*1 only ten count indictment.1 In I of a charged making Count I he was agen- to United
false statements States of 18 1001.
cies violation U.S.C. § pertained to inves-
These statements an
tigation possible violations of various regulations promulgated
rent under the Act of
Economic Stabilization 15, 1970), 799, (Aug. amended Stat.
through January 27,1972. argument
Cooper’s entrapped and that his
was somehow
conviction is inconsistent with the trial disposition of the other counts
court’s
against him find to without merit. we support of
The evidence in convic
tion of Count more than sufficient.
Affirmed. Leroy al., RAMPEY et Plaintiffs-
W. Appellants,
v. al.,
Walt ALLEN et Defendants- Appellees.
No. 73-1609. Appeals,
United States Court
Tenth Circuit. May
Argued 15, 1974. Aug.
Decided 1974.
Rehearing Sept. Denied 1974. Cooper, 482 F.2d Temporary United States 1. The case was first before (TECA 1973). Appeals. Emergency Por a factual Court disposition see: of other counts recital and *2 employment plaintiffs’ mination the of their to be null and void and violative rights expression and due to freedom of process under the First and Fourteenth Amendments Constitution plaintiffs United States. Eleven of the were members and three were administrative of the Oklahoma officers College statutorily Arts, of Liberal created Oklahoma state locat- institution ed at Chickasha. April 26,
On 1973 the defendant Bruce Carter, college, President of the recom- mended to the members of the Board of employment the the 14 plaintiffs majority A terminated. Jones, Jones, Williams, Stephen Bane (five two) accepted the Board to plain- Okl., Klingenberg, Enid, for & recommendation, carrying and in it out tiffs-appellants. gave no for The reasons their action. complaint alleged that the terminations Lockhart, Atty. Asst. Gen. Joe C. were result of the exercise Atty. (Larry Derryberry, Gen. Okla- plaintiffs rights of their constitutional Gray, Atty. homa, and James H. Asst. expression guaranteed by of freedom of brief), defendants-ap- Gen., on the for the First Amendment. pellees. allegations, According to further Judge, LEWIS, Before Chief plaintiffs press held a and is- conference SETH, HILL, HOLLOWAY, McWIL- April 24, on sued a release to the media LIAMS, DOYLE, BARRETT and Cir- just prior termination. to their sitting Judges, en cuit banc. press they At conference criticized the. policies members some Judge. DOYLE, E. Circuit WILLIAM Regents. of the Board of plaintiffs appellants, The 14 apparently Originally plaintiffs judg- reversal of court, district seek press had conference believed that alleged denying viola- relief for ment having been of their been cause rights. The claims were tions of civil related were fired since the terminations brought pursuant 28 U.S.C. §§ support time, the record does but together with 42 U.S.C. § focused on The court also trial sought injunctive this. complaint The 1983. conference, press evidence but declaratory judg-. together relief with a goes beyond far this.* trial determining damages) ter- (no ment complaint Paragraph * 13 of the noted, however, conference. the com- to be It trial, plaint broadly states: framed the issues terminating Defendants Said conduct alleging from terminations resulted Plain- in violation the Plaintiffs was plaintiffs’ Amendment First exercise of their n and Four- First allege under tiffs’ complaint rights. First does States repris- the United stemming Amendments teenth from violations Amendment termi- Plaintiffs were complaint in that Constitution press al for conference. right they their exercised plaintiffs nated because general alleges were also expression speech in criti- right freedom their exercised fired “because disagreeing with cizing Defendants expression in criticiz- freedom of Plain- policies. termination Said disagreeing with their Defendants aof a denial reasons tiffs these adminis- policies.” These criticisms in- manner in a plaintiffs Plaintiffs benefit encom- referred tration fringes constitutional press Plaintiffs’ prior passed made statements testimony charge holding President disclosed and not the Carter’s plain not to rehire the conference. The decision court considered plaintiffs’ April 22, 1973, after sole was made to be the tiffs divisiveness firing. Dr. consultation with Feree. his tes reason for the timony, gave for fir the reasons he indicated, appears As we from ings plaintiffs “divi were that the the record that the to terminate decision unwilling sive” the exception made, *3 been with one come into office have informal and Ward), prior to the (Professor tendency and talks because had a to press date of the Because conference. among talk themselves with the stud years plaintiff of his of service the addition, ents.** one member of the Rampey held to entitled was have been faculty criticizing was accused of an ad hearing purpose to a for the of deter- given dress Dr. at an Carter’s assem mining whether sufficient cause existed bly done so in the classroom. separation. for his knowledge Carter’s of this was based recognized The trial court that the upon hearsay the un statement of an employees three administrative would general named student. The trial court normally hearing have been entitled to a ly finding statements, followed Carter’s but that the conditions at the institution plaintiffs the that were “divisive.” provid- were not normal so that the rule (which May At the trial commenced ing hearing necessarily for a was sus- given 30, 1973), testimony by many was pended. plaintiffs by of the President Cart- The issue our er. determination is district court ruled in favor of against whether the plain- the evidence sufficient defendants and the support holding findings tiffs, the trial court’s that that the nonrenewal the firings plaintiffs’ the right were contracts plaintiffs’ unrelated was unconnected with the freely express themselves. If exercise of their of free supports findings, the evidence judgment these under the the First and Fourteenth findings would have to be affirmed. Amendments. Extensive oral made, conclude, however, We that testimony were the evidence and the which was regard judg- emphasized fails this and that the was statement of Presi- ment dent district court must re- be that it was the divisiveness plaintiffs versed. which caused their dis- Finally, judge specifically passed speech. the trial to free Criticism of Defendants’ policies questions impermissible all on other First as Amendment are an ter- basis for press employment well as the said: mination conference when he of Plaintiffs’ under finds a Court and concludes as fac- First and Fourteenth Amendments. Further, tual matter from all and cir- the evidence the case was not tried on presented case, narrow cumstances in this that issue. The evidence embraced First college president generally. did not recommend Amendment violations ** * judge’s findings Did non- Nor were not recommend the trial renewal of of the fourteen conclusions contracts restricted to the effect press exercising reprisal plaintiffs’ subsequent Plaintiffs aas for their conference on rights employment. their free first amendment termination of In its oral find- ings, speech, con- trial either reason court delineated the First anything prior ference or uttered thereto. Amendment as issue follows: complaints basically The Plaintiffs’ ** explained April year, that on He also or about follows: 26th of this employments general which Q. their What was the basis on institution you decided, negative basis not renewed Re- the Board