PERRY v. SINDERMANN
Robert Sindermann had been a professor at Odessa Junior College for four years, working under one-year contracts. After his election as president of the Texas Junior College Teachers Association, he had several public disagreements with the Odessa Junior College Board of Regents. In May 1969, after the expiration of his teaching contract, Sindermann was not offered a new contract and terminated by the college's Board of Regents. While the Board of Regents did issue a press release accusing him of insubordination, they did not provide official reasons for his termination or the option of a hearing for him to challenge his termination. Sindermann filed suit in the United States District Court for the Western District of Texas. He alleged that his termination was due to his disagreements with the Board of Regents, a violation of his First Amendment right to free speech, and that the lack of a hearing violated his Fourteenth Amendment right to due process. The District Court ruled for the Board of Regents without a full trial. He appealed to the United States Court of Appeals for the Fifth Circuit, which held that his termination would have been unconstitutional if it was based on his exercise of free speech or if he had a reasonable expectation of continued employment. The Fifth Circuit remanded the case to the District Court.
(1) Was Sindermann entitled to a full trial in District Court?
(2) Was Sindermann entitled to a hearing before the Board of Regents?
Legal provision: Due Process
Yes and yes. In a 5-3 decision, the Court affirmed the Fifth Circuit and held that Sindermann was entitled to a full trial in federal District Court and a hearing before the Board of Regents. The Court acknowledged that Sindermann did not have a contractual or tenure-based right to continued employment by Odessa Junior College. However, this lack was "immaterial to [Sindermann's] free speech claim." Writing for the majority, Justice Potter Stewart relied on Shelton v. Tucker and Keyishian v. Board of Regents in emphasizing that nonrenewal of a one-year teaching contract "may not be predicated on [a teacher's] exercise of First and Fourteenth Amendment rights." However, the Court stopped short of invalidating Sindermann's termination, as the Board of Regents' reasoning had not been established. While Sindermann had yet to "show that he has been deprived of an interest that could invoke procedural due process," the Court stated that his claim did "raise a genuine issue." While Odessa College did not have a formal tenure system, the Court recognized the possibility of a college having an "unwritten 'common law'" "in practice" that would grant "the equivalent of tenure." Given the policies of Odessa College, Sindermann was entitled to a hearing before the Board of Regents as well.
Argument of W. O. Shafer
Chief Justice Warren E. Burger: We will hear arguments next in 70-36 Perry against Sindermann.
Mr. Shafer, you may lower the lectern if you would like to.
It's on the right side.
Mr. W. O. Shafer: Mr. Chief Justice, and may it please the Court.
Usually I carry a coke box to take care of that difference.
Petitioners in this case are the President and the Board of Regents of Odessa College, a small town in West Texas.
The respondent, Sindermann was a teacher employed on a year to year contract, which had it's expiration was not renewed.
Termination did not occur during the contract term.
Before the term date actually expired and before official notice that it would not be renewed, he claimed he was fired for anti-administration activity.
The President of this college also had about simultaneous with the notification of non-renewal, issued a press release in which he detailed the activities, and as we read in this claim that it had any thing to do with his discharge.
But it is set out in detail, what we considered to be, too precise, valid and legitimate grounds for non-renewal which included one; persistent insubordination and two; a disruption of harmony, among his colleagues, by the way of harassment.
Now, we don't know of any decisions that says that either of those situations, or invalid as grounds for dismissal, three days and with a notification--
Justice Harry A. Blackmun: You concede that there was a dismissal here or simply a --
Mr. W. O. Shafer: It is a non-renewal, Mr. Justice and I debate in terms of termination and I may slip and say discharge, I do hope to make it clear that it was a year-to-year contract.
It was not renewed at the expiration of the contract.
Justice Harry A. Blackmun: It was a failure to the rehire.
Mr. W. O. Shafer: Yes, it is a failure to renew or give him another contract.
These are year-to-year contracts, and what we present here as a non-tenure college in a non-tenure state and with a non-tenure profession.
And if I say termination, and I mean to say non-renewal.
Justice Potter Stewart: Well you said dismissal, and I wondered if you were speaking that and I gather you are not.
Mr. W. O. Shafer: No sir, we do not.
Justice Potter Stewart: This was a professor, you are saying?
Mr. W. O. Shafer: Yes, well, and I guess you would say pro-professor, yes sir, this is a junior college and--
Justice Potter Stewart: A two-year college.
Mr. W. O. Shafer: Yes, sir a two year college.
So we don't have chairs and things of that types of that nature, if you would find in a Ford University.
I do hope to make that clear though I may have used that term, I don't mean to, I will try not to.
Three days after, he had notice of the non-renewal, Sindermann filed a suit in the Federal Court in our area for $475000 of damages, and seeking various other relief.
Simultaneously, with the filing of a suit, he wrote a letter asking for a hearing which was the first indication, or request for an entire period, no hearing was made, the case proceeded under the court--
Justice Thurgood Marshall: Does the college provided for hearing if requested?
Mr. W. O. Shafer: Well Odessa College does not have a tenure type of statement.
Although it has adopted in part and the declaration of policy of the American Association of University Professors.
And had he requested a hearing instead of placing the matter in Court.
I have no doubt, that if a hearing would have been provided, but the college, the president of the college got the summons to go to Court on the same day, he got the letter requesting a hearing and of course I am sure it was Perry.
As far as the college was concerned, and we simply answered in the forum in which he had chosen, not to proceed and, we think that we should not be condemned for answering in court and proceeding then.
Now, up on motion, the trial court entered a summary judgment of all petitioners on grounds basically that the Sindermann had neither a tenure or a contract, and that his constitutional rights had not been violated.
Now we'll agree that trial courts could have been somewhat more explicit in its findings, because he made the broad conclusion that his constitutional rights had not been violated.
We think that it isn’t and haven't, and necessary and not only permissible but inherent in that finding, that he had to find that either one, that no hearing was necessary or that Sindermann waived his right to won, when he resorted to the courts and that valid grounds for non-renewal were established as a matter of law by Sindermann's own pleadings, in the District Court for the Western District.
