THORNBERRY, Circuit Judge:
At the time this suit was filed in federal court, the appellants, Mr. Willie Fluker and Mr. Richard Parsons, were nontenured members of the faculty of Alabama State University, a state institution of higher learning. Fluker had been employed as a history instructor by the University for the 1968-69 school year under a one-year probationary contract, and was re-hired under a similar one-year contract for the 1969-70 school year. Parsons had been employed as an art instructor under the same terms and conditions and in the same years as Fluker. On December 15, 1969, the President of the University, Levi Watkins, informed each appellant by letter that his contract would not be renewed for the 1970-71 academic year. The President gave no reasons for his action.
Without requesting from President Watkins any hearing or explanation for the nonrenewal of their contracts,
Pursuant to the court's order, and on the same day it was entered, President Watkins notified Fluker and Parsons each by letter of the reasons for the nonrenewal of his teaching contract. These letters explained that the University wished to employ a person with a doctorate degree in its history department, and a person with a Master of Fine Arts [MFA] in its Art Department "in order to strengthen the facult[ies]" in the History and Art Departments and "in order to comply with the standards of the Southern Association of Colleges and Schools." These letters went on to explain that "in order to make room for the person[s] coming, it [would] be necessary to terminate the services of one existing member" of each Department. Finally, the letters stated that a review of the training and experience of the History and Art faculties had revealed that Mr. Fluker was the only person who had not acquired tenure in the History Department and had been the last person employed in History; and that in the Art Department Mr. Parsons had not acquired tenure and had the least amount of teaching experience and training of anyone in that Department. These letters also invited Fluker and Parsons to attend a hearing on the proposed nonrenewal of their contracts, which hearing was scheduled for April 7, 1970.
The hearing was before the University's Advisory Committee on Faculty Personnel, which is composed of three professors elected by the faculty to hear faculty grievances. The parties were present and represented by counsel. All parties agreed by stipulation upon the procedure to be followed.
At the commencement of this second hearing before the district court the judge announced his intention to hear any "new additional testimony" that Fluker and Parsons had to present, but requested that they avoid reiteration of testimony presented before the Committee. At this point the attorney for the University objected, arguing that all the parties had been given a full opportunity to present all evidence on all issues in the case before the Faculty Advisory Committee, and that the hearing before the court should be limited to a review of the record made at the hearing. The district judge expressly denied the University's motion on this point and proceeded to conduct a full and independent hearing on the controversy.
"The evidence in the case reflects that the defendant, Levi Watkins, acting as President of the Alabama State University, on or about December 15, 1969, notified each of those plaintiffs in writing that they would not be reemployed as instructors or in any capacity with the University. No basis was given in that notification for the action taken by the school authorities. However, the evidence is clear — as a matter of fact, it is uncontroverted — that each of the plaintiffs were then officially put on notice that their contracts would not be renewed; that their probationary status would be terminated at the end of the second contract period.
"This Court finds further that each of the plaintiffs have been accorded, fully and completely, any and all procedural rights to which they were entitled. The Court further finds that, even though the plaintiffs occupied a probationary status, even though they did not have any tenure, they are entitled to their constitutional protections — particularly their right not to be punished or to have sanctions imposed upon them by reason of the exercise of their First Amendment rights.
"Another legal principle with which the Court must deal in this case is the hiring and the firing, employment or re-employment, and refusal to employ or re-employ, generally and basically must be vested in the school authorities. There is a factual basis presented to this Court in this case for the action taken by the defendants, acting through the President, Dr. Watkins, for terminating the employment of and for the failure and refusal to re-employ either of these plaintiffs, which basis does not violate any constitutional right vested in the plaintiffs. The evidence in the case convinces this Court that the action taken by the defendants was an altruistic or altruistically motivated action to strengthen the faculty; it was based upon educational and administrative sound principles and reasons as to both the plaintiff, Fluker, and the plaintiff, Parsons. More specifically, and particularly insofar as the plaintiff, Parsons, is concerned, the evidence in this case reflects there are four fulltime faculty members in the Art Department at the university — or there
"The Plaintiffs seem to place some emphasis in this case on activities in which they say they participated during the period of unrest and agitation on the Alabama State campus in May of 1969. They seem to contend that this gives them some insulation from being selected for termination. The Court finds that there is no — first, there is no basis in fact for the contention on the part of the plaintiffs that their activities constituted a basis for the action taken by the school authorities. The Court doesn't find it necessary to determine in this case whether the activities engaged in by each of the plaintiffs in this case and the attitudes of each of the plaintiffs toward the college administration would sustain the action of terminating their employment. I make no findings on that point."
Based on these findings and conclusion, the district court entered an order denying appellants' motion for preliminary injunction, and denying any and all other and further relief sought by both parties. From this final order, appellants prosecuted the instant appeal.
