hearing. Dr. Skehan was given five days in which to account for his actions by letter to President Nossen. Dr. Skehan refused to make an accounting, and on October 19, 1970, was removed from the payroll effective October 17, 1970. On October 23, 1970, the Board of Trustees approved Dr. Skehan's dismissal.
On December 1, 1970, the Committee on Academic Affairs conducted a hearing concerning the dismissal of Dr. Skehan. Dr. Skehan appeared only to state that he would not participate in the hearing. On the basis of correspondence and records submitted by the administration, the Committee unanimously approved the dismissal action. Dr. Skehan submitted no material for consideration at the hearing.
Plaintiff first alleges that he was discharged from his employment with Bloomsburg State College because of his stands on campus issues which were contrary to the administration's positions, in violation of his First and Fourteenth Amendment rights to free speech. However, the Plaintiff has not shown by a preponderance of the evidence that this allegation is true. On the contrary, I find that the Plaintiff was discharged because of his refusal to follow administrative directives relating to the schedule of classes in the Fall of 1970. He was not discharged for reasons prohibited by the Constitution.
Next, Plaintiff contends that he was deprived of his right to procedural due process when he was denied a hearing prior to discharge. The Supreme Court has held that a nontenured professor has a constitutional right to a statement of reasons and a hearing on a university's decision not to renew his contract if he can show that the non-renewal deprives him of an interest in "liberty" or a "property" interest in continued employment. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972). Likewise, a college professor dismissed during the term of his contract possesses a property interest safeguarded by due process. Board of Regents v. Roth, supra, 408 U.S. at pp. 576-577, 92 S. Ct. 2701. See Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952). This is precisely the situation in the case at bar. Therefore, Plaintiff's dismissal during the term of his contract for the 1970-71 academic year at Bloomsburg State College entitled him to a hearing on the reasons for his dismissal.
The Defendants contend that Plaintiff was, in fact, afforded a hearing at the September 29, 1970 meeting with Vice-President Hoch. The September 29 meeting was called to discuss the scheduling controversy which ultimately gave rise to Plaintiff's discharge effective October 17, 1970. However, the meeting was concerned with events which transpired prior to September 29. It was Plaintiff's subsequent failure to abide by the directive propounded at the meeting which precipitated his discharge. Although Plaintiff was not constitutionally entitled to reargue his position on the question of which schedule was controlling, he was entitled to a hearing at which he might have attempted to justify his actions after September 30, 1970, or to have presented reasons why dismissal was not the appropriate sanction.
The hearing on December 1, 1970 before the Committee on Academic Affairs did not fulfill the constitutional requirements of procedural due process in this case. The hearing was held 1 1/2 months after Plaintiff's discharge. Absent special circumstances, due process requires that one who is deprived of a protected interest be given a hearing prior to the deprivation. Board of Regents v. Roth, supra, 408 U.S. at p. 570, n. 7, 92 S. Ct. 2701; Commonwealth of Pennsylvania ex rel. Rafferty v. Philadelphia Psychiatric Center, 356 F. Supp. 500 (E.D. Pa. 1973). See Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972). The case at bar does not represent the kind of extraordinary situation in which the requirement of a prior hearing is relaxed. See Phillips v. Commissioner, 283 U.S. 589, 597, 51 S. Ct. 608, 75 L. Ed. 1289 (1931); Central Union Trust Co. v. Garvan, 254 U.S. 554, 566, 41 S. Ct. 214, 65 L. Ed. 403 (1921); Citta v. Delaware Valley Hospital, 313 F. Supp. 301, 309-310 (E.D. Pa. 1970).
Having decided that Dr. Skehan was deprived of his constitutional right to a prior hearing, I turn now to the question of appropriate relief. Plaintiff asks for reinstatement with back wages and damages. In my view, reinstatement with back wages would be inappropriate in the case at bar in light of (1) the Court's finding that the Plaintiff was not discharged for exercising his constitutional rights, and (2) Plaintiff's two-year delay in instituting this action.
Cases in which courts have ordered reinstatement because of a lack of procedural due process presented situations where either the court found that the Plaintiff was discharged for constitutional impermissible reasons, see e.g. Commonwealth of Pennsylvania ex rel. Rafferty v. Philadelphia Psychiatric Center, 356 F. Supp. 500 (E.D. Pa. 1973), or where the Plaintiff instituted the action shortly after the constitutional deprivation, see e.g. Karstetter v. Evans, 350 F. Supp. 209 (N.D. Tex. 1971); Newcomer v. Coleman, 323 F. Supp. 1363 (D. Conn. 1970); Lafferty v. Carter, 310 F. Supp. 465 (W.D. Wis. 1970). Furthermore, the recent Supreme Court pronouncements concerning procedural due process in the context of the dismissal of a state employee indicate that reinstatement is not an appropriate remedy. In remanding the case to the lower courts, the Court in Perry v. Sindermann, supra, stated that Plaintiff's proof of a property interest would entitle him to a hearing prior to dismissal, but
". . . would not, of course, entitle him to reinstatement. But such proof would obligate college officials to grant a hearing at his request, where he could be informed of the grounds for his nonretention and challenge their sufficiency." 408 U.S. at 603, 92 S. Ct. at 2700.