Now, it is on those basis that we seek a premise of the Trial Court's judgment, and we think that if we can make our position clear on, the court will concede while we say the case be affirmed.
First, about the hearing as I have explained the hearing demand arrived with the summons, but then Sindermann could have asked for hearing, or he could have proceeded in Court -- both remedies were open to him.
He chose to do both at the same time and we think knowing that the Court’s action would paralyze any action by the Board.
Now the choice was his.
He made this election not the college.
The college responded in the court where he felt it had (Inaudible).
Now we don't think they should be to contempt with it and we think the trial court had a right under those circumstances which were appeared in the pleadings, had a right to say that he had waived his right to a hearing.
Now, probably what is more compelling from a record in this case, is that when you look at the basis on which the case was handled in the trial court, you can see that there is no necessity for a hearing in this case, if the the Board was correct in finding adequate and valid and supporting grounds without dispute.
Already established the purpose of a hearing is to determine the existence of facts.
If there is no dispute about the facts, then there is -- it is certainly a useless thing to hold a hearing to determine facts that are already undisputed, and without any controversy in the case.
In this case Sindermann himself pleaded that he had been insubordinate and that he had violated the directions and instructions of his Dean and his President, on not one but on several occasions and be specifically and in detail on two.
Now, we think he is bound under the rules of any court by his pleadings upon which he relies as to set forth his cause of action, and when he pleads them thinks himself that, that establishes that fact.
Justice Byron R. White: Well let's assume that there were valid grounds for non-renewal revealed in the pleading, that doesn’t necessarily mean that those are the grounds the college used, it could be that they used an invalid ground.
Mr. W. O. Shafer: Your Honor--
Justice Mr. Justice: And that's precisely what he alleged in his complaint.
Mr. W. O. Shafer: Yes Your Honor, I am going and I think if I maybe allowed to lay this foundation briefly, I am going to take issues where the proposition that where valid, legitimate, honest, full of grounds for dismissal are established without any dispute in the evidence and without any controversy, that a concurrent plead of impermissible ground is not and should not be controlling or required credit if that is going to reach upon.
I am getting to that as fast as I can be.
Now I do think it is appropriate here, for me to say that in Jones versus Parker, the Tenth Circuit, the Fourth Circuit in Parker versus the The Board of Education.
These cases have held that a non-tenured teacher, in a non-tenured school and in a non-tenured state and college.
Upon expiration of this contract has no right to a hearing.
The First Circuit I believe in Brown may have joined them in that view but said you ought to have a state.
Now we fit squarely under those cases and if those cases have directly declared the law, then our argument is over because we fit under that clause and would be protected under it.
But we do not think we are, and we are not here saying that that is enough because we don't have to, and our facts go beyond the holdings in those cases and we say that whether it is contractual or not, is not the point here, we go beyond.
We think we have adequate grounds under the rule that we propose as being the only possible rule, that the court can adopt and that colleges and boards and regents in this country can live with.
And in this rule, and this rule that we say we have to have for our survival is that point adequate full and proper grounds, I not talking about the disputed grounds I am not talking about the pretext.
I am not talking about matters incidental, the length of the hair, the length of the skirts, it might vary from school to school or from place to place.
I am talking about insubordination.
I am talking about disruption and harmony among the colleagues incompetence, and inefficiency, basic sound grounds.
And we say when those have been established the inquiry is over and that if there is a concurrent claim made of impermissible reasons that those failed in the contrast.
Now the reason is --
Chief Justice Warren E. Burger: We will resume there right after lunch Mr. Shafer.
Mr. W. O. Shafer: I am sorry I didn't see the time.
Chief Justice Warren E. Burger: Mr. Shafer you may proceed.
Mr. W. O. Shafer: Mr. Chief Justice and may the Court please.
It maybe best at this point to define activity that we are talking about so that to clarify the point.
Sindermann asked for and was refused permission to leave his duty post go to the State capital to lobby, in support of certain legislation in which he was interested.
Now as far as, well as Odessa College is concerned, he was and he is and will forever be free to support any legislation that he chooses.
What we say say that he was not free to do, was to leave his duty post contrary to the instructions and directions of the chairman of his department, his Dean and his President and go some 300 to 400 miles away at his convenience and at his choice to lobby in support of that legislation.
Now, whether the free support of legislation is protected, really we don't think is the question.
Here, we think that the critical question is whether he can go 300 or 400 miles away at a time of his choice, contrary to instructions of his superiors and lobby lobby at his convenience in support of legislation in which he is interested.
Chief Justice Warren E. Burger: Well, does it make any difference what he is doing, when he's gone that 300 or 400 miles?
Mr. W. O. Shafer: We think on balance, may your honor please that the compelling job, which he has hired out to do, which is to teach his classes must outweigh his own convenience in going or wherever he chooses at his convenience and at a time which he selects to lobby in favor our legislation.
Chief Justice Warren E. Burger: Let's assume for a moment that he was going there to listen to some lectures on the very subject he was teaching, would that be an excuse for being absent from his duty post as you put it?
Mr. W. O. Shafer: I think that would be a decision that his superiors would have to reach again on balance as to the benefit to the college and the students and as compared to him.
Certainly, we would have a constitutional and a protective right to go.
That would be a matter of his choice, but this Court has said and if I agree that this is a delicate balance and that the care must be used to preserve that autonomy of the Board to maintain discipline, competency, efficiency and at least an orderly administration of a college.
The problem Your Honor is to look at your question as to one professor, but suppose on that same, 250 professors or half the faculty also wanted to go and hear the lecture, and also wanted to lobbying at the legislature, then how do you choose each one would have an equal right to go; you couldn’t say one man had a superior constitutional right to go to the legislature and lobby, but what are you going to do, shut down the college?
No, you have students who came to get some education, you have professors who have been hired out to teach and this is the point we make Your Honor, when we say that on balance, this is not a matter of choice of the professor to go to a state capital once.
