ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 78-2133)
Before Gibbons, Weis and Sloviter, Circuit Judges.
It is unfortunate that resort to the courts has been deemed necessary in a case of this kind. Almost all litigation between individuals has an emotional aspect for the parties. But when the controversy arises out of deep divisions in the academic community, as does this one, the judicial process seems particularly inapt. The academic process entails, at its core, open communication leading to reasoned decisions. Our society assumes, in almost all cases with good reason, that different views within the academic community will be tested in an atmosphere of free debate. It is the dialectic process which underlies learning and progress. In contrast this dispute, which pits the president and administration of a state-related Pennsylvania institution against at least a quarter of the faculty, has been attended by dismissal of a dissenting faculty member, disruption of classes, arrest of faculty members, attempted stifling of debate and other sorry incidents. The setting for this dispute is Lincoln University, which is described in one of the exhibits in the record as "the country's oldest college in continuous existence for the higher education of black students." However this dispute is ultimately resolved, the residue of bitterness will not soon be dispelled, and must inevitably impede the primary goal of an institution of higher learning. Although our judicial responsibility requires that we take jurisdiction of the issues and decide the case, we are cognizant, and we hope the parties are, that some other process of resolution would have been far preferable.
The amended complaint was filed by fourteen present and former faculty members of Lincoln University*fn1 against Herman Branson, President of the University, the Board of Trustees,*fn2 and Lincoln University itself, a state-related institution in Chester County, Pennsylvania. Plaintiffs allege that in order to suppress faculty criticism of University policy, defendants discharged, failed to promote, and otherwise punished plaintiffs, and took action which directly infringed upon their right to freedom of speech. Plaintiffs also allege a number of other constitutional violations, including infringement of their right of association, assembly, due process, and equal protection of the law, but essentially plaintiffs recognize that their case must rise or fall with the free speech issue. Plaintiffs' amended complaint also alleges claims under the Pennsylvania Constitution, plaintiffs' employment contracts, and the collective bargaining agreement between Lincoln University and the Lincoln University Chapter of the American Association of University Professors (LUC-AAUP), none of which were specifically discussed by the district court. The complaint sought compensatory and punitive damages as well as injunctive and declarative relief.
The case was tried before the district court without a jury, and at the conclusion of plaintiffs' case, the court granted defendants' motion to dismiss. The court concluded:
(I)n my view of the evidence, there was a reasonable basis for every action complained of here, which was totally unrelated to the exercise by the plaintiffs of their constitutionally protected rights.
In sum, I feel that there was no attempt by the President of the University, the Board of Trustees or any members thereof, or anyone associated with the Administration of the University to suppress, stifle, chill or in any way inhibit the constitutionally protected activities of the faculty members.
On appeal, plaintiffs claim that the district court failed to apply the correct legal standards in determining whether plaintiffs' protected speech was suppressed or restricted by the defendants; that the court erroneously refused to permit plaintiffs to testify about the chilling effects of defendants' actions; that the court refused to give sufficient weight to two arbitration findings favorable to plaintiff Trotman on the issue of his dismissal; that several of the court's factual findings were clearly erroneous; and that the district court erred in denying plaintiffs a jury trial which plaintiffs first sought in their amended complaint.
For the reasons stated below we will reverse the judgment of the district court and remand the case for a new trial.
The genesis of the controversy was President Branson's efforts to increase the student-faculty ratio from 12 to 1 to 20 to 1, which would have comported with guidelines promulgated by the Pennsylvania Department of Education, independent recommendations, and the practice at other Pennsylvania state-related institutions which had higher ratios than did Lincoln. This would have necessitated significant reductions in the size of the Lincoln faculty, and that faculty accordingly failed to agree to a Plan of Retrenchment proposed by Branson. On April 26, 1977, the faculty, on motion of W. T. Johnson, Chairman of the Chemistry Department, voted 46 to 10 at a faculty meeting to censure Branson and to ask the Governor to replace him. On April 28, 1977, Branson implemented his decision to send notices of termination to every faculty member, regardless of tenure, seniority, or likelihood of actually being terminated. These notices were sent pursuant to a faculty bylaw requiring that each faculty member be given one year's notice before termination. By December 1977 all of the retrenchment notices were rescinded with the exception of the one to plaintiff Trotman, an outspoken critic of the administration.
