er irivolve ‘considerations wholly free of substantive — constitutional restraint. And recognizing.a right. to hearing es _ will not alter in-any respect the substantive freedom enjoyed : by the States in these areas, It is. simply. not correct that courts will rule, on the ‘ ‘appropriateness of non-renewals. - ~ Nor will they require “cause” for non-renewal: comparable to that required ‘by State law for non- renewal. of a tenured teacher. All-of the reasons asserted by petitioners and the ‘ supporting amici for non-renewal—incompetency, medioc- - ‘rity; the availability of better qualified personnel, reduction in.teaching force, ‘shifts in curriculum, etc.—will remain valid grounds ‘for non-renewal, irrespective ‘of Whether | a. night to hearing exists. The hearing will enable the teacher - _to attempt to persuade the State that the ground ought not - be pursued, but it will not preclude the State from pursuing - ° ig Rolfe v. County Board of Education, 391 F.2d 77 (6th Cir. 1968) ; Smith v. Board of Education, 365 F. 2d 770. (8th Cir. 1966). - : 12 Slochower v. Board of Education, 350 U.S. 551 (1956) ; Schwere v. Board of Bar Examiners, 353. U.S. 232, 246-247. (1957) ; nn v. . Updegraff, 344 US. 183, 192 (1952). * ¥BSchware, supra, 353.U.S. at 239. ° \ tA re ae . ke ae. - ». e 5 “ voi ae ° : . : . pos ee : es - -* a a . . ° > . : - ee ‘ ; elt Mice -_ & ees ores it if; following hearing, ‘it it is s convinced of the correctness of . that course. { - For these same reasons, ‘oie seh will t not aeln the - tenure system..: The essential attribute: of. tenure is that it — ~ arms the longer-service teacher with protection against job... loss absent, “cause.” In most States, removal : ‘of a tenured’ teacher requires proof of substantial misconduct. Nothing . of this sort would be“entailed in furnishing hearings t to non- tenured teachers. . ; . The recerd’ of the present ‘case : provides ample evidence of the valuable function a hearing can perform even in those - areas where the State’s substantive freedom of action is un- limited. One of the grounds cited by Dean Darken‘for rec- ‘commending against renewal was that one day Roth: had . failed to meet any of his classes and. had not applied for an - approved absence (App. 126-127). But Roth insists, and \ .. the. Chairman. of his Department corroborates’ him, that. he .. Was ill on that day and shad given ‘the customary notice to ___the Chairman that he was unable to teach (App. 138-139, ~ 143). It-may well be that Dean Darken was unaware of = ~—these facts and that, had he been aware of the true circum- stances, he would: no longer have regarded the absencé as _ Culpatory. .A statement of reasons, and~a-hearing,—might thus have Aesntotd a non-renewal based upon an erroneous: or incomplete version of the facts. ‘ Another of the’ grounds cited by Dean Darken was that Roth had devoted substantial class time during a two-week period to’ discussing subjects not germane to his course. Ac- ' cording to the Dean, his information was based upon “de- tailed toral reports by four students.” (App. 125). But _ Roth, and other students,-deny that this occurred (App. 139,145). Had a hearing been’ afforded, it might have ~ been determined that Roth’s. version‘ was correct, arid that. “the students whose reports were relied upon by Dean:Darken either failed to realize the relevancy of the subjects dis- cussed in class; or acted out of hostility to Roth engendered _ by” his ipttedtivctiial vole d in ‘campus 5 aii: Thus, ‘thie ing Roth an opportunity’ to be heard might have prevented. — “* an unjustified non-renéwal of a competent teacher. ee soe another. ground relied upon by Dean Darken- was s that Roth: failed to give his students a.final examination (App. 125). But the Chairman of Roth’s Department states that Roth gave his students a “take home” final examination : with his approval (App. 143), as other teachers have done- in the past (App. 144). Here. again, had Roth been ‘af- forded a hearing he, might have aborted an | unwarranted non-renewal. = 3 - . In éach of thesé instances, federal law imposes no’ sub- stantive limitation on the State’s freedom of action. Ob- = viously, a State may deny renewal to a teacher who does not. attend his classes,-or who fails to teach materials relevant to» . his assigned courses, or who fails. to administer final exam- ‘inations in accordance with University regulations. If, fol-. . lowing: a hearing, a decision were reached’ ‘hot to renew on a . any of these grounds, it would not be subject. to review for: - substantive deficiencies.'* Nevertheléss the hearing wold =. -” have fulfilled\its role; it would have enabled the teacher to present his side ‘of the. “story prior to the decision. ~ One of. the amicus briefs asserts that to require hearings in an area where the ultimate decision is discretionary and not governed by “ascertainable standards” would be “quite unprecedented in’ Anglo-American Jurisprudence.” '® This -” is ne As = as 1926 this Court declared, in. e~ “We are assuming, of course, that (these were indeed the true ‘grounds for the non-renewal, and not merely pretexts for, or -accom- paniments to, a decision based upon constitutionally impermissible —~grounds._We are further_assuming that, in the circumstances, these grounds would not constitute “arbitrariness” violative of the Fourteenth ' Amendment. Whether these assumptions are correct is a matter still pending in the district court, in that part of the case not befoge this Court. .o - as Brief of The American Council: on Education, ‘et al., page 13. \ | | “Goldsmith. Vv. -u Unig States sats of Tax wh ppeals, 270 U. S. ee 11% 123 (1926): . | “The rules adopted . oa board it cule that ‘th ae board may in its discretion deny admission, suspend |p... -. disba@ any person.’ But this myst be construed to.m | ty the exercise of a discretion to be exercised after fair- aes investigation, with such:a notice, hearing and “oppor- tunity to answer for the i seacae as would constitute - due process.” : | | aug | (b) The Aileged. Fama of Colleges ind Universities to . Conduct Hearings , : 7? 4 : | cy -Petitiiners assert (Brief, pp. 16.1) Ma. colléges and uni- - .: ; | -versities were not “intended\ to be courts or quasi-judicial . : | agencies’. and cannot provide administiative bodies compe-* tent “‘to decide difficult constitutional issues.” . But they al- ready perform this function in the case of tenured ‘teachers when dismissal for cause is contemplated (Id.