This perhaps arose some four times and he went on two occasions, testified on the legislation in which he was interested on neither occasion.
The Fifth Circuit summarily held that this was just a protected right and really did not discuss the matter but we think respondent recognizes the problem quite well, because in a respondent's brief, he classifies it as a grey area, upon which some balancing is needed and when you are in the grey area, if that's what it is, we think the actions of Sindermann himself may well be determining of the importance of the problem.
Now listen, bear in mind that Sindermann himself approached his superiors and requested permission to go, he just didn't leave and go.
He came and asked, realized that this was an area in which he might be refused permission, otherwise why ask, why not just go.
They argue in their brief that the faculty guide says that all he had a right to expect was on an unexcused absence; a deduction of 118 of his pay.
Well, you see, we get out of unexcused absences.
This is not just an unexcused absence.
This is an absent, which occurs in direct contradiction to his superiors.
If he just takes off the leaves, we have an unexcused absence.
This man sought permission, was refused permission and disregarded and went anyway.
Justice Potter Stewart: How big is a institution -- Odessa Junior College, how many students?
Mr. W. O. Shafer: About 2000, if the count would be less, count the night students too.
Justice Potter Stewart: About 2000 students and how about the faculty?
Mr. W. O. Shafer: Say about 200, 300.
Justice Potter Stewart: How large is the department?
Social or political science?
Mr. W. O. Shafer: Yes, Your Honor, may be six or eight.
Now I guess what we are saying is the opposite of what respondent contends that the rule should be.
They say that a bond termination or a bond non-renewal.
If there is a claim and bear in mind Your Honors, I'm talking about a claim.
If there is a claim of impermissible reasons, then you must go into that matter with a hearing and with full procedural Due Process.
Justice Potter Stewart: (Inaudible)
Mr. W. O. Shafer: Yes Your Honor, now this is what that contention is.
He finds some support, Kruger (ph) versus Alabama by the Fifth Circuit says that.
Now this case has -- very well might be construed in saying that.
But let me try to explain why, we say that can’t run, you see if that's true, then it is a matter of job securing for any professor or any faculty without tenure to take any administration positions, to amend the administration in areas of grey, or whatever black, or black or green.
Because then, if he is aware of his derelictions and he knows his contract may not be renewed, immediately upon notification, all he does is make the claim.
It doesn't matter about the validity of the grounds because he makes the claim, then we are in the hearing business, then the court is under --
Justice Byron R. White: Are you objecting to -- I gather you are objecting to the suggestion that a person be giving the right to prove a discharge for an invalid reason.
Let's assume this compliant in this case did not in any way reveal what could be called a justifiable reason for discharge, all it did, was say, I made some speeches and I was fired for making those speeches.
Mr. W. O. Shafer: Then I think the trial court is going to have to hear some testimony.
Justice Byron R. White: If he pleads right, it's either the Court or somebody else who's going to have to entertain that claim.
Mr. W. O. Shafer: Yes, if he does not plead that as far or Mr. Justice, if we have disputed ground.
Justice Byron R. White: Alright.
Mr. W. O. Shafer: I am talking only about grounds established as a matter of law at valid legitimate grounds.
Justice Byron R. White: But you do concede then that if he pleads only and that what we call an invalid ground or disputed ground, he should have a hearing in the Court.
Mr. W. O. Shafer: Then we are going to have to have some testimony.
Justice Byron R. White: Yeah, alright.
Mr. W. O. Shafer: To determine what we say has already been placed.
Justice Byron R. White: Well, what do you think the Fifth Circuit meant when it said except in cases where the teacher or the institution refuses to follow these procedures, a court and its jurisdiction invoked would ordinarily stay at hand.
Arguably the court meant what we think would be better for the University to hold its own hearing, but if it refuses to do so, we will hold him here in court.
Mr. W. O. Shafer: Yes Sir.
Justice Byron R. White: And you conceded that at least, they will have to hold in court on the right kind of pleading.
Mr. W. O. Shafer: Yes Sir, I agree with that.
Well, I tried to distinguish ourselves and I hope to do so clearly because when I say the facts of the non-renewal on valid sign, not foolish ground.
I am talking sound grounds, then I say the inquiry is open and I say that is the only reason they did not --
Justice William O. Douglas: Because when -- if the court granted summary judgment --
Mr. W. O. Shafer: Yes Sir.
Two motions were filed.
We plead what we are now saying to the court that compliant ----
Justice William O. Douglas: From the point of view of this situation, this is not a summary judgment case right?
Mr. W. O. Shafer: Yes Sir.
Justice William O. Douglas: You may eventually win, but the only issue here is whether this is a case for a summary judgment.
Mr. W. O. Shafer: Yes Sir and we say that it was appropriate remedy in this case Mr. Justice simply because --
Justice William O. Douglas: We have been pretty strict and this court has --
Mr. W. O. Shafer: Oh yes Sir, I know that.
Justice William O. Douglas: There is First Amendment, possibilities of First Amendment issue here, it should be a hearing --
Mr. W. O. Shafer: Well, we say that that should not occur where valid, solid and please Mr. Justice, I am not talking about foolish grounds, I am talking about basic grounds such as involved discipline and competency when those are established as a matter of law, we say what is the necessity of going to have a hearing to see if that ground has already been established when it is played and there is no dispute about it.
This is the reason that we say Mr. Justice, that then a concurrent plan, our First Amendment suppression in the face of a valid ground, is no longer need to be examined because if you did so, you get in to the proposition of where it is a situation of job security.
Justice William O. Douglas: We agree with your result, of course, the valid ground but that is something I don't imagine this court would decide.
I don't know, it's very difficult from this tangled record to sort out the facts up here for the first time.
Mr. W. O. Shafer: Yes sir, we think the pleadings are there and the reason we feel a little more secure, than if we had a record of some testimony or some affidavits.
Mr. Justice, it is that in this case, we rely on Mr. Sindermann's own pleadings.
Well, there is no question about the --
Justice William O. Douglas: But Mr. Shafer, I have noticed that the claim based on the opinion by which Mr. Justice White referred to the court also says except the following such procedures would be a needless waste of time and I got that your whole argument is that this is a case where following hearing procedure would be in the persuading time.
