Elizabeth Anna Duke v. North Texas State University

469 F.2d 829

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 10, 1973
• Docket: 71-3198
• Status: Published

Opinions

AINSWORTH, Circuit Judge;

Mrs. Elizabeth Anna Duke filed this complaint on May 13, 1971, against North Texas State University¹ pursuant to 42 U.S.C. §§ 1981² and 1983 ³, alleging that the University violated her First, Fifth and Fourteenth Amendment rights pertaining to freedom of speech and due process of law when it withdrew an offer to employ her as a teaching assistant for the academic year of 1970-71. After a hearing, the District Court, 338 F.Supp. 990, entered a preliminary injunction on September 1, 1971, ordering defendants to reinstate Mrs. Duke as a teaching assistant. We reverse.

Mrs. Duke received notice of her termination as well as the reasons for termination in a letter dated August 25, 1970, from the Acting President of the University, John L. Carter, Jr. The letter gave her an opportunity for an administrative hearing before the President’s Cabinet, which consisted of Mr. Carter and three vice presidents of the University. She took advantage of the opportunity. At the hearing held on September 23, 1970, Mrs. Duke was present and represented by counsel and the University was represented by an Assistant Attorney General of the State of Texas. The parties presented evidence and cross-examined witnesses. Following the hearing, the President’s Cabinet decided not to rehire Mrs. Duke and entered written findings as follows:

“On the evenings of July 30, 1970, and August 3, 1970, Mrs. Elizabeth Duke appeared before and made an address to an unauthorized and unsponsored group meeting in the park on the campus of North Texas State University. Mrs. Elizabeth Duke participated in the organization of such meetings and in distributing leaflets announcing such meetings which were a planned effort to bring a subculture group into the official orientation program of the University.

“The audience which Mrs. Elizabeth Duke addressed upon these two occasions included persons who had been enrolled as students in prior semesters at the University as well as persons who would be freshmen students at the fall semester of 1970.

“During the course of her address to the crowd on both occasions Mrs. Elizabeth Duke used profane and obscene language. Her statements discredited the University administration and the governing board of the University and were critical of the manner in which the University is operated and maintained.

“The withdrawal of the offer to employ Mrs. Elizabeth Duke as a teaching assistant for the academic year beginning in September of 1970 is sustained by the President’s Cabinet for the following reasons:

1. By assisting in organizing and appearing upon the program at the meetings held in violation of the rules and regulations of the University upon the campus of North Texas State University on the evenings of July 30, 1970, and August 3, 1970, Mrs. Elizabeth Duke demonstrated an unwillingness on her part to respect and abide by the rules and regulations of the University and further encouraged and caused members of the student body to violate such rules and regulations.

2. The actions and statements of Mrs. Elizabeth Duke demonstrate a lack of academic responsibility required by Section II of the Statement on Academic Freedom at North Texas State University, in that: (a) her actions and statements before a group of students and her participation in meetings which violates the rules and regulations of the University impair her efficiency as a teacher and her judgment as a scholar, and (b) by her actions and statements upon the occasions in question, Mrs. Elizabeth Duke failed to recognize and appreciate that the public will judge North Texas State University and its teaching faculty by such statements and actions, thereby demonstrating the lack of professional integrity required of the teaching faculty at North Texas State University.

3. The fact that Mrs. Elizabeth Duke did not enroll for at least six semester hours at the fall semester of 1970 at North Texas State University fails to comply with the requirements of North Texas State University concerning teaching assistant positions, as was set forth in the written offer to her.

“The President’s Cabinet fully recognizes and appreciates the right of freedom of speech and of association which is accorded to Mrs. Elizabeth Duke by the Constitution of the United States. However, her rights of speech and association must be balanced against the interest of the University in promoting and maintaining an efficient university and a faculty which commands the respect of the student body and the community. The record before the President’s Cabinet demonstrates that Mrs. Elizabeth Duke has exercised her rights of speech and association in a manner and to an extent such as to seriously impair, if not destroy, her effectiveness as an instructor in the organized academic program at North Texas State University.

