Full opinion text
OPINION and ORDER MUECKE, District Judge. Plaintiff has filed this action under the Civil Rights Act, 42 U.S.C. 1981-1985, alleging that his termination as an assistant professor at Arizona State University violates his federal First and Fourteenth Amendment rights. Plaintiff and defendants have both moved for summary judgment. Each has filed factual statements in accordance with our Court’s Local Rule 11(h) [see Appendix for text]. The statements show no genuine issue of material, specific fact. Plaintiff’s basic attack is upon the decision of the Arizona Board of Regents, as shown in the Board’s minutes of June 10, 1970. The members of the Board who took part in that dicision have submitted an affidavit to the effect that their decision is based “ . . . upon a review of the transcript of hearing and exhibits presented before the Committee on Academic Freedom and Tenure at Arizona State University . ” Defendants’ motion for summary judgment depends on “ . the complete Transcript of Record, including all exhibits, of the hearing before the Committee . . . ” Plaintiff’s Rule 11(h) statement also relies on the Committee transcript. This Court issued an order on July 18, 1972 stating that this case is ready for final judgment on the merits on the issue of liability. The parties were given additional time to file any further pertinent documents. Additional documents were filed, and neither party took issue with this Court’s characterization of the posture of the case. This Court, therefore, can now decide this case on the issue of liability. Should the plaintiff prevail, the issues of damages would be tried later. Throughout the proceedings to date, neither side has suggested the existence of any additional evidence pertinent to the issue of liability. Although we are dealing with cross-motions for summary judgment, the case in view of the foregoing is now in the posture of an agreed statement of facts. The termination of plaintiff’s employment is the culmination of lengthy hearings, voluminous evidence and formal charges, findings, resolutions, and examination and cross-examination by attorneys during administrative hearings. Plaintiff admits that not every act he is accused of is constitutionally protected, but he argues that his discharge is principally based on an impermissibly restrictive view of his First Amendment rights. Defendants argue that the Board of Regents acted within its lawful discretion in dismissing plaintiff for a series of unprofessional acts, and for speech which loses constitutional protection in that it amounts to a verbal act, or lacks professional restraint and accuracy. The plaintiff having raised a constitutional issue, this Court must now make “an independent examination of the record ... in order that the controlling legal principles may be applied to the actual facts in the case.” Pickering v. Board of Education, 391 U.S. 563, 579, 88 S.Ct. 1731, 1740 Footnote 2, 20 L.Ed.2d 811. Great weight will be given to the findings of the Board of Regents where such findings were “ . . . reached by correct procedures and supported by substantial evidence. . . . ” Ferguson v. Thomas, 430 F.2d 852, 859 (5th Cir. 1970). The record shows that on January 14, 1970, Professor Starsky absented himself from a regularly scheduled class at Arizona State University and attended a rally in front of the Administration Building at the University of Arizona, where he was one of eight or ten speakers protesting the arrest of certain students of the University of Arizona. The entire incident attracted a considerable amount of public attention, (Tr. Peek, 820 In. 19-821 In. 2) and undoubtedly was the incident which caused disciplinary actions to be initiated against the plaintiff. The January 31, 1970 minutes of the Board of Regents show the following resolution: The Arizona Board of Regents recognizes and supports the principle that when a faculty member speaks or writes as a private citizen, he should be free from institutional censorship or discipline. The Board is also mindful, however, that a faculty member’s special position in the community imposes upon him the particular obligations and serious responsibilities of conducting his behavior and activities in the best interests of the university and his profession. The Board instructs the President of Arizona State University to institute proceedings in accordance with due process and university procedures to recommend what appropriate disciplinary action, if any, should be taken in regard to Assistant Professor Morris J. Starsky including whether his appointment be renewed or terminated. An Ad Hoc Committee was appointed consisting of Arizona State University professors. This Committee met, deliberated, and prepared a report. On February 21, 1970, portions of the report of the Ad Hoe Committee were read at a meeting of the Board of Regents. The report recommended against instituting proceedings for dismissal as it “ . . . does not have sufficient evidence to warrant formal proceedings concerning dismissal.” The report included a letter from the local chapter of the American Association of University Professors, including the following statement: Failure to meet a class even for an illegitimate reason is not in and of itself sufficient reason to recommend formal proceedings .... The Board of Regents, nonetheless, voted to order that hearings be instituted. Pursuant to this order, the administration of the University drew up formal charges which were mailed to plaintiff on March 4, 1970. The Committee on Academic Freedom and Tenure (hereinafter called the Committee) was convened to preside over the hearings pertaining to these charges. Between March 24, 1970 and April 29, 1970, the Committee, consisting of six Arizona State University professors, held thirteen open hearings at which attorneys for both plaintiff and the administration examined twenty-one witnesses. The Committee spent in excess of 100 hours in work sessions. The Committee then filed a fourteen-page “Findings, Conclusions, and Recommendations.” The charges against plaintiff are set forth in the transcript of the Committee’s hearing. There is a “summary charge” stating in part that as measured by the American Association of University Professors (hereinafter called A.A.U.P.) 1940 Statement of Principles on Academic Freedom and Tenure, plaintiff has “failed to act responsibly as a member of the teaching profession, has willfully violated Regents’ policies and University regulations, has not exercised appropriate restraint as becomes a university professor in his public activities . . .” The A.A.U.P.’s principles by which the charges were to be judged are set forth as approved by the Board in its June 10,1970 meeting: The college or university teacher is a citizen, a member of a learned pro-session, and an officer of an educational institution. When he speaks or writes as a citizen, he