Mr. W. O. Shafer: Well, yes sir, if I am correct in my position which I, you say I am at the opposite end of the spectrum.
That is what they say.
Justice William O. Douglas: Basically, as I understand you are arguing that in effect Sindermann has pleaded himself out of the right to a hearing because he set up facts in a pleading which established the legal question that you don't need a hearing.
Mr. W. O. Shafer: Insubordination.
Justice William O. Douglas: That's what you say.
Mr. W. O. Shafer: Yes.
Justice William O. Douglas: And yet probably the Court of Appeals did not think this was the case, where following such procedures would be persuaded.
Mr. W. O. Shafer: No, sir, the Fifth Circuit said that we were guilty of sophistry I believe is the term, Your Honor, and that they took the position that a forbidding of the exercised First Amendment right and then after a violation of the instructs, and holding that to be insubordination was simply a pretext or a worn out pretext but we are -- we don't agree, we think that they missed the mark, when they didn't consider to some way the balance of the problem involved of going at his convenience and we get back to the same problem of 200 professors going to Austin are happy, that this must we think, of necessity to be a matter of control.
Justice Thurgood Marshall: Is there anything in this record that shows that when he went to a superior, his superior said, you can't go because 199 others will go?
Mr. W. O. Shafer: No sir.
Justice Byron R. White: Well how did you get (Inaudible)?
Mr. W. O. Shafer: Well, I think if we are sitting down on a principle which is being urged as was in the Fifth Circuit, Mr. Justice that you have to look at both sides of the possibility.
Justice Thurgood Marshall: If you had followed the rule of the Fifth Circuit and gone back to the District Court, it's all de novo one way or the other, but that would --
Mr. W. O. Shafer: Well, I suppose if we'd gone ahead and gone on to the trial that we'd have been --
Justice Thurgood Marshall: You get a whole full record.
Mr. W. O. Shafer: Either there or all the way up here, one of the two.
We've had a full record --
Justice Thurgood Marshall: So what you're really pushing for is first to support the summary judgment.
Mr. W. O. Shafer: Yes sir, I think it is appropriate --
Justice Thurgood Marshall: That's all you say?
Mr. W. O. Shafer: Yes, and for the reasons which I hope to have made clear because of the question of opposite end of the spectrum, simply means you encourage anti-administration activities, a fight with your superiors, those are the things, then in that place you get an excellent position if your employment is terminated, we don't think that the law is designed, Mr. Justice to create dissent.
We think it ought to be designed.
Justice Thurgood Marshall: Well, in order to -- I guess it would be the opposite of dissent, if we had the absolute right to fire anybody for any reason without a hearing.
Mr. W. O. Shafer: We simply do not add --
Justice Thurgood Marshall: Because the only thing involved here is a hearing?
Mr. W. O. Shafer: Well, we think it's something more than a hearing.
Justice Thurgood Marshall: Like what?
Mr. W. O. Shafer: Mr. Justice, but we think that the pleadings determine the case, the hearing thing to us goes up because simply, we say the facts had been established --
Justice Thurgood Marshall: The pleadings will change?
Mr. W. O. Shafer: No, sir.
Justice Thurgood Marshall: Why not?
If it goes back to the District Court as the Court of Appeals says.
Mr. W. O. Shafer: Did you said could they be or are they?
Justice Thurgood Marshall: If you had followed the decision of the Court of Appeals, gone back to the Trial Court for full evidentiary hearing, am I not correct the pleading could have been changed, amended.
Mr. W. O. Shafer: I am sure with permission of the court, no question about it Mr. Justice.
Chief Justice Warren E. Burger: Mr. Shafer, if you have you got the views or someone has, I thought the issue you were presenting in this case was the right of some kind of a hearing when a man's one year contract is not renewed, some kind of a hearing to establish evidence, why it isn't renewed, now that's quite different from the terms of discharge and termination and so forth, that we have been loosely using.
I thought you had said at one point when you started, there is no discharge involved here, there is no termination involved here, it's merely a failure to renew, to extend, to make a new contract.
Mr. W. O. Shafer: That is correct, Your Honor, if I have responded in other terms, I was afraid I was going to use the term indiscriminately and I notice that, apologetically that some of the justices have too, so I have only responded as a track that we are talking about a non-renewal.
Chief Justice Warren E. Burger: Can't you let us in to that something --
Mr. W. O. Shafer: I am sure that I have.
Chief Justice Warren E. Burger: Thanks Mr. Shafer, Mr. Gottesman.
Argument of Michael H. Gottesman
Mr. Michael H. Gottesman: Mr. Chief Justice, may it please the court.
I think there are more issues in this case, than it actually revealed themselves so far that before trying to define what I think are three quite separate legal issues posed by this case.
I think a couple of minutes more on the facts can be helpful.
Sindermann was a professor who had been teaching in the Texas schools for 10 years, in Texas colleges, so that we don't have here what you have in the next case, the Roth case.
The system were there is a tenure after so many years and the cases before you on behalf of a probationary teacher who has been let go.
Sindermann had not only been teaching for 10 years in a system which has no tenure, you never get tenure but he had been the Co-Chairman of his department, so he was anything but a probationary employee.
Now during his last year of teaching that is the year which ended with his non-renewal, he had been active in two causes which were both very alive before the Texas Legislature.
Chief Justice Warren E. Burger: Well Mr. Gottesman, taking the phrase you used, is there anything but a probationary employee in a non-tenured context, do you have such thing, probationary employees?
Mr. Michael H. Gottesman: I suppose not.
Everybody is --
Chief Justice Warren E. Burger: On a one year, on a one year plan.
Mr. Michael H. Gottesman: That's correct, but why I meant by that was where you have a tenure systems, the arguments that are made in the Roth case, are not providing hearings, is that look we need this time to look these fellows over and we do give them the protections after we weeded out those that we don't think are going to cut the mustard here.