of gents you this which decided fourteen failure to renew their plaintiffs employment be in- contracts in this case should not reprisal your general having cluded in list: Just their exercised speak first amendment crit- terms. ically really president, regents “I in one word A. could answer course of direction of the is divisiveness.” institution. faculty. He members of the had RELA- learned PRIOR THE PLAINTIFFS’ prior April 24, certain of THE COLLEGE TO TIONSHIP faculty with contracts members background of the several The service also be rehired. He testified Rampey, professor á differs. expressed that he his concern about years English department, Carter and the institution to President age trial and had been time of at the the Board. In his also members of employed for more than faculty opinion, if member Rampey’s years. hir- ten the time At three-year terminated at the end policy re- a tenure there was probationary automatically period, he ac- faculty quired member to new According Ledger- quired tenure. following years and, probation for three wood, out was borne three-year period, completion handbook. granted. Ram- On this basis tenure was pey *4 had in 1965 that he was notified Cherrington Dr. Leon testified that he the rank of as- and had achieved tenure age teaching was and his that field professor. This accom- sistant was geography interdiscipli- was history, and plished express approval of the without nary employment studies. His at the Regents. May in the of But Board College Oklahoma Liberal Arts com- employment 1972, just prior the to September menced his 1966 and con- Regents Carter, the Board of President year tract had been renewed each since system. a About the tenure abolished years. then for a total of re- six I^hen year Rampey with- was terminated later year hired for fourth there had the been hearing. any kind out notice teaching ability. no criticism of his complaint to no made There had been same is true when he was rehired for anyone Rampey else that work or to year. the fifth He had been selected explained unsatisfactory. that was He year teacher in 1968 and the had had speaking the the reason for his press out apprehensive other honors and was being prior to his and thereto conference about the rehired. Prior to colleagues of his concern was because given conference no indication there was college, the which about the future of that he rehired and would not be he be- placed probation had the been spoke lieved that he would be. He out Accrediting Association. North-Central only he that it was because felt neces- Rampey that unaware President was sary college danger, since the engaged prepara- Carter was then phrased it, “going he down the people tion to be hired of a list of speak drain.” he The reason did following year, list omitted which during year Dr. Carter 1972-73 was plaintiffs. names of the impossible it because him see faculty they Bryan told Ledgerwood he members were testified that report college directly were to first to Dr. Feree who and had was Dean of the in- was employed Carter’s assistant. as director been development. stitutional research (teachers) only plaintiffs who Subsequently, he became assistant completed years had four at the ap- Thereafter, president. he was then prior to tenure the abolition of acting finally pointed academ- Dean and Cherrington, Rampey, Richardson and Ledgerwood’s con- immediate ic Dean. Poole, Holt Wimbish. Plaintiffs en- student cerns the decrease completed year their fourth had Maness policy rollment, accreditation May 1972, subsequent to the abolition authority remedy those failure of of tenure. problems. He also these other sought tenure issue to research OTHER FACTS BACKGROUND testimony, according discovered, to his plaintiffs never Regents had been Some never had Board of had been abolished. granted notified that tenure specifically tenure individual it, July 28, As we view tenure issue enters North-Central held Association pro- into this case extent that 1972 recommended school be insight regarding alleged probation. placed on vides some the defendants. The arbitrariness of University Chancellor Klotsche teaching were on who as a Wisconsin was hired consultant staff were treated the administration major prob- appraise to examine and group; particularly as one Dr. Carter lems of the school and to recommend so- placed category. them in one This was reports, In the lutions. second of three undoubtedly been January written on Klotsche part of the so-called core curriculum 1) establishing faculty recommended teaching staff, which meant grievance committee; 2) clarifying the interdisciplinary approach used an administrators; 3) setting duties teaching. Rampey was a member of up better channels of communication although staff, this core curriculum informing faculty of administrative initially had not been hired such. decisions; 4) establishing in- an system self-governance. terim The Oklahoma statute created subject contemplated subsequent report April 3, institution dated tenure Chancellor would maintain a Klotsche concluded that However, really significant system. just ap- steps prior “no have been pointment during 3,May year taken Dr. Carter on this academic bring previously noted, as we the tenure institution into back some h^ive *5 system appropriate governance re- semblance was abolished. do not of We gard plain- respective faculty, as the of irrelevant fact that the the role ad- Regents teaching clearly tiffs who ministration and were members of the de- they staff had led to fined.” He been believe blamed the when administration for rectify hired ten- its failure to that receive take action they successfully failing completed ure if the situation and the for to follow guidelines probationary period. It out the further which he had to be recom- noted that the had mended. He also Governor’s se- noted there was office resignations campus cured the an air of uneasiness on the several the by former caused rumors members of the of Re- of the imminent Board ter- gents just prior appointment faculty mination of to the some members. He Following against ap- President advised Carter. administration ab- pointment rupt faculty members, termination of new board or staff appointed. President Carter members.1 was reports re- The Klotsche North-Central Association’s are of some im- The port, analyzes portance 1, 1972, they highlight prob- dated March condition lems of the school and indicates the which were existence at col- lege need for correct it to deficiencies and show also that the administra- library laboratory facilities, tion made no effort science to ameliorate the problems dissension the facul- situation or to eliminate within remove the ty, faculty-staff creating improve which were communica- dissension. re- generally ports upgrade cur- also tions show that there were condi- meeting produced subsequent A which tions the dissension on riculum. tices, tenure, process 1. He added: and due are critical regard necessity clearly I write in this manner matters on these this questions policy since these are critical enunciated and related on these present probationary great relate status matters will be interest to the of the North Central will next be visit- institution Association when OOLA probationary in the de- Association. One of the factors ed team to consider its probation place public cision to OCLA on status. governance II, 59-60). (Yol. was the cam- P. matter pus. no- Matters related to termination part appellant Rapplean members and He considered on