“The President’s Cabinet considers each of the foregoing, considered separately and apart, as sufficient cause for the withdrawal of the offer to Mrs. Elizabeth Duke to be a teaching assistant at North Texas State University for the academic year commencing September, 1970.”

Mrs. Duke appealed the decision of the President’s Cabinet to the Board of Regents, the governing body of the University. On February 26, 1971, the Board reviewed the decision of the Cabinet. Mrs. Duke spoke to the Board on her own behalf; in addition, her attorney argued orally and submitted a brief of legal authority. When the Board sustained the findings and action of the Cabinet, Mrs. Duke prosecuted this action in District Court.

In Ferguson v. Thomas, 5 Cir., 1970, 430 F.2d 852, 856,⁴ we held that a teacher with an expectancy of reemployment is entitled to certain minimal procedural guarantees, including the availability of “a tribunal that both possesses some academic expertise and has an apparent impartiality toward the charges. (Note the dictum in Pickering v. Board of Education, 391 U.S. 563, [at 578, n. 2,] 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).” In the present case the District Judge concluded that “the University satisfied each minimal procedural standard except the standard requiring the reviewing tribunal to possess an apparent impartiality toward the charges.” The District Court reasoned as follows:

“Acting President Carter in his letter of August 25, 1970, informing plaintiff of her dismissal, stated that he was acting at the direction of the Board of Regents. Thus the Board had already made its position in the Duke affair known prior to the September 23 hearing before the President’s Cabinet. It is, of course, possible that one in the position of Acting President Carter would be free, contrary to the expressed wishes of his employer, to act as his conscience directed after hearing plaintiff’s presentation of her case; but such is not the common understanding of such situations. At any rate, the atmosphere of apparent impartiality is far from being preserved. Acting President Carter’s presence on the Cabinet would alone be enough to violate procedural due process, but it also appears that the remaining three members of the cabinet were, like Mr. Carter, University administrative officers directly responsible to the Board of Regents. Under these circumstances, the court cannot rule that the Cabinet possessed apparent impartiality toward the charges.”

(Appendix, pp. 50, 51.) The record does not demonstrate actual partiality on the part of the President’s Cabinet or any of its individual members despite Mrs. Duke’s reference to the testimony of Clovis Clyde Morrisson, Jr., a Professor of Political Science. Professor Morris-son testified that his promotion from associate to full professor, as he understood it, was denied by the Board of Regents for reasons which bore in part a relation to his activities in the Duke matter. The promotion was denied despite the recommendation by his department, his Dean, and the Academic Vice President. Mrs. Duke argues that on the basis of the reprisal, “It thus becomes apparent that those under the employ of the Board of Regents at NTSU who go against the wishes of the Board can expect to be dealt with without mercy.” In our view plaintiff’s evidence relative to lack of impartiality of the President’s Cabinet is inconclusive. The President’s Cabinet cannot be deemed biased simply because the Board of Regents passed over Professor Morrisson for promotion. In the absence of evidence to the contrary, we must assume therefore that the Acting President and vice presidents acted independently and properly in these circumstances.

We decline to establish a per se rule that would disqualify administrative hearing bodies such as the President’s Cabinet from hearing internal university matters solely for the reason that the members are employees' of the Board and because some of them participated in the initial investigation of the incident and initiation of the cause under consideration. See Federal Trade Comm’n. v. Cement Institute, 333 U.S. 683, 702, 68 S.Ct. 793, 804, 92 L.Ed. 1010 (1948) (no denial of due process when commission expressed a view on the issue in advance of the case); French v. Bashful, 5 Cir., 1970, 425 F.2d 182, 184; Wasson v. Trowbridge, 2 Cir., 1967, 382 F.2d 807, 813; Jones v. State Bd. of Educ., M.D.Tenn., 1968, 279 F.Supp. 190, 200 (“limited combination by a school administrative body of prosecutorial and judicatory functions is not fundamentally unfair in the absence of a showing of other circumstances, such as malice or personal interest in the outcome of a case”). Alleged prejudice of university hearing bodies must be based on more than mere speculation and tenuous inferences. As Judge Bell stated in his concurring opinion to Palmer v. Thompson, 5 Cir., 1970, 419 F.2d 1222, 1229, “Courts, including federal courts, must travel on proof and there was a failure of proof in this case on the part of plaintiffs.” We are satisfied that the record here clearly demonstrates that Mrs. Duke received procedural due process of law.