It's really only a short period of time until they are going to get their tenure, it's only seven years mostly.
But all of those arguments have no application I'm saying to a system and got the legal argument here.
The only point I wanted to make is there is no tenure system, but Sindermann was not somebody who was going through, what we would customarily called a probationary period, where they were trying to decide whether or not he meets the criteria for some kind of continuing employment.
He had been teaching there already for 10 years and he had been the Co-chairman of the department.
Justice Byron R. White: Where is Mr. Sindermann now?
Mr. Michael H. Gottesman: Mr. Sindermann has been for three years unable to obtain a teaching here and indeed he has for most of that period unable to obtain any employment even related to that.
He has been working for a former senator.
Justice Byron R. White: Working for what?
Mr. Michael H. Gottesman: A former senator from the State of Texas.
Justice Byron R. White: State senator.
Mr. Michael H. Gottesman: No, former U.S. Senator.
He has and an affidavit in our brief reflects, apply to something like 105 or 110 colleges and universities have been unable to secure another teaching employment.
We suggest there is a relationship between his non-renewal and that fact which outcomes later.
In any event Sindermann was very active in two causes.
One was an effort to get tenure for the Junior Colleges of Texas.
He was the president of the association of all of the Junior College teachers in Texas, some 42 colleges.
He had been invited, he'd been active throughout this period writing letters, preparing speeches and making speeches.
He had also been invited in his capacity as President of the Texas Junior College Teachers Association to testify when that legislation was up for hearing before the Texas State Committee.
The other course he was involved in was in community effort to turn Odessa College into a four-year college from a junior college.
Most of the people in the community were supporting that as what Sindermann, but the Board of Regents of the college who would have lost their positions as the nature of the college had changed, were opposing it.
As a result on both of these issues, the tenure issue and the elevation of the college issue, Sindermann was aligned with groups who were supporting legislature which the college administrators would violently opposed it.
Both of these bills came up for hearings in the Texas Legislature within two or three days of each other.
Sindermann was invited by the members of the Texas Senate to testify on both.
He went to his superiors and he said, “May I have permission to go?
The only way I can testify, since the legislature only sits during class hours.
Is if I can go and get permission to be absent for one day on each occasion.”
He offered to pay for the substitutes who would fill in for his classes.
The substitutes who were available were people who taught precisely the same courses at other hours in the days.
So, there is no question that they were fully capable of teaching the course.
They had agreed to substitute for him and he was prepared to pay them for doing so.
The college said, “No.
you can't go.”
And gave him a long elaborate letter from the President of the college explaining why he couldn't go.
The first reason in one sentence was, “We pay you to teach not to go lobbying.”
But then, they went on with, “This isn't your job, you ought to have a legislative man in Austin who can do the testifying for your groups.
We were thinking about giving tenure anyway, so there is no reason why you need to go and testify on it.”
Quite plain, I think, the college didn't want Mr. Sindermann to be testifying.
He did go, not withstanding their refusal to grant permission.
He did provide for substitutes to teach to classes and he did offer to pay for the substitutes himself.
Not withstanding that a couple of weeks later, he got advice from the college that he was not to be renewed for the following year.
When rendering that advice they issued a press release which they furnished a copy off to him.
The press release did not say he was guilty of insubordination, it did not say he was guilty of creating disharmony among his fellow colleagues.
The press release recited the entire gamut of what we would call his First Amendment activities that year.
He got involved in the committee to get tenure and that was unfortunate and it was in opposition to the views of the Board of Regents.
He got involved in the effort to elevate the college and that created a lot of dissension in the community and that was unfortunate and that was an opposition to the position of the Board of Regent.
In support of the latter cause, his name appeared on a “disgusting” ad which appears at the end of our brief and which is quite innocent.
But his name was attached to a disgusting ad which supported the effort to elevate the the college.
Though Sindermann had told the Board of Regents that his name had been put their without his permission, he was nevertheless responsible on the theory of guilt by association.
Because he had associated with the group who did publish the ad.
Then at the end of the group, his list of -- what I would call reasons that were being given, they mentioned the two absences.
Then they said, the Board of Trustees has been furnished the Board of Regents has been furnished.
The above explanation of Mr. Sindermann's activities and has expressed its disapproval.
Indeed on that same day though the press release didn't say, that they voted not to renew him.
Sindermann then came to court, or I should say before he came court immediately from being notified of his non-renewal, he requested a hearing.
He wrote a letter.
He had when he first had inklings that he was in trouble.
He had previously requested that he refurnish the procedures with some internal AAUP documents provide for faculty members, those had been refused to him.
He was notified of his non-renewal without being afforded a hearing of any kind.
He wrote a letter saying, “ Can I have a hearing?”
He got no answer to that letter and three days later he filed a law suit.
Now the law suit, it has been suggested in effect confesses a lack of claimant.
There is nothing with the the sort.
The law suit recites Sindermann's active participation on these two causes.
It recites the fact that he was not renewed.
It alleges that the reason he was not renewed was that he was taking positions, contrary to that of the Board of Regents on both pieces of legislation.
It attaches the press release, as reflecting precisely what the complaint alleged, namely on its face, the press release and the way it's written and the way it's structured suggest that all of his activities played a part in the decision not to renew him.
The university then moved for summary judgment and it did so on a ground which it is not arguing here today, that it was the ground on which it sought certiorari.
The college said “Since his contract is expired and since he has no tenure, we have no obligation to keep him or to hire him again for another year and we can refuse to hire him for reason whatsoever, including the exercise of his First Amendment rights,” for that proposition they cited the decision of Tenth Circuit which held precisely that.
“It's the only case we've ever found that held that what it did it and they cited that proposition and supported the motions for summary judgment.”
The District Court apparently granted summary judgment for precisely that reason.
Opinion recites 1, 2, 3, 4, he has no tenure, he has no contract, he therefore has no right to reemployment.
Therefore, the complaint should be dismissed.
The Court of Appeals of course, reversed that, pointing to the long line of decisions by this court, which established the proposition that a teacher or a public employee or anyone else for that matter can not be denied, even a privilege which the State affords.