real “divisive” that such criticisms were based he characterized being illusory Carter and not situations. “a three time loser” fol- lowing having Carter’s been outvoted background Still another fact was ad- majority of the students in three meeting from duced campus controversial issues. April 26, 1973, at time the held appellants terminations of the became Appellant Maness was “divisive” Carson, mem- official. Mr. a board Joel the mind of President Carter because he objected strongly lawyer, ber who was a had told Dr. Feree that the latter could pointed out to the actions He taken. not communicate. being “di- the members accused Wimbish was “divisive” because he seeking merely to exercise visive” were spent during too much time the final disagree.2 (At that meet- talking two weeks semester ing severely Carter criticized dining students in the hall. Carter said former’s board member Carson spent if Wimbish had not “hour im- failure to effective measures to take talking after hour after hour with stu- prove school.) the conditions dents” he would have been rehired. significant testimony bear- most us as to whether on the issue before admitted that he found Cher- rington fired for exercise “divisive” allegedly these because he chapel speech testi- is the criticized a of First Amendment Carter’s mony He of President Carter himself. course of a class discussion. But bridge not tried information admitted that came to Carter second- through gap hand and the dissent- between himself student whom Carter ing faculty position identify. His refused members. There was testimo- ny shown from the dissidents had not since student who had been in warmth,” Cherrington’s “any signs jus- day he was him class on the of the al- leged wanting them tified in not to talk with incident to the effect that Cher- rington possible or to solutions to the had not discuss criticized Carter at all *6 but, problem. rather, had led a class discussion concerning advantages and disadvan- tages THE CROSS-EXAM- TESTIMONY ON of a liberal arts education. INATION appellant Carter testified that Bolton throughout his testi- President Carter sought was “divisive” because he had plain- mony characterized the individual scope clarification as duties explained being “divisive” and tiffs as personnel. as director of term “divisive.” what he meant appraisal Ingrid appellant His Ledgerwood Carter considered Dean Poole was that she was “divisive” be- on “divisive” because one occasion worlds; cause “We live in different we faculty mem- Dean defended another atmospheres; live different we have the administra- ber’s criticize philosophies.” different tion. up get 2. I would like He added: out and walk resign Why people you, Carter, Has it ever off occurred to Dr. J3oard. you people . . will that what these whom recom- come here and lie and tell firing saying is this Board old and old mended for ... so-and-so said this direction; give so-and-so that. we to “Give us some us some said And who are judge? direction, disagree sense of you, and if we That’s I would hate ridiculous. you imposed see if be- we will tell and we will to teach where that was on me. modify greater say you us for the tween we can You couldn’t wanted to. what good college.” happened speech? What’s to free (Yol. (Vol. II, II, 170). P. P. at an Another member of the Board stated meeting earlier : plain- explained them, he found of control ercise over also uncooperative appellants “divi- tiffs were fired. join of their failure to sive” as a result such as Okla- certain associations THE TRIAL COURT’S FINDINGS and the homa Association Educational adopted The trial court the conclusion Higher Educational Alumni Oklahoma plaintiffs of President Carter Counsel. were “divisive” and that this was the There to establish that is evidence firings. cause of the conflict and the group Carter considered that findings The court mentioned its oral they asso- whole was “divisive” plaintiffs might that sponsible been re- together. particularly is ciated This college’s having for the been respect Ward, Dr. true with sin- put probation.4 mentioned that He gle not rehired on individual who was something wrong “There is in the insti- participated in the the basis that he con- necessary tution and it out is find troversial conference.3 wrong what the institution.”' appen- There hereto as an is attached say He went on to “It the De- opinion dix more ac- detailed things, fendants’ views that one only testimony. count of Carter’s principal wrong thing, if not the reading inference to drawn from a cooper- the institution was the lack of testimony that Dr. Carter de- hostility ation of the Plaintiffs. The loyalty, required manded absolute facul- of the Plaintiffs towards the adminis- ty members to come and visit with tration. The divisiveness within the him, prohibited discussing prob- their faculty attributed the Defendants to among lems of the themselves the Plaintiffs.” prohibited having their informal support There is a lack of evidence to students, discussions with for if report this observation. The things did of these con- Association, impartial North-Central source, an sidered Carter to be “divisive.” One problems did not attribute the being concept has to conclude that his plaintiffs. It did mention dissension person’s “divisive” on a fail- was based faculty within the and a lack of commu- agree ure to with him or to him. relate faculty nication between staff, but display If there had been no “divi- identify plaintiffs it did not with it. prone say siveness” he was that the Nor did Chancellor Klotsche of individual in a members lived University of at Milwaukee Wisconsin philoso- different world or that plaintiffs. attribute the trouble to the phies fundamentally different from He found fundamental administrative All this
his. shows *7 fact, In the re- difficulties. port Klotsche having for fired to refrain failed actually placed ad- blame the associating colleagues from with their steps ministration for its failure to take having and for failed to with associate problems the which an solve earlier Thus, President Carter. we conclude report pointed out. exercising that, right freely in their ignore findings the court’s trial associate with others to criticize the testimony case, important in the most (notwith- administration of the school appended Carter, of Dr. which is that standing justifi- that such was criticism face, which, on its reveals hereto and able) refusing in ex- submit any part us, he of that want wanted, 3. On this Carter said: dissidents, along with the went along his choice with the Dr. Ward made choice, said, why it is his if that then hoped we could other thirteen and we had right. all suits me hoped could that we save him. We had 272-273). (Vol. Ill, P. keep had recom- him with us and we speculation. borne was not It 4. This was (for reemployment) mended him by the evidence. out he did not he determined that and when
1097
in this
expression
of
freedom
largely
of
problem
was
that
atmosphere.
the court
that
In
case
himself.
and actions of
attitudes
“
vigilant protection
.
.
said:
Bearing
thrust
in mind that the
nowhere
is
of
freedoms
constitutional
ruling
the defendants
in
favor
court’s
community of
more
than
vital
plaintiffs
“divisive” and
is that
American schools.”
agreement
the adminis-
in
thus not
Also,
Keyishian
Re-
Board of
in
v.
question
tration,
whether
is
675,
gents,
589, 604,
U.S.
87 S.Ct.
findings
385
or conclusion
court’s
right
(1967),
684,
1099
dictions,
emerges
574,
1731,
tion,
563,
as in-
88
most of
S.Ct.