“If no federal right has been violated in the procedures followed, then the court should next look to the record as developed before the academic agency to determine whether there was substantial evidence before the agency to support the action taken, with due care taken to judge the constitutionality of the school’s action on the basis of the facts that were before the agency, and on the logic applied by it.” Ferguson v. Thomas, 5 Cir., 1970, 430 F.2d 852, 858. A transcript was prepared of the testimony taken at the hearing before the President’s Cabinet. This transcript, together with the record of the district court’s hearing, shows that Mrs. Duke had been employed as a teaching assistant in the Department of English for the two academic years of 1967-68 and 1968-69. This position involved teaching English composition to freshmen students while she pursued a doctorate in English. During the Spring of 1970, she received an invitation from the English Department to teach for the academic year of 1970-71, which she accepted.

During the summer prior to the beginning of the 1970-71 academic year, the University scheduled a series of orientation sessions for incoming freshmen. These sessions lasted for two days and two nights each, during which the students lived in the dormitories. The University gave tours around the campus and provided peer and academic counselors to help explain what to expect from campus life; how to determine what they would select as a “major”; what courses in which to enroll; and numerous other matters. Parents were invited to meet with the counselors and with representatives of the administrative branches of the University, such as the Dean of Students. The last act of the orientation program was registration for the forthcoming term. The freshmen then left the campus to return when the regular academic year commenced. Associate Registrar John H. Brown testified before the Cabinet that the purpose of the orientation program was to help the students make the transition from high school to college in a manner which would least hurt the individual: “The student has a difficult time making a transition from high school to college in most cases, especially one as large as North Texas.”

The University scheduled freshmen orientation activities for July 30, 1970 and August 3, 1970, including a mixer dance on the evenings of those dates. A group of students decided to conduct their own “orientation” program by holding “rock concerts” and “rap sessions” in a park located on the University’s campus at the same time as the University’s orientation activities. The concerts were announced in a leaflet⁵ Mrs. Duke helped to prepare, and the leaflet was distributed by her and others. The leaflet was initially distributed at a fresh men orientation meeting in the auditorium of the Music Building. The group was asked to leave the building, and police were summoned. Subsequently, the leaflet was distributed on a sidewalk outside the building.

On the evening of July 30, Mrs. Duke spoke during intermission of the concert announced in the leaflet. In her motion for a preliminary injunction she described the substance of her address as “caustically” critical of the Board of Regents and administration of the University. Testimony indicates she additionally criticized the faculty, students, and American society in general. Mrs. Duke said in District Court that her comments were in the same tenor as an article she wrote for Denton’s New World Press, February 17 — March 2, 1971, set out in the margin.⁶

A rock concert was also held on the evening of August 3, but was terminated by the University’s security police, acting on instructions from Vice President Lindley, because it was not properly sponsored. Mrs. Duke spoke after it was closed and gave another version of why it was closed down in a brief statement, the content of which is a matter of dispute.

The evidence taken before the Cabinet showed that Mrs. Duke used profanity on both occasions. Exactly what she said was in dispute, and the testimony conflicted.

