BOARD OF REGENTS OF STATE COLLEGES ET AL. v. ROTH
No. 71-162
Supreme Court of the United States
June 29, 1972
408 U.S. 564
Charles A. Bleck, Assistant Attorney General of Wisconsin, argued the cause for petitioners. With him on the brief were Robert W. Warren, Attorney General, and Robert D. Martinson, Assistant Attorney General.
Steven H. Steinglass argued the cause for respondent. With him on the brief were Robert L. Reynolds, Jr., Richard Perry, and Richard M. Klein.
Briefs of amici curiae urging reversal were filed by Robert H. Quinn, Attorney General, Walter H. Mayo III, Assistant Attorney General, and Morris M. Goldings for the Commonwealth of Massachusetts; by Evelle J. Younger, Attorney General of California, Elizabeth Palmer, Acting Assistant Attorney General, and Donald B. Day, Deputy Attorney General, for the Board of Trustees of the California State Colleges; by J. Lee Rankin and Stanley Buchsbaum for the City of New York; and by Albert E. Jenner, Jr., Chester T. Kamin, and Richard T. Dunn for the American Council on Education et al.
Briefs of amici curiae urging affirmance were filed by David Rubin, Michael H. Gottesman, George H. Cohen, and Warren Burnett for the National Education Association et al.; by Herman I. Orentlicher and William W. Van Alstyne for the American Association of University Professors; by John Ligtenberg and Andrew J. Leahy for the American Federation of Teachers; and by Richard L. Cates for the Wisconsin Education Association.
In 1968 the respondent, David Roth, was hired for his first teaching job as assistant professor of political science at Wisconsin State University-Oshkosh. He was hired for a fixed term of one academic year. The notice of his faculty appointment specified that his employment would begin on September 1, 1968, and would end on June 30, 1969.1 The respondent completed that term. But he was informed that he would not be rehired for the next academic year.
The respondent had no tenure rights to continued employment. Under Wisconsin statutory law a state university teacher can acquire tenure as a “permanent” employee only after four years of year-to-year employment. Having acquired tenure, a teacher is entitled to continued employment “during efficiency and good behavior.” A relatively new teacher without tenure, however, is under Wisconsin law entitled to nothing beyond his one-year appointment.2 There are no statu-
The procedural protection afforded a Wisconsin State University teacher before he is separated from the University corresponds to his job security. As a matter of statutory law, a tenured teacher cannot be “discharged except for cause upon written charges” and pursuant to certain procedures.3 A nontenured teacher, similarly, is protected to some extent during his one-year term. Rules promulgated by the Board of Regents provide that a nontenured teacher “dismissed” before the end of the year may have some opportunity for review of the “dismissal.” But the Rules provide no real protection for a nontenured teacher who simply is not re-employed for the next year. He must be informed by February 1 “concerning retention or non-retention for the ensuing year.” But “no reason for non-retention need be given. No review or appeal is provided in such case.”4
The respondent then brought this action in Federal District Court alleging that the decision not to rehire him for the next year infringed his Fourteenth Amendment rights. He attacked the decision both in substance and procedure. First, he alleged that the true reason for the decision was to punish him for certain statements critical of the University administration, and that it therefore violated his right to freedom of speech.5
The District Court granted summary judgment for the respondent on the procedural issue, ordering the University officials to provide him with reasons and a hearing. 310 F. Supp. 972. The Court of Appeals, with one judge dissenting, affirmed this partial summary judgment. 446 F. 2d 806. We granted certiorari. 404 U. S. 909. The only question presented to us at this stage in the case is whether the respondent had a constitutional right to a statement of reasons and a hearing on the University‘s decision not to rehire him for another year.6 We hold that he did not.
