At issue in Perry v. Sindermann (1972) was whether the Fourteenth Amendment required college officials to provide procedural due process when they choose not to renew the contract of a faculty member who lacked tenure. In Perry, the U.S. Supreme Court ruled that faculty members who lack tenure and whose contracts are not renewed may have a right to procedural due process if they can establish that they had property interests in continued employment. In light of the significant questions that Perry raises for nontenured faculty members whose employment contracts are not renewed, this entry examines the case in detail.
Facts of the Case
Robert Sindermann was employed as a nontenured faculty member in the Texas state college system from 1959 to 1969. During the last four years of his time there, Sindermann served as a professor of government and social science at Odessa Junior College (OJC) under consecutive one-year contracts. While Sindermann also served briefly as cochair of the social sciences department, officials at OJC dismissed him from that position, because he circulated lengthy letters to members of the department criticizing its actions. Moreover, Sindermann’s being elected president of the Texas Junior College Teachers Association in February 1969 led to further controversy between him and the OJC administration. Serving in his capacity as president of the association, Sindermann was absent several times from his teaching duties, even though the administration denied his requests to testify in the state capitol before committees of the Texas legislature. In addition, Sindermann publicly supported the elevation of OJC to four-year status, a change that its board of regents opposed.
In May 1969, when the board of regents voted not to renew Sindermann’s contract for the 1969–1970 academic year, it issued a press release citing his insubordination and the deterioration of their relationship. The board did not provide him with an official statement of the reasons for nonrenewal and did not give him an opportunity for a hearing in which to respond to the allegations. At the time, OJC had no formal tenure system that gave any faculty member the assurance of continued employment beyond the present year. However, a statement published in its Faculty Guide stipulated that while OJC did not have a tenure system, its administration wanted faculty members “to feel” that they had permanent tenure as long as their teaching was satisfactory, they were cooperative with coworkers and their superiors, and they were happy in their work.
Sindermann filed suit in a federal trial court in Texas, alleging that because his contract was not renewed as a result of his public criticism of the OJC administration, officials violated his First Amendment right to freedom of expression. He also contended that the board’s failure to provide a hearing violated his Fourteenth Amendment rights to procedural due process. The board, in denying that its actions were retaliatory, responded that it had no obligation to provide a hearing, because Sindermann’s contract had expired, and he lacked a property interest in continued employment.
The court, determining that the plaintiff’s contract expired and that OJC had not adopted a tenure system, ruled in the board’s favor. The Fifth Circuit reversed in favor of the plaintiff, finding that the board violated his Fourteenth Amendment rights in denying his request for a hearing to resolve whether the nonrenewal of his contract was due to his protected free speech and whether he had an “expectancy” of reemployment. Dissatisfied with the outcome, OJC appealed; the Supreme Court agreed to hear an appeal and considered Perry along with Board of Regents of State Colleges v. Roth (1972), wherein a faculty member in Wisconsin who was hired under a one-year contract challenged the nonrenewal of his contract after he was provided neither with reasons that his employment was terminated nor an opportunity for a hearing.
The Supreme Court’s Ruling
In a five-to-three judgment, with Justice Powell not participating, the Supreme Court affirmed the order of the Fifth Circuit. The Court first considered whether the plaintiff’s lack of contractual or tenure rights defeated his claim that the nonrenewal of his contract violated his First Amendment rights of free speech and expression. The plaintiff claimed that his contract was not renewed because of his controversial testimony about the OJC board of regents both publicly and before the legislative committees. Insofar as the trial court granted the board’s motion for summary judgment on this issue, the justices were unable to decide whether his free speech and expression were the sole reason for its action and so did not enter a judgment for either party on this issue. Even so, the Court reiterated the principle that the government, in the form of boards of regents at public institutions of higher education, cannot deny benefit to individuals on grounds that infringe on their constitutionally protected right to free speech. To this end, the Court was satisfied that because the plaintiff presented a bona fide claim based on First Amendment freedom of expression, the trial court erred in granting the board’s motion for summary judgment on the issue of whether he was entitled to a hearing.
The Supreme Court next turned to the plaintiff’s claim that OJC’s refusal to provide him with a hearing violated his right to procedural due process. The Court noted that in Roth, which it handed down on the same day, faculty members who lack tenure have a right to a hearing only if they are deprived of liberty or property interests. The Court thus considered this claim in light of the plaintiff’s allegation that although OJC had no official tenure policy, the de facto tenure provision in its Faculty Guide created an understanding or expectancy for continued employment and thereby created a property interest. The Court, in recognizing that rules and understandings may entitle faculty members to continued employment, did not order the plaintiff’s reinstatement to his job. However, the Court reasoned that officials at OJC had to provide him with an opportunity to show he had a property interest that entitled him, not to automatic reinstatement, but to a due process hearing.
In his short, partial dissent, Justice Marshall agreed with the Court that the plaintiff presented a valid First Amendment claim but would have granted his motion for summary judgment, rather than the board’s, and required the board to provide him with a reason that his contract was not renewed.
Justice Brennan’s brief partial dissent, which was joined by Justice Douglas, also agreed with the majority on the First Amendment claim but disagreed to the extent that he would have modified the judgment of the Fifth Circuit in the same way as Justice Marshall.
Perry raises key five implications for the rights of faculty members in higher education. First, officials cannot fail to renew their contracts because of constitutionally protected expression by employees, even if the employees lack tenure. Second, when facing the nonrenewal of their contacts, faculty members with liberty or property interests in their jobs are entitled to procedural due process, including an opportunity for a hearing. Third, within the terms of their contracts or tenure policies, tenured faculty members have due process rights, while those who are not tenured must demonstrate an expectancy of continued employment in order to receive procedural due process rights. Fourth, because de facto tenure systems may create property interests that entitle faculty members to due process, college and university officials should carefully word their contracts and policies to trigger only the employee protections that they wish to provide. Finally, because not renewing employment contracts often leads to legal challenges, officials should provide opportunities for due process hearings to ensure that all faculty, both those with tenure and those without it, receive due process. In sum, Perry and Board of Regents of State Colleges v. Roth stand out as important cases that helped to establish the parameters of when faculty members in higher education who are facing the nonrenewal of their employment contracts have rights to due process protections.
See also Due Process Rights in Faculty and Staff Dismissal; Due Process, Substantive and Procedural
Beckham, J. (2005). Faculty. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 89–130). Dayton, OH: Education Law Association.
Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).
Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972).
Perry v. Sindermann, 408 U.S. 593 (1972).