U.S.
leaving
(1968).5
consequential,
1737,
the reader with
had turned issue involved the use of a among *13 were defeated after Carter dent council two other “ election well, he lost three he that was his 367). them to tact the course of the just far as he was concerned. But there was nication and no sive? feeling that I have no overt action as A. I. Richardson —“I didn’t J. is ever “Oh, too much with Mr. Richardson in . Tanton — general seal of officers . And almost votes just going issues, involving out members and attitude of to be rapport.” general Q. every to learn so, general year. times. wonder when How was he devi- embarrassing. created an Mr. each student action, I would attitude.” student students. The lack Rapplean’ I anything. hostility (R. proposal come pay everything particular 368). submitted say commu- uproar body). class, said, then Maness.) One con- ples.” it is stu- (R. So, A. “A talked and ton, why you Q. Well, so then he did what did talk along reasonably well.” A. I—that question was Mr. of Bolton’s advancement without Cart- er’s and this is found experimental program. This account is Q. Well, not? Bolton’s career at four “Well, getting Bolton, knowledge [*] years. you expected. above I begin with, (Herein follows Carter’s account great do recall here in mean, could now [*] to, you just all away and Dean worked under the deal but you’re and one to a about very definitely he had [*] one of without then, of this position O.C.L.A., together, familiar with Mr. Ledgerwood [*] criticisms of Mr.’ early as time went thing come been there time, any particular problems question other [*] in the core months we I in and he were Mr. want feel exam- (cid:127)» both, Bol- got you on, he he said or did.” long A. “I didn’t know how he had Q. Such as ? said, been there but as I the further we got away. went the he further In the A. pin- “It would be a little bit hard to him, place, first we would ask did we point any particular idea, you one but specifically ask him to see one or two hostility felt uncooperative his and his no, students. He said the student has very very definitely.” (R. attitude got place to come to see me in of me “Well, K. I felt like that Mr. Bolton— going to so, see the student. And we Bolton, times, several pretty was defi- would ask him to look into situations nitely devisive, sir. He was one who say, going and he would I am not to do complaining always about not know- that, going to have to come to job knowing his and not what he me.” ought to do and he talked to me some- Q. me, thought people Excuse these times good about this sometimes a discharged devi- many times to Dr. Feree about it and I you telling sive. Now are me this is de- gave know we even him a North Central just poor visive or administration? Report approved showing that had been personnel this is what a cooperation, director A. “That lack sir.” do, do, or should (R. 359-61). he would Q. right. Q. you say? you When was All did What did L. What Ward— through ? mean? name stricken Mr. Ward’s was stricken A. “I said that each man chose his “Mr. name A. Ward’s morning wife, job, occupation, through that we had his whether he on the meeting.” smokes or drinks and he chose decide board group what he would live with and he Q. did this? Who chose the dissidents rather than is, The fact of the matter A. did “I it. choosing cooperate those who would forgot it.” I almost work with me.” that, Q. your reason for Dr. What Q. that, put did How he do or let me ? way. did he do What between Sun- “Every man, every man makes his A. day, April 22nd, morning 1973, and the smokes or doesn’t choices whether he smoke, April you 26th when struck his name he drinks doesn’t whether appearance public other than the at the wife, drink. The choice of a the choice press conference? job and Dr. made his choice of a Ward proved doing A. “He he this that along with the other thirteen and we had chosen the live dissidents to hoped him. had we could save We had the, cooperate rather than with me keep hoped that we could him with us and with the rest of the school.” along him and we recommended Q. you say this, When he chose to do with the others that had been recom- you mean he chose to be with them and mended and when he determined that put his name on the statement us, any part did not want to have *14 they you read. Is that what mean ? along wanted, he the dis- that went why said, sidents, your his then I if that is Court: He has answered right.” (R. 272-73). question. choice, me all suits right. Q. Carter, All Dr. I will ask “Probably so, probably A. so. He you to, to advise the the extent to Court chose, way he chose his He life. which, any, press if conference’s chose what he wanted to do. He chose your statement had on recommendations way go.” which he wanted to April? to the Board on the 26th of Q. thing Is there other he did dur- “Well, excep- say A. I would with the period that of time other than Ward, absolutely (R. tion of none.” Dr. that? that, say “IA. am sure I would no.” Q. My question is, do I understand (R. 290-92). by April sorry, April that or I 23rd am 22nd, Sunday Questioning by afternoon, 1973, that is Court: you against recommending had decided Q. My question is, you did line him any of the fourteen reem- Plaintiffs for press out because of the confer- [Ward] ployment exception with the of David ence? Ward? out, said, A. him “I lined as I I did “Any thirteen, yes, sir, A. or the press see nor hear the conference. I did fourteen, exception with the of David read about it and he his choice and made Ward, yes.” go particular his choice was to with this Q. And do I further understand that group, Judge, and he had made because testimony your today you that had de- my his choice I made choice.” reemploy Ward, cided to Dr. but because Q. Well, my question you is, line did participated he with the other thirteen participated him out in the because he you conference, in struck his press conference? Monday morning? name say “No, sir, no, probably sir, say A. “I have to that I did A. any- probably at all.” I did. Not pen campus done, and one he on this thing but then he said things happens, very group.” first was with proves up pri- to me this whole set Q. Well, make a difference. this could marily peo- these thirteen or fourteen an instructor’s can’t fail renew You conspiracy ple, is, there is a or was a amend- on first if it is based contract conspiracy. (Emphasis added.) I ment conduct. pleaded people with these “Judge, into it as that didn’t enter A. you fact, so, tell will one individual concerned, at all. far as I was We I said that threatened them even. I year on all with him off and worked pleaded join with them to the Okla- not he matter of whether or was a homa Educational Association and the cooperate going with me or with Higher Educational Alumni Council. group. And Divided the dissidents. organizations These are two that ben- placed himself in his own cate- when he higher efit education a lot tremendous gory, why choice and he determined his man, And almost Oklahoma. to a deal if he ever a word said and I have information over this here any- anything it, I don’t or thing about know you if need it. Almost to an individu- (R. really don’t.” about it. al, why no, group said, we will not 411-12). any part Higher of O.E.A. or Education either one. And this was IY. begin an indication earlier illustrated the above testimonial As with, did not coop- intend to good examples, Dr. had a deal of cooperate.” erate and would not specifics difficulty providing as to Q. And that was a factor in their why the individual were “divi- devisiveness which was a factor in eyes. difficulty sive” in his This your to, your determination deci- large part from stemmed Carter’s sion to terminate them ? tendency plaintiffs as a to think of the “During year, A. course group rather than as Cart- individuals. many, many this was added to times.” college’s er’s teachers assessment “grading” staff, of them as Q. But it was *15 fact ? frequently (R. 270, referred to it 294- 292-94). (R. yes.” “Oh, yes, A. 95), assumption seemed to stem from an Having in mind determined his own camps polarized that there were two group of “dissi- a core there was college, those that “for” him were campus which he could not on dents” personally, against and those that were college around,” efforts Carter’s “build a appears begun job him. He to have his identify- directed to seem have been to president assumption as with this rooted faculty ing and staff members thinking, in his or to have reached' it vaguely lump in could with whom he quite early year: group di- of “dissidents.” When defined rectly faculty meetings. “I had in two One questioned this about and in the summer one the fall and articulating difficulty Court, had Carter faculty meeting high the fall I had identifying or methods his reasons together. hopes pulling faculty group: members go I did there with a statement and getting you are I think The Court: help me, oath, so and I