Roger M. SHAW and Richard A. Winn, Appellants, v. The BOARD OF TRUSTEES OF the FREDERICK COMMUNITY COLLEGE, a Governmental Corporation, et al., Appellees, 549 F.2d 929

WIDENER, Circuit Judge: This § 1983 action arises out of the dismissal of two college teachers from positions at Frederick Community College, a public educational institution in Frederick County, Maryland, for violating a provision of the college’s Policy Manual. We are faced in this appeal with a frequently raised issue in teacher discharge cases— whether the dismissals were for violations of legitimate conditions of employment, or, as plaintiffs claim, for engaging in constitutionally protected activity. The district court held that plaintiffs were discharged because they willfully and in concert with others failed to take

part in two college functions in which their participation was mandatory: a scheduled faculty workshop and commencement exercises. It refused to hold that those violations of the Policy Manual were used as a pretext for the discharge of plaintiffs for exercising rights protected under the First Amendment. We agree with the district court’s conclusion that the discharges were not pretextual. We do not agree with plaintiffs’ claim that the discharges did not comport with the requirements of the due process and equal protection clauses of the Fourteenth Amendment. We therefore affirm.

Roger Shaw and Richard Winn had been teaching at Frederick Community College since 1968 and 1969, respectively. At the time the events to be described below occurred, Professor Shaw was tenured, and Professor Winn was under a continuing appointment. Both were designated Division Chairmen, positions that entailed considerable administrative responsibilities in addition to teaching duties.

The Policy Manual, which sets forth regulations adopted by the Board of Trustees for the governance of the college, and which all teachers were expected to be familiar with, specifically imposed upon Shaw and Winn the obligation to attend and participate in, among other things, commencement and scheduled workshops. The sequence of events that culminated in the dismissals of Shaw and Winn began in the fall of 1971, when the Board of Trustees decided to replace the tenure system with a system of continuing appointments for all non-tenured faculty. The tenured teachers were protected by a grandfather clause.

This decision sparked considerable faculty dissent, which, over the next two academic years, resulted in a movement for the creation of a new faculty organization, and eventually in demands for recognition of such an organization for the purpose of collective bargaining with the trustees.

At a meeting held on May 9,1973, at which twenty-one members of the faculty were present, including Professors Shaw and Winn, a resolution was adopted that the faculty “will not meet any professional obligations until the Board grants negotiating rights.” While Shaw and Winn apparently spoke against this resolution, it is admitted they refused to perform the obligations for which they were discharged. The trustees were hesitant to approve formal recognition of an exclusive bargaining agent for the faculty because of concern, verified by the Maryland Attorney General, that such action might violate state law.

At a meeting held on May 16, 1973, however, the trustees proposed a limited form of recognition, subject to conditions found unacceptable by certain members of the faculty. The intention of this group, which included Shaw and Winn, not to meet their professional obligations until negotiating rights were granted, was reiterated. The following day, the dissident faculty members held a meeting, at which it was resolved that they would attend commencement on May 20th, but would not march in the procession in academic regalia nor sit in the designated

section of the auditorium. Although the district court credited evidence that Professors Shaw and Winn endeavored to temper the more militant desires of some of those in attendance, it is conceded that they were among thirty faculty members who boycotted a faculty workshop scheduled for May 17th, and that they took

part in the planned failure to participate fully in commencement three days thereafter. On about May 22, 1973, Professors Shaw and Winn received letters from Dr. Stephens, the college president, stating that termination of their employment as of June 30, 1973 was being considered. The assigned reasons were that they willfully and in concert with others refused to attend the workshop on May 17, 1973, and refused to participate in commencement exercises on May 20th.

These letters, which were received in slightly different form by the other protesting faculty members who were not Division Chairmen, far from represented an irrevocable decision of dismissal. Indeed, Dr. Stephens made known his desire to meet with each protestor, and solicited letters from each explaining his actions. Everyone understood the deadline for action by Shaw and Winn was June 30th. Following discussions in mid-June with an attorney representing all (including Shaw and Winn) but one of those who received termination letters, Dr.

