D.C. Civil Action No. 72-644. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA.
Biggs, Gibbons and Garth, Circuit Judges.
Plaintiff-appellant, Joseph Skehan, a doctor of economics, seeks redress for his midcontract dismissal without a hearing as a nontenured college professor at Bloomsburg State College. The defendant-appellees are Bloomsburg State College, its Board of Trustees, Dr. Robert Nossen, its President at the time of Skehan's dismissal, Dr. Charles Carlson, its current acting President, and John Pittinger, Superintendent of Education of the Commonwealth of Pennsylvania. Although the College is joined as a defendant, and has a Board of Trustees responsible for its management, Pa. Stat. Ann. tit. 71, § 62, tit. 24, § 20-2008.2, it is not a separately chartered corporation, as in the case of many universities, but a subdivision of the Commonwealth Department of Education, Pa. Stat. Ann. tit. 24, §§ 20-2002(7), 20-2003.1. All the individual defendants are state officers. Skehan was employed as Associate Professor of Economics in January 1969 under a contract extending through the academic year 1969-70. In May of 1970 he received a letter from Nossen offering him a contract for the 1970-71 school year, but indicating that he would be required to acknowledge in writing notice that this would be a terminal year contract. He accepted the offer of employment for the 1970-71 academic year, but protested that the nonrenewal decision had been made without affording him the procedures due him before a non-renewal decision could be made. In that protest he invoked article 5(e) of the Statement of Policy for Continuous Employment and Academic Freedom at Bloomsburg State College, which provides:
"If a faculty member's service to the College is to be terminated during the first two years of the probationary [pretenure] period, the President of the College will feel free to explain to the faculty member the basis of the decision, but he shall not be required to do so except in a situation where there is an allegation of infringement of academic freedom. If a faculty member of professional rank, on probationary employment, alleges that a decision not to reappoint him has been caused by considerations violative of academic freedom, his allegations shall be given preliminary consideration by the Committee on Professional Affairs, and the procedures concerning notification, appeal, hearing, and defense outlined in #9 of this document will be followed."
Article #9 outlines the notice, hearing and appeal procedures applicable to the dismissal of tenured faculty members. Thus Skehan's position in May 1970 was that the nonrenewal decision reflected in the terminal year notice was caused by considerations violative of academic freedom and that he was entitled to the hearing procedures referred to in article 5(e). Nossen replied on June 1, 1970:
"I cannot accept your letter of May 29, 1970 as an acceptance of your position for the coming academic year. . . .
If you do not sign the offer of reappointment sent you [with the acknowledgment of notice that it was a terminal year contract], you may consider yourself terminated for the coming academic year. . . .
This is my final letter on this matter."
Skehan protested to the Board of Trustees that Nossen was violating the Statement of Policy for Continuous Employment and Academic Freedom. On June 15, 1970 Nossen wrote Skehan:
"Your appeal to the Board of Trustees, bypassing this office and other avenues of College governance, was reviewed at the Board of Trustees meeting on June 12, 1970. The Board has requested that I advise you as follows.
The Board restates its firm and inviolable position of nonrenewal past the 1970-1971 academic year. In doing so, it reaffirms its position that the offer to you reflects simply its wish to conform fully with accepted notice procedures. The offer is neither a statement of confidence in you nor a wish that you remain during this period. On the contrary, the Board has expressed every hope that you will find it both personally and professionally advantageous to offer your resignation at this time.
The College has prepared a contract form which is applicable to all persons offered appointment. Your refusal, to this point, to return the contract in accord with their prescribed procedures continues to indicate to them your disregard for College procedures. Nevertheless, in view of the original intention to provide due notice, they will accept the alternative letter as an indication of your acceptance of the 1970-1971 appointment as terminal.
I must, however, in all honesty and fairness, join with the Board of Trustees in the hope that you will reject the appointment."
Thus the College administration in effect rejected Skehan's request for an article 5(e) hearing on the reasons for the terminal year decision, but rehired him for the academic year 1970-71. Skehan entered into the performance of his academic duties in September. How he performed them is a matter of dispute between him and the defendants.*fn1 On October 9, 1970 Nossen wrote Skehan:
"You have continued, after repeated warnings from your Chairman, your Dean, the Academic Vice President, and from this office to fail to fulfill your classroom obligations as assigned, according to the procedures in effect at this college. Further, you have flagrantly, wilfully, and maliciously disrupted the instructional program. Upon the recommendation, therefore, of appropriate administrative officers, I am, effective immediately, relieving you of all classroom responsibilities, pending a final hearing.
I hardly need remind you that you are, during this current year, on terminal appointment. You were, at the time that appointment was offered, advised that your previous disruptive activities made your presence on this campus unwelcome, and the hope was expressed that you would not accept. You chose to complete this year, and at the same time you were aware that the offer went well beyond the minimum time necessary for notice, according to the policies of the Trustees; this was done in consideration of the difficulty you would probably have in finding an appointment in mid year. Despite this, you have failed to cooperate, to fulfill your responsibilities as a classroom instructor, and you have made it impossible for others to meet their assigned responsibilities. Your conduct, therefore, has been reprehensible, unbecoming a member of the profession, and inimical to the welfare of this college.
Should you violate the provisions of this notice and attempt to disrupt any authorized lecture or classroom of this college, full and immediate action will be taken. In the interim, I expect to receive from you, within five days, a full and a complete accountability of your actions on this campus since the start of ...