am under appre- question now. I would off the with the fact that I could weld the you you us how tell if would together ciate faculty and that we could you group. came How this together identified work and asked them to co- I you out of 55 eleven had to know operate pull together, to- to to work identify devisive, them. and who were gether. pray I them to about asked you did you How do this? did How I asked them as Oral Roberts it. say you when And then this? learn hap- to, say, let’s have a miracle would permitting devisive, do on what fect” of his to dismissal that you message obvious, stand is for the would this statement ? make otherwise be to clear other remain- said, “Well, we, asked Dr. I A. as I faculty member of the or who staff group faculty to meet with Feree might president feel made group he corps program with this wrong decision in a matter which them, to meet tried with or did meet obviously per- of vital concern to all one of the members them and college. Any sons associated get spoke up tried to after he disagreement president with the together, cooperate and work them to issue, perhaps any or other issue in the said, you cannot communicate he might future, jobs. them cost tf pat- Wimbish’s dismissal also fits this illustration, in- for “And another tern, since he was not considered mentioned, stance, of the fac- as I one dismissal until the last two weeks ulty on the stand that was members school, when felt that Wimbish yesterday great said we began spending talking too much time thirty years yet I have friends dining students hall. Carter felt' today and he there eleven months been represented opposition such discussion my And never been office. has though himself, knowledge even his people never of these have been most subject the content or discussion my have shown me office and never only through hearsay him came to rumor nothing any signs of but warmth or from a few students he could identi- hostility. not been And have fy. job his Wimbish lost conse- my except, me office not talked to quence of these student discussions. Now, in the hall. I we would meet them in and did not feel could call Cherrington’s situation also fits single them talk them out pattern, only since Carter’s criticism got cooperate say, you now have Cherrington was that he “ran down me help got to with me. You have me. considerably” in discussion with his stu- got go along have with the You program. assembly dents after an held. Carter had looks me like we It again, only knowledge Once Carter’s put would have isolated them the substantive content of such criti- cism, embarrassing position and them in an they place, if it in fact took came might felt under coercion through hearsay reports him of students I had done threats or intimidation if identify. he could not This incident (R. 352-53). .” that. opinion seems have formed Carter's Cherrington job. him and cost his (It that, noted rather than should be Any other member concerned for put to in an the teachers referred job likely be reluctant to criti- “embarrassing position,” he chose to ter- *16 cize the administration before dents, stu- his jobs.) minate say anything or indeed to which tendency despite to view Yet Carter’s might reported interpreted be and back plain- individual the “divisiveness” to the administration as criticism. hostility himself, the to tiffs in terms catego- pattern of such a record reveals SETH, Judge, with whom Circuit in which of instances rization because BARRETT, Judge LEWIS, Chief rights or exercised individuals Judge, join (dissenting): Circuit expression, or with others associated respectfully the from dissent the must clear- case seems who did. Ward’s by position opinion the taken undisputedly and the est, dismissed he since was majority. made express Certain statements publicly his to choice majority opinion examined be must group the sympathy of teachers a his how the conclusions to demonstrate apparently be recom- soon who would the trial to reverse “chilling are reached therein ef- The mended for dismissal. something tenure like upon state laws court, which the evidence perhaps in view. Thus we this should statements of these are based. Some concept, to but I am example, the ma- subscribe such a quoted; for must be protections fit the unable to it into af- says: jority forded the First Amendment the to analysis, was the the “In last ’ Constitution and thus must dissent. plaintiffs-appellants to con- refusal patterns to Carter’s form President position' majority centered The is molds, personal all of which were upon testimony president of the of the part, was the subjective on his majority expressly the school. The being of their fired.” cause testimony points part to that of his opinion This which its is based. clearly a con- leads to such The record separate paragraph statement in a is although cause, the ma- clusion as to clear, up position. and sums The specific jority points incidents no opinion states: criticism, specific of free no exercise speech, just testimony significant the characterization “The most groups, the tone and bearing the two attitudes of us on the issue before quota- opposition, tenor of whether these fired ' really This, again, all the is tion above. Amendment for exercise of First helpful shows, is to a but this not rights testimony record is of President problem us on con- the grounds. before solution of he He admitted that himself. bridge gap stitutional not be- tried dissenting fac- tween himself and majority continues: The position ulty His members. right “Surely free from shown since dissidents had personality a kind of control is this signs warmth,’ ‘any he was him constitutionally protected under justified wanting to talk with spe- it is a since the First Amendment possible solutions them or to discuss expression. had to become cies of One problem.” to the image person a who references This is followed to serve likeness if or she wished college president to the divisiveness faculty at as member of the OCLA.” a plaintiffs. “personality freedom from con- Thus significant testimony” trol,” analysis cause, The is “most last right. bearing on the First whole record described as a constitutional depart thus is the admission from the Amendment issue This where I must is majority he had not President Carter because this is a confusion bridge gap himself tried to between First with the Amendment classi- dissenting faculty tenure. members. cal advanced teacher reasons “bridge gap” substituting majority need to was thus tenure rea- issue, right. Amendment either basic First sons for constitutional This a try perhaps do a a failure so was viola- serve a innovative rights. plaintiffs’ purpose. tion of constitutional It worthwhile protection could serve as any event, against on the evidence such terminations based on signifi- image “inability failure is described as the most conform bearing being testimony president” school, cant First power testimony, president,” Amendment issue. This “threat *17 fact, significant “being disagreement on the the is- with a is most for sue; demonstrates, disagree- president the record so who does not tolerate important. conforming ment,” the is other evidence less for or “not However, president’s in- patterns this evaluation should be and molds.” This commentary on the type protection “personality a stead considered as from misdirection, proof great absence, or control” deal to recommend has any- than it, appear constitutional rather issues and it would that the various thing from Also the court found: must Thus I dissent else. majority by position taken point I . . But “. any testimony constitu- can lead to this Board of would make is the can, course, lead conclusion. It tional I the decision and made conclusions. issue to nonconstitutional agree for am unable to with counsel excep- really again take And no one can Board of Re- Plaintiffs that this nego- for a failure tion to a criticism gents thereof or or the five members If to. tiate, referred if is what is this matter, board, the whole for that bridge gap, president did not things present.” unaware of these perhaps failure this was a serious And the trial court said: appears more president, to be but this “. . . I am not all [A]nd ad- of school an of a matter evaluation press sure that the conference wasn’t ministration, diplomacy, or common or rigged thwarting purpose for the really any some- In event it is sense. employment con- non-renewal of their thing It is we do not have to decide. ac- tracts so could continue their very in it a difficult to find constitu- tivities. any which we tional issue issue just you “It isn’t the law that can should I to do decide. am unable so. right. manufacture a first amendment indicated, majority As above so, If this was then all instructor an points specific criti- to no incident of during year would have to one do (not considering press confer- cism ence, pres- contract would be criticize majority apparently which has Then if his contract was not