Stephens indicated that termination proceedings would be dismissed against all those who met the following conditions: Acknowledged that the activities engaged in were a neglect of professional duties; promised not to participate in such activities in the future; and agreed that the Policy Manual was the basis upon which the college would be run. Dr. Stephens even agreed to accept a prepared form letter incorporating these conditions, subject to the requirement that each faculty member desiring to avail himself of this procedure also have a personal conference with him.

Professors Shaw and Winn, despite the availability of this form letter procedure, failed to take action to head off dismissal proceedings prior to their deadline of June 30th. The record reflects Dr. Stephens’ continuous desire prior to that date to sit down and discuss the matter with them, and his encouragement that they accept the conditions that had been set forth. They declined to do so, however, until July 2, 1973, Professor Winn having previously indicated his unwillingness to admit that he had neglected his professional duties.

When letters similar to those that had previously been found acceptable were finally received from Shaw and Winn on July 2nd, Dr. Stephens advised the two that their action had come too late and that the matter had been referred to the Board of Trustees. Following hearings by the Board in July and August, at which Shaw and Winn were represented by their attorney, an alternative to dismissal was offered to the four remaining faculty members, including Shaw and Winn, who had failed to meet the June 30th deadlines. They were offered one year employment contracts, provided they perform work off campus.

Shaw and Winn declined this offer, and were subsequently discharged. I At the outset, we delineate the limited scope of our inquiry in this case. While courts have not hesitated to require the setting aside of school board action that penalized teachers for the exercise of First Amendment rights, Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Johnson v.

Branch, 364 F.2d 177 (4th Cir. 1966), cert. den. 385 U.S. 1003, 87 S.Ct. 706, 17 L.Ed.2d 542 (1967), we will not second guess such bodies on matters within their discretion that do not rise to the level of constitutional deprivations. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Kirker v.

Moore, 436 F.2d 423 (4th Cir. 1971). “It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion,” Wood, 420 U.S. at 326, 95 S.Ct. at 1003, or because of mistake, Bishop, 96 S.Ct. at 2080. With this in mind, we proceed to the question of whether the dismissals constituted a denial of plaintiffs’ rights of association and expression guaranteed by the First Amendment, as they claim. They, of course, did not surrender those rights by virtue of accepting employment in a public educational institution. E. g., Perry v.

Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). They had every right to disagree with the changing of the tenure system and the trustees failure to grant formal bargaining rights with the college administration, and to say so. But because their position is that they could not, consistently with the First Amendment, be discharged for violating the terms of their employment simply because those violations were a part of such a protest, it must be rejected. In Chitwood v.

Feaster, 468 F.2d 359 (4th Cir. 1972), while we held that certain teachers were entitled to a determination of whether or not they were discharged for engaging in constitutionally protected activity, we stated, “A college has a right to expect a teacher to follow instructions and to work cooperatively and harmoniously with the head of the department,” and that one “does not immunize himself against [the] loss of his position simply because his non-cooperation and aggressive conduct are verbalized.” 468 F.2d at 361. Appellants’ reliance on Tinker v.

Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); and Starsky v. Williams, 353 F.Supp. 900 (D.Ariz. 1972), aff’d in part, rev’d in part on other grounds and remanded, 512 F.2d 109 (9th Cir. 1975), is misplaced. In each of these cases, plaintiff was penalized for engaging in conduct closely akin to pure speech.

The teacher in Pickering was discharged for publishing a letter in a newspaper critical of past actions of his school board in handling proposals to raise new revenue, and in allocating revenue between athletic and scholastic programs. In reversing, the Supreme Court stated that the case was one in which this conduct in no way “impeded the teacher’s proper performance of his daily duties in the classroom or . interfered with the regular operation of the schools generally.” 391 U.S. at 572, 88 S.Ct. at 1737.

Similarly, in Tinker, where students were suspended from school for wearing black armbands as an expression of opposition to our involvement in Vietnam, the Court repeatedly stressed that the case did not concern speech or action that intruded upon the work of the school or the rights of other students. 393 U.S. at 508, 89 S.Ct. 733.

Starsky did involve one charge similar to those involved here — unauthorized absence of a teacher from class — but the district court found that 6 of the 8 total charges were not supported by sufficient evidence and arose out of constitutionally protected activity, such as delivering a speech and distributing literature, and that those activities constituted the primary motivation for Starsky’s discharge. 353 F.Supp. at 926-927. The conduct of Shaw and Winn went beyond pure speech into the realm of breach of the express obligations of their employment.