should be free from institutional censorship or discipline, but his special position in the community imposes special obligations. As a man of learning and an educational officer, he should remember that the public may judge his profession and his institution by his utterances. Hence he should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that he is not an institutional spokesman. The “summary charge” is supported by five “general charges” and the “general charges” are supported by a number of “subcharges,” eleven of which refer to specific incidents. Evidence was adduced as to eight of the specific instances. Of these eight, the Committee found that five of the charges were either unsubstantiated by the evidence or involved constitutionally protected conduct. Charge I involves failure to exercise “appropriate restraint” in transmitting knowledge, and is supported by one incident of handing out a letter to faculty members on campus. The Committee found this incident “ . . . within the area of free discussion . . . .” Charge II states a failure to observe university regulations and is supported by evidence of two incidents — a cancellation of one class, and a speech at the University of Arizona. The Committee found the class cutting a violation of University policy, but found that the speech did not violate A. A.U.P. standards. Charge III involves failure to show respect for the opinions of others. It is supported by evidence of two incidents charging abusive speech to specific persons on campus and two incidents of public utterances. The Committee found as to the four incidents that (1) plaintiff was abusive to a Mr. Warren Sumners; (2) his remark concerning the engineering staff “does not constitute an insult by normal standards”; (3) he was “inaccurate as to a legal matter” in a television broadcast; and (4) a press release was constitutionally protected. Charge IV alleges a breach of A.A.U. P. principles regarding student-faculty relations and is supported by evidence of one specific incident of having “urged and encouraged” students to occupy the Administration Building. The Committee found that “The evidence does not substantiate this charge.” Charge V accuses plaintiff of failure “to further public understanding of academic freedom” and is supported by a number of broad subcharges containing equally general wording about an alleged course of conduct from 1964 to 1970 causing public censure of the University. No specific acts are stated. The Committee found that public censure was caused in large part by objection to plaintiff’s “political and social views,” and found no evidence of additional wrongdoing. The Committee found that plaintiff’s failures were “not sufficiently grave to warrant a finding that his services . . . have been unsatisfactory.” The Committee concluded: . we now find on the basis of the present record inadequate grounds for dismissal .... Arizona State University President H. K. Newburn then wrote a letter to the Board of Regents recommending some sanctions less than dismissal. The minutes of the Board’s meeting on June 10, 1970 show that the members read the transcript and exhibits and the Committee recommendations. No discussion of the evidence or recommendations is shown. The Board concluded: This Board finds and concludes that Dr. Starsky did indeed do substantially all the acts and deeds with which he is charged (except as to three specified activities as to which no evidence was offered and except that instead of initiating, urging and encouraging the incident of November 20, 1968, Dr. Starsky supported and participated in such incident in violation of the Regents’ ordinance). In addition, the Board specifically finds that Dr. Starsky, by his own testimony, would not consider himself bound in the future to obey or enforce the rules and regulations of the University and this Board. Accordingly, this Board further finds and concludes from the evidence and from the aggregate thereof, that Dr. Starsky has been guilty of substantial, wrongful, and prejudicial acts of professional misconduct, of substantial violations of the principles above quoted, intemperate and unrestrained behavior, inaccurate and misleading statements, and general unfitness for a position with the faculty at Arizona State University, which is the core of the separate specifications with which he was charged. It is therefore the judgment of the Board that the interests of education in the State of Arizona require that Dr. Starsky no longer be permitted to teach on the campuses under the jurisdiction of the Board. Thus, the Board found a basis for discipline in all of the charges and all of the eight specific incidents on which evidence was given. This was contrary to the Committee’s findings of support for only three of the specific charges, i. e., the insult to Mr. Sumners, a cancelled class, and an inaccuracy in a television broadcast. The Board gave no indication of the reasons or the evidence it relied on in its disagreement with the Committee. Thus, this Court is in the unusual position of having on the one hand what amounts to detailed findings of fact and conclusions of law from a faculty committee which conducted the actual hearings and found that infractions were not sufficiently serious to find plaintiff unfit, or to warrant his discharge; and having on the other hand, only a bald statement of conclusions by the Board of Regents to support its determination of “unfitness.” Comity commands us to support the Board’s conclusions if they are supportable by any reasonable inference from the evidence. The summary nature of the Board’s conclusions handicaps us, however, in discovering the basis for the Board’s rationale. Both the Committee and the Board based its conclusion upon the same evidence which this Court now has before it. Since out of the eight specific charges on which evidence was received, seven are based in whole or in part upon the spoken or written word outside of the classroom, it now becomes our duty to make the independent factual findings necessary in this kind of constitutional case. To do this, we must examine the evidence in some detail. Charge I, “Professor Starsky has failed to exercise appropriate restraint or to exercise critical self-discipline and judgment in using, extending and transmitting knowledge" (Tr. 9 In. 4-7) is supported by only one specific charge to the effect that in May 1968, plaintiff distributed to “faculty members entering the Great Hall, College of Law, mimeographed copies of an open letter from a student of Columbia University to the President of Columbia University, having in content no pertinence to facts or conditions at Arizona State University and including an objectionable quotation drawn from the prose work of LeRoi Jones, ‘up against the wall, m-f-,’ with the intent to promote disaffection and disloyalty . . . between the faculty and the Administration