Fluker's and Parsons' specifications of error on this appeal may be classified under two major headings: (1) Procedural issues and (2) factual issues. Although we are of the opinion that the basic issue in the case is whether the district court's findings pass the "clearly erroneous" test of Rule 52(a), F.R. Civ.P., we will deal fully with each issue the appellants raise.
First, the appellants contend that the district court erred in placing on them the burden of proof to show that their First Amendment rights had been violated.
Appellants also raise a number of procedural issues having to do with the adequacy of the University's general handling of the non-renewal of their contracts. First they insist that they did not receive timely notice of their non-reappointment, in violation of the University's own rules. The pertinent University regulation requires that "if a probationary faculty member is not to be recommended for reappointment, notice is given to him in writing by the President no later than * * * December 15 of the second year of service if the appointment expires at the end of the academic year." Appellants do not dispute that they received a written notice of their termination on December 15, 1969, in compliance with this regulation. Appellants argue, however, that this notice did not count, for several reasons. They contend that the effect of the December 15 notice was erased by the trial court's first order in this litigation, entered March 31, 1970, in which it set aside the action taken by the University on December 15, pending the outcome of the faculty committee hearing.
Appellants' final complaint about the fairness of the University's actions bears on the adequacy of some of the procedures surrounding the hearing before the Faculty Committee. The asserted defects are twofold: First, appellants claim that certain members of the Faculty Committee were biased against them
This brings us to the second major heading of issues raised by the appellants, their contentions that the district court's factual conclusions are not supported by the evidence. Since the proceeding in the district court constituted an independent hearing on the facts, the scope of our review is limited to a judgment whether the court's conclusions were "clearly erroneous." F.R.Civ.P. 52 (a).
Fluker and Parsons raise two factual contentions here, one of which is actually a postulate of the other. First, they insist that the facts do not support the University's stated reason for its action.
Under the law of this Circuit, when a complainant has not charged the violation of substantive constitutional rights in the nonrenewal of his contract, the courts will not inquire into the reasons for the State's action, or the adequacy or factual support for those reasons. Thaw v. Bd. of Public Instruction, supra; Sindermann v. Perry, supra. When the violation of substantive constitutional rights has been charged, however, to the extent that the absence of factual support for the stated reasons for the University's action tends to prove that some other constitutionally impermissible reason underlies the action, the courts should examine the credibility of the University's stated reasons. Johnson v. Branch, supra. Thus, in the instant case, if the appellants could demonstrate that there was no factual basis for the University's action, this would tend to prove that other, constitutionally impermissible reasons motivated the University's action. On the other hand, even if the facts do support the stated reason for the University's action, the appellants would still not be precluded from demonstrating that constitutionally impermissible purposes were also involved. Cf. Johnson v. Branch, supra. With these principles in mind, we turn to a review of the district court's findings of fact.
The district court found that "the action taken by the [University] was an altruistic or altruistically motivated action to strengthen the faculty." In both the hearing before the faculty committee and the district court, Fluker and Parsons sought to discredit the "altruism" of this motive by putting on testimony which they thought revealed some imperfections in the University's plans and reasoning. For example, the University's academic Vice-President, Dr. Reid, testified that to meet the accreditation requirement of the Southern Association, one-fourth of the History faculty should hold the earned doctorate. At the time of the hearing, the University's History Department included one doctorate in six full-time members. Thus, Dr. Reid testified, it would be necessary to replace one nondoctorate member of the History faculty with a doctorate to meet the minimum twenty-five percent. On cross-examination, in an apparent effort to prove that an additional doctorate was not needed in the History Department, appellants' attorney asked Dr. Reid whether two doctorates out of six was not more than 25%, and whether he would concede that 25% of six could be either one or two. Appellants' counsel also attempted to impeach Dr. Reid's testimony by pointing out that another member of the History faculty was "close to earning a doctorate." Dr. Reid testified at the Faculty Committee hearing that he had not been aware of this particular faculty member's doctoral plans. But in a later June deposition, taken for the purposes of the hearing before the district court, Dr. Reid testified that he had since inquired about this particular faculty member's plans from the head of the History Department and had learned that "the doctoral degree would not be forthcoming in the immediate future." More important on this point, perhaps, is that the appellants themselves never produced affirmative evidence to prove the imminence of two doctorates in the History Department.
Another point which appellants raised at the Faculty Committee hearing to impeach the motives of the University was that there was actually no such entity as the History Department — rather, it was the Department of History and Political Science which as a unit
Furthermore, the Record shows that by June 1970, when Dr. Reid's deposition was taken for the purposes of the hearing before the district court, the University had hired persons with Ph. D's, or persons who would have received Ph.D's by the time the University began its fall semester, in Mathematics, English, Languages, Physics, Biology, and was making an effort to find a Ph.D in Business Administration. The appellants apparently would have this Court believe that this massive recruitment of new faculty was all part of an "ex post facto" effort by the University to justify the non-renewal of appellants' contracts. We find this charge singularly unpersuasive and we conclude that the Record amply supports the district court's findings that the action taken was altruistically motivated "to strengthen the faculty."
