BOARD OF REGENTS v. ROTH

Print this transcript Transcript: 

Argument of Charles A. Bleck

Chief Justice Warren E. Burger: We'll hear arguments next in number 71-162, Board Of Regents Of State Colleges against Roth.

Mr. Charles A. Bleck: Mr. Chief Justice, Your Honor, the petitioners in this case are the Board Of Regents Of the State Colleges, they are now known as the Board Of Regents Of State University and actually to be absolutely accurate, they are now known as the Board Of Regents Of the University of Wisconsin System.

The other petitioner in this case, is the President of the Wisconsin State University at Oshkosh, Wisconsin.

The respondent, David F. Roth was the employee of the Board of Regents at Oshkosh State University and I believe the enrollment at that time was been a neighborhood of 11,000 or 12,000 students.

Doctor Roth was in his first full-time teaching position.

He was hired by the board as an assistant professor for the academic year, 1968-1969.

Justice Potter Stewart: You are calling Doctor, is he a Ph.D?

Mr. Charles A. Bleck: Yes, sir, he is.

Justice Potter Stewart: And where is he now?

Mr. Charles A. Bleck: Your Honor, I would -- I've heard but I'd -- much rather you ask the other side because I would mind to give you any misinformation.

I think they know and I just -- and just here say I might -- Doctor Roth was hired for the academic year, 1968-1969.

He was hired under a written contract, a contract that had a fixed term, expressly fixing a term for September 1, 1968 through June 30, 1969.

The contract also expressly referred to Section 37.31 of the Wisconsin Statute which is our state tenure statute.

This statute at that time provided that if a probationary teacher is hired for four consecutive years, he'll acquire tenure or permanent status.

When Doctor Roth was hired, there was a board rule in effect, in fact, it had been passed on March 10th, 1967, which provided that in the case of a probationary teacher, no reasons will be given for non-renewal and there will be no hearing provided by the University on the question of non-renewal.

This same rule also provided that in each case of non-renewal, the professor or the employee will receive notice of that fact by February 1st.

So in effect, he has from February 1st to start looking for a new position.

The procedure at Oshkosh State University in regard to renewal or non-renewal of the probationary contract was that the tenure committee of the particular department would first meet and vote on whether to recommend retention or non-retention.

In this case, it was the tenure committee of the Department of Political Science.

That recommendation then flows up to the Dean, who also makes a recommendation and from there it flows up to the Vice-President, in-charge of academic affairs, and then to the President for his decision.

In this particular instance, the tenure committee met and voted to recommend retention of Doctor Roth on December 17th, 1968.

Subsequently, and about five weeks later, Dean Arthur Darkin (ph) approached several members of the tenure committee and asked them to review this recommendation.

On January 27th, 1969, the tenure committee did meet again, did review their previous recommendation and at this time, voted for non-retention.

This recommendation then flowed up to the Dean, the Vice-President and to the President who made his decision not to renew Doctor Roth's contract for the ensuing academic year.

This notice was given on January 30, 1969.

Doctor Roth on February 14th, 1969, filed his complaint in the District Court seeking declaratory judgment and seeking reinstatement or a contract for the ensuing academic year.

On May 16th, 1969, both parties moved for summary judgment and on March 12th, 1970, the District Court granted the plaintiffs, Doctor Roth's motion in part.

The decision of the District Court held, one, that either the State University would have to give Doctor Roth a contract for the next academic year or in the alternative that the State University could give Doctor Roth a written notice of reason for non-renewal and a hearing on those reasons.

This decision was appealed to the Seventh Circuit which affirmed the District Court on July 1st, 1971.

Although I have explained the fact rather extensively, it is my opinion, Your Honor, that the fact in the Roth case, are absolutely irrelevant at this time.

The petitioners are not here to defend the university's action and not renewing professor Roth's contract.

Chief Justice Warren E. Burger: This is the Western District or the Eastern District?

Mr. Charles A. Bleck: No, sir, I don't believe it is, but the Board of Regents is in the Western District.

Chief Justice Warren E. Burger: (Inaudible)

Mr. Charles A. Bleck: Yes, sir it was.

Whether the University acted correctly or not is still to be litigated in the District Court.

The present posture of this case, does not involve any questions of the First Amendment Rights of Doctor Roth.

The issue is basically, it is whether a State University must give a statement of reason and a hearing on those reasons in every case of the non-renewal of a probationary teacher's contract.

Justice Potter Stewart: Well, in terms of the ultimate outcome of this case, what difference would be -- answer to that question mainly?

Mr. Charles A. Bleck: Oh, it makes a tremendous difference.

Justice Potter Stewart: I know that -- it was another case, what about Roth case?

Mr. Charles A. Bleck: In Roth case, it wouldn't make any difference, Your Honor.

Justice Potter Stewart: What have we got to hear for?

Mr. Charles A. Bleck: Your Honor, we have facing a --

Justice Potter Stewart: Well, I am trying to understand the significance of the law suit but in the case, you say that Roth has already what reinstatement or --

Mr. Charles A. Bleck: Well, that complaint seeks the declaratory judgment.

Justice Byron R. White: If he wins in the District Court on that issue, on being prior to the constitutional rights, he will have that all he wants --

Mr. Charles A. Bleck: No, sir, he will not have gotten all he wants because the defect remain that he wants reinstatement -- I assume, I don't know, this is what his complaint asks for.

He hasn't changed it or --

Justice Byron R. White: But you say you are not here defending his discharge.

Mr. Charles A. Bleck: I am not here defending his non-renewal, the propriety of the action of the University and non-renewal --

Justice Byron R. White: You don't mean you concede within that?

Mr. Charles A. Bleck: No, sir, I do not.