I
The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment‘s protection of liberty and property. When protected interests are implicated, the right
The District Court decided that procedural due process guarantees apply in this case by assessing and balancing the weights of the particular interests involved. It concluded that the respondent‘s interest in re-employment at Wisconsin State University-Oshkosh outweighed the University‘s interest in denying him re-employment summarily. 310 F. Supp., at 977-979. Undeniably, the respondent‘s re-employment prospects were of major concern to him-concern that we surely cannot say was insignificant. And a weighing process has long been a part of any determination of the form of hearing required in particular situations by procedural due process.8 But, to determine whether
“Liberty” and “property” are broad and majestic terms. They are among the “[g]reat [constitutional] concepts . . . purposely left to gather meaning from experience. . . . [T]hey relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.” National Ins. Co. v. Tidewater Co., 337 U. S. 582, 646 (Frankfurter, J., dissenting). For that reason, the Court has fully and finally rejected the wooden distinction between “rights” and “privileges” that once seemed to govern the applicability of procedural due process rights.9 The Court has also made clear that the property interests protected by
Yet, while the Court has eschewed rigid or formalistic limitations on the protection of procedural due process, it has at the same time observed certain boundaries. For the words “liberty” and “property” in the Due Process Clause of the Fourteenth Amendment must be given some meaning.
II
“While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.” Meyer v. Nebraska, 262 U. S. 390, 399. In a Constitution for a free people, there can be no doubt that the meaning of “liberty” must be broad indeed. See, e. g., Bolling v. Sharpe, 347 U. S. 497, 499-500; Stanley v. Illinois, 405 U. S. 645.
The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For “[w]here a person‘s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Wisconsin v. Constantineau, 400 U. S. 433, 437. Wieman v. Updegraff, 344 U. S. 183, 191; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123; United States v. Lovett, 328 U. S. 303, 316-317; Peters v. Hobby, 349 U. S. 331, 352 (DOUGLAS, J., concurring). See Cafeteria Workers v. McElroy, 367 U. S. 886, 898. In such a case, due process would accord an opportunity to refute the charge before University officials.12 In the present case, however, there is no suggestion whatever that the respondent‘s “good name, reputation, honor, or integrity” is at stake.
Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would
To be sure, the respondent has alleged that the non-renewal of his contract was based on his exercise of his right to freedom of speech. But this allegation is not now before us. The District Court stayed proceedings on this issue, and the respondent has yet to prove that
Hence, on the record before us, all that clearly appears is that the respondent was not rehired for one year at one university. It stretches the concept too far to suggest that a person is deprived of “liberty” when he simply is not rehired in one job but remains as free as before to seek another. Cafeteria Workers v. McElroy, supra, at 895-896.
The Fourteenth Amendment‘s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests-property interests-may take many forms.
Thus, the Court has held that a person receiving welfare benefits under statutory and administrative standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process. Goldberg v. Kelly, 397 U. S. 254.15 See Flemming v. Nestor, 363 U. S. 603, 611. Similarly, in the area of public employment, the Court has held that a public college professor dismissed from an office held under tenure provisions, Slochower v. Board of Education, 350 U. S. 551, and college professors and
Certain attributes of “property” interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in Goldberg v. Kelly, supra, had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so.
Thus, the terms of the respondent‘s appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it.16 In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.
IV
Our analysis of the respondent‘s constitutional rights in this case in no way indicates a view that an opportunity for a hearing or a statement of reasons for nonretention would, or would not, be appropriate or wise in public
We must conclude that the summary judgment for the respondent should not have been granted, since the respondent has not shown that he was deprived of liberty or property protected by the Fourteenth Amendment. The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE POWELL took no part in the decision of this case.
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 603.]
[For dissenting opinion of MR. JUSTICE BRENNAN, see post, p. 604.]
MR. JUSTICE DOUGLAS, dissenting.
Respondent Roth, like Sindermann in the companion case, had no tenure under Wisconsin law and, unlike Sindermann, he had had only one year of teaching at Wisconsin State University-Oshkosh-where during 1968-1969 he had been Assistant Professor of Political Science and International Studies. Though Roth was rated by the faculty as an excellent teacher, he had publicly criticized the administration for suspending an entire group of 94 black students without determining individual guilt. He also criticized the university‘s regime as being authoritarian and autocratic. He used his classroom to discuss what was being done about the
In this case, as in Sindermann, an action was started in Federal District Court under
Professor Will Herberg, of Drew University, in writing of “academic freedom” recently said:
“[I]t is sometimes conceived as a basic constitutional right guaranteed and protected under the First Amendment.