at Arizona State University.” Administration Exhibit 1 is an inaccurate copy of the letter in that Exhibit 1 has a handwritten note on the upper left hand corner. This note was included in a copy of the letter sent to only one person. The letters which were handed out at the entrance to the Great Hall, and which are the subject of the charge contain no such notation. There was no evidence as to any disorderly conduct in the physical handing out of the letter or any specific instances of disaffection or ill effect resulting from the letter which occurred at the time of distribution. The Administration’s evidence of culpable motivation is based entirely upon the bare words of the letter itself. Thus, an Administration witness found the letter objectionable because the issues at Columbia were not pertinent to Arizona State University and because the quoted vulgarity was “out of keeping with the, if not sanctified, at least the austere surroundings of a faculty meeting.” Professor William Harris, who wrote a petition objecting to the letter (Administration Exhibit 3) states that his petition is based on language showing “complete disrespect for authority, which is the real message here, is just accentuated by the last lines.” There was no reprimand, official or otherwise, issued to Professor Starsky based on this incident. Thus, if Charge I is to be supported, the support must come from the wording of the letter itself. The letter headed “the Issues at Columbia University” consists of quotations of a dialogue between Columbia University President Grayson Kirk and a student leader, Mark Rudd. The basic thrust of the letter is President Kirk’s accusation therein that young people have taken refuge in “. . . nihilism whose sole objectives are distraction.”, and Mr. Rudd’s denial of the charge and assertion that young people have “ . . . positive values ... we are seeking a rational basis for society. We do have a vision of the way things could be. . ” Mr. Rudd goes on to advocate socialism which will be accomplished by taking power away from people like President Kirk and giving this power to others, thus: “For if we win, we will take control of your world, your corporation, your university and attempt to mold a world in which we and other people can live as human beings.” However, there is nothing in the letter which calls for any kind of immediate action at Arizona State University, nor is there any analogy drawn between the conditions at Columbia and those at Arizona State University. The quotation from Mark Rudd ends with a strongly worded quotation within a quotation, thus: You call for order and respect for authority; we call for justice, freedom and socialism. There is only one thing to say. It may sound nihilistic to you, since it is the opening shot in a war of liberation. I’ll use the words of LeRoi Jones, whom I’m sure you don’t like a whole lot: ‘up against the wall, motherfucker, this is a stick-up’. This Court adopts the Committee’s findings and conclusion as to Charge I, since they flow inevitably from the evidence. This Court particularly stresses the Committee’s Finding No. 4 that the letter was “distributed peacefully;” and Finding No. 5 that “There is no showing that Professor Starsky’s intent was to promote disaffection and disloyality rather than to acquaint the faculty with causes of student unrest at Columbia generally;” and the Committee’s conclusion that The distribution of the Rudd leaflet was not improper under the circumstances. It is our opinion that such a distribution by one member of the academic community to fellow faculty members is within the area of free discussion if the distributing faculty member believes that he can perform an educational function in this manner and if he makes the distribution peacefully, in a nonobjectionable manner. The incident concerning the Rudd letter occurred in May 1968, prior to the time that plaintiff was given his fifth year contract. A fifth year contract at Arizona State University gives a professor “stability of contract” which is generally accepted by faculty and administrators as Arizona State University’s form of tenure. Administration Exhibit 16. Plaintiff’s fifth year contract commenced in the fall of 1968. Insofar as the Board’s finding that Professor Starsky did substantially all of the acts he is charged with applies to Charge I. involving an alleged failure to use self discipline in transmitting knowledge, said finding has no substantial support of any kind in the record, and this Court must therefore reject it. Charge II, “Professor Starsky has failed to observe University regu lations” is supported by evidence relating to two specific subcharges, reading in pertinent part: On January 14, 1970 Professor Star-sky having knowledge of the lawful regulations of the Arizona Board of Regents, which it was his duty to obey, cancelled a regularly scheduled class at Arizona State University. On January 14, 1970 Professor Starsky with intent to create a disturbance against and disrespect for the lawful administrative authority of the University of Arizona appeared before and spoke to a group of students assembled on the campus of the University of Arizona to protest the arrest of eight University of Arizona students for engaging in an alleged riot and to demand the resignation of President Richard Harvill and of Vice President Robert C. Houston and exhorted and encouraged those assembled students to defy the administrative authority of the University of Arizona. The evidence shows that plaintiff did cancel a class for the purpose of making a political speech at the University of Arizona, but that he informed his department chairman informally of his intention to cancel the class. Nowhere in the record is there any “regulation” as such set forth which specifically forbids this kind of conduct. In fact, Professor Arner, Chairman of the Philosophy Department, testified that Professor Star-sky was not breaking any department rule in cancelling the class since there was long standing autonomy in this connection. Tr. Arner 738 In. 24 and 741 In. 13-15. The evidence is uncontradicted that plaintiff is extremely conscientious about meeting classes, even going to class when he can hardly talk. Dean George A. Peek, Jr., the Dean of Liberal Arts, did write plaintiff a letter of reprimand concerning the class cutting incident. Administration Exhibit 13. Dean Peek’s letter does not refer to a specific rule or regulation but rather to a general “policy of the Board of Regents, confirmed in my letter of October 25th and again on November 6th, 1969 which states that ‘classes are expected to be held according to the official academic calendar . . . .’” These “policy” letters discussed in the letter of reprimand involved a decision by the faculty that classes should not be dismissed for political reasons during the moratorium of November 1969. Tr. Peek 791 In. 17, 792 