religious observance. In any event, the university cannot be required to accommodate its scheduling of classes to every possible religious holiday. It is inevitable in any institution such as this that Mohammedans may be required to work on Fridays, that Seventh Day Adventists may have to work on some Saturdays and that Roman Catholics and devout Protestants may be required to work on certain days which are regarded as days for religious observance by them. We therefore find that plaintiff's claim of discharge for reasons of religious discrimination is without merit.
V. Retaliation for Exercise of Freedom of Speech
It will be noted following the directions in Skehan that "if it is found that either termination or non-renewal was because of the exercise of protected speech (as an example) the procedural due process of the decision is irrelevant because the substantive decision is illegal as a matter of Federal Constitutional Law." It was further held that, contract rights aside, the allegation that termination was based on the teacher's exercise of First Amendment rights does not give him a right to a hearing. "Rather, such an allegation of a substantive violation of Federal Constitutional Rights is heard and determined by the court in the first instance."
The evidence in this case discloses that a faculty controversy existed in the Spring of 1970 among the members of the teaching staff of the Foreign Language Department at Indiana University. This seems to have arisen as a result of the receipt or non-receipt of an application by Dr. James Hyde for the position of Chairman of the Foreign Language Department. It appears that a tentative deadline for receipt of such applications had been set for March 31, 1970, and that the application in question was received by the defendant Faust on April 10, 1970. The application, however, appears to have been turned over to the person in charge of these matters for the screening committee, Dr. Op de Beek, and the court finds no improprieties committed by Mr. Faust. Plaintiff never specifically asked Faust about the receipt of the Hyde Application. On April 5, 1970, however, she had complained to Dean McGovern about the situation, claiming that Faust had wrongfully suppressed the application. On May 5, 1970, Dean McGovern, presiding over a meeting of the teaching staff of the Foreign Language Department, reported the fact that serious accusations had been made against the chairman and invited the plaintiff to step forward and explain them. This she did but the faculty nevertheless gave a vote of confidence to Mr. Faust.
On May 12, 1970, the Committee on Merit and Tenure of the Faculty, consisting of those professors having tenure, voted not to renew plaintiff's contract at the close of the academic year 1970-1971. The minutes of this meeting are contained in defendant's Exhibit F. The meeting was held May 12, 1970, and at it the cases of plaintiff and Mr. Parker were discussed at length. At the conclusion of the discussion, the question was put: "Should Roseman's contract be terminated at the end of the 1970-1971 academic year?" The vote was "Yes," ten, "Abstained," one.
Later, on May 12, 1970, Faust wrote a letter to plaintiff (Plaintiff's Exhibit 29) which simply stated that the Committee on Merit and Tenure had voted to recommend that her contract not be renewed at the end of the academic year 1970-1971.
On March 20, 1970, (Plaintiff's Exhibit 38) there had been a previous meeting of this committee to evaluate plaintiff's performance, and in that several shortcomings were noted which were brought to her attention. These furnish work-related reasons for non-retention. It was indicated that the committee would meet again for a further discussion of the non-tenured staff.
The court has been greatly troubled about the issue of freedom of speech in this case, particularly in view of the close proximity of the meeting of May 12, 1970, to the faculty meeting of May 5, 1970, at which plaintiff had voiced her complaints as to Mr. Faust. Upon a careful review of all the evidence, however, the court holds that there were adequate work-related reasons for not renewing plaintiff's contract.
This being a civil case, plaintiff has the burden of proving by a preponderance of the evidence that her non-retention was caused in substantial part by restraint on her freedom of speech and that this was protected free speech. See Skehan, supra.
We have carefully approached the problem in accordance with principles laid down by the United States Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), where the court teaches us that we must balance the teacher's First Amendment rights as a citizen to comment on matters of public interest against the state's interest as an employer in maintaining an efficient administration of its school system. The court stated in Pickering that there was no question of maintaining discipline by immediate superiors or harmony among co-workers. In the instant case, we find that this question does exist. Further in Pickering the court stated:
"The statements are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher."
In Jones v. Battles, 315 F. Supp. 601 (D.Conn.1970), a non-tenured probationary teacher brought a civil rights action against a local school board following his dismissal for statements during an open public meeting of the Board in which he labeled the Director of Public Education a liar, and challenged the integrity of the Board's entire administration. The court held that plaintiff's statements were likely to destroy any future amicable relationship between him and the administration staff and that therefore the discharge was proper for the reason that plaintiff had disabled himself from working effectively and harmoniously within the school system.