‘p. 4),-artd the hearings required in the case of non- tenured teachers wee - be less “quasi-judicial” because there is no statutory “cause” 4 ad judication. to be made. As we have shown; most ofthe , _ grounds for non-renewal do not rise to. substantive. constitu: ——+——tional dimensions, and invoive questions of university policy and practice which lay bodies may be more ‘competent to, ~ deal with than lawyers or judges.’ When constitutional ques- __ tions are involved—e.g., where non- -renewal is coritemplated 3 ~ for activities which: are arguably protected by the First _. Amendment—the State has a responsibility to assure that _its-conduct comports with the Constitution, a. responsibility _ | which i is enhanced by the full elicitation of _the facts that-a— — os —. hearing would provide. Surely petitioners do. not suggest . _° that they terminate the. employment of teachers without — . -regard ‘to the dictates of the Constitution. The State must obtain the necessary expertise to-make these judgments, and ) invariably, as here, has attorneys whose primary function is : ee ssietin ? : | ; ; 7 : De ‘oe 21, ; . e . a % to aglvise: State agencies with ee to their legal rights y and responsibilities.”* ee ey : eat (ec) The Alleged Administrative Burden — Petitioners assert that the administrative burden of hav- .ing to “conduct hearings. on every: case’ of non-renewal, or - -_.even if limited to those cases whete requested, is staggering” : kosh." Moreover, a Wisconsin statute affords:a hearing to’ (Brief, p.. 18). This assertion is hard to accept. There were, after -all, only 4 teachers denied renewal in 1970 at Osh- non-tenured teachers at - the: elementary and secondary . “+ school levels; Wisc. Stats. § 118.22 ( 1969), and if that. bur- _den is sustainable surely the burden“of' providing hearings ~~ to’ the much: smaller number of _rion-tenured ‘teachers in higher-education ‘is not beyond the State’s capacity. Indeed, « it is ironic that in Texas (where Sindermiann arises); Wis- consin (where this- case arises) and California (one of the - amici, also claiming burden, Brief of the Board of Trustees: : of the California State Colleges, p. 10), state lat accords elementary and high school teachers:thie hearing rights re- sisted for college teachers in this case.* The widespread . WOOF tourse. nothing precludes the State from designating a hearing ‘tribunal which’ possesses expertise. ‘An NEA survey discloses that one- ° ‘fourth of the nation’s school. systems utilize third-parties to hear con- tract non-renewal cases, and 15.6% utilize third-parties to determine - the, non-renewal issue. NEA Research Diviston, School Board Pro- | a. ‘statutory Rrovision of hearings in’a large number .of states,_-—— . for non-tenured teachers whose-non-renewal is contemplated “6 4 fedures Upon Non-Renewal of Teachers’ Contracts, supra... Mees 7 Petitioners state (Brief, r at there were a total of __. 206 teachers notified of non-renewal throughout the Wisconsin Univer- @ ss v sity System in 1970. This information is not in the record, and thus we do not know how many of this total were non-renewals-for economic reasons—non-renewals which would almost surely not result in requests for hearings. , . | a Pe ee, Ace "® Texas Code Ann. § 21-204 (1969): ‘Calif. Educ. Code § 13443. (West 1969). 9° | . 3 a a a .\ nn e 3 ; recent study i in the’ State of Washington, where q (sce? ‘NEA. amicus brief in Siidannain, PP. 19-22) demon: = . strates that the administrative burden is not substantial. Fe Moreover, the burden is likely to: be very much less than "Taw statistics might suggest. For the jteacher ‘whose per-.. * formance is truly mediocre or incompetent is unlikely. to demand a hearing i’ which his’ deficiencies will only . be : + dramatized and publicized. And: the teacher whose non-— renewal: stems from a reduction in force is eveh less. likely to complain. Thus, it is reasonable to expect that only a ; - fraction of the teachers notified of. contemplated ‘non-re-. * “‘newal, ‘and given a statement of the reasons therefor, would invoke their right toa-hearing.. - ’ pee The lack of administrative’ burden. is confirmed by a. : atute accords teachers facing non-renewal - (either before the. rd oF in court, at the teacher's _option).~ Inthe school year 1969-70, there was a “teacher turnover” from.all causes (deaths, retirements, resignations, . reductions in force, non-renewals, etc.) of 4,225.. But>orily 58 teachers: teceived notices of non-renewal for-reasons other - than n_ economy. Of these, only 26 sought hearings, 24 before. the school. board and 2 in court. Of the 24 board hear- ings, 6 resulted in xetention of the teacher. In the. schogl- , year 1970-71, total tedcher turnover was 4,224, but. only 4A] teachers received notices .of non-rehewal for reasons ; other than economy. O: \these, 21. sought hearings, 19 be- . fore the school: board and 2’in court, and 6. ge hearings. - resulted in retention of the teacher.” (d) The Alleged Deterrent to Non-Retention | _ Petitioners, and ¢ach of the amici, predict that if a state-. ment, of reasons and ans are required colleges will not. . Joint Corntnittee on -Ediication, Washington State. Legistatare Washington .State’s Continuing Contract and Discharge Laws.for Cer- 3 tificated Commen’ School Employees: A Préliminary Report to. the’. Washington State. Legislature bythe Joint Committee on Education, PP: "8-9, 35-36 (December 17, ee: t to-a hearing * * ae teacher’ S inadequacies. Each of these reasons 153.. Bee The first is contrary to the way the a¢ emic process op- ~.. erates. -As petitioneys have o. | * initiate’ pplneciisAeal: proceedings against ‘weinbes whe: es f os ought not be retained. This will occur, they predict, for two ae quite different reasons: (a) ‘Because the reasons for non- °: . renewal are often ‘ ‘sybtle,” they are incapable of articula- tion, and faced with the duty to-articulate the State will _, sooner retain the teacher; and. (b) In borderline cases, re- _.’ tention will be chosen as easier than trying. to “prove’ Ives emphasized ( App. _, 121-123, Brief, pp..7- iz newal is made-by the Univesity President, on the basis of N .gecommendations : received from his sibordinates. ; “Tf the grounds for tecommending non-renewal can he artic: - ulated with Sufficient particularity to enable the President. _ to act thereon, as ‘they were here (App. 125-131), there ob- viously ‘can be no, inability to articulate them to the teacher: | . Articulation. was likéwise no problemi in)Sindermann ‘(Sin-_ ~ dermann Appendix, pp. k2-23), where’ an elaborate press * telease was-issued.: And the Californi amicus has explained e unvarying practice in that written recommendations are that State (Brief, Pp: 6).: Though ‘the ‘reasons for nion-re- .:newal may in some. o@ses be subtle,” we. find if difficult to “belies that the academic community is inicapable « = articu-' ; _lating subtle concepts.” The second fear—that retention will be peer in ee - * Tine cases to avoid the burden of “proving” inadequacies— proceeds from the erroneous premise that at a hearing the. State would have to “prove” the validity of its grounds for. . 