No, sir, that facet of the case must be litigated.

To repeat, I am not confessing judgment in any way, Your Honor, but because of my personal doubt as to whether the University acted correctly in not renewing Doctor Roth's contract for the ensuing academic year.

It means to me that there is a fundamental error or wrong in the decisions below, because Doctor Roth made the allegation in his complaint that his contract was not renewed because of his First Amendment Right.

Now, the decision below requires Doctor Roth to go to this administrative agency, and to have a hearing before the administrative agency which administrative agency is the alleged wrong doer to exhaust this remedy before he can proceed in the District Court to determine whether his fundamental liberties have in fact been violated.

Chief Justice Warren E. Burger: Now you’re saying that should have gone ahead and tried the case from the District Court right away?

Mr. Charles A. Bleck: Yes sir.

Chief Justice Warren E. Burger: Tried the question of whether he should have been hired on the merits.

Mr. Charles A. Bleck: The issue it seems to me, Your Honor, was whether the contract was not renewed for impermissible reasons or for engaging in protected constitutional activity.

If that is not established, then the non-renewal would stand.

Justice Byron R. White: Mr. Bleck.

Mr. Charles A. Bleck: Yes.

Justice Byron R. White: If this court were to follow the Tenth Circuit decision that Mr. Gottesman commented on in his argument, I take it even that subject wouldn’t be open to litigation in the District Court, would it?

Because as I understand it, the respondent here didn’t have tenure.

Mr. Charles A. Bleck: He did not have tenure, he was a one year probationary teacher on his first year of teaching.

Anyway, in answer to your question I would say, no, I feel that if, under the Civil Rights Act, professor Roth would always be able to come in to the District Court and frame a complaint alleging that his contract had not been renewed because of his protected activity.

Justice Byron R. White: Well, what you’re stating is that it states a good plan of action under Civil Rights Act, he would be entitled to a hearing?

Mr. Charles A. Bleck: Yes sir.

Justice Thurgood Marshall: Are you saying to the court, if you have a right to go to the court, you don’t have to have administrative hearing?

Mr. Charles A. Bleck: No sir, I am not saying that.

What I am -- the basis of my argument is that in administrative hearing before an agency that is the alleged wrong doer, such as the university, or this university can conduct their hearing on its own motive and on motives that might possibly involve fundamental liberties just doesn’t seem to make sense to me Your Honor, I think the proper form.

Justice Thurgood Marshall: Well, what happens with the tenure, the professor with tenure -- is he have the hearing?

Mr. Charles A. Bleck: Oh yes, we are required to give him a hearing by law.

Justice Thurgood Marshall: Well, he is ultimately saying, trying to hear him, would the Chief Justice say it?

Mr. Charles A. Bleck: No sir, it wouldn’t because it seems to me that if you gave the probationary teacher a hearing, then you are destroying the very purpose of tenure.

You’re appreciating any distinction between the probationary teacher and the tenure teacher.

Justice William J. Brennan: I thought you said that he was entitled to a hearing.

Mr. Charles A. Bleck: In court Your Honor, in court.

Justice William J. Brennan: In court, yeah, the only quarrel with the Court of Appeals is that if there is a hearing before the university administrative group rather than before the court.

Mr. Charles A. Bleck: That's our only complaint Your Honor, yes sir.

The hearing should have been in the District Court.

These facts should have been litigated there and it’s not a proper subject for an administrative hearing before a school or university.

Justice Harry A. Blackmun: I would like to come back Justice White's inquiry of what difference does it make to you in this or any other case once you've conceded this much?

Mr. Charles A. Bleck: Conceded what Your Honor?

Justice Harry A. Blackmun: Well, it seems to me that you’ve conceded a good litigated ase away.

You say your only posture here that he is entitled to a hearing in the District Court and not at all in the university administrative structure.

Mr. Charles A. Bleck: He is entitled to a hearing in the district court as to whether his fundamental liberties or First Amendment Rights have been violated.

I do not concede Your Honor that he is entitled to a hearing in the district court on any other ground such as the scholarship or competency or rapport with the student bodies.

These items are not for the District Court.

The only issue for the District Court seems to me is one of the constitutional rights.

Justice Harry A. Blackmun: Well I gather, you say that, because the action in the 1983 is predicated on the denial Of Constitutional Rights.

Mr. Charles A. Bleck: Yes Sir.

Justice Harry A. Blackmun: And I gather you are also saying, that predicated risk claim, denial of First Amendment.

Mr. Charles A. Bleck: Yes.

Justice Harry A. Blackmun: He might lose on that, and that still be open to question, pleaded both here and in the other case, he's entitled to a hearing as a matter of procedural Due Process which says nothing right over to do with it.

Mr. Charles A. Bleck: It's right, there is nothing to do --

Chief Justice Warren E. Burger: There is nothing in whatever to do with teachers as in the class, does it?

Wouldn't it justice to a taxi-cab driver, a bellhop or a bookbinder--

Mr. Charles A. Bleck: Well, that would be true for any governmental employee.

It wouldn't be necessarily --

Chief Justice Warren E. Burger: State action I'm talking about, let's make it more sharply, a driver for some state official, a truck driver.

If he frames a complaint under the Civil Rights Act, under 1983, that Justice Brennan suggested under the Federal Rules of Civil Procedure among other things, he must have a hearing to determine whether or not he can make this proof.

Are you saying anymore even that, when you call this a concession?

Mr. Charles A. Bleck: Not a thing, Your Honor, I just wanted to make it clear to the court that the issue here is Due Process the law and does not involve First Amendment Rights of Doctor Roth at this time.

The only thing is Due Process of law.

Justice Potter Stewart: Well, couldn't he have a 1983 action be predicated on the denial of Due Process?