Security Guard Fletcher testified before the Cabinet that on July 30 she spoke about different aspects of college life and used profane language over the loud speaker system. He was sure that Mrs. Duke referred to the Board of Regents as a “stupid bunch of m-f-s” and that she stated that the girls would be locked up in the dorms like a bunch of whores. Mrs. Duke and other students denied using such language. Another security guard testified that Mrs. Duke urged the girls to violate dorm regulations as to hours. Again, this was denied. Student Gary Don Bessire, called by Mrs. Duke, testified that “She used words that commonly are thought of, what do they say, as profanity,” and that she used the word “f-” with reference “to how the system f-s over the student, how the system f--s over us as people.” She herself testified that while she didn’t refer to the Board as a “stupid bunch of m-f-s, she did say that the system as represented on the local level at the University “f-s over” people and talked about the Board of Regents as an example of people who have power on the local level.

“Freedom of speech . [is] among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action,” Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938), and the Fourteenth Amendment protects the citizen against all the creatures of the state— universities not excepted. West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943). Neither teachers nor students may be compelled to relinquish First Amendment rights they would otherwise enjoy as ordinary citizens to comment on matters of public interests concerning the operation of public schools in which they work. Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). See also Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969).

“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967). There is “no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large,” Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2346, 33 L.Ed.2d 266 (1972), and “nonrenewal of a nontenured public school teacher’s one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights,” Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972).

“When a violation of First Amendment rights is alleged, the reasons for dismissal or for nonrenewal of an employment contract must be examined to see if the reasons given are only a cloak for activity or attitudes protected by the Constitution.” Board of Regents v. Roth, 408 U.S. 564, 582, 92 S.Ct. 2701, 2711, 33 L.Ed.2d 548 (1972) (Justice Douglas dissenting). But “First Amendment rights must always be applied ‘in light of the special circumstances of the . . . environment’ [Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969)] in the particular case,” Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345, 33 L.Ed.2d 266 (1972), and “[t]he constitutionally protected right of a public schoolteacher to criticize the school administration and to comment on matters of public concern is a limited right, a right which must be balanced against the need for orderly school administration. . . . Whether the activities of the school employee are protected under the First Amendment depends upon a weighing of the asserted interests.” Moore v. Winfield City Bd. of Educ., 5 Cir., 1971, 452 F.2d 726, 728. A balance must be struck “between the interests of the teacher as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811 (1968). As Judge Clark noted in Ferguson, “The college had no right to control [Ferguson’s] speech or to curtail his freedom of association, but they did have a right to terminate his employment as a classroom instructor at the point where the exercise of his constitutional privileges clearly over-balanced his usefulness as an instructor.” Ferguson v. Thomas, 5 Cir., 1970, 430 F.2d 852, 859. See also Fluker v. Alabama State Bd. of Educ., 5 Cir., 1971, 441 F.2d 201, 207; Pred v. Board of Public Instruction of Dade County, Fla., 5 Cir., 1969, 415 F.2d 851, 857.

To effectuate the balancing of these competing interests, established by Pickering, this Court in Ferguson, supra, 430 F.2d at 859, said that fact findings by academic agencies, “when reached by correct procedures and supported by substantial evidence, are entitled to great weight, and the court should never lightly substitute its judgment for that of the board.” “That courts should not interfere with the day-to-day operations of schools is a platitudinous but eminently sound maxim which this court has reaffirmed on many occasions.” Shanley v. Northeast Ind. School Dist., 5 Cir., 1972, 462 F.2d 960. Courts are not equipped by either training or experience to select initially the faculty and staff for colleges and universities, and to enjoin a university to hire or rehire a member of its faculty goes beyond mere redress of constitutional rights of an individual. We “should interfere only where there is a clear case of constitutional infringement.” Esteban v. Central Missouri State College, 8 Cir., 1969, 415 F.2d 1077, 1090 (per then Judge, .now Justice Blackmun).