“But, of course, this is not the case. Whereas a man‘s right to speak out on this or that may be guaranteed and protected, he can have no imaginable human or constitutional right to remain a member of a university faculty. Clearly, the right to academic freedom is an acquired one, yet an acquired right of such value to society that in the minds of many it has verged upon the constitutional.” Washington Sunday Star, Jan. 23, 1972, B-3, col. 1.
No more direct assault on academic freedom can be imagined than for the school authorities to be allowed to discharge a teacher because of his or her philosophical, political, or ideological beliefs. The same may well be true of private schools, if through the device of financing or other umbilical cords they become instrumentalities of the State. Mr. Justice Frankfurter stated the constitutional theory in Sweezy v. New Hampshire, 354 U. S. 234, 261-262 (concurring in result):
“Progress in the natural sciences is not remotely confined to findings made in the laboratory. Insights into the mysteries of nature are born of hypothesis and speculation. The more so is this true in the pursuit of understanding in the groping endeavors of what are called the social sciences, the concern of which is man and society. The problems that are the respective preoccupations of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of manageable division of analysis, with interpenetrating aspects of holistic perplexities. For society‘s good-if understanding be an essential need of society-inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered
as possible. Political power must abstain from intrusion into this activity of freedom, pursued in the interest of wise government and the people‘s well-being, except for reasons that are exigent and obviously compelling.”
We repeated that warning in Keyishian v. Board of Regents, 385 U. S. 589, 603:
“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”
When a violation of First Amendment rights is alleged, the reasons for dismissal or for nonrenewal of an employment contract must be examined to see if the reasons given are only a cloak for activity or attitudes protected by the Constitution. A statutory analogy is present under the National Labor Relations Act,
In the case of teachers whose contracts are not renewed, tenure is not the critical issue. In the Sweezy case, the teacher, whose First Amendment rights we honored, had no tenure but was only a guest lecturer. In the Keyishian case, one of the petitioners (Keyishian himself) had only a “one-year-term contract” that was not renewed. 385 U. S., at 592. In Shelton v. Tucker, 364 U. S. 479, one of the petitioners was
There is sometimes a conflict between a claim for First Amendment protection and the need for orderly administration of the school system, as we noted in Pickering v. Board of Education, 391 U. S. 563, 569. That is one reason why summary judgments in this class of cases are seldom appropriate. Another reason is that careful factfinding is often necessary to know whether the given reason for nonrenewal of a teacher‘s contract is the real reason or a feigned one.
It is said that since teaching in a public school is a privilege, the State can grant it or withhold it on conditions. We have, however, rejected that thesis in numerous cases, e. g., Graham v. Richardson, 403 U. S. 365, 374. See Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439 (1968). In Hannegan v. Esquire, Inc., 327 U. S. 146, 156, we said that Congress may not by withdrawal of mailing privileges place limitations on freedom of speech which it could not do constitutionally if done directly. We said in American Communications Assn. v. Douds, 339 U. S. 382, 402, that freedom of speech was abridged when the only restraint on its exercise was withdrawal of the privilege to invoke the facilities of the National Labor Relations Board. In Wieman v. Updegraff, 344 U. S. 183, we held that an applicant could not be denied the opportunity
As we held in Speiser v. Randall, supra, when a State proposes to deny a privilege to one who it alleges has engaged in unprotected speech, Due Process requires that the State bear the burden of proving that the speech was not protected. “[T]he ‘protection of the individual against arbitrary action’ . . . [is] the very essence of due process,” Slochower v. Board of Education, 350 U. S. 551, 559, but where the State is allowed to act secretly behind closed doors and without any notice to those who are affected by its actions, there is no check against the possibility of such “arbitrary action.”