Mr. Charles A. Bleck: Yes Sir.

Justice Potter Stewart: With this court?

Mr. Charles A. Bleck: Yes Sir.

Justice Potter Stewart: Both on denial of First Amendment Rights and Denial of due process?

Mr. Charles A. Bleck: Yes.

Justice Potter Stewart: The one that's here, the only one it's here is the denial of Due Process.

Mr. Charles A. Bleck: Yes.

Justice Potter Stewart: Well, why is that here at this stage if that's still be litigated to the District Court?

Mr. Charles A. Bleck: The Due Process question is not to be litigated in the District Court, Your Honor, the District Court ordered that in every case, that they have already decided it, they ordered that to give him a hearing and that's --

Justice Potter Stewart: That's right and then that should affirm in the Seventh Circuit, why to bring it here.

Mr. Charles A. Bleck: Yes.

Chief Justice Warren E. Burger: You want to channel in, into just a strictly section 1983 action, nothing more?

Mr. Charles A. Bleck: Yes, it seems to me that the issue really is, is whether the constitution recognizes a state system of statutory opinion or the maintenance of a meaningful system of tenure under State Law by creation of section 37.31 of the statutes, the Wisconsin legislature has recognized the importance of having a probationary period leading up to the acquisition of permanent employee status or tenure.

The probationary employees as well as the University has a tremendous interest in maintaining tenure.

The District Court decision recognizes and felt that tenure could be maintained by application in a case-by-case basis of minimal ground for non-retention.

The Circuit Court decision also recognizes the danger to the tenure system back every brief in this case.

It seems to me, it recognizes the possibility of loss of tenure.

The purposes of tenure are of course, academic excellence or the obtaining of the best possible faculty for the student body.

Tenure also affords protection for the faculty and is absolutely essential to the maintenance of academic freedom.

The Roth Decision does threaten tenure, because it vitiates any distinction between the probationary employee and the tenured employee.

This danger would result from that fact that these Universities and Colleges just will not get involved in administrative hearings of this sort or in protracted litigation.

They will do everything they can to avoid such hearings, including the keeping of an incompetence or unscholarly professors.

I think this is borne out, very clearly by the fact that we had so few discharge proceedings as against the tenured fact and so few discharged proceedings as against the civil service, these things are just not done in government.

Justice Byron R. White: May I ask you again, let's assume you've had a deal with the part of the District Court order which granted him hearing or you haven't brought the Court of Appeals decision here and then you had one what was left to be litigated in the District Court namely the First Amendment claim.

There would still be left the District Court's due process decision, wouldn't it?

Mr. Charles A. Bleck: Yes.

Justice Byron R. White: What does that mean in terms of the relationships between the University and law.

Does it means that he may not be discharged and he must be reinstated until and unless he's given a University hearing?

Mr. Charles A. Bleck: It was an alternative order Your Honor, one --

Justice Byron R. White: Alright, so they either reinstate him or give him a hearing.

Mr. Charles A. Bleck: Give him a contract or give him a hearing.

Chief Justice Warren E. Burger: So the District Court wouldn't be purporting itself to try out the issues involved in his discharge -- on non renewal, they would on the First Amendment side, but they would not be purporting to try out whether he was fired for incompetence or whether it was incompetent.

Mr. Charles A. Bleck: I don't know Your Honor, the District Court decision said that in recognizing the danger of losing a recognizable system of tenure, the District Court said that the court will recognize minimal grounds for none reappointment.

Now, what he meant by that, I don't know but --

Justice Byron R. White: Anyway, the district court didn't kind of played any further proceedings until and unless the University gave him a hearing.

Mr. Charles A. Bleck: That's right.

Justice Byron R. White: And that meanwhile he had to be reinstated.

Mr. Charles A. Bleck: No sir, it was not -- What happened, it was an alternative order, one, give him a contract and I assume if we don't gave him a contract we would possibly be liable for damage.

Justice Byron R. White: Or give him a hearing.

Mr. Charles A. Bleck: Or give him a hearing and we immediately asked for a stay of that decision or order and immediately appealed to the Circuit Court.

Justice Byron R. White: The court didn't indicate whether or not after a hearing and a decision against Roth, whether or not the District Court would and to what extent give judicial review to that decision.

Mr. Charles A. Bleck: He did not indicate other than to say he would respect minimal grounds for none --

Justice Potter Stewart: Did the District Court indicate what the District Court would do if the university chose not to give him a hearing?

Mr. Charles A. Bleck: Well, then we would have to give him a contract, we didn't give him a contract, we would be in contempt of court, Your Honor.

Chief Justice Warren E. Burger: Are you here only because you say that on non-renewal of a non-tenure teacher, you don't have to give any hearing at all?

Mr. Charles A. Bleck: Yes sir.

Justice Hugo L. Black: Or a reason.

Mr. Charles A. Bleck: Or a reason.

Dr. Roth was hired with this clear understanding, this does not come in shot to him, this was part of his agreement, he was given a nine month contract and no more.

Justice Byron R. White: You say it's simply a matter of Contract Law and as the District Court and the Court of Appeals were in error thinking that the constitution required the courts to add something to the parties with the contract, and the day the contract of the parties was made, is that it?

Mr. Charles A. Bleck: No sir, I don't maintain that, I think it's a great deal more than mere Contract Law.

Justice Potter Stewart: How much more?

Mr. Charles A. Bleck: I think the court has to balance the interest here.

Justice Potter Stewart: Does the court do that in an ordinary contract case, or just says look you really should have provided and since you didn't provide for a hearing on this, let us say this tenancy, year to year tenancy, we are now going to require one -- the court does --

Mr. Charles A. Bleck: I have never heard of that.