ident. case), excluded factor say renewed he would because this is none. incident the record contains One you of this criticism and must renew majority, but of is referred to it, you my don’t, you because if violate opinion says: knowl- “Carter’s this edge rights constitutional because I criti- hearsay upon the of this was based you you, cized I and because criticized of an unnamed student.” statement why you that has to be the reason complaint Thus none are left. Also the don’t ridiculous on its renew. This is alleges relative to First Amend- no facts face, certainly it can’t be the law. rights press except conference. ment indicated, I have to “As difficult, It foundation with such a un- make a to whether the decision as proof pleadings, to understand derlying principle, basic substantial majority the find- can overturn how reasons non-renewal were ings court, or to understand of the trial freedom of was exercised how the met their burden. I think the for other And reasons. majority says only predomi- The issue be- other reasons are not nant, supports fore us is whether the record I think were the basis but findings of the trial court. of non-renewal to the exclusion trial court found: other and all reasons.” findings The above are in accordance as a “The Court finds and concludes considering the with the record stand- factual matter from all the evidence majority appellate review. ards presented in
and circumstances really opinion oth- demonstrate does not case, president that the did erwise, up First but instead has set new recommend a Did not recom- failure. requirements Amendment and has found mend the non-renewal of the contracts “divisive- that a failure to renew for reprisal of the fourteen Plaintiffs as a ness” is a constitutional violation. exercising for their amend- first Losee, F.2d 334 Smith speech, our ment of free either (10th Cir.), find- court made any- the trial reason of conference or ings supported thing fact, prior uttered thereto.” *18 problems record, With these fundamental the nonrenewals were the met, opposition by disruption impermissible reasons, be is- group must be the anti-administration in that context. sues were considered balancing required comparable under examined not this Smith Losee is Pickering Education, v. Board of case. 1731, 20 L.Ed.2d U.S. S.Ct. the staff and teach- It obvious that is any if there are constitutional issues into divided two of the school were ers by proof, is raised and this doubtful. deep. factions, the division was balancing in a The cannot be done vacu- school had of the be- The effectiveness prob- um, but in the context of these impaired effect or as an come whether by The taken the Board of lems. action any cause, event there was but as as the must also be evaluated disruption was serious. and the situation by selected them an exercise solution as Regents and others The Board imposed upon of the One duties them. by problem was caused decided the go; group had to the administration de- division, set about and the Board group cided that anti-administration upon it. The decided was solve solution go. ap- should decision This does plaintiffs’ contracts. the nonrenewal of pear particularly surprising, to be but course, but the Board This a drastic was prohibitions this absent constitutional steps apparently felt drastic powers within action was necessary. related This division Board. problems apparently determined sufficiently disruptive to be serious and balancing by Pickering, required The suspension of the tenure necessitate by are raised where constitutional issues Regents. by the Board proof, basically for de- is a matter by probation the trial court. an in- termination as a fact
The on as school was The here made by trial court did so the North Cen- stitution accredited findings balancing Association, by Accrediting fact. This or con- tral by requirement imposed accrediting group department of edu- text was its facing just Supreme such a situation a de- Court for The school also cation. every enrollment, us. diffi- as is before case of and financial cline weights factors, president on each had left nature culties. former balance, unique problems. side of the are The North because of the force either side deter- team to case. The is had sent a Central Association particular president as an mined situation examine the school before the college. accumulation of all the factors. here had come to the involved designated presi- After he had been (391 Pickering U.S. Court said dent, him and the Association asked 1734): at 88 S.Ct. at them in some to meet with staff problem case to ar- “The is Chicago. according done, and This was the interests rive at a balance between president, testimony teacher, citizen, in com- as a told him there: menting public con- matters of you “They simply State, are de- said the interest of the cern and eighteen promoting ficient in about seventeen or employer, the effi- an per- the main trou- ciency different areas. But public services big ble, through trouble at employees.” forms its faculty.” devisiveness within the page page at 1735: Also S.Ct. apparent of the enormous the school at “. . Because It thus variety in which pertinent situations here was in trouble. fact time enough. statements teachers deficiencies would critical Seventeen be may hap- employees only thing public other which had About against thought superiors, pened imposition of NCAA directed, whom the statements sanctions. *19 grounds dismissal, pression we furnish for do under the first amendment and appropriate right sovereign not deem either or fea- the operate of a state to general attempt lay sible to to down a a in a manner in which its elect- against appointed standard which all such state- ed and officials think best will may judged. However, in ments be serve its state But to draw interests. evaluating the the conflict- course such difficult, a fence im- line if not is pro- possible, claims of First Amendment surely it must meander orderly tection and the flexibility need school with considerable and accom- administration in the context of this majority however, modation. The has, case, apparently agreed we shall some of the straight indicate to a line al- general along analysis lowing lines an totally unrestricted academic controlling speech, interests should protected has it with barbed run.” words, wire and and has the state left entangled. agree I cannot and must dis- again Court, In the before in facts exigencies sent for the of the case we Pickering, it said: dramatically here indicate, consider to “. . are in no The statements me, boundary. a different way any person towards directed appellant normally whom in be complete my I am in accord with daily contact in the course of his work Brother in views dissent. Here Seth’s question as a teacher. Thus no college strangling was a in the adminis- maintaining discipline by im- either tape disruption trative of discord and among superiors harmony mediate by independent analyst termed an presented coworkers here.” faculty divisiveness. This imbalance continuing frequently The referred was a divisiveness to one with the interest college ap- the record division state an efficient camps by proaching, rapidly, into two the ac- referred an absolute zero. examining majority creditation The Court Faced with team. this dilemma particular Regents, the cited case had a convinced that state- the Board of place context; particularly ment president, simply we have here only general unconstitutionally imposed subjec- tone or as de- but attitude upon plaintiffs. scribed This makes it difficult tive will me, above. To anything except impact upon reasoning see this rationale and the faculty. majority opinion the school of the imposing division consists of original findings appellate and con- disruption This is not an instance of clusions, perhaps allowable the record riots, fires, demonstration, but of way dictated, but in no so direct kind, a different also with conse- serious contradiction of the factual determina- quences. examining teams found tion of the trial court. The term divi- problem. this to It most serious siveness found the trial court significant must be evidence of the premise subject discharges describes plaintiffs’ effect of the action inac- part includes ef- discordant upon operation tion school. impose forts group We don’t have to decide which subjective operation of views right. Regents Board of college. My Brother Seth summariz- authority position take a es the case well when he “The states: carry decision, out its did and this it authority Board of had the within constitutional limitations. position carry take a and to out deci- its judgment I would affirm the sion, and this it did within constitution- district court. al limitations.” LEWIS, Judge (dissenting): Chief BARRETT, Judge (dissent- Circuit again attempted Once this court has ing) : legal line to draw fence between respectfully dissent. ex- teacher to exercise valid
lili
arising
of their free
out
I.