2% favoring non-renewal.” As we have already shown (supra, - . Pp. 17-18), there will be no such burden. - Tn some situations, alae. different persons may: be advocat- ing non-renewal for different reasons, ‘but that is no obstacle to' articu- lation. The teacher can be told precisely what the situation is, i.e. that: ' Some advocate: his non-renewal for reason “A”,.and others for reason “B”. The teacher can ‘then n address hiraself' to all the grounds at the _ hearing. . - © , the ultimate decision ‘on non-re-. — a x ae ie) The Asserted ‘Need to Avoid ei Paina Conflict » * Petitioners and the amici sugg t that the confrontation . ‘occasioned by a hearing would cauis¢ unpleasant inter-per-» * sonal conflicts. They ‘suggest that: administrators and col- heagues_ will hesitate to recorirtend non-reneéwal if «they. _--know. that_they_will have to explain their reasons to the a teacher, and that the problem will be: compounded. if the . teacher indeed succeeds in —— renewal — sia! ee who has sought his ouster: 3 ‘These psychological considerations, of course, accompany f oe “any fair dismissal procedure. ‘Colleges and. universities hav- _'.ing a tenure system already face them when removal of a ‘ tenured teacher is sought. | Elementary and high ‘schools in © states where hearings are required prior to non-renewal al- reddy face them. The federal government, with its statu- tory Civil. Service. procedures, faces them. And every. pri- vate employer who contractually affords a hearing upon ter-" mination—the overwhelming ma jority of American indus. pelle thein. ee 5 ’ This is not to say that the concerns are not real. : There : "gee undoubtedly: persons who would advocate the ouster. of a teachers-whether for good reasons or bad>—if the teach- er’s removal could be accomplished without having to face: him, but who would, be unwilling to endure the discomfiture ~ of explaining their reasons in the teacher’s presence. And it -is certainly true that, when a-teacher ‘fights successfully for renewal the Prior. efforts to oust him will leave sears.. But these are prices which generally have been recognized as. ° ‘worth paying in order to afford justice to the employee; the employee’ s interest in having an opportunity to defend his job-has been deemed more important. than the avoidance ‘of inter-personal ‘discomfiture which could. be achieved by oy e Va = 21 Eighty percent of. collective bacgaicing agrecqueiiti: subade for - hearings i in connection with termination of employment. BNA, Collec- - _ tive Bargaining Negotiations and Contracts, page 40.4 (1969). ° » ; y -3 . . ~ é ‘ ~* » a» eft: ‘sansa dail: aca as the wistea tink gpeds in 2 favor. “ ‘of the employee’ s interest throughout private industty in’ “y «. America, so ought they to tip-under te balancing test of “ ce 2 Lome hes hae : 1% x The Asserted. Risk of. OverGautioa in the Hiting Process ae F inally, petitioners.and the amici assert that if hearings are a necessary prelude to non-retention, schools will “fol-— . low a.counsel of over-caution in their hiring practices,” and < innovative and non-conformist teachers will not. be hired; _ they. warn' that “the schoofs would’ be left. with a 8 apie ike force of homogenized médiocrities. ees This fear, too seems to emanate fois a erroneous con-. __ : ception that a ‘State. must “prove” something in order ‘to . « " ‘Justify non“renewal. , As we have shown, affording teachers - thé right to be heard does not increase the State’s substan- - tive butdens in-:denying renewal to unsatisfactory ‘em- -- * * ployees; errors in the: hiring process can be ss te ee - surely with a hearing as without. , =~ Moreover, it is absurd. to think that: “America’s s sieieds — ‘ and” universities—which are avowedly: striving for contro- ~ versy and i innovation, and deplore mediocrity”—would alter . their fundamental goals and staff themselves with’ mediocri- ties simply because required to afford non-renewal hearings... On the’ contrary, the’ — of such nearest — strengthen faculties: .“Tt is a. social fact that the best academic men are attached to the ideology of a corhmunity of scholars and believe’ strongly iri academic freedom. Places that fit: - these beliefs are more attractive than those that do ~ ‘not—recruitment -and’ retention are - shaped accord: - ~ ingly.” Clark, Faculty Authority, 47 A.A.U:P Bulletin "293 (196r) =_— in feces. Haber & Dorsen, Po- , = Diet of The American Counéil on Education, et. al , PP. 5, 8. SM RENIN) She noMer nen URGE pee Ta ty NEM oan or hae . . " P 4 . ; : $ MRR HMR eeu net nce Hamann saan Race cir restres NMR Tt ‘\ . . —— > = Py o - v ad "7 o . Lis: BE GSR RIT S.A IRIE EM oot LN tt —~_ @ ” , ; . em" we v . g wi oe theta et: litical and Civil ight in the U pited States; Vol. , Pp 2 “981 (1967). - ae : that the only State interests are those which they advance (2). The Public Interest in Providing Hearings Petitioners, and the amici supporting petitioners, assume against the provision of statements of reasons and hearings. _ "In fact, there are several public interests which are Served * . ~. by the provision of proeedural due process, and which, weigh ~ leavily in fayor, of affording such procedures. We discuss | . these herein. {) The Public Interest ix in Academic Freedom ‘As we have: previously discussed, the hearing process will _remove teachers’ fears of speaking. on public i issues, a gain of inestimable value to the public. (b) The Public laterest i in the. Reieniton a Superior Teachers “In ‘both Sindermann and Roth, the ‘non-renewed teacher - was an exceptidnally good teacher, and the reasons. prompt- ing non-renewal had nothing to do with teaching capability. _Roth’s teaching ability was rated “excellent,” and his pro- fessional and scholarly growth “superior”; it-was found that = he “manages discussion well and~his students seem. highly ; okivited and involved” (Roth @pp. 132-133). . Sinder- mann had ten years’ experience ‘teaching in Texas colleges, his colleagues evaluated ‘him “a totally competent person professionally,” and his excellence was attested by the fact that the President of the College named him. Co-Chairman of .his Department for .a time (Sindermann App. 12, 52). _ That ,teachers of distinction are denied renewal ‘is not un- - common. Caplow & McGee, The Academic Marketplace, pp: 50-51 (Anchor Books edition, Doubleday. & Co., New York, 1965): “Our data abound i in complaints from professors that they were not told exactly either w hy a given colleague ? | 27 > _was hifed\or fired or what he had or did not have om . someone else had or did not-have. Seal university has ” its legends about certain firings... A haunting Minor. — ‘theme i in the interview reports is a story. liké ‘this {not | 7 n actual’ perme ‘He, was one of the: best young’ ~es we had, brilliant, productive, an excellent teacher, highly recommended, .and unanimously supported by . the department. When he came up for tenure, he was - fired. We never knew “Why.” a ' Public echicational. institutions are not piWate clubs; they are administered forthe public good. The public has an in-’ ‘terest in academic excéllence «and in ’ the retention of su- " perir teachers in such institutions., When it is proposed — that such‘a teacher be non- renewed for reasons unrelated to | teaching ability, the public interest is safeguardéd by pro- ‘cedures which assure that mistakes are.not made, and that -the teacher has a‘ full opportunity to demonstrate“that the. ~ proposed grounds for non-renewal.are ill- advis€d. We have “already shown that the bases: for Dean Darken’s recommen- dation that Roth not be renewed may well have.been fac- tually erroneous. If so, the citizen’ of Wisconsin have need- lessly been deprived of a fine teacher. A procedure which ~ Teduces' the prospect of such error is in the public interest. (ce) Reduction: of the ‘Jiciel. Burden As is évident’ from even a cursory view of current federal court dockets, there are today legions of cases pending un- .. ° der'42 U.S.C. § 1983 brought by non-renewed teachers.” : These teachers generally have gone to court because there | was no other forum in which their claims could be heard. This case load is doubfy unfortunate: it puts a strain on mica crow ded federal court dockets, and it invites the s nade s . 2 3 See, e.g., the 27 ‘bain cases cited in the Appendix to this brief and the 100 pending’ cases cited in the Appendix to the NEA’s amicus “brief i in Orr y. Trinter, No. 71 “249. : very judicial involvement in academic community affairs - which petitioners 4nd the supporting amici abhor. An important contribution of an administrative. hearing ; procedure is that it will divert.such cases from the court- ’ house to the campus.. In many if not most cases, a pre-. - termination hearing will obviate ultimate .resort to the | courts. Where the contemplated non-renewal is truly un- _ justiffed or unwise, the hearing is likely to persuade the State not to pursue it. On the other hand, where non-re- néwal is truly justified, the hearing is likely to convince the: : teacher that that is so,.and demonstrate the futility of his in- ° curring the enormous costs‘ necessary to institute légal pro- - . . ceedings. Cf. Murray v. Blatchford, 307 F.Supp. 1038, 1053 ~ (DRI. 1969) : : -“[T]here was no opportunity for vigorous vm fully informed adversarial confrontation on the issues raised -by Murray. Had such confrontation emerged within the Peace Corps as it-has now in the courts, this entire liti- . gation might have been avoided. “ ~ See also Comment, Constitutional Rights of Public Em: ployees:: Progress Toward Protection, 49 N.°C. iL. Rev. 302, 318 (1917). (d) The Public, Interest in Accountability ) Yet another public interest served by the hearing process is the assurance that non-renéwal decisions are ‘made inv ‘telligently and fairly. Hearings promote accountability; they assure fairness and integrity: . ~The public inevitably ‘benefits when its public officials:are compelled to act respén- ' sibly and justly. Cf. O’Neil, Of Justice Delayed and Justice Denied: The Welfare Prior ene Cases, 1970 Sup. Ct. Rev. 161, 184-190. . ‘In sum; the teacher’s ‘personal interests thréatened by non-renewal, coupled with the public benefits whith inure from the hearing process, far outweigh the factors advanced 29 by. petitioners and the ow amici in their oe to. . avoid stich procedures. On the“balance of Cafeteria Work- . ' ers, teachers are entitled to a: statement of reasons and an — ‘ opportunity to be heard before they are denied renewal. _ CONCLUSION For the reasons set forth hereinsbove, the decision of the: . Court below should be affirmed. - : : Respectfully submitted, Davin RuBIN Joe: D. Gewirtz 1201 16th Street, N.W. Washington, D. C. 20036 _ Attérneys for National Education Association ° » * MuacuaEL H. GotresMan | ' Georce H: Cotigen = ~° Dennis D. ‘CuarK | ‘ Bredhoff, Barr, Gottesman, Cohen & Peer. . - 1000 Connecticut Avenue, N. W. Washington, Dz C. 20036 © ~ WarREN. BURNETT -RicHaArRD J. CLARKSON . Burnett & Childs - » i. mo O. Box 3707 Sho -be Odessa, Texas 79760 * Attorneys for Robert Sindermann Partial listing | of recently decided and pending-c cases in” ‘la APPENDIX a ty volving claims under 42 U.S.C. § 1983 by nontenured teach- contract —* I. CASES PENDING: | '$.D. Alabama: 7 -ers that their contracts were not renewed because of their, exercise of First Amendment rights. This list does not in- ~ ° clude any ¢€ases involving dismissals of. teachers during a Dickerson v..Board of School Commissioners of Mobile County, C.A. No. 3003-63-T 7 The ‘complaint, filed ,by three. nontenured white teachers who had ‘been employed i in all- black schools of the Mobile, Alabama school system, alleges that their contracts were not re- “- newed because of their involvement in peaceful protests against alleged violations by the school W.D. Arkansas: — OF ae ee D. Connecticut: D. Connecticut: @ their support for the prior president of the col- Appler v. Mountain Pine School Dustrict, ‘HS- | "system of the civil rights of black students. 