The retrenchment notices led to widespread, heated faculty opposition. Such opposition took many forms, including speeches, meetings, letters to the editor, faculty resolutions and picketing. The response of the University, and particularly Branson, is the basis for the plaintiffs' claim that defendants' actions violated plaintiffs' constitutional rights. For purpose of analysis, such actions will be grouped into those involving alleged retaliatory actions and those involving more direct infringement on speech.
C. James Trotman was Chairman of the English Department in April 1977 when these events began. He began teaching at Lincoln in the 1967-68 academic year; his teaching contract was renewed the following year. In 1969 Trotman took an extended leave in order to take graduate courses at Columbia University Teachers College, obtaining a Doctor of Education Degree (Ed.D.) in English. He returned to Lincoln in 1973 and was named Chairman of the English Department in that year. If his contract had been renewed during the 1977-78 academic year, he would have been awarded tenure because of his length of service. He was, however, an outspoken critic of President Branson and the retrenchment program. He was removed as Chairman of the English Department on June 30, 1977, and by letter dated December 13, 1977 he was notified that he was terminated as of June 30, 1978.
Although the action was dismissed before defendants presented their case, their defense emerges through cross-examination and argument. Defendants claim, and the trial court found, that Trotman was fired because the University had no evidence that Trotman had acquired an earned doctorate in the field of English, and that any criticism of President Branson in which Trotman engaged was not a factor in Branson's decision to deny him tenure. Trotman claims he did not realize Branson thought the degree was in English as opposed to Education with a concentration in English, that the degrees are identical for teaching purposes, and that the degree question is a sham. Trotman filed a termination grievance for binding arbitration as required by the collective bargaining agreement between the faculty and the University, which ultimately concluded with an award in his favor requiring the University to treat the 1978-79 academic year as though Trotman had, in fact, taught full-time in the English Department for all purposes including "the purpose of achieving de facto tenure."*fn3 This award is currently on appeal.
2. "Retirement" of Edward Groff
In November 1977, Edward Groff, a Professor of English, learned that he would have to undergo brain surgery. Groff was another active critic of the Branson administration. He sought to be placed on sick leave and was assured by University Vice President Wade that that presented no problem. Upon returning home on January 13, 1978, Groff found a letter from Branson, dated January 5, informing him that he was retired effective December 31, 1977. The difference between retirement and sick leave was significant, retirement resulting in lower income and loss of medical benefits and coverage. Although Wade told the Union contract administrator on January 12 and 13 that he understood that Groff did not want to retire and that a mistake had been made, Branson attempted to justify the administration's actions in a January 18, 1978 memorandum to faculty and trustees. It was only after protest by faculty members in the next several weeks over Groff's "retirement" that Branson denominated the University action a misunderstanding and reinstated Groff.
The district court found that the "retirement" was not in retaliation for Groff's outspoken criticism of the administration, as plaintiffs alleged.
3. Removal of Johnson from Chemistry Chair
Plaintiff Johnson, originally appointed by Branson as Chairman of the Chemistry Department, was removed from that position by Branson in 1978, at the end of a tumultuous year in which Johnson was "in the forefront of the faculty dissidents and was quite outspoken in his criticism of President Branson." His removal prompted a petition signed by 25 faculty members who termed the action by Branson "a retributive action."
In this instance, unlike in the other two, the district court did not find a lack of connection between Johnson's criticisms and his removal as Chairman. Rather, the court held that Johnson's conduct undermined the "harmony and mutual respect which should exist between the head of the University and the Chairman of one of its academic departments," adding "the grossly offensive comments of W. T. Johnson cannot march under the banner of the First Amendment or of academic freedom."
4. Arrests of Trotman and Farrell
On September 1, 1977, Trotman and Alfred Farrell, another member of the English Department, were standing with other individuals in a classroom to protest the action of Gladys Willis, who had been appointed by Branson to chair the English Department, in assigning herself to teach a course formerly taught by Farrell. Thereafter both Trotman and Farrell were arrested by campus police, and Trotman was charged with disorderly conduct. Ultimately, the Board of Trustees decided not to press charges.
The district court found that Trotman and others demonstrated in Willis' classroom and created disruptions which prevented her from teaching class, and that Trotman's ...