Even though we conclude that the Record supports the district court's findings with respect to the stated reasons for the University's actions, appellants might still obtain relief if they could establish their claim that the University's action was even partially in retaliation for their anti-administration activities. On this point, the district court found that "there was no basis in fact for the contention on the part of the plaintiffs that their activities constituted a basis for the action taken by the school authorities." The task before the appellants in this Court is therefore to show that the district court was clearly erroneous in this finding.
Fluker and Parsons presented evidence that they were instrumental in circulating a petition in May 1969 asking President Watkins to call a faculty meeting to discuss class schedules and the semester calendar for the duration of a semester in which certain campus disturbances had apparently interrupted the normal functioning of the University. Fluker and Parsons contended that President Watkins never answered this petition, but there appears in the Record a letter from President Watkins directed to the entire University Community in which he addressed himself to the very questions raised in the petition. Fluker and Parsons also asserted that twelve of the forty-five faculty members who signed the petition were "no longer employed
In addition to claiming that other members of the faculty had been discharged for alleged anti-administration activities, Fluker and Parsons also charged that another faculty member who had signed the petition had been demoted. The only evidence appellants presented to support this charge was that the particular faculty member's rank appeared to be reduced in the catalogue. Both President Watkins and Dr. Reid testified, however, that this was apparently one of several typographical errors in the University's catalogue. Again, on this point, as on their other points, appellants offered circumstantial evidence from which they apparently expected the court to draw a conclusive inference. They never produced direct evidence that any of these persons had been discharged or demoted. They never produced as witnesses the persons whom they claimed to have been discharged or demoted. We cannot say that the district court was "clearly erroneous" in declining to accept such evidence.
Fluker and Parsons also claimed that they had been active in the formation on campus of a chapter of the American Association of University Professors and that the University attempted to discourage their efforts to organize the AAUP Chapter. The Record we have before us, which of course, appellants had a free hand in constructing, simply does not support this charge. As a matter of fact, it appears that the Faculty Handbook of the University encouraged membership in the AAUP, and the Record also contains an issue of the ASU Items, a weekly newsletter published by the President's office, announcing the organization of an AAUP on the campus.
Another piece of evidence on which appellants rely to support their charge that they were dismissed in retaliation for their opposition to the administration is that they refused to answer a letter from President Watkins, which had been sent to twenty-five faculty members, asking for any information that these faculty members might have in connection with the disruption of classes experienced on campus. Appellants refused to comply. They seem now to rely on the solitary fact that they refused to comply to bolster their contention that their nonreapppointment was retaliatory. But, again, they presented no evidence that President Watkins ever took steps to induce their compliance or to reprimand them for their refusal to comply.
The last substantial piece of evidence offered by appellants to support their claim of infringement on constitutional rights was presented by appellant Fluker who claimed that he was "ordered to keep a record of every phone call and visitor to his office, and the nature or subject matter of the call or visit." The record Fluker kept is in evidence on this appeal. It is in the nature of an appointment book, which records the date and name of persons having appointments with Fluker. Under "nature of call," his visitors for the most part designated that the visit was either "friendly" or "academic." That Fluker kept his record is not disputed. That he was "ordered" to keep it most definitely is. President Watkins testified that he never ordered Fluker to keep such a record, but that he suggested to Fluker's department head that Fluker keep the record because of complaints that congestion in and near Fluker's office was disturbing other teachers. President Watkins testified that he made the suggestion in order to solve this congestion problem, and that he thought that if Fluker would ask his visitors to come on an appointment basis he could handle them in a more "systematic" manner. Appellants introduced no evidence to contradict President Watkins' statement. Moreover, Fluker never showed that he was required to turn the book over to authorities
We have examined the Record in this case carefully in search of any evidence of unconstitutional action by the University. We have found none. Fluker's and Parsons' allegations are either unsupported by the facts or contradicted by the testimony of other witnesses. Moreover, both Dr. Reid and President Watkins testified that Fluker's and Parsons' activities had nothing whatever to do with the University's decision not to renew their contracts.
In conclusion, we hold that the Record amply supports the credibility choices and fact findings of the district court, and we affirm the decision of the court below in all respects.
The Advisory Committee on Faculty Personnel, Alabama State University, after having considered all of the evidence, recommended that the proposed action of President Watkins not to reappoint Instructor[s] Willie J. Fluker [and Richard L. Parsons] for the year 1970-71 is hereby approved [or rejected].
See also text accompanying note 8 supra.