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Stolberg v. Members of Board of Trustees for State Colleges of the

decided: January 29, 1973.

IRVING STOLBERG, PLAINTIFF-APPELLANT,
v.
MEMBERS OF THE BOARD OF TRUSTEES FOR THE STATE COLLEGES OF THE STATE OF CONNECTICUT ET AL., DEFENDANTS-APPELLEES



Lumbard, Feinberg and Mansfield, Circuit Judges.

Author: Mansfield

MANSFIELD, Circuit Judge.

Irving Stolberg, formerly an Assistant Professor of Geography at Southern Connecticut State College ("SCSC"), appeals from a judgment in his favor in his action under the Civil Rights Act, 42 U.S.C. ยง 1983, against the former President of SCSC and members of the Board of Trustees for the State Colleges of Connecticut based on their nonrenewal of his teaching contract and consequent denial of tenure, allegedly in violation of his First Amendment and Due Process rights. The district court, M. Joseph Blumenfeld, Chief Judge, sitting without a jury, found defendants' action to have been in retaliation for Stolberg's exercise of his First Amendment rights and awarded him reinstatement with tenure and no loss of seniority and $9,000 to cover his salary loss. However, he denied additional compensatory damages, punitive damages or attorneys' fees. The court found it unnecessary, in view of its disposition of the First Amendment claims, to decide whether Stolberg had also been denied procedural due process.

Stolberg here contends that the district court should have decided his due process claims and should have awarded him additional compensatory damages for humiliation, emotional distress and injury to his reputation, plus punitive damages and attorneys' fees.*fn1 We affirm except as to the denial of attorneys' fees, which we reverse, and we remand for determination and award of reasonable attorneys' fees.

The findings of the district court, made in an unreported decision,*fn2 are not disputed. They reveal an unpleasant picture, characterized by reactionary and rather high-handed conduct on the part of a college president toward a faculty member, approved by some trustees and tolerated by others. Beginning with the 1966-1967 school year Stolberg, a graduate of the University of California at Los Angeles, with a distinguished academic record, was employed by SCSC as an Assistant Professor. Under existing regulations and practice at SCSC, teachers who satisfactorily completed three years in probationary status were entitled to tenure.

In February, 1968, as part of his active participation in discussions regarding international political affairs, particularly our country's involvement in the war in Vietnam, Stolberg sent to his fellow faculty members at SCSC an invitation to support a Peace Program and Memorial Service to be held in New Haven relating to that war. Two months earlier Stolberg had sent a letter to the President of Albertus Magnus College in New Haven suggesting that she had arbitrarily suspended a number of students and offering the mediation services of The American Association of University Professors, a local chapter of which Stolberg was then President.

Dr. Hilton C. Buley, President of SCSC, whose views apparently differed sharply from those of Stolberg, whom he seems to have regarded as subversive, did not take kindly to Stolberg's communications. Buley promptly notified Stolberg that his contract would not be renewed for the coming year, 1968-1969, which would have been his third year on the faculty.

Stolberg unsuccessfully appealed President Buley's decision to the personnel committee of the Board of Trustees for the State College and subsequently requested the Board to reconsider his case, claiming that the committee's procedures did not comport with the requirements of due process. The Board then sought advice from the State Attorney General, who expressed the opinion that the Board proceedings upholding Buley's decision were not legally sound in view of the appeal clause in the Board's Personnel Policies. President Buley thereupon volunteered to rescind Stolberg's termination, and Stolberg continued on the faculty during the 1968-69 term. Buley, however, sought to have the clause repealed with the intention of dismissing Stolberg thereafter.

The Board, fearing discontent among the faculty, decided against repeal of the appeal procedure in December, 1968. Nonetheless, on February 27, 1969, Buley again notified Stolberg, without reasons, that his contract would be terminated at the end of the term and tenure thereby denied, despite recommendations from the chairman and members of the geography department that he be given tenure. Stolberg again appealed to the Board's Personnel Committee and was allowed to appear personally before them, although he received no notice of any charges against him. Dr. Buley appeared ex parte before the Board two weeks later, without notice to Stolberg, and listed several "incidents" as the basis for the latter's dismissal.

The Board subsequently affirmed Buley's decision on June 13, 1969. This action was filed by Stolberg on December 15, 1969. At no time during the course of administrative or judicial proceedings regarding Stolberg's termination was his competence as an instructor questioned.

At the conclusion of the trial, at which no defense was presented, Chief Judge Blumenfeld held that the "incidents" listed by Buley had been makeweights and that the real reason for not renewing Stolberg's teaching contract was his previous exercise of his First Amendment rights, a constitutionally impermissible basis for dismissal, Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). Judge Blumenfeld directed the Board of Trustees to reinstate Stolberg as a faculty member at SCSC with tenure and without loss of seniority, and awarded judgment in the sum of $9,000 against Dr. Buley and certain of the individual members of the Board to compensate Stolberg for his intervening salary loss. Neither the relief granted nor the basis on which it was predicated are challenged on appeal by the defendants. Stolberg, however, challenges the sufficiency of the relief granted in his favor, for the above stated reasons.

We conclude that it was entirely proper for Chief Judge Blumenfeld not to adjudicate appellant's additional claim that he was deprived of his livelihood through procedures lacking in due process. Though Stolberg claims he suffered additional harm, based on a due process denial, through loss of an earlier opportunity to clear himself before the Board of Trustees of unsupported charges against him, made ex parte to the Board by Dr. Buley, any resulting injury to reputation would have been compensable, if proved, and fully remediable as a consequence of the non-renewal of his teaching contract in retaliation for his lawful exercise of his First Amendment rights. See Donovan v. Reinbold, 433 F.2d 738, 743 (9th Cir. 1970); Lee v. Southern Home Sites Corp., 429 F.2d 290, 293 (5th Cir. 1970); cf. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 238-240, 90 S. Ct. 400, 24 L. Ed. 2d 386 (1969).

Thus a decision of the due process claim was not necessary to accord Stolberg whatever relief he was entitled to on that claim. The most he lost by reason of the court's failure to decide it was the inability to achieve the personal satisfaction of obtaining a finding that his Due Process as well as his First Amendment rights had been violated. This would not mandate a decision. Furthermore, the subsequent decisions of the Supreme Court in Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), the pendency of which was noted by Judge Blumenfeld, and in Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972), confirmed the district court's observation that the serious question of what procedural process is due before administrators of public educational institutions may decline to renew contracts of tenured and nontenured teachers, involves complicated sub-issues that are not easily answered. Under these circumstances, it was entirely proper for Judge Blumenfeld not to "anticipate a question of constitutional law in advance of the necessity of deciding it," Ashwander v. TVA, 297 U.S. 288, 346-347, 56 S. Ct. 466, 483, 80 L. Ed. 688 (1936) (Brandies, J., concurring).

We turn then to the question of the sufficiency of the relief granted Stolberg. The district court found that following his dismissal from SCSC he was almost immediately able to secure another position at a lower salary as an instructor of geography at another college and was elected to the Connecticut House of Representatives from the district encompassing SCSC. The award to him of $9,000 in compensatory damages represented the difference in earnings between the salaries he would have earned at the two colleges. Additional compensatory damages for ...


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