*20
24,
April
press conference
1973
impression that
The
lends
court
“
they
.
exercised their
.
. because
together
evi-
Complaint,
with
right
expres-
speech
freedom of
arguments
presented
ad-
and the
dence
criticizing
and disa-
sion-
defendants
al.,
trial,
by Rampey,
raised
et
at
vanced
greeing
policies.”
para-
their
See
rights of free
of First Amendment
issues
10,
graphs
Complaint
13
11 and
press
beyond
April
1973
7-8).
I,
(Appendix,
pp.
The court
Vol.
supported
not
conference. Such
incorrectly observes that while the 14
only First
sole and
The
the record.
“originally”
were
press
that “the
the belief
urged
presented and
Amendment issue
by
conference had been the cause
appeal related
on
at trial and
the 14
having
their
been
later
fired”
press
exclusively
to the
conference.
changed
sup-
their belief. This finds no
findings
confirm
trial court’s
my
port
have,
the record. We
only
press
remarks raised
conference
opinion,
judgment
reversed
specific
Amendment issue for
trial
First
grounds
pled
Trial
on
re-
Court
not
or
determination:
upon
Plaintiffs-Appellants’
lied
plaint
Com-
me,
quite
To
ing
the evidence is
convinc-
urged
argued
or
either at trial
not
that Dr. Carter had intended
appeal.
this court on
before
recommend thirteen
fourteen
questions of
While First Amendment
me,
prior
press
To
conference.
jus
“constitutional fact”
been held
have
testimony
Black cinch-
of Annette
review,
appellate
tification for
de novo
point.
me
tell-
es
ing
She struck
this
Metromedia, Inc.,
Rosenbloom v.
U.
403
unquestioned
truth.
She
1811, 29
296
S.
91 S.Ct.
L.Ed.2d
typed
press
before the
confer-
list
(1971),
only
permitted
un
still such is
Dr.
It
Carter’s list.
ence.
was Dr.
exceptional
der
in order
circumstances
conference,
prior
press
Carter,
prevent-
injustice,
manifest
and then
singled
out at least thirteen
only
properly presented
judicial
if
fourteen for non-renewal
...
Williams,
determination.
420
Gomes v.
list,
independent
study
think
1970).
(10th
F.2d 1364
Issues
Cir.
to fn the trial
referred
sometimes
presented
raised and
trial court de
played
.
the
significant
list
.
.
execution
termination
not to be
on
considered
atmosphere
part
except
prevent
appeal
in order to
mani
going
or not
whether
contracts
injustice.
Company
fest
Eureka-Carlisle
be
renewed.
Rottman,
(10th
v.
1115 press criticisms, containing conference names of leased a list not a personnel non-retention of the 14 was denial those —administrative “liberty” “property” by interests and for the next to be rehired charges stigmas year, prepared there were no against a list academic school foreclosing employ- them other typed Black Annette Dr. Carter and Roth, ment. press Board of conference. in advance of the well ap- appellants U.S. at 2701. S.Ct. The names of none of the peared testified on the Dr. Carter list. “grant” appeal appear we ten- On crossed Dr. name had been Ward’s retry appellants ure to and to morning on the off of the list involving the case on a de novo basis Regents meeting Board of “finding” deprivation rights, of civil joined referred to whom he subjective most Amendment liber- First participating as dissidents ty: “person- freedom Dr. from Carter’s conference, and that this convinced ality purported attempts control” his cooperate him Dr. would not that Ward require (a) 14 to: “conform to with his administration. image president”; (b) cease
activities which he
a “threat” to
saw as
presidency;
(c)
“disagree-
III.
cease
ments” with him in areas where Carter
previously
observed
We have
disagreement”;
“does not tolerate
innuendo,
court, by strong
infers
(d)
“patterns”
“conform” to his
that—
were tenured and
each
the 14
grounds
“molds”.
stance,
If these
have sub-
by necessary
de-
implication they were
—
is,
the avenue for their redress
process
incident
nied certain due
my opinion, exclusively
ju-
within
statutes,
e., notice
i.
tenure
state
sovereign
risdiction of the
State
non-renew-
for termination
cause
and/or
They
Oklahoma.
fed-
do
rise
hearing
al, impartial
administrative
protections
eral constitutional
under
appeal to
courts. We
the state
First Amendment.
the causes
do not decide here whether
and others
further
reference to the Trial
testified
Dr. Carter
With
of a
it should abstain
in the sense
Court’s decision
would “hold water”
challenge. That,
statutory
tenure
after
from a determination of the
interpretive
issue
tenure
all,
*24
law,
exclusively
the do-
of
we here
within
Oklahoma
is a matter
ignore
sovereign
of Okla-
our
a determina
rule that such
main of the
State
by
judge
event,
any
is a resi
from this
tion
a district
who
homa. In
we know
controversy
only
of
constitution-
dent
the state where the
record that the
federal
extraordinary persuasive
rights
appellants
al
carries
issue
arose
hearing
appeal.
Jarvis,
v.
477
would have raised in such a
Stafos
force
denied,
alleged
1973),
reprisals
(10th
for ex- F.2d
cert.
that directed to
369
Cir.
ercising
944,
230,
protected
Amendment
38 L.Ed.2d
First
414 U.S.
94 S.Ct.
Smylie
(1973); Hardberger
speech
press
Not-
and
v.
at
168
conference.
Liability
withstanding
facts,
Employers
the court
Mutual
Insurance
these
Wisconsin,
Company
Of
abstention
list
did in-
participate
in
of this case would be
fluence
decision to
circumstances
his
proper
press conference;
keeping
promotion
(5) that
with the
of
none of
objections,
any
in the interest of
voiced
relations
their
Federal-State
H
of
judicial
views,
in rec-
administration
demands
recommendations
sound
ognition
comity.
by
principles
press
made
them at the
at
conference
This,
appropri-
any
previous
submit,
particularly
Carter,
time
thereto to Dr.