The District Court here rejected each of the three numbered reasons given by the President’s Cabinet for withdrawing the offer of employment. See pages 832-833 supra. With regard to reason number two, i. e., that Mrs. Duke’s actions and statements demonstrated a lack of academic responsibility, the trial judge held that “the dismissal of plaintiff on the basis of the substantive content of the speeches would be to seriously violate her right of freedom of speech”; he added that the Constitution protected her use of profanity here, because “[t]o prohibit particular words substantially increases the risk that ideas will also be suppressed in the process.” While the District Court did not specifically allude to the University’s conclusion, which was couched in the language of Ferguson, supra, 430 F.2d at 859, that “Mrs. Elizabeth Duke has exercised her rights of speech and association in a manner and to an extent such as to seriously impair, if not destroy, her effectiveness as an instructor in the organized academic program at North Texas State University,” the Court did conclude that “all the evidence tends to establish that plaintiff was a competent teacher,” and that the University did not “produce any persuasive evidence concerning the scope of its interests or concerning the manner in which its interests had been infringed.” To take advantage of Pickering v. Board of Educ., 391 U.S. 563, 569, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811 (1968). Mrs. Duke argued that her statements were not directed toward any person with whom ap-pellee would be in contact in the course of her daily work as a teacher. The District Court agreed that Mrs. Duke “did not occupy a position requiring a close working relationship with any of those she criticized.” The Court’s fact finding on reason number two is not supported by the record for the following reasons.

Professor Howard A. Key testified before the Cabinet that he supervised Mrs. Duke’s preparation for her master’s thesis and had her in classes. He said she was an excellent student and recommended her to the selection committee as an instructor of English. However, Key testified that he would not recommend Mrs. Duke as a teaching fellow in the English Department following the incidents of July 30 and August 3. He stated:

“I would say that if she knew she were talking to students and used language of this kind that she was lowering the dignity of the teaching profession.

“Well, I think it shows a lack of judgment to use four letter words to any group of people, I don’t care what, for a teacher to do that, I don’t care what their level of communication is. I think it is not the place of a teacher to try to get down on the lowest level of the lowest student and use the lowest kind of words he can find to communicate with that student. I think it is up to the teacher, to set an example in the use of language and I think that a teacher who does not realize that and will not do it should not teach.”

Key, a teacher since 1947, said that whether a student could respect a teacher who used language of the kind in question depended almost entirely on the student and his background, but that a majority of students would be “affected, possibly adversely.”

Professor Clifton, Chairman of the English Department, testified: “Well, I could not conceive of myself as having used language reputedly used by the Plaintiff, and would have considered myself ill fit for my profession.” Professor Hall of the English Department testified in District Court that Mrs. Duke spoke with him and said she had used obscene language at a speech on a previous occasion. Hall testified that he considered Mrs. Duke’s statements to east an adverse reflection on him as a faculty member and that it was “irresponsible, unwise and unreasonable behavior, which I think reflects on all teachers at North Texas.” After reviewing the leaflet prepared by Mrs. Duke, see n. 5 supra (setting out the leaflet), he testified that he did not think that it was in keeping with the responsibilities of a member of the teaching staff at North Texas to engage and participate in the preparation and distribution of the leaflet to a group of prospective students. He believed that Mrs. Duke’s action “exhibits a complete lack of common sense and judgment, showing what seems to me, as nearly as I am able and qualified to judge, a complete metamorphosis in character. . . . ” President Carter, who testified in District Court, particularly objected to the leaflet being handed out to freshmen during orientation, whose parents were on campus with them, because he thought, it maligned his faculty and made comments that were not true, such as the definition of “whore” as “selling your soul for a grade or degree.”

The District Court concluded that “[n] either in the Cabinet hearing nor in the hearing before this court did the University produce any persuasive evidence concerning the scope of its interests or concerning the manner in which its interests had been infringed.” The fallacy of this conclusion is apparent since it is evident that the interests the University sought to protect were to maintain a competent faculty and to perpetuate public confidence in the educational institution. That these interests of the University were infringed was made clear from the testimony from Professors Clifton and Hall, outlined above concerning the loss of respect for Mrs. Duke among the faculty and students, and in view of the testimony by Acting President Carter about the adverse publicity in the newspapers.

