Jones v. Hopper , 410 F.2d 1323 ( 1969 )

PER CURIAM.

This appeal is from a judgment dismissing with prejudice the complaint of appellant Jones, an associate professor of philosophy. The basis of the dismissal was that the complaint failed to state a claim upon which relief could be granted. Appellees, who are the President and members of the Board of Trustees of Southern Colorado State College, filed the motion to dismiss upon which the judgment is based.

The dismissal of the complaint, drawn as a civil rights pleading, presents the issue of whether a claim is stated under the Civil Rights Act.¹

The complaint alleges jurisdictional facts,² identity of parties, their residence and citizenship, and the status of the college.

The complaint alleges the powers of the Board of Trustees are as follows:

“The Board of Trustees is vested by [§§ 124-17-1 and 124-5-1 Colo.Rev. Stats. (1963)] with the entire control and management of the affairs of the College, has general supervision of said College and the control and direction of the funds and appropriations made thereto, with power to appoint and remove all subordinate officers, professors, associate professors, teachers, assistants, employees or agents, in, about, or concerning said College, to appoint or employ, discharge and suspend, contract and fail to renew contracts of employees and other subordinates, and to fix the salaries of each and prescribe their several duties. They further have the power and authority to prescribe the various books and texts to be used in the Colleges, the courses of study and instruction and to make all needful rules, regulations and By Laws for the good government and management of the same. The actions of President Hopper, hereinafter described, were approved, authorized and ratified by said Board of Trustees, and each of them.”

It is further alleged the acts complained of are exercised under color of the statutes, regulations, customs and usages vesting the power above averred.

The complaint further alleges that Jones was given notice that his services would be terminated at the end of the academic year by a letter sent from the President and authorized by the Board which is attached to the complaint as Exhibit A.³

The complaint then continues with a partial description of the “John Dean case” referred to in the above exhibit.

The curriculum vitae of appellant Jones is set forth in the complaint as well as the details of his association and status with Southern Colorado State College. In this description of his status with the college, Jones points out that the duration of each appointment under which he served was one year and that it was at the end of his second appointment that the ap-pellees determined he would not be reappointed.

The allegations then conclude that the reason Jones was not reappointed was because he had exercised his constitutionally protected rights⁴ in the following manner: ,

(a) He objected to the disqualification of an applicant for his department because the applicant was an Oriental.

(b) He attacked an English department textbook in a student newspaper.

(c) He founded an independent faculty-student publication which contained articles criticizing the war in Viet Nam, commenting on labor problems and pacifism, and an article objecting to monitored classrooms.

(d) He supported the student, John Dean, referred to above in Exhibit A, who had been committed to a hospital pursuant to a court order obtained by his parents as a result of the student’s attempt to register with his draft board as a conscientious objector.

Jones averred he was a pacifist by religious conviction and that his views expressed orally and by writing on this subject were an exercise of his religious freedom.

He concluded that because of the above conduct and actions an expectancy of continued employment was terminated which was an injury to an interest which the law will protect against invasion by acts in violation of the Civil Rights Act.⁵

Jones alleges he was damaged as a result of the failure to renew his teaching contract, and relief is prayed for in the amount of $300,000.00.

The second claim of Jones’ complaint by reference adopts the foregoing allegations describing them as a conspiracy to punish him for exercising his constitutional rights granted by the First and Fourteenth Amendments. He further concludes he was denied equal protection under the law.

The basic requirements of a complaint based upon 42 U.S.C. § 1983 are: (1) that the conduct complained of was engaged in under color of state law, and (2) that such conduct subjected the plaintiff to a deprivation of rights, privileges, or immunities secured by the Federal Constitution and laws.⁶ The allegations necessary to state such a claim, as in the case of any other civil action in the federal courts, are not to be held insufficient unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.⁷

When we examine the complaint herein in the light of the foregoing rules, we are directed to ask: What guaranteed right, privilege or immunity was denied Jones which is protected under the Constitution and laws?

The complaint alleges the refusal of the appellees to reappoint Jones after the term of his current appointment expired.

Jones contends the appellees, authorized by the Colorado statutes to administer the college, have denied him a right of expectancy to continued employment because he exercised freely his constitutional rights of speech, publication and religion. Jones cites only Bomar v. Keyes ⁸ as authority recognizing this expectancy interest.

Bomar, supra, related to a high school instructor who relied upon a probationary contract of employment which was terminated in October during the academic year. The court assumed that Bomar’s discharge was not a breach of contract,⁹ but identified her interest in the following language: “Nevertheless, it may have been the termination of an expectancy of continued employment, and that is an injury to an interest which the law will protect against invasion by acts themselves unlawful, such as the denial of a federal privilege.”¹⁰ The federal privilege involved was jury service.

Analyzing this language, we direct ourselves to the question: What is the source of the interest? In seeking the answer we must take the facts into account.

The contract which established the interest attributed to Bomar was a probationary contract of employment between Bomar and the Board of Education. Keyes was not privy to the contract; therefore, the court could assume that Bomar’s discharge was not a breach of contract. Keyes, however, by complaining to the Board, had interfered with the interest stemming from the contract existing between Bomar and the Board of Education. This analysis is sustained by the Restatement of Torts § 766 (1939) ¹¹ which is cited as authority in Bomar.