Justice Potter Stewart: Why is there something in -- required here.

Mr. Charles A. Bleck: Well I don't know, Your Honor, it's --

Justice Potter Stewart: Well, what is your -- I don't really understand your position, I guess that's my problem is all about.

Mr. Charles A. Bleck: My position is basically this that Due Process of law and the Fourteenth Amendment does not require the procedural protection of a statement of reason or a hearing.

That Due Process of law just does not require.

Chief Justice Warren E. Burger: Well then, didn't I state it correctly that you say that there is nothing in the constitution that requires a Court to add anything to the contract that the parties made in this case?

Mr. Charles A. Bleck: Yes Sir, I guess, that's correct.

I think in weighing the interest --

Justice William O. Douglas: Does the hearings before the District Court you think should be held is one purely -- where the First Amendment Rights have been violated?

Mr. Charles A. Bleck: Yes sir, that's all.

I can't conceive of any other appropriate issue for the District Court.

Now, the District Court in its opinion --

Justice William O. Douglas: Well, I take it you say that the University, they did not renew it because of its exercise of the First Amendment Rights, that the only remedy he has is 1983 action and the only hearing I guess is the hearing on the 1983 complaint in the Court that even on that circumstance, he is not entitled of any hearing before a University.

Mr. Charles A. Bleck: Yes Sir, for very, very practical reason because he is a probationary employee, and for another thing, these situations are very, very rare Your Honor in my opinion, and if somebody's constitutional rights are in fact infringed, I think in most instances, by inadvertence or ignorance of the constitution.

These are not simple question.

Another point, I don't see how this sort of procedure that is suggested in Roth would really be of only benefit to the professor or would be of any benefit to the court.

Justice Thurgood Marshall: Now, what you are saying is he has no resource.

Mr. Charles A. Bleck: No sir, he, if he feels that his --

Justice Thurgood Marshall: I understood, you say they can have in the institution and whatever he gets in the court is not going to do him any good.

Mr. Charles A. Bleck: No, I never intended to imply that Your Honor.

Justice Thurgood Marshall: Well do you assume that at the District Court, he could find out why he was fired?

Mr. Charles A. Bleck: Absolutely.

Justice Thurgood Marshall: Why?

Because you said under the contract, you are not supposed to give those reasons.

You are not required to.

Mr. Charles A. Bleck: But, once you are in litigation you have all the procedural remedies of a trial, you have discovery.

Justice Thurgood Marshall: Well let me ask you this.

Would it be cheaper for the university to give him a hearing in the university that just defend the --

Mr. Charles A. Bleck: No sir, it would not because are talking about hundreds of cases of non-renewal.f

We are not talking about just one specific direct law.

Justice Thurgood Marshall: But does anybody say that you have to give a hearing to everyone?

Mr. Charles A. Bleck: That's what the District Court ordered, that in every case --

Justice Thurgood Marshall: Not in every case, that's where it is requested.

Mr. Charles A. Bleck: Yes, in every -- oh yes.

Justice Thurgood Marshall: Where requested.

Mr. Charles A. Bleck: In every case where requested.

Justice Thurgood Marshall: Right, and how many that wouldn't be many?

Mr. Charles A. Bleck: Well there is no way of knowing Your Honor, but there are --

Justice Thurgood Marshall: Why is it that you -- first, I heard that I want some litigation, but trying to get away from litigation.

Mr. Charles A. Bleck: It would be an unnecessary and time consuming and wasteful procedure to put not only the school truly Your Honor, but it would be wasteful for the professor himself.

Justice Byron R. White: Well, not if the trial goes on, if he requested hearing, not if the trial goes on to the hearing.

Justice Harry A. Blackmun: Mr. Bleck, if he proves something wasn't referred to him, the case is over with.

You haven't yet told me why an administrative hearing is prudent, other than to say it is the alleged wrong doer itself, but maybe this is the purpose of the hearings.

Mr. Charles A. Bleck: Well, first of all the statement of reasons -- I don't know what type of case we are talking about, whether we are talking about case that involves First Amendment claim or whether we are talking about such things as scholarship, rapport with the student body and so forth, it it is that type of a situation where these things are very difficult to articulate and these decisions are made up by many, many people, this isn't the decision of one man, but this is the decision of maybe twelve or fifteen people and to have a hearing on whether this particular professor has achieved a certain level of scholarship.

I can't see where this hearing would afford anybody any benefit.

It would merely polarize the party, it would involve the entire student body in the case because professor would call his students and say, “Well, now I am a good professor, aren't I?”

And the administration would call students and so forth and we would just have a one heck of a mess.

These things just don't work that simply.

Also --

Chief Justice Warren E. Burger: I take it you are still standing on your basic position.

And I am a non-tenure teacher whose contract is not renewed, is not entitled to a hearing in the university context under any circumstances.

Mr. Charles A. Bleck: That's it precisely, thank you.

Chief Justice Warren E. Burger: Mr. Steinglass.

Argument of Steven H. Steinglass

Mr. Steven H. Steinglass: Mr. Chief Justice, may it please the Court.

The issue for this court today is whether non-tenured State University professors are entitled to minimal Due Process?

Statement of the reasons why their decision is being -- why their contract is not being renewed and a minimal opportunity to come forward with reasons, why that decision should not be made?

Justice Byron R. White: A paper hearing, is it up?

Mr. Steven H. Steinglass: No, I don’t think so, I hope not.

Certainly, first of all the statement of reasons is essential.

The hearing itself would serve several functions.

First of all, whether all examples of inadvertence, ignorance, the teacher would be able to bring forward those reasons which would simply clarify the situation.

Justice Potter Stewart: How about, court examined which issue?