In. 7. The specific purpose of Dean Peek’s “policy” letters was disobeyed by a teacher, who had cut a class to attend the moratorium. This moratorium incident was handled by a reprimand from a department chairman, whereas in plaintiff’s case, the cutting of a class became the basis for formal charges, and a “rather prestigious” six-man committee was elected to consider the charges Tr. Peek 820 In. 5-16. In his testimony at the hearing, Dean Peek explained the reason for the difference : It was different because in the second case the president and vice-presidents said they thought this was of such magnitude that it required that the dean take an action. Normally in dealing with faculty I think the best way is to operate through the chairman BUT THIS WAS CONSIDERED A CASE THAT HAD COME SO MUCH IN THE PUBLIC EYE. THE FIRST CASE DID NOT ATTRACT, TO MY KNOWLEDGE, ANY PUBLIC ATTENTION. (Emphasis supplied.) There was uncontradicted evidence that somewhat casual cancelling of classes by teachers is not uncommon on occasion at Arizona State University. There is no indication of what “Regulation” plaintiff’s speech at the University of Arizona violated, unless we are again talking about a general “policy” in favor of keeping class appointments. No evidence of action or manner other than the words of the speech itself was offered to support the charge that plaintiff spoke “with intent to create a disturbance against and disrespect for the lawful administrative authority” or that he demanded the “resignation of President Richard Harvill and Vice President Robert L. Houston and exhorted and encouraged those assembled students to defy the administrative authority of the University of Arizona.” The words of the speech preserved by a tape recording of the speech, directly contradict these charges. Professor Starsky was one of eight or ten speakers protesting the arrest of certain students and attempting to force cancellation of athletic relations between the University of Arizona and Brigham Young University. Professor Starsky also expressed his own general philosophy concerning socialism and law and order, making it clear that he was not an administration spokesman. Although he advocated dramatic social change, he did not urge that the group before him take any specific or immediate violent or personally disrespectful action. He did not demand anyone’s resignation. The Administration’s own observer at the University of Arizona rally testified, “The whole tenor of the rally was nonviolence. There was nobody at any time of any of the speakers who urged any type of -violence.” Tr. 359 In. 12-17. The Committee had no choice but to conclude, “Professor Starsky’s speech of January 14, which neither advocated violence nor resulted in violence, . did not clearly violate the limits on extramural utterances set forth in AAUP standards.” This Court finds that the Committee correctly concluded that plaintiff’s cancellation of a class on January 14, 1970 is a violation of university “policy” but further finds that the incident was an isolated one and that plaintiff’s record in following the university policy in favor of meeting class schedules is otherwise excellent. Further, the violation is of a kind which the Administration ordinarily ignores or handles by a low level reprimand. The Board in ordering formal charges based on so minor and isolated a violation, is selectively enforcing its general attendance policy against Professor Starsky. This Court finds no evidence of misconduct in the University of Arizona incident and we can find no credible basis for the Board’s rejection of the Committee’s finding that Professor Starsky’s speech at the University of Arizona did not violate A.A.U.P. standards. Neither the class cutting nor the University of Arizona speech supports the general charge of failure to observe university regulations for the further reason that the general “policy” involved here is not a specific “regulation” but merely a general statement of attendance policy which plaintiff had always obeyed except for this one incident. A review of the entire record finds no support for the Board’s upholding Charge II, there being no substantial evidence that plaintiff failed to observe university regulations. Charge III states in part: plaintiff “has failed to show respect for the opinions of others or to be objective in his professional judgment of colleagues.” It is supported by four specific charges consisting of two charges of verbal abuse of individuals, i. e., of Warren K. Sumners, and of members of the College of Engineering faculty; and two charges relating to public off-campus speech, i. e., a “false statement” in a television broadcast involving “his employers, the Arizona Board of Regents.”, and a press release made “with disrespect toward his employers, the Arizona Board of Regents.” The evidence clearly supports the Board’s finding that Starsky did do the act involved in the subcharge involving Mr. Sumners, i. e., “On April 9, 1968, on the occasion of a memorial service for Dr. Martin Luther King, Jr., Professor Starsky subjected Mr. Warren K. Sumners, Assistant Managing Director, Gammage Auditorium, to verbal abuse and insult.” The evidence shows that plaintiff called Mr. Sumners a “ . . . bastard, you’re a son of a bitch, you have such a little regimented mind I bet you even screw on schedule.” In mitigation, however, the evidence shows that plaintiff is truly contrite and apologetic about this incident and that plaintiff admits he lost control under the stress of intense emotion due to Martin Luther King’s death. Although Mr. Sumner wrote a complaint about Professor Starsky, and sent it through administrative “chain of command” there was no response, and no formal reprimand or discipline was initiated at any time until the present charge was sent to plaintiff in March of 1970, almost two years after the incident. Further, at least one of the many discussions leading to plaintiff’s fifth year contract, giving him “stability of employment”, occurred in the summer of 1968, some time after this notorious Sumner incident. So that again Professor Starsky is charged with the doing of a known act which occurred before he was given renewal of his contract and stability of employment. Dean Peek, Dean of Liberal Arts, testified as to this discussion : the Vice President of Academic Affairs talked to Prof Arner and me and said, “You’re aware that when Prof Starsky gets his fifth year contract this constitutes stability of employment.?” We said we were clearly aware of this fact and that we had recommended the fifth year contract with the idea that he would achieve stability of employment. I think that was an important decision. And we’re aware of some of the things that had gone on. The subcharge of verbal abuse of members of the College of Engineering has no support in the record. There was a dispute between certain students, who