In the instant case, plaintiff's attacks upon Faust's integrity in a faculty meeting would undoubtedly have the effect of interfering with harmonious relationships with plaintiff's superiors and co-workers, and we therefore hold that if plaintiff's remarks in any way contributed to her discharge, they did not constitute protected free speech.
Jones v. Battles, supra, was cited by the district court in Leslie v. Philadelphia 1976 Bicentennial Corporation, 343 F. Supp. 768 (E.D.Pa.1972), aff'd 478 F.2d 1398 (3d Cir. 1973), where it was held that plaintiff's discharge by defendant State instrumentality was based both upon her unsatisfactory performance of functions and by utterances accusing the state instrumentality of racist policies. It was held that such statements were destructive of staff morale and made an efficient working relationship impossible.
Again, in Simard v. Board of Education, 473 F.2d 988 (2d Cir. 1973), a nontenured teacher brought an action when the Board failed to renew his one-year contract. The Second Circuit stated there was ample evidence to support the district court's conclusion that retaliation for union activity was not the cause of the dismissal but that plaintiff's insubordinate remarks to his school principal during an encounter in the principal's office were not protected free speech under Pickering, supra, and that such remarks threatened significant working relationships within the administration of the school.
It is the court's belief that the federal court should not be embroiled in every controversy occurring among university faculties in this district. This court is not a super board of trustees to engage in constant review of all discharges of probationary employees of state college and university faculties. We must further consider that such involvement would lead also to the review of the non-renewal of all probationary employees in the public school system without tenure. Regardless of these considerations, however, if a preponderance of the evidence shows that the non-retention is based upon a restraint upon a teacher's protected freedom of speech, we must not hesitate to act.
After the May 12 letter, the matter then moved on to the university senate, which approved the recommendations of the Committee on Merit and Tenure of the Foreign Language Department, and plaintiff's Exhibit 36 shows the minutes of the trustees, which in December 1970 approved a recommendation by the Dean of Academic Affairs, the Dean of the School of Arts and Sciences, and the Department Chairman involved, together with the recommendations of the university senate committee that the plaintiff be terminated at the close of the then current academic year. The trustees gave the following reasons: "irresponsibility with regard to teaching and advising responsibilities; unauthorized and unwarranted absences from academically scheduled events; is a rebel against any authority; wishes to set her own hours and days; no sense of professional responsibility; abusive to the department chairman." We therefore find that plaintiff was not renewed for these reasons and not for any legitimate exercise of free speech.
The court again wishes to reiterate that in a case such as this, the balance of the public's interest in an efficient administration of its school system versus freedom of speech does not require us to condone accusations of misconduct which jeopardize the harmonious functioning of the system. Unwarranted attacks upon superiors and disturbances of harmony in the administrative and professorial staffs do not require the retention of a teacher or professor under the guise of protection of freedom of speech. Tact and ability to work and cooperate with one's colleagues and ability to impart knowledge of the subject to students are a part of any professor's qualifications or any public school teacher's qualifications and are equally as important as is knowledge of the subject matter. In any organization, it is necessary there be at least some discipline and that the organization not be kept in a turmoil by constant accusations of misconduct by subordinates against superiors.
In any event, the defendants Hassler, McGovern and Henninger had no part in the making of the decision not to renew. While Dr. Isar, who made the original commitments to the plaintiff, was present at the meeting of the Committee on Merit and Tenure and voted for her non-renewal, he and Faust constituted only two out of ten members and therefore it cannot be said that their actions caused her non-retention.
For these reasons, the court determines that the failure to retain Miss Roseman was not based upon any protected exercise of freedom of speech.
VI. Tortious Interference With Contractual Relations.
Count 7 of the complaint charges that plaintiff's employment was terminated as the result of "malicious interference with a contractual relationship with Indiana University by the individual defendants as set forth above". Inasmuch as we have held that there was no contractual relationship to be protected, this should be sufficient to dispose of this count of the complaint. It may be, however, that this count charges a tortious interference with business relations as described in Retatement of Torts, Section 766, which reads:
"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