71-C-16 Plaintiff, a -nontenured teacher, alleges rem ——— his. contract. was not renewed because he as- signed The Caine Mutiny to his class. Simard v. Board of Education of Groton, G.A. 14379 Plaintiff, a ‘nontenured feather, alee: his contract was not renewed in retaliation for his having taken a leading role in negotiations’ be- ‘tween the teachers’ association and the school - board. Pavlak v. Duffy, C.A. No. 13436 ‘ The complaint alleges that the plaintiff was one of, six nontenured. faclilty members at Northwestern. Connecticut Community College. ‘whose contracts were not renewed’ because of * -@ STEER ME Peo . vata Al 2a . , = ae wo ee De Se ae ut erent: ae apie - ° . ° . . - > . a . A ppendix ~ lege, who had been asked to résign by the board of: tees. % _ District of Columbia: _Ca inale—y. Washington Technical _ institgte, S.D. Georgia: N_D. Illinois: N.D. Illinois: 4 N.D. Iowa: CA. No. 1052-71 ‘Plaintiff, a teacher: at Youth Manpower , Training Program, alleges that her contract was not renewed because she had disagreed with the ; policy of the Program Director, and complained to the funding agency, U.S. pecacanent: of Labor. e . “Smith v. Sessions, et al., C:A. No. 1684 . Plaintiff, a prinéipal, alleges . that the non- ‘renewal of his contract, on. the und of his public disagreements with schgol board policies, . violated his First-Amendment ata 4 Miller v. School District 167, Cook County, *, C.A..71-C-1109: The complaint alleges that plaintiff's contract | was not renewed because he was: critical of the Board of Education. ; : Kalish wil Enbysk v. Board j Education, CA No. 69-C-1056 The complaint, filed by two sda tecumed teach- ers employed at an IlIkinois junior college, al-. leges that their, contracts were not renewed be- their exercise-of their constitutionally ay rights -to speak out on matters con- cerning the policies of the college and their, ac- _ tivities in organizing a professional association of teachers. . g Mahood v. Ida Grove Community pence Dis- trict et al., C.A, No. 71-C- 3025-W - Dodds v. Ida Grove Community School District ** et al., C.A. No. 71-C-3026-W Plaintiffs, nontenured teachers, allege that - their contracts were not renewed because they - ND. Iowa: _ ’ ED. Kentucky: S.D. Mississippi: va -. 8. Af, ae Appendix 6 Ba sent a letter to school a members i inquiring °° _ _ about the renewal of their principal’s contract. Webb v. Lake-Mills Gommunity School District et al., C.A: No. 71-C-2053-C. - A nontenured dramatics teacher alleges that - - _ his contract -was not renewed because -he pro- duced .plays which contained language the school board found objectionable. . Aulck v. Jones et al; C.A. ‘No. 1576. Plaintiff asserts that his contract was not re- newed because of his associational ‘activities and ° .his criticism, — ser “letters to the-editor” — of school system offics —) A . “Thon v. Mallicon County Board of Educa- . ; Co ion, et al., C.A. No. 4692: - a A black nontenured social studies teacher al-_ ges his contract was hot: renewed because of “ his assignment of essays on the shortcomings of the state of Mississippi and his complaints, as an elected alderman; of the misuse of Title I funds. . Reed v. Parkway School District, Cause No. 70-C-584 (4), on appeal to the Eighth Cir- cuit, No. 71- 1640 Plaintiff, a nontenured ‘teacher,’ alleges that. her contract was not renewed after she distrib- uted through the faculty mailbox - information: concerning activitigs of the Missouri State - Teachers Association. She has appealed the. dis- missal of the complaint tothe a Circuit. Wilson Vv. Pleasant Hills. School: District R- III, et al., appeal pending in Exghth ane . No. 71-1440 The complaint alleges that a nontenured .teacher’s contract. was not renewed because of his activities as the leader of the local teachers - association. A decisjon adverse to the teacher has been appealed ¢ to the Eighth Circuit. | a ~. 4a 0 4 ‘WD. Missouri: a P S) D. Nevada < ~N.D. Texas, N.D. Texas: > Sy Teas: | Ww .D. Texas: Ap pendix Gieringer v. Center School District, CA, Ne 1851520 . The somuplaien alleges’ that the céntract of a nontenured teacher with 11 years’ teaching ex. perience was not renewed because he made mis- _ Statements of fact in a report to the local teach- ers association on the attocation of funds for teacher salaries. oe : |” Maule v. Zander, C-AwNo. R-2574 -* _ Plaintiff, a nontenured ‘teacher, alleges that he was not rehired as a result of his _, Speech critical of the Seno! administration. Goade v. “Taylot, et al., C.A. 4-1521° Plaintiff, a nontenured. teacher, alleges’ that his contract. was not renewed because he dis- - tcussed with his students controversial i issues such ‘/ as drégs, war, and. dress codes. bask v. -Estes., et al. C.A: 3-4164:C Plaintiff, a nontenured instructor in the Re- serve Officers Training Corps, alleges that his contract was not-renewed because he criticized the school board’s approach to discipline. Zimmerer v. Spencer, et al., C.A. 69-H-804 | \, - . Plaintiff, an instructor and acting department chairman in a junior college, alleges that she — was demoted and that later hex contract was not renewed, after expressing her concern for the acadernic quality of her department and . criticizing the employment poe of the oe Willmon Vv eutse. G.A. DR-70C- A-12 A nontenured teacher alleges that .her con- tract was not renewed because she placed right- ' wing. political tracts in the school lounge ~~ .@ ED. Virginia: 7 ND. West Virginia* 6: W.D. Wisconsin: D. Wyoming: * D. Wyoming: _ alleges that she was not retairied because of her — - Appendis > ia, Se. Johnson v. Harnel, et al., C.A. No. 411 TLR : Plaintiff, teaching at a. community. collene: - ‘ extra-curricular ‘involvement in organizing and _ teaching at a free university. National Faculty . Association of Conimiunity and ® Junior Colleges v. ‘State Board for Commu- nity Colleges, et al., C.A. No: 2-7-69- R Four nontenuréd ‘instructors were not re- - newed, they contend, for their active role in or- : ganizing a faculty association on | campus. Chitwood, et al v. Flaster, et al., C.A. No. 71-8-F Plaintiffs, oi were teachers ‘at a state col: ‘lege, allege that their contracts were not re- newed because of their public. involvement in anti-war activities and their criticism of the col- lege administration. 4 Diteratan v. Joint School District 1 No. 1, Villages © of Gratiot, et al., C. A. No. 70-C- -29§ Plaintiff, without tenure, asserts that his con- tract was not renewed in retaliation for his lead- , _ ership activity in the local teachers association. \Bertot v. School District No. I, ; Albany County, C.A. No. 5623 : Plaintiff, a nontenured teacher, asserts that . ‘her contract was not renewed because she showed interested students a film on black mili- : tancy after school hours!" Sweeney v. Schoo! District ‘No. 1, Albany County, C.A. No. 5624 7 — Plaintiff, a nontenured. teacher,’ — that. ~ her contract was not renewed because she: ob- jected.to.a student dress code on a tadio aa » discussion program. ° . -_—s a Role SAPS oo _ M.D. Florida: . . N.D. Indiana: ° e e “ ° N .D. Mississippi : 6a _ Appendix | ? F es : . 