The source of the interest in Bomar is the contract. The action sounds in tort against one not privileged to interfere with the contract.

The complaint in our case makes no allegation or inference that a contract existed. Jones’ complaint expressly concedes that his “termination was not a breach of contract,” thereby admitting that a contract did not exist. Accordingly, the interest which Jones seeks to assert cannot be derived from a contract.

We now look to the Federal Constitution and laws for the source of the interest secured.

The Supreme Court has consistently held, “the interest of a government employee in retaining his job, can be summarily denied. It has become a settled principle that government employment, in the absence of legislation, can be revoked at the will of the appointing officer. * * * This principle was reaffirmed quite recently in Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012.” ¹² The foregoing must be read in the light of the principle enunciated in Pickering v. Board of Education,¹³ which quotes Keyishian v. Board of Regents.¹⁴ The principle stated teaches that public employment may be denied altogether subject, however, to the restriction that unreasonable conditions may not be imposed upon the granting of public employment.¹⁵ There is nothing in the complaint to warrant an inference or conclusion that the Colorado statute nor its application herein went “beyond what might be justified in the exercise of the State’s legitimate inquiry into the fitness and competency of its teachers.” ¹⁶

As a matter of fact, there are no allegations relating to conditions of employment of professors or assistant professors at Southern Colorado State College. The complaint merely alleges the duties and authority of the administrators. Therefore, we can find no where in the complaint an allegation of any identified interest which is secured by the Federal Constitution or laws.

The complaint alleges a Colorado institution involved, governed by the laws of Colorado identified in the pleading. Appellant was a professor at this institution of learning. “It is clear that a professor is not an officer, but an employe under contract to fill a chair of learning”.¹⁷

The complaint alleges Jones was appointed for an academic year and then reappointed and served the entire second appointment. He was notified he would not be reappointed for a third academic year. The alleged interest deprived was in the appointment for a third year. It is admitted he did not have a tenure privilege either by Colorado law or contract. “Among the most fundamental rules of the law of master and servant is that which recognizes that, absent an applicable statutory or contractual provision to the contrary, an employer enjoys an absolute power of dismissing his employee, with or without cause.”¹⁸

Southern Colorado State College is a state academic institution organized and existing under Colorado law which vests the government and management of its affairs in a board of trustees which has among other vestitures “power to appoint and remove all subordinate officers, professors, associate professors, teachers, assistants, employees or agents, in, or about, or concerning said college, to appoint or employ, discharge and suspend, contract and fail to renew contracts of employees and other subordinates. * * ” (recited in complaint as set forth, supra).

We think this provision precludes Jones from having the relief he seeks in this proceeding. His claimed interest must find its source in his expired appointment which constituted whatever contract existed. The provision above acknowledged became a part of any contract that may have existed between him and the college.

The provision specifically denies an expectancy to continued employment; therefore, absent an expectancy, there could be no interest.¹⁹ “One has no constitutional right to a ‘remedy’ against the lawful conduct of another.” ²⁰

As demonstrated above the right, privilege or immunity Jones alleges he was deprived of is non-existent.

We believe the appellees herein were exercising a discretion given them by the power vested under the Colorado statute set forth in the complaint. The exercise of this discretion cannot, under the facts alleged in the complaint, become unlawful conduct which would justify its falling within the ambit of the Civil Rights Act.

“Because of the special needs of the university, both public and private, great discretion must be given it in decisions about the renewal of contracts during the probationary period. In deciding whether to rehire or grant tenure, the considerations involved go well beyond a judgment about general teaching competence.” ²¹

“ ‘Will the interests of an institution of learning be promoted by dispensing with the services of a particular professor?’ And yet if we assume that the statute of the state is of any virtue, it is just such a question that the plaintiff in error sought to have determined in the Circuit Court. It is a question which, in our opinion, the Legislature intended to commit to the sound judgment of the regents who are selected because of an especial fitness for the performance of such duties, and who, by their experience and their intimate familiarity with the institution, are qualified to exercise that discretion in a far sounder manner than any court or jury could be qualified by evidence adduced through witnesses. It is elementary that no cause of action can arise from the lawful exercise of a statutory power in the absence of an express provision conferring it. It is also a principle of law as securely founded that an exercise of a power by an administrative board or officer to whose judgment and discretion it is committed is not a proper subject of review by the courts when fraud or conditions equivalent thereto do not exist.” ²²

“It would be intolerable for the courts to interject themselves and to require an educational institution to hire or to maintain on its staff a professor or instructor whom it deemed undesirable and did not wish to employ. For the courts to impose such a requirement would be an interference with the operation of institutions of higher learning contrary to established principles of law and to the best traditions of education.” ²³

The second claim re-alleges the various acts complained of in the first claim and describes the charge in the nature of a conspiracy to deprive Jones of claimed rights under the Civil Rights Act and the Constitution of the United States. The complaint alleges 42 U.S.C. §§ 1983, 1986 and 1988 in its jurisdictional allegations and 42 U.S.C. § 1985(2) and (3) in its second claim. Combining them we examine what has been alleged in the complaint as a conspiracy on the part of ap-pellees to deprive Jones of the rights claimed.