Moreover, where “important interests” of the citizen are implicated (Bell v. Burson, 402 U. S. 535, 539) they are not to be denied or taken away without due process. Ibid. Bell v. Burson involved a driver‘s license. But also included are disqualification for unemployment compensation (Sherbert v. Verner, 374 U. S. 398), discharge from public employment (Slochower v. Board of Education, supra), denial of tax exemption (Speiser v. Randall, supra), and withdrawal of welfare benefits (Goldberg v. Kelly, 397 U. S. 254). And see Wisconsin v. Constantineau, 400 U. S. 433. We should now add that nonrenewal of a teacher‘s contract, whether or not he has tenure, is an entitlement of the same importance and dignity.
Cafeteria Workers v. McElroy, 367 U. S. 886, is not opposed. It held that a cook employed in a cafeteria in a military installation was not entitled to a hearing prior
If this nonrenewal implicated the First Amendment, then Roth was deprived of constitutional rights because his employment was conditioned on a surrender of First Amendment rights; and, apart from the First Amendment, he was denied due process when he received no notice and hearing of the adverse action contemplated against him. Without a statement of the reasons for the discharge and an opportunity to rebut those reasons-both of which were refused by petitioners-there is no means short of a lawsuit to safeguard the right not to be discharged for the exercise of First Amendment guarantees.
The District Court held, 310 F. Supp., at 979-980:
“Substantive constitutional protection for a university professor against non-retention in violation of his First Amendment rights or arbitrary non-retention is useless without procedural safeguards. I hold that minimal procedural due process includes a statement of the reasons why the university intends not to retain the professor, notice of a hearing at which he may respond to the stated reasons, and a hearing if the professor appears at the appointed
time and place. At such a hearing the professor must have a reasonable opportunity to submit evidence relevant to the stated reasons. The burden of going forward and the burden of proof rests with the professor. Only if he makes a reasonable showing that the stated reasons are wholly inappropriate as a basis for decision or that they are wholly without basis in fact would the university administration become obliged to show that the stated reasons are not inappropriate or that they have a basis in fact.”
It was that procedure that the Court of Appeals approved. 446 F. 2d, at 809-810. The Court of Appeals also concluded that though the
“School-constituted review bodies are the most appropriate forums for initially determining issues of this type, both for the convenience of the parties and in order to bring academic expertise to bear in resolving the nice issues of administrative discipline, teacher competence and school policy, which so frequently must be balanced in reaching a proper determination.” Id., at 944-945.
That is a permissible course for district courts to take, though it does not relieve them of the final determination
Accordingly I would affirm the judgment of the Court of Appeals.
MR. JUSTICE MARSHALL, dissenting.
Respondent was hired as an assistant professor of political science at Wisconsin State University-Oshkosh for the 1968-1969 academic year. During the course of that year he was told that he would not be rehired for the next academic term, but he was never told why. In this case, he asserts that the Due Process Clause of the Fourteenth Amendment to the United States Constitution entitled him to a statement of reasons and a hearing on the University‘s decision not to rehire him for another year.1 This claim was sustained by the District Court, which granted respondent summary judgment, 310 F. Supp. 972, and by the Court of Appeals which affirmed the judgment of the District Court. 446 F. 2d 806. This Court today reverses the judgment of the Court of Appeals and rejects respondent‘s claim. I dissent.
While I agree with Part I of the Court‘s opinion, setting forth the proper framework for consideration of the issue presented, and also with those portions of Parts II and III of the Court‘s opinion that assert that a public employee is entitled to procedural due process whenever a State stigmatizes him by denying employment, or injures his future employment prospects severely, or whenever the State deprives him of a prop-
The prior decisions of this Court, discussed at length in the opinion of the Court, establish a principle that is as obvious as it is compelling-i. e., federal and state governments and governmental agencies are restrained by the Constitution from acting arbitrarily with respect to employment opportunities that they either offer or control. Hence, it is now firmly established that whether or not a private employer is free to act capriciously or unreasonably with respect to employment practices, at least absent statutory2 or contractual3 controls, a government employer is different. The government may only act fairly and reasonably.
