Board of Regents of State Colleges v. Roth

BOARD OF REGENTS OF STATE COLLEGES ET AL. v. ROTH.

Certiorari to the United States Court of Appeals for the Seventh Circuit.

No. 71-162. Argued January 18, 1972 — Decided June 29, 1972.

446 F. 2d 806, reversed and remanded.

Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Rehnquist, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 603. Douglas, J., filed a dissenting opinion, post, p. 579. Brennan, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 604. Marshall, J., filed a dissenting opinion, post, p. 587. Powell, J., took no part in the decision of the case.

Charles A. Bleck, Assistant Attorney General of Wisconsin, argued the cause for petitioners; with him on the brief were Robert W. Warren, Attorney General, and Robert D. Martinson, Assistant Attorney General. Steven H. Steinglass argued the cause for respondent; with him on the brief were Robert L. Reynolds, Jr., Richard Perry, and Richard M. Klein.

The report of this case begins at page 564 of volume 408 of the United States Reports. The syllabus occupies pages 564 through 566; the opinion of the Court ends at page 579, where the dissenting opinion of Justice Douglas begins; the dissenting opinion of Justice Marshall begins at page 587. The concurring opinion of the Chief Justice (page 603) and the dissenting opinion of Justice Brennan (page 604) are printed with the companion case, Perry v. Sindermann, 408 U.S. 593 (1972).

[408 U.S. 564] “Respondent, hired for a fixed term of one academic year to teach at a state university, was informed without explanation that he would not be rehired for the ensuing year. A statute provided that all state university teachers would be employed initially on probation and that only after four years' continuous service would teachers achieve permanent employment ‘during efficiency and good behavior,’ with procedural protection against separation. University rules gave a nontenured teacher ‘dismissed’ before the end of the year some opportunity for review of the ‘dismissal,’ but provided that no reason need be given for nonretention of a nontenured teacher, and no standards were specified for re-employment. Respondent brought this action claiming deprivation of his Fourteenth Amendment rights, alleging infringement of (1) his free speech right because the true reason for his nonretention was his criticism of the university administration, and (2) his procedural due process right because of the university's failure to advise him of the reason for its decision. The District Court granted summary judgment for the respondent on the procedural issue. The Court of Appeals affirmed.”

[408 U.S. 564] “Held: The Fourteenth Amendment does not require opportunity for a hearing prior to the nonrenewal of a nontenured state teacher's contract, unless he can show that the nonrenewal deprived him of an interest in ‘liberty’ or that he had a ‘property’ interest in continued employment, despite the lack of tenure or a formal contract. Here the nonretention of respondent, absent any charges against him or stigma or disability foreclosing other employment, is not tantamount to a deprivation of ‘liberty,’ and the terms of respondent's employment accorded him no ‘property’ interest protected by procedural due process. The courts below therefore erred in granting summary judgment for the respondent on the procedural due process issue. Pp. 569-579.”

Part I set out the Wisconsin statutory scheme, under which a state university teacher served on probation for four years before acquiring tenure, and the rules of the Board of Regents, which required no reason and no hearing on the nonretention of a probationary teacher. The respondent had been hired for one academic year, was told in February that he would not be rehired for the next, and was given neither reasons nor an opportunity to be heard.

[408 U.S. 569] “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.”

The Court accordingly held that the threshold question is not the weight but the nature of the interest at stake, and turned to the two protected interests in sequence.

The Court held that no liberty interest had been infringed. The State had made no charge against the respondent that might seriously damage his standing in his community, had not accused him of dishonesty or immorality, and had imposed no stigma or other disability foreclosing his freedom to take advantage of other employment opportunities. A simple failure to re-employ, without more, was therefore not a deprivation of liberty.

[408 U.S. 577] “Certain attributes of ‘property’ interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.”

[408 U.S. 577] “Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in Goldberg v. Kelly, supra, had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them.”

[408 U.S. 578] “Just as the welfare recipients' ‘property’ interest in welfare payments was created and defined by statutory terms, so the respondent's ‘property’ interest in employment at Wisconsin State University-Oshkosh was created and defined by the terms of his appointment. Those terms secured his interest in employment up to June 30, 1969. But the important fact in this case is that they specifically provided that the respondent's employment was to terminate on June 30. They did not provide for contract renewal absent ‘sufficient cause.’ Indeed, they made no provision for renewal whatsoever.”

[408 U.S. 578] “Thus, the terms of the respondent's appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it. In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.”

[408 U.S. 578] “Our analysis of the respondent's constitutional rights in this case in no way indicates a view that an opportunity for a hearing or a statement of reasons for nonretention would, or would not, be appropriate or wise in public colleges and universities. For it is a written Constitution that we apply. Our role is confined to interpretation of that Constitution.”

[408 U.S. 579] “We must conclude that the summary judgment for the respondent should not have been granted, since the respondent has not shown that he was deprived of liberty or property protected by the Fourteenth Amendment. The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered.”

[408 U.S. 579] “Mr. Justice Powell took no part in the decision of this case.”

Editorial note. Justice Douglas, dissenting from page 579, would have held that a teacher whose contract is not renewed is entitled to know the reason and to answer it, since nonretention may in fact rest on the exercise of First Amendment freedoms and summary judgment on the record left that possibility unexamined.