7 . ‘ AL CASES DECIDED: reyee | aie ED. Arkansas Downs ns Vv. Con Schpa District, 328 F. Sopp 338 The court found that his Contract of a non tenured’ te&@her was not reneswed* because she -had exercised Fights of free speech and petition __ in criticizing various policies of, the school ad- ministration, including its. negléct of.a sthoking “incinerator on the. playground. The court or- dered the teacher reinstated with i eich Per ~ ad ° _ Stevensow V: - Allen, C.A. No. 70- 33- Civ. T: (settled) end - The romplaine filed by a iiiccibapanail pro- : " fekor at the University of South - Florida, al- leged that his contract had- not been renewed’ . ‘because, of his outspoken criticism of U.S. par- ticipation in' the Viet Nanr War, his open oppo “sition bp the Federal government’ s plan to cre- ate and maintain a system of anti-ballistic mis- _ siles, and_ his. personal | association with a large " segment’ of the student body: in. peaceful off- . ' campus protestations and other peaceful activi- ties. ». Keio v. ‘ Lake Central School Corp. et al, 3117 F. Supp. 63, 1970 _ The curt ordered reinstatement of a teacher whose contract, Had rfot ‘been renewed because * -of his.criticism of the school administration dur.” - ing collective negotiations. ~ Armstead ‘ Starkville Municipal Separate ~ School District, C.A..No. EC ss 51-S My 27,:1971). . The court found that a black tencher was not reemployed because she had ‘circulated. docu- ments criticizing alleged racial discrimination by - school ; authorities against black educators. The © ara was, ordered reinstated by the ‘court. *! . ; +. S o . ee r : a Pa de ED. Virginia: + ED. Virginia: 7 N . D. New Hampshi D. New ange lire: Appendix: oS Ta ‘Chase \% Fall trict, CA, fountain Regional S School Dis. No. 3112. (July 28; 1971) "The cou found: that the contract of a non- er, who was chief negotiator for * ¥ the local tea hers association, was not renewed "because of s tements—critical of the school ad- - ministration2made during: the course of collec- + BER i tive negotiations. Acie 6 Montgomery v v. White (320 FE. Men 303) ? ‘The court found that a ‘nontenured teacher’s . ‘contract was not: renewed as.a result of his ae tivity in a voter registration drive. ei ‘Hasbaer v. Rishtoa, CA. No. 4835-A Naintit?, a -nontenured professor at‘ Northern Virginia Community College, alleged - that he was not reappointed because of his activity: in * attempting to organize at the’ college an affiliate | .of. the National ‘Faculty -Association. On De- _ cember 4, 1969, after a day and a half of trial, Tare Smith, et al., CAs No. 71-8-F the defendants agreed to» a settlement under,. whict plaisscift was awarded $204 000. + The court. found, in a consent decree, that .— the’ contract of the plaintiff, a nontenured “teacher, was not renewed as a result of his in- _ volvement in a dispute regarding. State teacher o&& association election procedures., Damages we _ awarded to the teacher and the nonrenewal was ordered expunged froin his record. , ; a , “i | ~ . 7 C4 . = =) . ; : : / bd ° NOTE: Where it is deemea desirable, a syllabus (headnote) will , Co., 200 U.S. 321, 33 SUPREME COURT OF THE UNITED STATES _ : Syllabus : 7 2. : - *- “PERRY er au. v. SINDERMANN CERTIORARI TO THE UNITED STATES COURT.OF APPEALS FOR oe ase | THE FIFTH CIRCUIT "No.-70-36. Argued-Jinuary 18, 1972—Décided June 29, 1972 é ‘Respondent was employed in a state’ college ‘system for 10 years, . > the last four-as a junior college professor under a series of one- year written contracts. ‘The Regents then. declined to renew his employment for the next year; without. giving him an expkination or prior hearing. Respondent. then brought this action in the District Court, alleging that the. decision not to rehire him was @ based on respondent's public criticism ‘of the college administra- _ tion and thus infringed his free speech-right, and that the Regents’ failure. to afford him a_ hearing violated his procedural: due process right.. The District Court granted summary judgment. for petitioners, concluding that respondent's contract had terminated . and the junior college had not adopted the tenure system. The Coyrt of Appeals reversed on the grounds that, despite lack of ® — tenure, nonrenewal .of “respondent’s contract would violate the ‘ Fourteenth Amendment if it was in fact based on his protected free speech, and that if respondent could show that he had an “expectancy” of re-employment, the ‘failure to allow him an opportunity for a hearing would violate.the procedural.due process guarantee. Held: _ _ . = 1. Lack of a contractuai or, tenure right. to re-employment, taken. alone, did not defeat resposdent’s claim that the nonrenewal ‘of his contract violated his free speech right. under, the First and Fourteenth Amendments. The District Court therefore erred in -foreclosing determination of the contested issue whether the decision * not to renew was based on respondent's exercise of. his right of free speech. Pp. 3-5. 2. Fhough a subjective “expectancy” of tenure is not protected by procedural due process, respondent’s allegation that the college ° é _ had a de facto tenure policy, arising from rules and understandings officially: promulgated and fostered, entitled him: to an oppor- | > , . ; : I ‘ dee Corn Corry y Aeedent .- . I PERRY v. SINDERMANN Syllabus tunity of. prov ing the legitimacy of his claim to job. tenure. Such proof would obligate the college to.afferd him a requested hearing ‘where he could be informed of the grounds for his nonretention and challenge their sufiicéncy. Pe 6-10. 430 F.2d 939, affirmed. os ‘Stewart, J., delivered the opinion of the Court, in which Be RGER, is J.,and WuitTe, BrackMUN, and- REHNatrsT, JJ., joined. Bercek, >. J, filed a concurring opinion. BRENNAN, J., filed an opinion dis- te in part, in which Dovctas, J., joined. MarsHatt, J., filed an opinion dissenting in part. PowELL, J., took no part in the decision of the case.. . ee ae ‘ NOTICE: This opinion is subject to formal revision before ublication in the preliminary print of the United States Reports. Readers are re- guested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of. ney My nig on vam or other formal errors, in order that corrections may be made before the pre- ' liminary print goes to press. “SUPREME COURT OF THE UNITED STATES ¢ No. 70-36 Charles. R. Perry et al., .}On Writ’ of Certiorari to Wty Petitioners, - the United States Court vo. _| of Appeals for the Fifth Robert P. Sindermann, ete.