insisted upon posting anti-war literature on the Engineering Building bulletin board, and the Dean of the College of Engineering, who denied permission for the posting. Many fraternity notices and other non-eontroversial notices were posted on the board. Professor Starsky was one of three professors who pointed out that there might be a violation of free speech in barring the entrance to a public building. At one point, Professor Starsky asked John Duffy, Director of Security, “Can I make a citizen’s arrest of that man?” referring to Dean Welch. Tr. Duffy 441 In. 5. When John Duffy informed plaintiff that he did not know, the matter was not pursued further. The Administration witnesses all denied abusive language. Dean Welch testified, “ . . . there was not what I would consider abusive language. . . . ” John Duffy testified, “I would say no, I wouldn’t say he was abusive. I make an assumption he was asking legal advice which I couldn’t answer.” There was no other evidence of verbal abuse at the engineering incident, and this Court therefore adopts the Committee’s finding that plaintiff’s question “does not constitute an insult by normal standards.” The Board’s finding that plaintiff did the acts accused of in this incident is without any support in the record. There is further uncontradicted evidence that plaintiff “ . . . definitely calmed things down, without a doubt,” and stopped an ugly situation from developing during the course of this incident. After the building was locked, Starsky dissuaded students from breaking into the building. He advised them that there was no sense in getting arrested or causing trouble, and that it would be better to handle the matter through the courts or the student disciplinary committee. The evidence involved in the television broadcast and the press release consists principally of the words used in these utterances, as they appear in Administration Exhibits 14 and 17 respectively, and they are set forth in full in the appendix herein. The Board in finding that these charges were true, had to find both statements involved “disrespect” toward plaintiff’s employers, the Board of Regents, and that the television speech contained a “false statement by declaring . . . that the Arizona Board of Regents had no right or authority to question or in any way discuss his fitness for his faculty position.” The Committee found that plaintiff made statements on television that were “inaccurate as a legal matter.” A.R.S. 15-725 gives the Board of Regents the legal right to remove plaintiff “in the interests of. education.” Plaintiff’s speech questioned the Regents’ “ ‘right’ to discuss either the matter of my failure to meet with a class on January 14 or my political views. . . . ” Nowhere in the speech does plaintiff question the right of the Board to discuss any other aspect of his conduct, and thus the part of the charge stating that plaintiff denied the Board’s right to “in any way to discuss his fitness” is clearly unsupportable. The gist of the whole television speech is that a professor is judged in terms of credit hours rather than class hours and that only students and faculty have the expertise to make this kind of judgment. Nowhere is the Board’s legal authority discussed or inaccurately defined. Dean Peek understood the broadcast as merely expressing plaintiff’s view of the academic community, a view with which the Dean agreed. There is nothing in the speech to indicate that plaintiff is discussing legal rather than moral rights. He nowhere refers to the law, or uses the word “authority.” He does not hold himself out as knowledgeable in the law. Plaintiff claims that the “right” to judge class performance belongs to “students” and faculty. It would take an extremely strained reading of the television speech to find that this “right” claimed by plaintiff constitutes a false claim that the students have legal authority rather than moral right to judge a teacher. There is no substantial evidence to uphold the Board’s finding of inaccuracy. Whether the speeches show such “disrespect” as to go beyond protected criticism is a legal issue, but we also find as a matter of fact that although both utterances used strong terms, e. g., “arrogant, cynical and hypocritical,” to describe the Board’s action in ordering formal charges in the face of the Ad Hoc Committee’s recommendation to the contrary, that none of the terms in either speech was directed to members of the Board personally, that both concerned matters of urgent personal importance and of general public interest, and there is no evidence of abusive language or personal disrespect as that term is ordinarily understood in relation to public discussion of contested issues. Of the four subcharges which the Board found support Charge III, only the Sumner incident gives some support to the portion of the charge involving a failure to “show respect for the opinions of others.” No evidence was offered to support the general charge of failure “to be objective in his professional judgment of colleagues.” ■ Charge IV alleged that “Professor Starsky has disregarded and breached American Association University Professors Principles of Professional Ethics and University Regulations regarding student-faculty relationships. Charge IV is supported by only one incident for which evidence was received. The subcharge reads in part: On November 20, 1968, Professor Starsky incited, urged and encouraged persons, including Arizona State University students, to occupy the office of the President of Arizona State University . The Committee discussed the evidence on this charge in some detail and concluded, “The evidence does not substantiate this charge.” The Board, nonetheless, in its minutes of June 10, 1970 found that plaintiff “supported and participated in such incident in violation of the Regents’ ordinance,” rather than “initiating, urging and encouraging.” Thus, the Board, although finding Professor Starsky guilty of general Charge IV, found him innocent of part of the main thrust of the one subeharge supporting Charge IV. The evidence shows that on November 20, 1968, a rally was held on the Arizona State University Mall to protest allegedly discriminating practices in a linen supply company with which Arizona State University had a contract. Plaintiff did not attend the rally. At noon, about 200 persons, led by the Mexican-American Student Organization (an organization with which plaintiff was not associated) entered the open Administration Building, went to President Durham’s office and asked to see the President. Upon being told that the President was out, they remained in the building waiting for his return. Professor Starsky appeared in the Administration Building later in the afternoon. He was then Faculty Advisor to the Young Socialist Alliance, two of whose members were present in the building. There was no damage to the building and at no time