Mr. Steven H. Steinglass: Well I think the answer to that question has to be look back at the order of the District Court.

District Court said the burden would be on professor, so the professor would have the initial burden of showing that either the reasons offered were wholly inappropriate or wholly without a basis in fact.

Justice Potter Stewart: Did he give that through witnesses?

Mr. Steven H. Steinglass: Yes.

Justice Potter Stewart: Could he have the assistant to counsel?

Mr. Steven H. Steinglass: I would think that he would be able to have representation there.

I would think that with a person --

Justice Potter Stewart: Subpeona power?

Mr. Steven H. Steinglass: No, no I think, subpeona power would not have --

Justice Potter Stewart: Discovery?

Mr. Steven H. Steinglass: Discovery, I was --

Justice Potter Stewart: I was not -- are you talking about a full Due Process here?

Mr. Steven H. Steinglass: No, I am not talking about of full panoply of rights.

What I am talking about is an opportunity to bring forward that testimony that he has been --

Justice Potter Stewart: Is he entitled to as many of the elements of Due Process that we held in Goldberg, the welfare recipient is entitled to it before welfare benefits maybe terminated.

I think we said there that welfare recipient is entitled to not only the reasons but to dwell the rights to his testimony to contest a reason, then the court examine anyone, I will offer them to have the assistant in the counsel, I would have had to be appointed, to be entitled to (Inaudible) if he wanted to.

Mr. Steven H. Steinglass: I would think so, I think the major exception would be that because the District court recognized that we were dealing with academic questions many of which would -- many of the decisions would rely on very subtle reasons that firstly, he had -- the Court had to report to the university over a very wide discretion.

So, in a welfare case for example, it would seem to me that a decision that there was -- in order to deny a person in a welfare system, you would not simply have to show that your decision was wholly unsupported, in fact the burden would simply in that case for a welfare director to terminate and assist – and granted assistance, he would have to show that the facts did show that person was not eligible, whereas in the hearing that we are talking about, we are talking about a much smaller burden and that smaller burden is necessary because the District Court did recognize that the university did have an interest in maintaining the probationary system, in maintaining a system under which they could decide not to retain a professor for something less than foreclause as fore clause has come to be known in tenure systems.

So, I think that would probably be the major -- the most fundamental difference between a Goldberg type hearing as part of each of the individual elements that the court requires in Goldberg, I would --

Justice Potter Stewart: How about any partial decision like there was a dissent --

Mr. Steven H. Steinglass: Yes, I think that would be essential but that still would leave university great deal of discretion in determining who that decision maker would be that doesn't necessarily mean that it has be an independent examiner taking from outside of the university system, although it could be, it does in the context of the present case defending Giles (ph) who only became a defendant after Professor Roth was denied minimal Due Process.

Professor Giles (ph) own affidavit says that it is his practice to simply receive recommendations, to receive the memorandum outlining the reasons which were in fact articulated and were not very subtle at all.

They said that David Roth violated a whole series of university rules.

Justice Potter Stewart: How about a written statement of reasons supporting the decisions from the decision maker?

Mr. Steven H. Steinglass: I would think that that would be essential Your Honor, that decision maker would want to --

Justice Potter Stewart: Well, what did it sound to me that what’s different, Goldberg case.

Mr. Steven H. Steinglass: I thought the court in Goldberg did recognize that was offering minimal pre-termination evidentiary hearing and if the court --

Justice Potter Stewart: My question was as to whether or not the type of hearing you’re saying, Due Process requires, in this situation, the same type of hearing, we said in Goldberg, you are acts just seemed to me which are yes.

Mr. Steven H. Steinglass: But I think the essential difference is that and I indicated it before is that the burdens would be completely different and in Goldberg -- in Welfare type situations there is the equivalent of a four clause requirement.

If you break x rule, you will lose x benefits, similarly with a tenure situations, there is that almost of fore clause requirement.

In this situation, in this context there is no such heavy burden on the University, in fact the burden lies on the professor.

Chief Justice Warren E. Burger: Would you think this minimal Due Process that you are talking about Mr. Steinglass would be limited to the faculty members or would it include the elevator operator who takes the faculty members up to the upper floors of the building.

Mr. Steven H. Steinglass: Well I would think that --

Chief Justice Warren E. Burger: Assuming they aren't covered by a union contract after all the tenure.

Mr. Steven H. Steinglass: I would think that in each instance, someone would have to undergo the balancing test that this court has underdone in the past and I could well see, how court might come down on a different side of the equation with respect to an elevator operator, than it might with the Professor, I think there are certain differences, when one applies the Fourteenth Amendment, balancing test.

The Court has recognized, when a person is interested in pursuing the profession is at stake, that that minimal Due Process is required that would truly form one side of the line.

Situation where a person is capable of finding a new employment where non-retention will not have any adverse employment consequences.

A situation in which a person does not have to put a great deal of time and effort in training to acquiring their present position.

Although would it has to be weighed and might bring one down on a different side of the line.

So, it's hard, if there are a lot of hypothetical that we could deal with, I would think that a decision that would require a University to provide a minimal due process hearing to a University professor before his non-retention would not necessarily require every governmental employer to provide that same type of hearing to every employee before they decide not to retain him.

Justice Potter Stewart: But that's only assumption, that's all like tell a elevator operator to look for a job as a mechanic, and not to tell a teacher to look for a job as mechanic.

Mr. Steven H. Steinglass: Well, I think the court has looked at the interests of the individual involved and I think that would probably be the answer.

Justice Byron R. White: While we have you interrupted -- where is Dr. Roth now?

Mr. Steven H. Steinglass: I thought you would ask Your Honor, first year he was unable to find employment and he had a post doctoral research, post doctoral position at one of the big time Universities.