If the reason for his denial was that he has exercised his First Amendment right --
Justice Byron R. White: Does this theory also apply to one employed as a teacher by private college?
Mr. Michael H. Gottesman: I would think not, since the -- that depends on whether the finance, the public financing that the private college gets would make it state action.
The theory derives from the Fourteenth Amendment which of course requires state action.
Therefore you would have to find that the college's actions constitute state action before you could find that it's applicable to private college.
Justice Potter Stewart: Well, Mr. Gottesman, if Sindermann had been an original applicant for employment by Odessa Junior college, if he had come with impeccable academic, intellectual credentials, with all sorts of fine letters of recommendation from the Dean and the Professors at Harvard where he had received his graduate degree and if the hiring authorities in Odessa Junior College had said, “ Yes, we recognize.
You are superbly qualified to be a member of our faculty, academically, professionally, intellectually, your character also we grant is impeccable but that you have been making too many speeches on subjects we don't agree with you on, so we are not going to hire you, would he have a entire cause of action.”
Mr. Michael H. Gottesman: Well this court has held that he would unless he would want to get involved.
Case called Whitehill v. Elkins 389 U.S. 54 in which this court held that an applicant for employment by a college could not be refused to employment because of his prior exercise of his First Amendment rights, to be more precise because he wouldn't sign an oath assuring that he had not belonged to certain organization.
Justice Potter Stewart: I suppose that's quite a --
Mr. Michael H. Gottesman: I don't want to get into the too far --
Justice Potter Stewart: I do want to get into that because I think it's just your position in this case.
Not in my question.
I am not talking about a non-communist oath or any other kind of oath.
Mr. Michael H. Gottesman: No, I don't think, but this court has said that the state can not condition employment.
Either in the first instance or continued employment.
Upon someone refraining from exercising his First Amendment rights.
Now, I have got a case where the man has been teaching for ten years and they've said -- we say they've said.
Justice Potter Stewart: But his contract has expired as it does each year.
Mr. Michael H. Gottesman: That's correct.
Justice Potter Stewart: So, each year, he has to be rehired and I am asking simply about original employment.
Mr. Michael H. Gottesman: Yeah, I think if a university said to a teacher, you are someone we would hire but for the fact we don't like your political views or but for the fact that you support tenure or but for the fact that you got to organize --
Justice Potter Stewart: For year college or rather two year college --
Mr. Michael H. Gottesman: Or well, yeah that's right.
Justice Potter Stewart: Therefore, we are not going to hire you.
Mr. Michael H. Gottesman: Let me emphasize that under pickering this court has suggested that there are limits within which a teacher must comply themselves --
Justice Potter Stewart: That was a dismissal case.
So what I'm asking you about is if this is a case where his employment contract had expired?
I am asking about the case of original employment.
Mr. Michael H. Gottesman: Alright, well all I can say is that this court has decided three cases.
Justice Potter Stewart: All on behalf of --
Mr. Michael H. Gottesman: Two of them are non renewals and the third on an application for employment.
The two non-renewal cases are Keyishian and Shelton v. Tucker, both of which are cited in our brief and the job application case is Whitehill v. Elkins.
Though the facts are different and though we could argue whether a particular statement of a teacher is protected by the First Amendment.
The principle of those three cases clearly stated was that the state can not condition employment, even though it would be a privilege, upon a teacher's refraining from the exercise of his First Amendment rights.
Now the reason I mentioned picker is that pickering somewhat limits the scope of the right, the First Amendment rights available to a teacher.
There are certain instances, pickering at least suggest where a teacher might not be allowed to speak and hold his job, whereas other members of the society might.
For example, where his criticism would go to his immediate superior.
Justice Potter Stewart: But Pickering is like --
Mr. Michael H. Gottesman: Pickering itself a dismissal case.
Justice Potter Stewart: A dismissal case and you properly identified the questions on which we granted Certiorari in this case.
The question to which Mr. Shafer didn't really address himself.
And I think that's a question on which we did grant certiorari in this case.
And that's the reason I asked my question about original employment.
Mr. Michael H. Gottesman: Right.
Now, I can only say these things about it.
Number one, every single brief filed in the Roth case, which are you going to hear next, which includes the State of Wisconsin, the State of California, the State of Massachusetts, the city of New York and a brief filed on behalf of “almost all the colleges and universities in the United States” concedes this legal issue.
Every single one of them says we absolutely concede that a college cannot refuse to renew a nontenured teacher for another year, because he has exercised his First Amendment rights.
Chief Justice Warren E. Burger: What impact is that concession suggested for us?
Mr. Michael H. Gottesman: Well that concession I think has no point in this court obviously, this court considered all wrong.
What I am suggesting is a long continuing unbroken line of decisions by this Court, had said something which these briefs all reflect.
Namely that even and the person who is an applicant in the first instance I think is a somewhat different case than this.
This is management teaching of a tenure.
But the case is clearly established that the man who has been teaching here for period of year, a one year renewable contract each time may not be told this time you shall not be renewed because we don't like what you are saying.
For the purposes that determining his protected rights under the First Amendment, his status is no different than that of a teacher in Pickering.
Now to be sure that doesn't mean, he can say anything he wants.
It means, but we are talking that area of substantive statements which Pickering says the teacher is allowed to make.
And our argument is that it is already been decided by this Court several times, that a teacher can't be denied renewal for that reason.
Justice Harry A. Blackmun: If you got to conceding that there is a difference obviously in fact between one who has been teaching for a tenure but who is teaches on a year to year contract and the original applicant, what is the difference from your point analytically.
Mr. Michael H. Gottesman: Well, I started with a proposition that even the applicant can, I mean, so analytically it shouldn't make a difference, but there is a -- it seems me that there is a obvious difference.
If you start at one end by saying the man who has in fact got tenure, whatever that means can't be dismissed, can't be dismissed as distinguished from non renewal.
But the man who is an applicant in the first instance, does not have the same right but assume that hypothetically.