This Court has long maintained that “the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure.” Truax v. Raich, 239 U. S. 33, 41 (1915) (Hughes, J.). See also Meyer v. Nebraska, 262 U. S. 390, 399 (1923). It has also established that the fact that an employee has no contract guaranteeing work for a specific future period does not mean that as the result of action by the government he may be “discharged at any time for any reason or for no reason.” Truax v. Raich, supra, at 38.
In my view, every citizen who applies for a government job is entitled to it unless the government can establish some reason for denying the employment. This is the “property” right that I believe is protected by the Fourteenth Amendment and that cannot be denied “without due process of law.” And it is also liberty-
This Court has often had occasion to note that the denial of public employment is a serious blow to any citizen. See, e. g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 185 (1951) (Jackson, J., concurring); United States v. Lovett, 328 U. S. 303, 316-317 (1946). Thus, when an application for public employment is denied or the contract of a government employee is not renewed, the government must say why, for it is only when the reasons underlying government action are known that citizens feel secure and protected against arbitrary government action.
Employment is one of the greatest, if not the greatest, benefits that governments offer in modern-day life. When something as valuable as the opportunity to work is at stake, the government may not reward some citizens and not others without demonstrating that its actions are fair and equitable. And it is procedural due process that is our fundamental guarantee of fairness, our protection against arbitrary, capricious, and unreasonable government action.
MR. JUSTICE DOUGLAS has written that:
“It is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.” Joint Anti-Fascist Refugee Committee v. McGrath, supra, at 179 (concurring opinion).
And Mr. Justice Frankfurter has said that “[t]he history of American freedom is, in no small measure, the
We have often noted that procedural due process means many different things in the numerous contexts in which it applies. See, e. g., Goldberg v. Kelly, 397 U. S. 254 (1970); Bell v. Burson, 402 U. S. 535 (1971). Prior decisions have held that an applicant for admission to practice as an attorney before the United States Board of Tax Appeals may not be rejected without a statement of reasons and a chance for a hearing on disputed issues of fact;4 that a tenured teacher could not be summarily dismissed without notice of the reasons and a hearing;5 that an applicant for admission to a state bar could not be denied the opportunity to practice law without notice of the reasons for the rejection of his application and a hearing;6 and even that a substitute teacher who had been employed only two months could not be dismissed merely because she refused to take a loyalty oath without an inquiry into the specific facts of her case and a hearing on those in dispute.7 I would follow these cases and hold that respondent was denied due process when his contract was not renewed and he was not informed of the reasons and given an opportunity to respond.
Where there are numerous applicants for jobs, it is likely that few will choose to demand reasons for not being hired. But, if the demand for reasons is exceptionally great, summary procedures can be devised that would provide fair and adequate information to all persons. As long as the government has a good reason for its actions it need not fear disclosure. It is only where the government acts improperly that procedural due process is truly burdensome. And that is precisely when it is most necessary.
It might also be argued that to require a hearing and a statement of reasons is to require a useless act, because a government bent on denying employment to one or more persons will do so regardless of the procedural hurdles that are placed in its path. Perhaps this is so, but a requirement of procedural regularity at least renders arbitrary action more difficult. Moreover, proper procedures will surely eliminate some of the arbitrariness that results, not from malice, but from innocent error. “Experience teaches . . . that the affording of procedural safeguards, which by their nature serve to illuminate the underlying facts, in itself often operates to prevent erroneous decisions on the merits
Professor Gellhorn put the argument well:
“In my judgment, there is no basic division of interest between the citizenry on the one hand and officialdom on the other. Both should be interested equally in the quest for procedural safeguards. I echo the late Justice JACKSON in saying: ‘Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice‘-blunders which are likely to occur when reasons need not be given and when the reasonableness and indeed legality of judgments need not be subjected to any appraisal other than one‘s own. . . .” Summary of Colloquy on Administrative Law, 6 J. Soc. Pub. Teachers of Law 70, 73 (1961).
Accordingly, I dissent.