After that he was able to find a job and is presently teaching at State University in Indiana.

So, probably in cases like this is, that it is not clear when the initial act complained of occurs, what the damage will be, the damage may be strung at whole for a long period of time when Dr. Roth commenced this action in Federal Court in February, 1969, he did allege that he believed there would be a damage to his professional reputation, at that time it was not possible for him to know what situation would be 1, 2, 3, 4 years hence.

I think there are a good number of federal courts in the country, who have an individual cases found damage to professional reputation being a significant injury and being one that flows from a non-retention decisions.

Justice Byron R. White: No back-pay consequences would flow from the hearing out of Judge Doyle's decision below, with a -- University could grant him a hearing upon remand and if it granted the hearing and followed whatever procedure Judge Doyle had described and then decided he was dismissed their would be no back-pay claim?

Mr. Steven H. Steinglass: At this point, Judge Doyle has not -- I think by implication by delaying -- by not rendering a decision, we would then – one or two months after, it was commenced.

The suit was commenced in the 69, February, 69, at that point Roth was asking for reinstatement of following the academic year.

The motions for summary judgment were not granted until March, 70.

The order which is appealed from this case said provide him a hearing or grant him a contract for the following academic year.

So the answer to the question is that, at this point no one had ordered back-pay.

Well, we of course would feel free to go back to the District Court and ask that the court consider the other issues which it left in advance during the tendency of this and we would think that those substantive First Amendment issues may give rise to a claim for back-pay.

Justice Potter Stewart: What if he (Voice Overlap) First Amendment claims, reinstatement or damage?

Mr. Steven H. Steinglass: At the time, the suit was filed, reinstatement at this point if we had -- when we go back because the only issue for the court is a procedural due process issue, we will have to reexamine what we will be seeking.

Justice William O. Douglas: But I take it you sustained your First Amendment claim, then that would be limited to say that by then --

Mr. Steven H. Steinglass: No, damage -- the defendant Giles (ph) was sued in his individual capacity as well as in his official capacity -- so as far as his individual capacity we could pursue that.

The question of why we are here today is one that I put it back sometime also.

I would have hoped that the order the District Court which simply have stated in effect and that we could have had an administrative hearing at Wisconsin State University, Oshkosh, I think such hearing would have had advantages that not at least of which it would have given persons with academic expertise and background, the first opportunity to review a case dealing with issues arising out of an academic context, that in itself would be valuable in terms of the resolution of controversies like this within university itself, it would make the issues much more simple for District Courts and if they do reach those forums.

Chief Justice Warren E. Burger: What do you understand are the procedures a tenured teacher receives?

A man who is -- or a woman who has six years or more -- isn’t it now under this Act.

But that six years they have tenure and they receive a notice that decision is terminated.

What kind of a procedure does the University gives that person?

Mr. Steven H. Steinglass: Yes, they would receive a statement of reasons why they were being destroyed in that case and they would have a hearing on that?

Chief Justice Warren E. Burger: Essentially like the hearing that Judge Doyle has ordered here in general outline?

Mr. Steven H. Steinglass: I have never seen one of those hearings.

I do not think that it wouldn't and that Judge Doyle has not ruled on any of the elements of the hearing, his ruling was rather narrowed down, a minimal hearing, I think the major difference again would be the standard that was to be applied, a teacher with tenure would only be dismissed for a clause and that for clause has a great deal of substance, even though it's too a rather simple word and that substantive difference in the standards --

Chief Justice Warren E. Burger: Well, we went in to the basis of the decision that the mechanism, the machinery of reaching that decision is at the same for the tenured teacher as for Mr. Roth?

Mr. Steven H. Steinglass: Well, I would like it to be the same -- Doctor Roth as it would be for the tenured teacher.

I don't think this court necessarily has to conclude that if they chose to affirm a decision about the District Court, the District Court is very careful in pointing out that it was a minimal type hearing, I don't want to --

Chief Justice Warren E. Burger: But he didn't define what minimal was.

Mr. Steven H. Steinglass: Right, I think for good reason Your Honor, these cases will be coming up in the future in districts, both in Wisconsin and then other parts of this country and I think, the determination of what a minimal hearing would consist of, outweighed a case by case determination by the courts.

I think, there is good advantage not to create a constitutional straitjacket in which every University must fit.

I think, there is a all great deal of variations within the phrase minimal Due Process.

I try to point out, want to prove them when I discuss the identity of the examiner, it could be within the University, it could be outside of the University, it could have been defendant Giles when he had received the statement of reasons why David Roth was being not retained, decided to call David Roth and then ask him, “Did you devote one-half to three-quarters of your time of quest talking about extraneous matters?

Did you miss this day in class?

Did you make those public statements, all of which formed a basis or which were in a memorandum which counsel was able to discover, in pre-trial discovery,” but unfortunately was unable to obtain prior to the initiating such action.

The constitutional basis for the situation we’re advancing is alternatively the First or the Fourteenth Amendment.

It is our legal position that when a non-tenured teacher is facing retention for reasons which may – is facing retentions for those reasons on which the retention is based, may implicate First Amendment values.

Roth's (Inaudible) him to a statement of reasons and to a minimal hearing.

The present case is quite good as far as illustrating, what the hearing would have accomplished, the reasons in the present case did on your face implicate First Amendment speech, the University relied on three quotes that David Roth was alleged of.

In fact, did make -- they alleged that these quotations, evidenced (Inaudible) approach to the truth, thereby making him unfit to remain for another academic year, although he was certainly fit to remain for the rest of the present academic year, because he was non-retained rather than discharged.