This man obviously falls somewhere in the middle.
Now what it is that has led this Court to say you can't be dismissed for exercising your First Amendment right.
What led this court to say that is that society has a very important interest in hearing what teachers have to say about their colleges and universities.
And if we were going to allow colleges and universities to dismiss people because of what they say, then we are going to silence the people who can most benefit society by advising us with what's wrong with their colleges, how they can be improved --
Justice Thurgood Marshall: Mr. Gottesman --
Mr. Michael H. Gottesman: Now that consideration is equally applicable to Mr. Sindermann.
Justice Thurgood Marshall: Mr. Gottesman, if we follow you to the bitter end Mr. Sindermann wins his point, doesn't he?
He said that you now have tenure employment --
Mr. Michael H. Gottesman: I am sorry.
Justice Thurgood Marshall: You now have tenure employment --
Mr. Michael H. Gottesman: Oh absolutely not.
-- You have the right.
Justice Thurgood Marshall: I am sorry.
Mr. Michael H. Gottesman: You now have the right not to be fired for exercising your First Amendment right.
That's not judgment.
I have always understood tenure to be something more than simply giving what the First Amendment gives you.
Tenure says you can't be fired for any reason whatsoever unless the college undertakes to established that you've been guilty of some reach of their regulations or rules or obligations.
Justice Thurgood Marshall: Or is your relief, you want a hearing though?
Mr. Michael H. Gottesman: Does he want a hearing?
Absolutely, but it's not the kind of hearing that would be a tenure hearing and that's what I would like to turn to in remainder of my time.
Chief Justice Warren E. Burger: Before you do that Mr. Gottesman, let me ask you this.
We both agree, I am sure that writing articles or making speeches are First Amendment rights.
Mr. Michael H. Gottesman: Absolutely.
Chief Justice Warren E. Burger: Suppose when he applies a send back letter to him, so there is no dispute.
Say we are impressed considerably with your academic credentials, but on the information we have you make too many speeches and write too many articles and for that reason we do not want to employ you.
Do you think he has got a right hearing on that issue?
Mr. Michael H. Gottesman: If he has never worked there before?
Chief Justice Warren E. Burger: No.
Mr. Michael H. Gottesman: Oh, I think that I have to get into the analysis of the hearing right to explain why I think he may not have a right to a hearing on that.
There are if we see a two completely different sources for the right to a hearing of a nontenured teacher.
One emanates from the First Amendment, the other procedural Due Process clause.
This case and Roth both posed at least arguably First Amendment consideration they seem to have been implicated in the decision not to renew.
This Court has repeatedly recognized that assume with me for the moment, this teacher does have his First Amendment right.
This Court has repeatedly recognized that academic freedom or the exercise of First Amendment rights can be chilled, if the state can come along and wallop somebody to the point where he knows that can happen and he says, well I don't want that to happen to me.
I am going to refrain from the exercise of my rights and because of that this Court is recognized as it sometimes put it that the freedoms of expression must be surrounded by necessary (Inaudible) or buffers.
Procedural protections which will eliminate the chilling effect, which would otherwise exist in the exercise of such rights.
Now in the case of a university teacher who does not have tenure, if the college has the right to deny him renewal with neither a statement of reasons nor hearing, then every teacher says doing so.
Well, if I say something they don't like, all they have got to do is say okay fellow next year no contract.
Now, the impact of that on teachers unless they are extraordinarily brave and not concerned with whether they continue their employment or not.
The impact of the knowledge that the college need provide neither a statement of the reasons or a hearing, is that teachers are going to say, I better not say anything, that they are not going to like.
Because if I do I am not going to be working here next year.
Now, all of the Amicus Briefs in Roth are very sensitive to this point.
And they acknowledge that you do need procedural protections because otherwise the First Amendment rights will dry up and vanish.
But they say look there is a procedural protection, if the college fires the man and if he believes that the reason he was fired was because of things protected by the First Amendment, he can bring a lawsuit under Section 1983, and if he wins he will get back.
Well, we say and we brief this extensively that the availability of that lawsuit does not remove the chilling effect.
There are a number of reasons for that.
Number one, if they don't tell the teacher why he has been fired, he doesn't know that he has been fired because of his freedom of expression.
He is got to bring a lawsuit just to find out, in discovering he will find out whether or not he has got the right to proceed with this lawsuit.
Chief Justice Warren E. Burger: Alright, you are talking about a case where he is fired to use your word or --
Mr. Michael H. Gottesman: I am talking about a non-renewal case and I am assuming for the moment because that's our first point and I am assuming that a non-renewed teacher, if the reason for his non-renewal is the exercise of this First Amendment rights, has in fact suffered a constitutional violation and that he is entitled to reinstatement.
So that the question comes how do you enforce and protect that First Amendment right?
Is it sufficient to say that after he is fired, he can bring a lawsuit or is it necessary in order to make those rights meaningful and not to chill academic freedom to say that he is got to have a buffer between his speech and the moment of firing a procedure in which, the First Amendment considerations will be aired and debated and the facts will be gathered, and he will know that within the academic community, before the knife falls on his neck for what he says there will have then a hearing in which his position would have been heard.
And the First Amendment considerations will have been explored.
Now we suggest and we detail them in the brief and I am not going to have time to go through the full analysis.
We suggest that simply having the right to bring a lawsuit after you have been fired, when you may not even have been told why you have been fired.
And I use fired to being non-renewed.
I have to go make the same concession that Mr. Shafer did, when I use fired I mean non-renewed in this case.
Simply having the right to bring the lawsuit afterward is not an adequate protection for First Amendment rights.
Teachers will not regard it as sufficient protection to enrolled and then to speak, when they know they can simply --
Justice Potter Stewart: The non-renewed teachers that he was fired for exercising his First Amendment Right?
Mr. Michael H. Gottesman: Well it would be adequate in the sense that if the teacher could afford to sue and could afford to be unemployed until he wins because those are the some of the prospects he faces.