If one does not rely on the provisions of 42 U.S.C. § 1985(3), relating to going in disguise, the existence of a conspiracy is an essential allegation in the complaint based upon the substantive law of the state.²⁴

The complaint is based upon an act established by the Colorado statutes authorizing the exercise of discretion by the appellees. We concluded above there was not an unlawful or a wrongful exercise of the discretion claimed under the facts alleged.

Colorado has stated the rule, “[A]n action for conspiracy can not be successfully maintained unless the purpose to be effected is unlawful or a lawful purpose is accomplished by an unlawful means.” ²⁵

This court has recognized the similar Utah rule regarding whether or not the action complained of is justified.²⁶

The trial court concluded that under the Colorado statutes the exercise of discretion was authorized and justified. We agree and affirm.

Affirmed.

1 . 42 U.S.C. §§ 1983, 1985, 1986 and 1988.

2 . Jurisdiction of the court is invoked under 28 U.S.C. §§ 1331 and 1343, as well as under 42 U.S.C. §§ 1983, 1986 and 1988 of the Civil Rights Act.

3 . Exhibit A: “February 25, 1966 Dr. George Jones, Jr. 1401 Greenwood Pueblo, Colorado 81003 Dear Dr. Jones: I regret to inform you that at the end of this academic year, your services with- Southern Colorado State College will be terminated.

“So that there will be no misunderstanding, I wish to point out that this decision was arrived at before the publicity surrounding the John Dean case. Prior to the John Dean case, the Chairman of the Division and the Dean of the College and I agreed upon this decision. The Chairman of the Executive Committee of the College from the Trustees of State Colleges in Colorado -was likewise informed at that time.

“I trust and hope that you will find future employment which will be satisfying to you. Yours truly, /s/ J. V. Hopper, President.”

4 . Under the First and Fourteenth Amendments to the United States Constitution.

5 . 42 U.S.C. §§ 1983, 1985, 1986 and 1988.

6 . Flemming v. Adams, 377 F.2d 975 (10th Cir.) cert. denied, 389 U.S. 898, 88 S.Ct. 219, 19 L.Ed.2d 216 (1967) ; Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963).

7 . Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ; Keenan v. Looney, 227 F.2d 878 (10th Cir. 1955).

8 . 162 F.2d 136 (2d Cir.) cert. denied, 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400 (1947), rehearing denied, 332 U.S. 845, 68 S.Ct. 266, 92 L.Ed. 416 (1948).

9 . “By [tileJ word [privilege] we understand a freedom to assert a legal right or a legal power * * *. The [state] statute provides that ‘the educational affairs of each city shall be under the general management and control of a board of education.’ * * * we assume that her discharge by the Board was not a breach of contract at all.” Bomar v. Keyes, 162 F.2d at 139.

10 . Id.

11 . “Except as stated in Section 698, one who, without a privilege to do so, induces or otherwise purposely causes a third person not to (a) perform a contract with another, or (b) enter into or continue a business relation with another is liable to the other for the harm caused thereby.”

12 . Cafeteria & Rest. Workers Union, Local 473, A.F.L.-C.I.O. v. McElroy, 367 U.S. 886, 896-897, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1961).

13 . 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

14 . 385 U.S. 589, 605, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967).

15 . Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).

16 . Id. cat 490, 81 S.Ct. at 253.

17 . State Board of Agriculture v. Meyers, 20 Colo.App. 139, 77 P. 372, 373 (1904). See also 75 A.L.R. 1352 (1955). “The courts are almost unanimous in holding that the position of a teacher is that of an employee, resting on the contract of employment, and not that of public officer.”

18 . 51 A.L.R.2d 745, § 2 (1960).

19 . See Freeman v. Gould Special School Dist., 405 F.2d 1153, 1158 (8th Cir. 1969) ; Cobb v. Howard University, 70 App.D.C. 339, 106 F.2d 860, cert. denied, 308 U.S. 611, 60 S.Ct. 175, 84 L.Ed. 510 (1939).

20 . Senn v. Tile Layers Protective Union, 301 U.S. 468, 483, 57 S.Ct. 857, 864, 81 L.Ed. 1229 (1937).

21 . Developments in the Law — Academic Freedom, 81 Harv.L.Rev. 1045, 1101 (1968).

22 . Ward v. Board of Regents, 138 F. 372, 377 (8th Cir. 1905).

23 . Greene v. Howard University, 271 F.Supp. 609, 615 (D.D.C.1967).

24 . Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962).

25 . Contract Main. Co. v. Local No. 105, Bldg. Serv. Emp. Internat’l Union, 160 Colo. 190, 415 P.2d 855, 856 (1966).

26 . Bank of Utah v. Comm’l Sec. Bank, 369 F.2d 19, 28 (10th Cir. 1966), cert. denied, 386 U.S. 1018, 87 S.Ct. 1374, 18 L.Ed.2d 456 (1967).