was it necessary to take police action. John Duffy, Security Officer, told the students that they would have to leave the building when it closed at 5:00 o’clock P.M. Although a number of administrators and professors were present in the building, there was no order or even suggestion that the students had to leave prior to closing time. The students had an understanding that if they left the building at its closing hour, they could return when it opened the next morning. A student leader made an announcement to this effect, and the Administration people present did not contradict him. Professor Starsky and a number of students then heard Vice President Cady say, “You can’t have them here tomorrow.” Professor Star-sky called out, “Cady is copping (or selling) out.” There was then a consultation between Mr. Cady and Professor Landing and the “deal” permitting return the next morning was promptly confirmed. When plaintiff learned that some of the students planned to stay after 5:00 o’clock P.M. in violation of security policy orders, plaintiff successfully advised against this and asked that “when the building was closed, when business hours came to an end people would leave.” The students left before closing time. The next morning, a group returned at 9:00 o’clock A.M. and a meeting was arranged with President Durham, and most of the students agreed to leave the building at about 10:30 o’clock A.M. Some of the more militant students refused to leave, and a tense situation resulted. There is cumulative, uncontradicted testimony that at this point, there would have been real danger of violence if the few dissident students had attempted to force a confrontation, and that Professor Starsky urged these students to leave. Professor Starsky obviously swayed them, he “cooled off the students,” and within five or ten minutes, everyone left. Administration witnesses were repeatedly asked to name specific acts that Professor Starsky performed at the Administration Building. Aside from the outburst after Mr. Cady’s remark, the only specifics are that Professor Starsky spoke to the students urging unity, and that he helped to clear the aisles in order for persons to be able to get into the President’s office for routine business. An Administration witness described his conduct as “quite cooperative, and he did what he could, I think, to remedy the situation.” Professor Starsky’s evidence that he went into the building as an individual and that as an individual, he attempted to keep things orderly, to let traffic go through, and to keep the situation peaceful is amply corroborated by the record. The Committee found that plaintiff’s outcry, “Cady is copping out” is subject to criticism, but “his leadership on November 21 in preserving a peaceful solution was commendable.” We agree that the outcry may have been tactless, although in the vernacular used and understood by the young, but in view of the entire record of plaintiff’s role as a peacemaker, we are forced to believe Professor Starsky when he says, “ . . . my exhortation was to the effect of having the matter cleared up. I didn’t want to start a riot.” The outcry did in fact result in an immediate discussion with agreement reached between students and Administration and no violence resulted. The only evidence concerning a regulation that may have been broken by students “occupying” the building did not apply to plaintiff since faculty ad-visors are not responsible for students’ actions, and it is clear that Professor Starsky did not in any way initiate the occupation of the building. Although Charge IV and the Administration Building subcharge do not deal with a “violation of the rights of ordinance,” the Board found plaintiff’s conduct on November 20, 1968 did in fact violate such an ordinance. It cannot be determined to which ordinance the Board is referring. Since this Administration Building incident is the only specific charge on which evidence was received in support of Charge IV, this Court is at a loss to discover which regulation was violated in the Board’s finding a breach of “ . . . university regulations regarding student-faculty relationships.” Further, the evidence of the relationship between plaintiff and the students shows a faculty member whose close rapport with the student is such, that on two occasions during the incident described, as well as during the Engineering Building incident, Professor Starsky was able to dissuade students from dangerous action by the mere use of peaceful logic. This Court, therefore, finds that there is no substantial evidence to support Charge IV. Charge IV and Charge II involving a breach of policy in cancelling one class are the only charges involving failure to observe rules and regulations, and the only charges which by their terms purport to support the summary charge that plaintiff “has willfully violated Regents’ policies and University regulations.” (Emphasis supplied.) These charges are also the only indirect notice given to plaintiff for the Board’s further finding that he “would not consider himself bound in the future to obey or enforce the rules and regulations of the University and this Board.” None of the charges dealt directly with Professor Starsky’s future plans. The Board’s finding that plaintiff did not consider himself bound to “enforce” rules has some vague support in general philosophical pronouncements by plaintiff. However, none of the charges against Professor Starsky give him the vaguest notice of a duty to “enforce” rules, or a violation of such duty, and this Court can find no evidence of any expressed intention on the part of plaintiff to disobey any specific, clearly defined rule or regulation setting forth a duty that he “enforce” rules. There is no substantial evidence to support the Board’s finding that Professor Starsky intends to violate rules and regulations in the future. The evidence is clearly to the contrary, thus: Q. Then what you’re saying is that the entire regulatory system of the university, the rules, the regulations are tainted because they are based upon war making and racist policies? A. Of course. Every university. Q. Then since they are tainted you are at liberty to violate them if you feel that the contra interests are paramount? A. No. We are at liberty to challenge them, try to change them, try to bring about a mass educational attempt and mass protest to show that there was any eontravailing force on the other side. I don’t think that people, individual people are at liberty to break rules and regulations. At another point, Professor Starsky was again asked whether his concept of the University exempts him “. from supporting the rules and by-laws which you accepted when you accepted your contract?” The plaintiff answered, “It doesn’t exempt me from supporting these rules, if by supporting you mean giving prudential obedience to. You know, you have got to be uncool to do