It would then be, but the problem --
Justice Potter Stewart: But if the university said that, yeah, we fired you for that reason and we are sticking to it, is only alternative (Inaudible)
Mr. Michael H. Gottesman: That's right but the hearing provides a buffer whereby he may talk them out of it.
For example, in this case there is no evidence whatsoever.
That the college was aware that the First Amendment had any implications here.
They seem to be have proceeded, because the press releases were awfully candid.
They seem to have proceeded without regard to the fact that they might have some constitutional obligations.
Justice Potter Stewart: What do you think the remedy or what do you think was going to go on in a District Court for this remand?
Mr. Michael H. Gottesman: Depends what it says, you mean if it were remanded in the --
Justice Potter Stewart: You figure, you won your case in the Court of Appeals?
Mr. Michael H. Gottesman: Pretty well, I mean there will be a remand for trial.
Justice Potter Stewart: For a trial or --
Mr. Michael H. Gottesman: A trial, the Fifth Circuit's decree that there is got to be a trial on the right to a hearing.
I don't think that's particularly right.
Justice Byron R. White: I would think you would be arguing that, the District Court would have to say that your client may not be terminated if it was been a University hearing?
Mr. Michael H. Gottesman: Well, the problem is the hearing at this point the hearing doesn't do Sindermann very much good, the people who are going to make the decision, they already decided before they gave them the hearing.
Our point is you have got to have a hearing before they make the decision.
Justice Byron R. White: Well then --
Mr. Michael H. Gottesman: And our point is that since they denied Sindermann the hearing to which we say he was entitled, is entitled to reinstatement and back pay and we say in a large number of cases in this Court.
Justice Byron R. White: Without regard of what the facts would show, even though the university could show that he was not fired.
That's the First Amendment right.
Mr. Michael H. Gottesman: That's right.
This Court has decided a number of cases of which I think the most recent is Green versus United States where there is a statutory procedure which has been violated.
And then the government says well look we don't have to put them back at least let's go through the procedure now and find out if we had substantive grounds to justify what we did.
And this court has said no, you didn't give him the hearing when he was entitled to and when it would have been meaningful.
Therefore your action is null and void and it must be set aside.
You have to put them in back and then if you want to get rid of them, you have to give him the hearing that he is entitled to.
Now, I would like in my remaining five minutes to get to what is the wholly separate source of what we say are the right to a hearing.
Our first point stems from the First Amendment.
This one stems from the procedural Due Process concepts which have been enunciated by this court in a number of recent decisions.
This court has said that where the state proposes to injure important interests of one of its citizens, it must first afford them a hearing or some form of procedural Due Process, unless the individuals need for or the help that he will derive from the hearing is out waived by the State's interest in summary adjudication.
Now the teacher's interest when he is a teacher like Sindermann, I think are clear.
When he is denied renewal, number one, it was his sole source of income.
This court has many times said what the significance of that is.
Number two, he loses the entire professional relationship that's developed with his colleagues in this campus.
Number three, he confronts a problem which is unique I think to teachers, almost invariably if he wants to stay in this career, he has got to move to another city because only college, Odessa Texas, if he is going to teach somewhere else he has got to move.
That means he has got to sell his house, he has got to move, he has got to buy a new house, make new friends.
His entire life is changed as a result of a non-renewal.
And number four the evidence, and we have got it all set out in our brief is very substantial that non-renewal just doesn't mean that you don't teach in this college.
It means that you don't teach again anywhere.
We are now in a period for the first time in the last two or three years and it's going to continue of a growing teacher surplus in this country.
Because of the decline in the number of people who were -- the total population of colleges.
Nobody fires a teacher with a black mark when there is another teacher who doesn't have one.
Sindermann has been trying for three years to get a teaching job.
Roth went for a year without a teaching job.
And an other case pending on cert, the Or. case he went for a year and half and couldn't get a teaching job.
The fact is when you are non-renewed, your career very likely may come to an end.
Justice Harry A. Blackmun: There must be a hearing, when you have a – if there is non-renewal regardless of whether reasoned or assigned or not --
Mr. Michael H. Gottesman: Yes what we are saying is what you must do, our concept of the procedure is, if someone is recommending that you be not renewed that you will be advised that the recommendation and that you be advised that if you wish you will be told the reasons and afforded an opportunity to be heard.
Now one thing I want to emphasize, the main argument made by the all the parties in Roth is to what's wrong with this process is that it's going to take away the college's discretion which they now have in making decisions and that's because they seem to think that the purpose of this hearing will be a force to college to prove the validity of the reasons that it's assigned for the decision.
And we want to emphasize that the hearing as we concede is not a hearing in which the college must prove the validity of its reasons.
The purpose of the hearing is literally what the Due Process clause says, to give the teacher an opportunity to be heard.
That is to say the college must tell him in sufficient detail so that he knows what he is responding to.
Why they propose to non-renewal?
Having told him that he then is afforded an opportunity to present whatever evidence he thinks will be helpful to his cause to persuade them otherwise.
Now, there is no burden of proof here and no finding to be made.
The college will ultimately make the decision just as they would it before and wherever they had discretion, they will still have it, but at least he will have the benefit of putting before them those facts and those arguments which he thinks could persuade them to go the other way.
Justice Harry A. Blackmun: You wouldn't think that after a hearing such as that, there would be any room for judicial review?
Mr. Michael H. Gottesman: Only as it now exists, the constitution does prescribe certain limited areas where the State will exceed its discretion --
Justice Harry A. Blackmun: So you could have reviewed in Court your claim that in fact, he wasn't fired for discharged or not renewed for reason A but actually for reason B which was enough, that.
Mr. Michael H. Gottesman: Well that exists now and we insist that.
I might say we filed a yellow brief in the Roth case in which we have explored all of the counter arguments because that case was accelerated, it was only filed I think last Friday and the Court may not have had a chance to reach it, but it's the only document I think which systematically tries to respond to the arguments thrown up against hearings as being burdensome in so and then we urge the Court to see it.
Chief Justice Warren E. Burger: Thank you Mr. Gottesman, thank you Mr. Shafer.
The case is submitted.