Editorial note. Justice Marshall, dissenting from page 587, argued that every applicant for public employment has a right to be treated fairly and therefore to a statement of reasons and a hearing when an application is denied, and that confining property to interests already secured by state law left the discretionary exercise of public power unreviewed.

Editorial note. The Chief Justice, concurring at page 603, emphasised that the Constitution does not compel state colleges to give reasons or hearings, and that the wisdom of doing so is for the institutions and the legislatures. Justice Brennan, joined by Justice Douglas, dissenting at page 604, would have required both a statement of reasons and a hearing whenever a public employee is not retained.

Editorial note. This record is a research edition, not a substitute for the official reporter. It reproduces the Reporter of Decisions apparatus in full and reproduces the Court's own text in extended verbatim passages arranged under the Court's own divisions, each bracketed with the official United States Reports page on which the passage appears. Passages set without quotation marks are Society prose describing the Court's reasoning; every quotation mark in this record encloses the Court's or the Reporter's words.

Editorial note. The Court-authored sections of this record are SELECTED EXCERPTS, not complete opinions. Each such section is headed accordingly, and no section of this record represents a judicial opinion as reproduced in full. Where a separate opinion is described rather than quoted, it is presented as a Real Law Society editorial summary and is not judicial text.

Editorial note. Three limitations are declared. First, the numbered footnotes of every opinion are not reproduced. Second, Part I, the liberty analysis in Part II-A, and the four separate opinions are summarised rather than quoted at length; the property analysis, which is the load-bearing passage of the decision, is reproduced verbatim. Third, obvious typographic and scanning defects in the digitised bound volume have been silently corrected against the surrounding text; no substantive word has been altered, modernised, or paraphrased inside a quotation.

Editorial note. Two features of the official report should be noted. The dissenting opinions of Justices Douglas and Marshall are printed with this case at pages 579 and 587, while the concurring opinion of the Chief Justice and the dissenting opinion of Justice Brennan are printed at pages 603 and 604 with the companion case, Perry v. Sindermann. For any purpose requiring the complete official text, consult the bound volume through the canonical source recorded with this authority.

Editorial note. Roth was hired to teach for a fixed term of one academic year at Wisconsin State University-Oshkosh. Wisconsin law provided that university teachers were employed initially on probation and acquired tenure only after four years of continuous service; a probationary teacher had no statutory entitlement to reasons or a hearing on nonretention, and no standards for re-employment were specified. Roth was informed, without explanation and without any opportunity to be heard, that he would not be rehired for the following year. He sued, contending that the failure to give reasons and a hearing violated procedural due process and that the true ground of nonretention was his criticism of the university administration.

Editorial note. The District Court granted summary judgment for Roth on the procedural due process issue, reserving the free speech claim, and the Court of Appeals affirmed, 446 F. 2d 806. The Supreme Court reversed and remanded for further proceedings; the First Amendment claim was left to be tried.

Editorial note. The question decided was whether a nontenured public employee whose fixed-term appointment simply expired held an interest in liberty or property that the Due Process Clause protects. The Court held that he did not. To have a property interest in a benefit a person must have more than an abstract need, desire, or unilateral expectation of it; he must have a legitimate claim of entitlement. Roth's appointment terminated on its own terms, and nothing in the appointment or in state law created any entitlement to re-employment. The rule that follows is that property interests protected by procedural due process are defined by independent sources such as statute, contract, ordinance, or established mutual understanding — not by the Constitution, which secures interests already acquired.

Editorial note. Justice Stewart separated the two protected interests. No liberty interest was implicated because the State neither charged Roth with dishonesty or immorality nor foreclosed his freedom to seek other employment; a nonretention without stigma is not a deprivation of liberty. As to property, the Court reasoned that the purpose of the constitutional right to a hearing is to protect the security of interests a person has already acquired in specific benefits, and that such security comes from the rules and understandings that define the benefit.

Editorial note. Because Wisconsin conferred no tenure, no de facto expectancy, and no procedural entitlement on a first-year probationary teacher, there was nothing for due process to protect. The Court was explicit that its conclusion said nothing about whether reasons and hearings are desirable in public higher education; the question was one of constitutional interpretation only.

Editorial note. Roth supplies the working definition of property as a constitutional interest and is therefore foundational to the treatise's account of what property is. Its legitimate-claim-of-entitlement test extends the concept of property well beyond the traditional estates in land — to statutory benefits, licences, and other entitlements — while simultaneously making state property law the measure of the federal right. For the property lawyer the case establishes the structural point on which the Takings and Due Process Clauses both depend: constitutional protection attaches to interests that positive law has already created.

Editorial note. Followed and applied. Perry v. Sindermann, 408 U.S. 593 (1972), decided the same day, applied Roth's test and found that an unwritten but established institutional understanding could itself supply the entitlement. Later takings decisions rely on the same premise that the interest asserted must originate in an independent source of law, as in Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) (trade secrets recognised as property under state law), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (background principles of state property law).

Editorial note. Read with U.S. Const. amend. XIV, § 1 (Due Process Clause) and U.S. Const. amend. V.