}° Circuit. {June 29, 1972] Mr. Justice Stewart delivered the opinion of the * Court. - : ef ~ From 1959 to 1969 the respondent, Robert Sindermann, was a teacher in the state college system of the State of | Texas. ‘After teaching for two years at the University _of Texas and for four years-at San Antonio Junior Col- . p lege, he became a professor of Government and Social Science at Odessa Junior, College in 1965. He was em- ployed at the college for four suecessive ‘years, under a S@fes of one-year -contracts. He was successful enough “to be appointed, for a time, the .cochairman of - his department... eee : > During the 1968-1969 academic year, however, con- troversy arose between the respondent. and the. college administration. The. respondent was elected president of the Texas Junior College Teachers “Association. In. this capacity, -he left his teaching “duties on several oe casions to testify before committees of the Texas Legis- lature,-and he became involved in public disagreements with. the policies of the eollege’s Board of Regents. In. particular, he aligned himself with a group advocating - the elevation of the college to four-year status—a change opposed by the Regents. And, on one occasion, a news- paper advertisement “appeared over his-name that was . highly critical of thé Regents. | 7 i. GQprneneas seo sare : PES Aa Re ce eee eae a ; hs ; : . PERRY v. “SINDERMANN- i) Finally, in May 1969, “he respondent’s one-year em- ployment contract terminated and the Board of Regents _ voted not: to offer him a new congract for the next aca-. demic year. The Regents issued a press release setting © _. forth. allegations. of the respondent’s. insuberdination.’ - But they provided him-no official statement of the rea- 7 ~ sons for-the nonrenewal of his contract. And they, al- ‘lowed hin no opportunity for a hearing to 0 challlenge the basis of the nonrenewal. - The respondent then beousht: this action in a federal district court. He alleged primarily that the Regents’ decision not to rehire him was based on his public criti- cism of the. policies of the college administration and thus infringed his right to freedom of speech. He also ° < 4 - alleged that their failure to prov ide him an opportunity for a hearing violated the’ Fourteenth Arhendment’s: guarantee of procedural due process. The petitioners— - members of the Board of Regents and the president. of the college—denied that their decision ; was made .in retaliation for~ the :respondent’s public criticism and areued that they had no obligation to provide a hear- — .ing.? On the basis of these bare pleadings and three | brief’ affidavits filed by the respondent,’ .the District a oe Court .granted summary:judgment for the petitioners. i It concluded that the respondent had “no. cause of ac- . tion’ against the [petitioners] since his contract of em- . ".. The press release stated, -for. example, that the respondent had ‘defied his superiors by attending legislative committee meetings when college officials had specifically refused to. permit him to leave his classes for that purpose. °° 3 .: #The petitioners claimed, in their motion for summary judg- ment, that’ the decision not to retain the respondent was really ‘ based on his insubordinate conduct. See n. 1, supra: * The petitioners, for whom summary judgment was granted, sub-* mitted no affadavits whatever. The respondent’s affadavits were very short and essentially repented the, general ean of his . - complaint. ; € PERRY v.SINDERMANN 5 3 ° ployment terminated May 31, 1969, and Odessa Junio College has not adopted the tenure system.” ‘ . _ The Court of Appeals. reversed the judgment. of the - District Court. Sindermann v. Perry, 430 F. 2d 939. . First, it held that, despite the respondent's lack of tenure, | ~~~ther nonrenewal of his contract would violate the Four-_. teenth ‘Amendment if it in fact was based on ‘his pro- tected free speech. Since the-actual reason for the Regents’ decision was “in total dispute” in the pleadings, the court remanded the case for a full hearing on this contested issue: of fact. Jd., at 942-943. Second; the Court of Appeals held that, despite the respondent’s lack of tenure, the failure to allow him an opportunity for a hearing would violate the constitutional guarantee of procedural due. process if the respondent could show that he had an “expectancy” of re-employment. It, _ therefore, ordered that this issue, of fact also be aired upon remand. Jd., at 943-944. We granted a writ of certiorari, 403 U. S. 917, and we have considered this case along with Board of Regents v. Roth,-ante. | y | _ The first question presented is whether the respond- ent’s lack of a contractual or tenure right to re-employ- ment, taken alone, defeats his claim that the nonrenewal _ of his contract’ violatéd the First and F ourteenth Amend- ments. We+hold that’it does not. ae For at least a quarter century, this Court has made ° ‘clear that even though a person. has no “right”. to a val- _ udble governmental benefit and even though the govern- ment may deny him the benefit for.any number of reasons. there are some reasons upon: which the government may - not act. It may-not deny a benefit to a person on a basis - that infringes his constitutionally protected interests— ' ‘The findings and conclusions of the District Court—only several linés long—are not officially reported. y= . i aa BOOS LE 4 es : LP LA 52 a8 ic ELA a Pe Pi Lah PS Saad \ : a . ‘ \ : . \ . : . 4. PERRY v. SINDERMANN. “* especia}ly, his interest in freedom of speech. For if the government could deny a benefit. to a person because of his constitutionally protected speech or associations, his — - exercise of those freedoms would in effect be penalized and - inhibited. -This would allow the government to “pro- duce a result: which’ [it] could not command directly.” Speiser v. Randall, 357 U.S. 513, 526. Such interference with constitutional etal is impermissible. . | _..We havé applied this general principle: to: denials of NX tax - -exemptions, Speiser v. Randall, supra, unemploy- : ment benefits, “Sherbert v. Verner, 374 U.S. 398, 404-405, and welfare payments, Shapiro Y. Thompson, 394 U.S: 618, 627 n. 6; Graham 'v. Richardson, 403 U. S. 365, 374. But, most often, we have applied the principle to denials of public employment. United Public Workers v. Mitch- “ell, 330 U.S. 75, 100; Wieman v. Updegraff, 344 U.S. 183, 192; Shelton v. Tucker, 364 U.S. 479, 485-486;° Torasco’ v. Watkins; 367 U. S. 488, 495-496; Cafeteria Workers v. McE lroy, 367 U.S. 886, 894; Cramp v. Board of Public Instruction, 368..U. S. 278, 288; Baggett v. | _ Bullitt, 377 U. S. 360; Elfbrandt v. Russell, 384 U.S. 17;. Keyshian v.. Board of Regents, 385 U. S. 589, 605- | 606; Whitehill v. Elkins, 389 U. S. 54; United States v. Robel, 389. U. S. 258; Pickering v. Board of Education, 391 U.S. 563, 568. We have applied the principle re- “gardless of the public employee's contractual or .other claim to a job. Compare Pickering v. Board of Educa- tion, supra, with. Shelton v. Tucker, supra. Thus the respondent’s lack of a contractual or tenure. “right” to re-employment for the 1969-1970: academic » year - is immaterial to his free speech—etaim.