At a hearing he would have been able to bring forward evidence showing that number one, he did substantiate the claims that the University alleged, who had been unsubstantiated, number two, he would have been able to bring forward evidence showing that each of the individual infractions, which he was alleged to a committee did not take place as it was.

He was finally able to bring forward that evidence in the form of affidavits in the District Court on the motions of summery judgment, but not before them.

Chief Justice Warren E. Burger: Are suggesting an inconsistency Mr. Steinglass in the position of non-renewal and keeping them for the balance of the year?

Mr. Steven H. Steinglass: Well, I am suggesting that through the experience of keeping a teacher to the end of the year and simply saying now we decide not to retain you and so since, Wisconsin statute do not provide any procedures and in fact don’t limit us to the reasons we might choose, we will do it this way, rather than saying, well we better get rid of you right now.

I would --

Chief Justice Warren E. Burger: Having made a commitment for the whole year, for nine months, the school year, are you suggesting the University should not keep it if they can possibly do it consistent with the welfare of the University?

Mr. Steven H. Steinglass: Well, I wouldn't want the University to violate the contractual rights, but if he was unfit or not a proper teacher, the University could simply offer to pay out his salary, if it became that serious, but I think the real point --

Chief Justice Warren E. Burger: Isn't it reasonable that he might have been in the situation that he wasn't bad enough to fire but not good enough to keep.

And so they let him run out before the year so that he has a chance between February 1st and I think, your friend said, and when he receives the notice, until the following September or October to find another job.

Mr. Steven H. Steinglass: That's certainly a distinction between the two.

In undertaking, the balancing approach that this court's decisions have acquired in determining whether or not the minimal procedural safeguards will be extended to persons whose interests are adversely affected.

The district court did take into consideration the value of a tenure system and very carefully attempted not to dilute the tenure system in anyway.

We have the suggestion however that the decision somehow vitiates the distinction between tenure and less than tenure.

The opinions below both the District Court and Circuit Court made clear, there was no intention to vitiate the legal distinction between those two, between status tenure and lack of tenure.

Justice Byron R. White: Would you say that -- let’s assume that a nontenured teacher gets notice that his contract will not be renewed and it is stated in the letter, we have no reason other than the fact that we think we could find someone better sometimes than you are.

That's the only reason we have.

Mr. Steven H. Steinglass: And the teacher --

Justice Byron R. White: We do not claim you have done anything wrong at all.

Mr. Steven H. Steinglass: And the teacher doesn't believe that that's pretext here I believe that's an honest reason.

As far as, the substantive reason I think, that that would be a valid reason, for a non-tenured teacher to be terminated.

It would not be a valid reason to let a tenured teacher go but nevertheless, the non-tenured teacher might well believe that not to be the real reason.

So, I think that he would have the right to --

Justice Byron R. White: Well, what if the letter says, we are not terminating your contract or refusing your review because you exercised any First Amendment Rights at all.

We don't think you even made a speech anywhere, but otherwise we have no reason, that's all it says, we just have no reason.

Mr. Steven H. Steinglass: Well they can see, in other words they can see they have no reason, it's not that they can’t give you, when they don't have one.

That -- if I understand that question correctly, that might become so arbitrary as to violate some of substantive requirements of the Fourteenth Amendment --

Justice Byron R. White: Which one are they --

Justice Thurgood Marshall: Will the burden shift to him?

Mr. Steven H. Steinglass: No Your Honor, the burden would definitely be on the professor.

The professor would have to show --

Justice Byron R. White: He has a substantive right, not to be fired without a reason under the Fourteenth Amendment.

Mr. Steven H. Steinglass: Yes.

Justice Byron R. White: Even non-tenured teacher?

Mr. Steven H. Steinglass: Without any -- I mean, no, we are not just -- we are just saying that one day the President comes and says, “Today I am going to fire somebody, you are the most likely candidate,” I would think that that might well be arbitrary and capricious --

Justice Byron R. White: Does he have the right not to be fired without a good reason.

Mr. Steven H. Steinglass: well, good reason --

Justice Byron R. White: Alright, without any reason.

Mr. Steven H. Steinglass: Without any reason whatsoever.

I would -- it's an extremely abstract question, but I think the answer would have to be yes, you have to have a reason even if --

Justice Byron R. White: But, any reason will do?

I find that if you are wearing a mustache and I don’t like people wearing mustache.

Mr. Steven H. Steinglass: No I think, no.

I think, that might be, that reason might be improper and then I am not, the point is not whether or not it is in fact --

Justice Thurgood Marshall: I hope, it’s a probably good reason.

Mr. Steven H. Steinglass: Whatever, the question of whether or not there are any substantive protection to the Fourteenth Amendment is more a question, a question of where those substantive --

Justice Byron R. White: Were do you draw the line -- – there may be an assessment of reason, constitutional reason, where you differ the situation from a tenancy?

Mr. Steven H. Steinglass: A tenured teacher could not be terminated and if he, more of the reason, I want to say, that we found somebody better.

Justice Byron R. White: That's because of the time?

Mr. Steven H. Steinglass: But at times --

Justice Thurgood Marshall: A tenured can’t be terminated without cause.

Mr. Steven H. Steinglass: That's right, I would think cause has been interpreted --

Justice Thurgood Marshall: Cause has to be shown.

Justice Byron R. White: Would the length of his hair be a cause?

Mr. Steven H. Steinglass: For a tenured teacher?

I would hope not -- but again, try to draw the substantive, rely that a substantive reason -- it is just extremely difficult, the point before the court, is that there must be some reasons which are so absolutely devoid of reason, that are so wholly unreasoned, that are so wholly without a basis in fact, that relies on them, would constitute a violation of the Fourteenth Amendment.