They admit that they willfully absented themselves from the scheduled workshop and failed to participate in commencement in the manner expected of them. It was within the discretion of the Board of Trustees to discharge them for those reasons. See Kirker v. Moore, 436 F.2d 423 (4th Cir. 1971). Even assuming, which we do not decide, that this case contains aspects of pure speech found compelling in Tinker and Pickering, our inquiry is limited to ascertaining whether Shaw and Winn were discharged for the assigned reasons, or whether the real motivation of the trustees involved constitutionally protected activity.

The alleged arbitrariness of the June 30 deadline for submitting a letter of contrition, and the alleged minor nature of the infractions, are relevant to us only insofar as they bear on the existence of an impermissible, ulterior motive for the discharges; they have no independent significance on the constitutional level here. In Johnson v. Branch, supra, for example, Mrs. Johnson had committed minor infractions of school rules.

Our holding requiring her reinstatement was based not oh the school committee’s lack of right to predicate her dismissal on such minor infractions, but rather on the court’s view that the real reason for her discharge was her community civil rights activity. Examining the record in this case, it belies the existence of an impermissible motivation for the discharges. It would be more accurate to state that it reflects a college administration willing to bend over backward to avoid having to discharge anyone, but unwilling to acknowledge the right of its teachers to disregard the rules with impunity. Dr.

Stephens solicited letters of explanation and personal conferences with all affected faculty members. He negotiated with the attorney representing the protestors, and was willing to accept a form letter, agreed to by plaintiffs’ attorney, acknowledging breach of professional obligations and promising to abide by the Policy Manual in the future, as long as it were accompanied by a personal conference. When the form letter proved unacceptable to one of the protesting faculty, Dr. Stephens permitted her to submit a version of her own.

Charges were dropped against all who were willing to follow this simple procedure, although the college was under no obligation to do so. Even after the deadline of June 30 had expired without Shaw or Winn having met Dr. Stephens’ conditions, the Board of Trustees offered them one year contracts as an alternative to dismissal. They declined to avail themselves of this second opportunity to avoid discharge, and now ask the court to provide a third opportunity. This we cannot do. Perhaps Dr.

Stephens could have accepted the letters he received July 2nd on the same terms as if they had been submitted earlier, without inconvenience to the administration of the college, but that does not make his refusal to do so a violation of the Constitution. As we have said, he was under no obligation to accept letters of contrition from the protestors, at any date. Even if the June 30 deadline were arbitrary, which we do not decide, that fact at most would bear relevance to the existence of an impermissible motivation for the discharges.

The record as a whole effectively refutes the notion that the Board of Trustees acted pretextually, however, and the findings of fact of the district court, which heard evidence ore tenus, that the discharges were for violations of the rules of the college, and not pretextual, are not clearly erroneous. FRCP 52(a). II We have considered plaintiffs’ assignment of error pertaining to the alleged denial of their rights to equal protection of the laws, and find it lacking in merit.

This claim is based on the fact that Professors Shaw and Winn were subjected to a June 30th deadline for submitting an acceptable letter to Dr. Stephens, while other faculty members had until August. The district court found a rational basis for the different dates, in that Shaw and Winn, as Division Chairmen, were classified as “twelve month administrators,” whose new contract year commenced on July 1st, while the others were not. We agree with the district court’s analysis of this issue.

We are thus of opinion the judgment of the district court should be, and it is, accordingly, AFFIRMED. . 42 U.S.C.A. § 1983 reads as follows: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” .

Under a continuing appointment, a member of the professional staff would receive a three year contract, after having completed a probationary period, that could thereafter be renewed on certain conditions. No assignments of error are directed at the rights of Shaw and Winn to hearings prior to dismissal, which both received, and which we assume they would be entitled to under Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). .

Section 3.203-2c of the Policy Manual states: “Attendance and participation shall be required at Commencement, scheduled staff meetings, scheduled work shops, and other scheduled activities.” Copies of the manual are given to all professional staff members upon entering employment. . The form and substance of the letter was prepared by Dr. Stephens with the advice of his attorney and agreed to by the attorney for Shaw and Winn. . The letters of Shaw and Winn were dated July 1, 1973.