\, Indeed, twice before,. this Court: has: specifically held that the- nonrenewal ofa: nontenured public” school teacher's one-year contract may not be predicated on on his exer-— »- PERRY v.. ‘SINDERMANN - y 5 cs cise of. First ‘and F ourteenth omer tent rights. Shel- ton y. Tucker, supra; Keyshian v.-Board of Regents, supra. We reaffirm those holdings hére. - In this case, of course, the respondent has yet to show that. the decision not to renew his eontract .was, - in fact,-made in retaliation for his exercise ‘of the con- - stitutional right of free speech. - The District Court fore- . -elased any opportunity to make this showing when it granted ‘summary judgment. Hence, we cannot. now - hold that the Board of Regents’ action’ was invalid. But we agree with the Court of Appeals that there is a genuine dispute as to “wheth® the: college -refused to renew the teaching contract: on an impermissible \ basis—as. a reprisal for the exercise 0 constitutionally protected rights.” 430 F. 2d, at 943) The respond- ent has alleged that his nonretention was based on- * his testimony before legislative committees and his other public statem@ts critical of the Regents’ policies. And he has alleged .that this public criticism was within the First and Fourteenth Amendment’s protection of free- , dom of speech. Plainly, these. allegations present: a bona fide constitutional claim.- For this Céurt has held that a teacher’s public criticism of his superiors. on ~~ matters of public concern may be constitutionally pro- tected and may, therefore, be an impermissible basis for- termination of his employment. a ekeong v. Board of. Education, supra. For this reason we hold’ ‘that, the grant of ‘summary judgment against the respondent, without full explora- tion of this issue, was improper. ° II The respondent’s lack of formal contractual or tenure _ Security in continued employment at Odessa Junior Col- e =. ‘ ‘ ae - , . «4 . . . ) . e , . ° ° _* . ; . : ” : ai 6% ‘. ps . 6 ae ‘ 4 2 : . fe, ra . : & ; \ > pi . i oe . a . ” : bd a . : * . e 7 g -@-, @ PERRY 1 v. SINDERMANN- 2 ad 7° lege; ‘though ines ant to’ his fitee speech claim, ‘is highly: relevant. to his procédural dué process claim: . But it sin not be entirely dispositive. - ‘We have held today: in Board of Revents v. Roth, ante, a that the Constitution. does not require. opportunity for, a hearing before the nonrenewal of a nontenured , . teacher’s contract, unless he’ can show that the decision _ not to rehire; ‘him ‘somehow deprived him of an interest ‘in “liberty’”’ or that he had /s “property” interest in con- tinued employment, despite the lack of tenure or a’, - formal contract. In Roth the teacher had not made a showing on either point/ to justify summary judgment in his favor. . . Similarly, the respond int here. has yet to show that. he has been deprived, of an inter@&t that could invoke pro- . cédural due process protection. As in Roth, the ntere “showing that he was not rehired in ‘one particular job, -_ without more, did not amount to a_showing of a loss of ve" diberty.2 Nor did it~amount to a Showing of a loss of aaa " Property. s, . f But, the respondent’s sllogaidctid—hiely we must con- - strue most favorably to the respondent at: this stage of - the litigation—do raise a genuine issue as tohis interest i in. _ continued employment at Odessa Juniot College.” He al- ° leged that this interest, though” not secured, by a formal . contractual ‘tenure provision, was secured by a ‘no less’ binding understanding fostered by the college administra- tion. In particular, the respondent alleged that the col- lege had a de facto tenure program, and ea: he had tenure © ’ The Court of Appeails suggested that the cauaaa might have “a due process right to some kind of hearing sitnply if he asserts to college officials that their decision wag based on, his constitutionally, eo otected conduct. .430 F. 2d, at 944. We have rejected this ap- proach in Board of ‘Regents v. Roth, antemnt —n. 14. * ‘under that program. He claimed : that he and others — legitimately relied upon an unusual provision. that had - _ been in tlhe. eollegé’s official Faculty. Guide, for many ‘ , years: - . ‘* system. The Administration of the College wishes the faculty’: member to feel that he has permanent /* tenure as long ds his teaching*servicés are satis- » factory ‘and as long’as he displays a. cooperative attitude toward. his co-workers arfd: his. superiors, . and as long as he is happy in his work.” : Moreover, the. respondent ‘claimed legitimate reliance: ©. PERRY v. SINDERMANN OA BP Sg “Teacher Fenure: Odessa College has no tenure z upon guidelines promulgated by. the Coordinating Board | of the Texas College and University System that ‘Pro- vided that a person, like himself, who had been eriployed as a teacher.in the state college. and university systeni: for seven’ years or more has some form .6f: job tenure.° * The relevant portidn “of the guidelines, adopted as “Policy Paper — 1” by the Coordinating Board on: October 16, 1967, reads: “A. Tenure. a 7 ‘ o Ps : . ¢ . at “Tenure means assurance to an experienced faculty member that - he may expect to’ continue in his academic position unless adequate * cause for dismissal ‘is demonstrated ina fair ‘hearing, following established procedures of due process. ™.”, “A, specific system of faculty ‘tenure undergirds the integrity of each academic institutiony In the Texas public colleges and uni- © ¢ versities, this tenuré system should have these components: ° “(1) Beginning‘ with appointment to’ the rarik yof full-time in-: structor or a‘ higher rank, the probationary period for a faculty © - member shall, ‘not exceed seven years, including within this period » appropriate full-time service in all institutions. of higher education. , -@W This is subject. to the provision that when, after.a term of probation-_ . ury service of ‘more than three years in-oné or more institutions, a faculty member is employed’ by ‘another institution, it may be agreed im writing. that his new appointment is for a: probationary ‘period of not more than four years (even though thereby the person’s total a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0062%3A14. Public record. Not legal advice.