Because reason two is adequate to support the Cabinet’s withdrawal of the offer, we need not dwell on the Cabinet’s first and third reasons. We note that the District Judge declared the University’s rules on the use of university facilities to be unconstitutional. In our view this holding was erroneous and unnecessary to the decision in this case; further, plaintiff did not plead uneonsti-tutionality nor did defendants therefore have an opportunity to rebut the question.

We should be mindful of the admonition of Chief Justice Burger: “The relatively placid life of the college campus of the past has not prepared either the administrators or students for their respective responsibilities in maintaining an atmosphere in which divergent views can be asserted vigorously, 'but civilly, to the end that those who seek to be heard accord the same right to all others.” Healy v. James, 408 U.S. 169, 195, 92 S.Ct. 2338, 2353 (1972) (concurring). See also Rosenfeld v. New Jersey, 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 321 (1972) (Justice Powell dissenting); Rosenfeld v. New Jersey, 408 U.S. 901, 92 S.Ct. 2483, 33 L.Ed.2d 321 (1972) (Chief Justice Burger dissenting). As a past and prospective instructor, Mrs. Duke owed the University a minimal duty of loyalty and civility to refrain from extremely disrespectful and grossly offensive remarks aimed at the administrators of the University. By her breach of this duty, the interests of the University outweighed her claim for protection.

The dissent herein contains several errors and unsupported conclusions to which we believe a response is appropriate.

It is contended in the dissent that the question of the competency of the President’s Cabinet to hear Mrs. Duke’s case has not been directly considered by the majority opinion; that the opinion errs in failing to hold that the Board of Regents likewise was disqualified from reviewing Mrs. Duke’s appeal from the President’s Cabinet. The dissent, therefore, appears to be grounded on alleged lack of procedural due process by the University. Consideration of the merits and reasons for Mrs. Duke’s dismissal is totally ignored — in fact, not even reached in the dissent.

It can hardly be said that the majority opinion does not consider the competency of the President’s Cabinet to try Mrs. Duke’s case. As has been pointed out in this opinion, we decline to establish a rule that would per se disqualify the President’s Cabinet composed of the President and two Vice Presidents of the University, from conducting a hearing pertaining to the dismissal of one of its employees, a part-time teacher, merely because the teacher involved has made a broadside attack on the administration of the University, though in terms which are to say the least, vulgar and profane. This is especially true when the record fails to disclose actual bias or prejudice against Mrs. Duke on the part of any member of the President’s Cabinet, and likewise of any member of the Board of Regents. The offending statements of Mrs. Duke were directed against the University administration in general, not against particular members thereof. She publicly expressed her remarks, threatened confidence in the institution and displayed her incompetence by the words she used. To get attention she used the Board of Regents as scapegoats though she did not single out any member of the Board.

The dissent cites Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), where the Supreme Court held that a trial judge could not adjudicate and punish contempt by a contemnor who had in his presence in open court called him a “dirty sonofabitch” and a “dirty tyrannical old dog,” as well as other strong epithets. The distinction between this case and May-berry is immediately apparent. The judge himself was the object of a personal attack during a judicial proceeding and was obviously disqualified. But the dissent builds from the Pickering footnote cited in Ferguson, supra, its own ipse dixit that no University administrator, Cabinet or Board may try a teacher in a dismissal proceeding, if the offending statements by the teacher include an attack on the University administration and its Board. This would make it too easy for a teacher to disqualify University authorities from controlling personnel in the University. Under Texas law the Board of Regents is charged with the duty of controlling and managing the University. Vernon’s Ann.Rev.Civ.Stat. of Texas art. 2651a, § 2 (1965).