that, . . . .” Professor Starsky then stated that he found nothing God given or holy about the rules, “But that doesn’t mean you go around breaking them or violating them. You’re prudential and you look forward to a day when society will be different, and be organized in a different way, and you will have different rules. . . . And one does his best, hopefully, within the framework that he’s living in to make that day come a little bit closer.” Charge Y is headed “Professor Starsky has failed to meet his obligations to promote conditions of free inquiry and to further public understanding of academic freedom.” This Charge is supported by a series of other general charges involving a course of conduct said to have occurred between 1964 and 1970. There is no specific evidence of any conduct supporting Charge V other than the evidence already discussed in the preceding charges, the earliest incident having occurred in 1968. Evidence relating to Charge V consists entirely of the effect that plaintiff’s conduct had on others. There is no doubt from the evidence that when plaintiff engaged in conduct that people disagree with, and there is a television or news paper report of such conduct, that there is a wave of protest. There is also no doubt that fears were expressed that the Legislature might reduce funds in order to censure and punish the University for Professor Star-sky’s misconduct. The evidence was very unclear, however, as to whether public misunderstanding results from the fact that Professor Starsky is the only faculty member who is a “self-admitted publicly acknowledged Marxist socialist” or whether such misunderstanding results from Professor Starsky’s conduct, or from sensationalized media reports of Professor Starsky’s conduct. The Committee quite accurately found “A professor’s conduct should be judged in terms of its propriety, not in terms of whatever distortion may be created in the minds of the public. Thus we conclude that Charge V cannot be read apart from the other charges.” The Board’s finding of culpability based on Charge V has no substantial support in the record. In determining whether the Board’s summary “general unfitness” for a position with the faculty is supported by substantial evidence, we must consider the overwhelming evidence of plaintiff’s abilities and dedication as a teacher and a scholar. The Committee on page 12 of its findings, listed “Other Findings,” reading in part: 1. Testimony was given by Professor Starsky’s department chairman and his dean that Professor Starsky is a superior teacher both in the classroom and in time devoted to students outside the classroom; that he has promise for scholarly achievement; and that he has rendered service to Arizona State University in conceiving, planning and administering an annual national conference on philosophy. The Committee’s finding is well supported by the evidence. Plaintiff’s faculty supervisors spoke of his abilities in glowing terms, classifying him as one of the best teachers, one of the top ten percent of teachers on the campus, as working sixty hours a week, and as a professional philosopher of national visibility. A full professor even suggested that faculty members be required to take one of Professor Star-sky’s courses. We find that in view of plaintiff’s seven year record of excellence as a teacher, the fact that he achieved stability of contract, and that the only specific charges supported by substantial evidence involve a pre-tenure personal abuse of Mr. Sumners and an isolated instance of class cancellation in which “policy” was selectively enforced, and that the only reprimand he received was for this one incident of class cutting, that the Board’s conclusion of “general unfitness” does not find substantial support in the record. Our finding that the evidence is not sufficient to support the basic charges or to warrant termination is not sufficient in itself for plaintiff to prevail since we do not normally review matters within the Board of Regent’s discretion. The paucity of unprotected cause for dismissal will only become significant if we also find that the primary or substantial cause of the discipline is an impermissible restraint on plaintiff’s constitutional rights. The issue of whether the employee teacher in this case was wrongfully discharged by the employer Board of Regents is complicated by the mixture of reasons given for his discharge, some clearly involving the teacher’s constitutionally protected rights and others not. Since the conduct of the teacher which lead to his dismissal consists of both constitutionally protected and unprotected activities and speech, what must be determined is whether the primary motivation of the employer Board of Regents and their actual reason for the discharge was based on conduct which was constitutionally protected. The particular conduct of the teacher employee which lead to the discharge and the primary motivation and actual reason of the employer in discharging him is to be determined from all the facts and circumstances involved in his termination as disclosed by a reading of the entire record. It is not to be determined solely on the basis of the reasons given by the employer for the discharge. This is so because from a review of the entire record, it may become apparent that the facts do not support the stated reasons for the discharge. This may also be so because the selective enforcement of a policy or rule against a particular employee makes it clear that he alone among all employees is being singled out for discipline in such a singular, discriminatory fashion as to suggest that the enforcement of a policy or rule against him is not the real reason or primary motivation for the discharge. This is not to suggest that the mere intermingling by a teacher of constitutionally protected conduct (or speech) with other unprotected conduct (or speech) should be deemed to bar an employer from discharging that teacher. A claim of “free speech” should not excuse actions by a teacher that would normally evoke the kind of discipline applied in this case. Conversely, the employer should not selectively enforce rules, or use minor infractions as an ostensible reason for discipline or discharge in a case where the unprotected conduct complained of would normally evoke only mild disciplinary action or perhaps no discipline at all but for the protected conduct or speech. However, if judged by constitutional standards, there are valid as well as invalid reasons for the discipline or discharge of a teacher, such discipline or discharge will not be set aside by the federal court so long as the invalid reasons are not the primary reasons or motivation for the discharge. From the record in this case up to this point, it is determined that some of the charges against the plaintiff have no support in fact. With respect to the remaining charges, the foregoing tests as to the protected