Justice Thurgood Marshall: What happens if the hearing on non-tenure professor, he says why without filing the appointing authority or discharging authority says, I don't have to give you any reason.

Mr. Steven H. Steinglass: That is essentially what happened here.

Justice Thurgood Marshall: That's just what I am talking.

Who makes the move then?

Mr. Steven H. Steinglass: Well, if this court was to accept, the position that advanced by David Roth, the teacher would be able to request to the University, that they provide him with the reasons and their failure to do so would seem to me would violate --

Justice Thurgood Marshall: But suppose at that stage the University says, you just use your language, somebody's language, you just don’t cut too much.

Mr. Steven H. Steinglass: Well, I would think that a professor at that point would be able to request a hearing and at which time he would have --

Justice Thurgood Marshall: Well, I am talking about just their behavior.

Mr. Steven H. Steinglass: Well, he would then have the burden on him to bring in testimony and show that reason was wholly – and he did cut the mustard, however I would think that a reason like that --

Justice Thurgood Marshall: I would hate to see somebody have to prove that he is an efficient professor.

Mr. Steven H. Steinglass: No, I am not -- professor.

I don't want to overestimate the beneficence of universities, but I don't think universities are going to come up with the reasons like that.

I think university administrations will be on it, and will provide the reasons and I would think they would all be required to provide the reasons, it's sufficient detail, so that a response is capable of being framed.

I think that might be a little vague but again, at the hearing the burden lies on the professor shows the reasons chosen are not wholly inappropriate, the reason was that, we are being firm -- you are not being renewed because you drive a yellow rather that a green car.

I could well -- I might conclude that that reason might be so insubstantial, so that it would violate some of the substantive rights.

Justice Byron R. White: Where are the substantive right, the Fourteenth Amendment?

Mr. Steven H. Steinglass: The Fourteenth Amendment, I mean the case --

Justice Byron R. White: Must have been the due process, nothing to do with trial.

Mr. Steven H. Steinglass: Yes Your Honor.

I think in the Schware case this court dealing with a mission to a bar relied on the substantive -- on that particular provision.

I don't think -- I recognized the difficulty in trying to put content into that particular clause or I would say that there are some reasons that are so arbitrary, so without foundation that it would be a violation, but let me make one very important point, we are not resting our case on an attempt to resurrect the Fourteenth Amendment, what we are saying is that the First Amendment requires that a teacher should be provided with statement of reasons and minimal Due Process hearing.

We would say that there is an also an argument to be made that the Fourteenth Amendment requires it, not only -- not because there is a right, there is substantive Due Process right, but because a decision terminating or not renewing a teacher adversely affects very fundamental interests of that teacher.

Chief Justice Warren E. Burger: Would you make the same claim for a person who had not been hired that is who had applied and who was not hired, as you make for a person who is not rehired, the last time I would say parenthetically, the last two-three questions and answers had all talked about firing somebody, you don't claim the man was fired, do you?

Mr. Steven H. Steinglass: A lot of the lawyers in this area, Your Honor -- and administratively slip in their terminology and facts, perhaps that's indicative of the fact, that even the lawyers and administrators in the area do not see that substantial difference between the two, I mean non-renewed, non-retained, and as far as the specific questions, I can see, specifically different bouncing being made in point of that, with respect to the hearing rights of the person who has denied an initial application, it seemed that his hearing rights would be -- his interests would be quite small and probably would not entitle him to a hearing, again that decision doesn't have to be reached, but certainly no stigma would flow from the failure to get a job and certainly not the same stigma that would flow from being not retained on the relocation problems, would not flow, from not receiving the job, with lots of income and income was never coming in, but certainly not be a direct --

Justice William O. Douglas: You just said something, under the (Inaudible).

You said that the right to hearing stems from not so much or necessarily from the due process, as from the fact the teaching profession, qua-teaching profession, served certain First Amendment values that the requirement of a hearing before non-renewal can be rested on the service to those First Amendment values and not necessarily depend upon the Due Process, did I correctly answered it?

And that has nothing to do with a specific claim of violation of First Amendment rights alleged in the 1983 suit.

Mr. Steven H. Steinglass: That's correct, we will go --

Chief Justice Warren E. Burger: Justice teacher-qua-teacher has served certain First Amendment values.

Mr. Steven H. Steinglass: That's part of that but in addition, in this case the reasons that were discovered did in fact implicate --

Justice Byron R. White: Yeah, but as I gather, you distinguished then the teacher from the college administrator, the college janitor, the college -- and the other kind of, the college football coach for example.

Mr. Steven H. Steinglass: I would say we don't have to reach that question and the different bouncing would be undertaken in each case.

Justice Byron R. White: How about the college student?

Mr. Steven H. Steinglass: Well, this court in Goldberg did site approvingly the Dickson case for the Fifth Circuit, I would say, college student probably would if those person not ruled out it would probably be entire -- there is a minimal Due Process for court, he has to leave and pointed back, one of Roth's public statements dealt with the fact that students had been terminated without due process and ironic twist that he is here today asking such rights for himself.

Justice Byron R. White: Mr. Steinglass, one last question, during the World War II, student bodies dried up because people were at war, suppose that same kind of thing happened at Oshkosh and the administration terminated 90% of the non-tenure people, retaining 10%, would anyone of the 90% have the right to a hearing on your theory?

Mr. Steven H. Steinglass: I think they would have the right, I think that reason that you stated would be a perfectly a legitimate reason, I can't see any logic behind a professor asserting his right to a hearing in that situation.

Justice Byron R. White: That's because he would have a right to know why he, rather than x was let go.

Mr. Steven H. Steinglass: Yes.

Chief Justice Warren E. Burger: Thank you Mr. Steinglass.

Thank you Mr. Bleck.

The case is submitted.