Though the dissent states that under Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), recently decided, the University did not owe Mrs. Duke a hearing, it nevertheless contends that since she was accorded one, procedural due process was lacking because the hearing was before the wrong tribunal, that instead of being accorded a hearing by the President’s Cabinet she should have had a hearing by the University Tenure Committee, composed of members of the faculty of the University. We find this reasoning difficult to follow. It has never been established that Mrs. Duke, a teaching assistant, was a member of the faculty. She was employed only for one year, part-time, and obviously had no tenure as the dissent concedes. The suspicion which the dissent attempts to place upon the President’s Cabinet as an ad hoc tribunal for the hearing of Mrs. Duke’s case, is unwarranted and not supported by the record. It is true that members of the President’s Cabinet, at the request of the Board, investigated the facts and dismissed Mrs. Duke. But the Board of Regents instructed University authorities to dismiss Mrs. Duke only if an investigation of the facts showed that this course of action was necessary and proper under the circumstances. Mrs. Duke did not at any time during the administrative proceedings object to the hearing being held by the President’s Cabinet or about review of her appeal being made by the Board of Regents, nor did she contend that the Cabinet and Board were incompetent to try her by virtue of bias or prejudice.

The dissent takes exception to the circulation by President Carter to the Board of Regents, prior to their review of the transcript of the hearing, of an extract from an issue of “Denton’s New World Press” containing an article admittedly written by Mrs. Duke in which she again attacked the University administration and Board. The material in Mrs. Duke’s article was intended for public consumption and was actually published. It did not introduce any new element in the ease but corroborated testimony already given at the hearing as to Mrs. Duke’s public statements about the Board. In her testimony in the trial court Mrs. Duke confirmed that the overall tenor of the article was the same as that in her earlier speeches which formed the basis for her dismissal. This is confirmed by an examination of the text of the article. (See footnote 6 ante.) We see no impropriety in President Carter sending copies of Mrs. Duke’s article to members of the Board. The Board does not function like a court. Whereas a judge sits in a case, an administrator works on a case. See W. Gelhorn and C. Byse, Administrative Law Cases and Comments, p. 876 (1960). The Board should no more be disqualified here because it received the article from President Carter which appeared in the “Den-ton’s New World Press” than if they read it in a daily newspaper. Careful consideration of the reasons set forth in the dissent reenforces our own view that reversal of the District Court decision in this case is required by both the law and the evidence.

Reversed.

1 . Also joined as defendants were John L. Carter, Jr., Acting President of the University, and all his successors in office; A. M. Willis, Chairman of the Board of Regents for the University; and all members of the Board of Regents, namely, E. C. Pannell, Dean Davis, E. Bruce Street, David James Lawson, Earnest Shur, Carroll Sullivant, Gus S. Wortham and Berl Godfrey.

2 . 42 U.S.C. § 1981 reads as follows:

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” (1964).

3 . 42 U.S.C. § 1983 reads as follows:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” (1964).

4 . It is unnecessary to decide, and we do not decide, whether or not Mrs. Duke in fact had an expectancy of reemployment at North Texas, because the University treated her cause as though she had such an expectancy by complying with the mandate of Ferguson v. Thomas, 5 Cir., 1970, 430 F.2d 852. See generally Board of Regents v. Roth, 408 U.S. 564, 569, n. 6, 92 S.Ct. 2701, 2705, n. 6, 33 L.Ed.2d 548 (1972).

5 . The leaflet reads as follows:

LOOK OUT KID THEY KEEP IT ALL HID!

What’s happening to your head?

What part are you going to play in a world in revolution !

Who are you becoming

In the university you will be “educated” to play these roles :

Prisoner — -told by someone else where you have to live (and, if you are a woman, what time you have to be in)

Yellow-topped card — sacrificing your own personal uniqueness (as well as real community) for the sake of efficiency

Sucker — paying high tuition while the fat cats get fatter

Sponge — passively soaking up information handed down by experts

Whore — selling your soul for a grade or degree

Smack freak — addicted to the heroin of white, middle class values

Ostrich — spending time with your head in a book learning irrelevant garbage (at most, classes are “interesting” or “stimulating”) while the whole world is erupting

Climber — stepping on your brothers and sisters in order to get to the top

Dinosaur — perpetuating an obsolete system which cannot survive in the 21st century

Bolt — keeping a machine running which can only exist by chewing up the poor, non-white peoples of the world

DIG IT!