By
Feree, any
abstention we Dr.
ate
the ease at bar.
administra-
any
(1)
needless conflict with
tors or
would:
avoid
members
the Board
Re-
gents.
of its
state
the administration
affairs,
own
Public Service
[Alabama
V.
Railway Co.,
v.
Commission
Southern
762,
341,
L.Ed. 1002
similarity
341
71
95
U.S.
S.Ct.
I see much
between
Hargrave,
(1951),
401
opinion
Askew v.
U.S.
trial court’s
at
the case
bar
476,
856,
opinion
91
L.Ed.2d
S.Ct.
28
196
and the
of this Court
in Fisher
(1971)];
(2)
Walker,
of Okla-
(10th
leave to
State
v.
1117
may
support
Complaint,
not likewise
of
fact
in view the
believe
damage judgment
against
legislature
in
awards
vested
has
Oklahoma
Losee, supra.
appellees.
v.
See Smith
Board of
President and
operate
obligation manage,
con
and
to
not abso-
of free
attendant
trol
grant
under
—with
at all
and
all circum-
lute
times
authority
discretionary
broad
Hampshire,
Chaplinsky v. New
of
stances.
n —-that who
bear
under them
all
serve
568,
766,
1118
VI.
and,
officials—administrators
board
discretionary
members—are
in nature—
Losee,
The case at
is not Smith v.
bar
distinguished
from those which are
supra,
revisited. This is so because
ministerial in
are immune
critically distinguishing aspects.
nature —
several
judgment
long
from
court
so
as the
First,
case,
instant
unlike
acts are done without malice.
sharply
Smith,
are
the material
facts
Our
puz
instant decision is the more
.
critically
dispute going
proof
zling
light
opinions
of recent
action, i.
of the fundamental
basis of
Supreme
Court
Gertz v. Robert
e.,
whether the exercise
free
Welch, Inc.,
323,
2997,
U.S.
94 S.Ct.
Amendment
at
First
(1974),
1119 recognition campus punishment prescribes for an of official group which unbecoming “disruptive influence”, officer an be a ficer for “conduct Healy gentleman”, James, 169, v. Art. which 408 U.S. 92 134 S.Ct. 2338, alia, (1972), disorders and 33 266 “all L.Ed.2d punishes, inter Su recently neglects good preme rejected challenges prejudice order of Court 7501(a) discipline armed forces.” 5 U.S.C. of the civil service § Avrech, code, Navy Secretary v. which authorized removal of or sus See also pension pay U.S. —, 3039, L.Ed.2d 41 such 94 cause — S.Ct. without “for involving promote efficiency conviction (1974), will the serv 1033 of ice”, charges publishing “with as unconstitutional on the of a basis statement of being vague. Arnett, disloyalty dis design promote overbroad and among troops”; Director, Opportuni Schneck Office Economic affection 218, Kennedy, 134, ty, S. Bustamonte, 93 et al. 416 U.S. v. U.S. 94 412 S. loth v. 1633, (1974). (1973); 2041, 40 L.Ed.2d These United Ct. 15 L.Ed.2d 854 Ct. 36 348, harmony 89 Augenblick, decisions soning in with the rea 393 U.S. are v. States Thus, (1969). Martin, 528, in Hetrick 537 contained v. 21 L.Ed.2d S.Ct. Supreme supra, to the Court effect that the school ad while the United States striking may reversing down ministration refuse to a the trend renew challenged regulations displeasure on teacher’s contract because of statutes grounds “pedagogical attitudes”, as overbroad with his or her First Amendment travelling involving subjective vague, completely to be reasons we seem and/or in condemning teaching opposite in nature. direction Fitness for rests range factors, subjective upon many ill-de a restraints on broad new-found rights. hazy largely subjective are Amendment tested fined and First analysis. personality These include atti inequality ain there some That exists administrators, tudes toward fellow justify system is not sufficient school students, personal appear teachers and judiciary federal intervention demeanor, dress, ability ance, willing only management. state where It is its communicate, philosophical ness atti impinges fun- on the exercise action general tudes and character traits. rights or liber- damental constitutional may inter- courts ties the federal judiciary must be ever alert not local dedication to a fere with state’s nonjusticiable political drawn be into judiciary education; control of jurisdic questions no over which it has manage designed operate legal justiciability tion. concept is not While a Board Rider v. of Educa- New schools. suscepti fixed with a content Independent No. District School tion of verification, ble to scientific v. Flast Oklahoma, 1, County, F.2d 480 Pawnee Cohen, 392 U.S. 88 L. S.Ct. 20 (10th Cir. (1968), Ed.2d 947 be we must ever Education, Pickering ques v. mindful true Board that the nature of supra, propounded judicial for the Court stated: tions resolution subjects solely are not fact committed arrive problem in case is political government. branches of the interests at balance between a Carr, Baker v. 691, 82 S.Ct. U.S. citizen, teacher, as in comment- (1962). 7 L.Ed.2d reiterate public concern matters expressed my views dissent Smith State, an interest of Losee, i.e., supra, school admin efficiency promoting employer, and members of boards of edu istrators performs public it services absolutely cation immune from through employees. its suit, but that I would hold them liable at 88 S.Ct. 1735. U.S. only discretionary performed acts upheld president’s Just as manner —in a malicious reckless and particular subjective disregard conclusion that wanton the known campus organization acting abusively should denied others. Persons so *28 any immunity entitled are other actions —in-
privilege. If their by cluding the Court those attributed by author- state deemed Dr. Carter —are contrary interest to the best ities institution, state the students and policing capable perfectly officials internal affairs. expect adminis- school unreal It is charged with a wide boards
trators and obligations statutory range of —almost discretionary entirely in nature —to dis- reasoning. By stripping subjective card authority and of their officials such including judgments, exposing them logical damage judgments, it is
personal and boards Do administrators to ask: empowered directed education manage govern, control law state any such retain educational institutions authority, in- those do effect, now, practical con-
stitutions operate them federal court trol
fiat? trial court. affirm the
SAFEWAY PORTLAND EMPLOYEES’ UNION, FEDERAL a Feder- CREDIT Union, Plaintiff-Appellee, al Credit CO., INC., H. &
C. WAGNER a Massachu- corporation, al., setts et Defendants- Appellants.
No. 72-1429. Appeals,
United States Court of
Ninth Circuit.
Aug. 1974.