A new world is being born! New people are emerging! AYe are free to create the new world and to decide who we will be!

Come to the park tonight at 7:30 to dig on some music and to rap about where we are and what we can create.

6 . Duke Tries Regents

After stalling for four months, the Board of Regents has finally scheduled my hearing for the last week in February. I was fired from my job as teaching assistant at NTSU in September for “obscene language” and “improper conduct.”

I would like to use the occasion of my hearing to place the Board of Regents on trial before the people. This board is composed of nine memb’ers — all white, all men, all rich. The average annual income of regents and trustees is $41,000 not including assets. This places them in the top % of 1 per cent of all people in the U. S. These men — directors of banks, insurance companies, investment companies, and other corporations — are members of the ruling class, the class which is responsible for the exploitation of poor and colored peoples all over the world. The regents run the university as they and their class run the world— to maintain their own vested interests.

In the first place, they run the university as a training center for forces who will keep the nation’s economy running smoothly. The university not only supplies a force of people for building the empire but for defending it. The armed forces, which protect the business interests of the ruling class in Viet Nam, Laos, Cambodia, and all over the world, could not survive without the junior officers and career military personnel supplied by the ROTC.

The - university also perpetuates a competitive, class society. Students are forced to step on each other to make it to the top, and students are brainwashed with the idea that they are superior to working class people and to black and brown people who do not attend the university.

The university also institutionalizes racism. Black, brown, red, and yellow people do not have proportional representation on the faculty and administration. The gifts of the history and culture of colored peoples are not emphasized. It is more difficult for a black person than a white person to enter the university because of screening devices which are geared to the type of education received primarily by white middle class people.

The university functions as a reinforeer of sexist attitudes. Women are led to believe that they are not as capable of making decisions as men are. Someone else decides for them where they will live and what time they have to come in. This type of brainwashing prepares them to live the life of a housewife who makes no important decisions about shaping the world. She provides her husband with sex and cheap labor, and she fills the role of consumer of unnecessary goods. Women attend a university which is run by males who benefit economically and psychologically from maintaining a male-supremacist society.

The university teaches people to fear revolutionary change and to maintain the status-quo. Those who allow themselves to be brainwashed in this way are soon to become fossils of history.

The regents are indeed guilty of immoral acts. They are criminals, and their crimes are far more serious than motherfucking. They insist on maintaining an imperialistic, militaristic, racist, sexist system which causes % of the people to go to bed hungry every night. The Board of Regents turns students at NTSU into robots, like themselves, whose fate is to become managers of a system which is already doomed to extinction.

These criminals find it necessary to engage in severe repression when their system is threatened. I was fired because I am part of an emerging movement which endangers the established way of life of the regents. Those in power became even more repressive when they were confronted by 1,000 students on the steps of the administration building on September 23. The administrators were so frightened that they sought to control us by calling in the Denton police — fully equipped with guns. They taught us a lesson all right. They taught us that political power comes out of the barrel of a gun.

The repression will increase as we become more effective. What can we do in the face of it? Well, for one thing we can stop playing their game. We have to stop begging for freedom, asking for favors, shaking an angry fist, reacting against their moves, asking them to change the system. We have to take power. Huey P. Newton says that “power is the ability to define phenomena and make them act in the desired manner.”

We have already begun to define ourselves and the world we live in. We know that we are fucked over, yet we are not victims. We affirm life! We want to live! We know that we are all one and that we are responsible for the entire universe. We know that we must create a free society in which all of the people will share the resources, power, and wisdom. We know that we will defend what we create.

Live the revolution!

All power to the people!

■ — Betty Anne Duke