and unprotected conduct of the plaintiff, and the tests for the determination of the valid or invalid reasons and primary motivation for his discharge by the employer will be applied to determine which of the parties’ motions for summary judgment should be granted and whether the plaintiff’s discharge should be affirmed or set aside. Of the eight specific deeds which the Board found plaintiff did and which provide the basis for the Board’s finding of unfitness and for discharge, only one concerns plaintiff’s functions as a teacher, i. e., one unexcused class cancellation. All of the other charges involve extramural or public activity. In every specific charge, the written or spoken word plays an important or exclusive role. As to the seven charges involving words, we must ask two questions: First, are the words subject to federal constitutional guaranty? Second, as to those charges involving speech as a citizen, are the words protected by the Board’s own standards proclaiming that when a faculty member speaks as a citizen, exercising his constitutional right of free speech, he should be free of institutional discipline? The second question may be raised to constitutional significance, since plaintiff was given notice and repeated assurance throughout these proceedings that the charges against him would be governed by certain A.A.U.P. principles which appear in the bylaws of the faculty constitution. If the Board used standards substantially more restrictive than its avowed principles a serious due process question would be raised. In determining whether the words involved are protected, we shall attempt to balance two basic interests. The United States Supreme Court has repeatedly emphasized that “The vigilant protection of constitutional freedom is nowhere more vital than in the community of American schools.” Keyishian v. Board of Regents of U. of St. of N. Y., 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967). On the other hand, the courts have recognized that academic freedom may have to be balanced against school administrators’ right to forbid conduct which would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Tinker v. Des Moines Independent Com. Sch. Dist., 393 U.S. 503, 509, 89 S.Ct. 733, 738, 21 L.Ed.2d 731 (1969). This balancing test is quite easy in the two incidents involving charges of personally insulting speech delivered on the campus within students’ hearing. Although the language used in the Sumner incident may be subject to sufficient First Amendment protection to defeat a tort or a criminal action, there are important considerations of school discipline here. The content of the speech in calling Mr. Sumner a “bastard,” etc., adds very little to the world of ideas. It communicates only vituperation, bad temper, and a kind of loss of personal dignity on the part of a faculty member that may be the exact kind of conduct meant to be avoided by the A. A.U.P. standard of “appropriate” restraint. The school’s interest in discipline in demanding some minimum of courtesy in a faculty member’s on-campus relationships with school officials outweighs the free speech interests here. The question asked by plaintiff as to whether he could make a citizen’s arrest of a member of the faculty of the Engineering College does not involve the same kind of undignified conduct. The speech consists of an honest, if misguided, inquiry as to whether plaintiff could legally take a certain course of action. The evidence shows that plaintiff honestly believed that Dean Welch was performing an illegal act in refusing to permit the posting of an anti-war handbill, and that this belief was shared by other professors. It is significant that John Duffy, Director of Security, did not know the answer to the question, and that none of the Administration witnesses found the question abusive. The question was promptly dropped and there was no evidence as to any action. We find no issue of “verbal act.” The interests of honest inquiry here outweigh the interests of discipline. We find this is protected speech. The Administration Building incident is somewhat more complicated. The Board found culpability in an event covering a two-day period during which plaintiff was found to have supported and participated with students in the occupation of certain offices in violation of regulations concerning student-faculty relationships. We agree with the Committee that the evidence does not support the charge, and like the Committee, we find aspects of plaintiff’s conduct as a peacemaker most commendable. Plaintiff raises a further issue that the outcry, “Cady is copping (or selling) out,” is protected speech. Defendants argue that this outcry under these circumstances was calculated to arouse a violent response and is therefore a “verbal act” within the meaning of Siegel v. Regents of U. of Cal., 308 F.Supp. 832 (D.C.1970). The facts supporting the finding of a “verbal act” in Siegel present an interesting contrast to Professor Starsky’s outcry. Siegel was a student enrolled on the Berkeley Campus at a time that property belonging to the Board of Regents was illegally seized. A fence was then put around the property and on the same day, a rally of several thousand persons was held in which plaintiff made the following remarks, in part: “Don’t let those pigs beat the shit out of you, don’t let yourselves get arrested on felonies, go down there and take the park.” (Emphasis in decision.) “Immediately thereafter, several thousand persons proceeded from the rally down Telegraph Avenue toward the aforementioned property where they were met by law enforcement officers. Violence ensued resulting in the next few days in one death, numerous injuries and many arrests.” Id. at page 834. The court found: “Under the circumstances shown by the record the statement transcends mere expression of opinion and becomes conduct — -a distinct, affirmative verbal act — overt conduct for which plaintiff could be properly called to account . . . .’’Id. at page 837. The verbal act in Siegel is a deliberate incitement to seize fenced private property in a tense situation. At the Administration Building, there was no question of “seizing” private property. Professor Starsky was present along with other professors, administrators, students, clergymen and others in a public school building where a group of students were attempting to obtain an interview. When he heard words to the effect that a clear understanding on the part of the students and the Administration was being broken, he called the words to the attention of the students. “Cady is copping (or selling) out.” The outburst consists of a rather crude manner of imparting pertinent and accurate information. It did not call for any action, other than the implied need to clarify the understanding as to a “deal.” It did in fact result in such clarification. It is difficult to view Professor Star-sky’s outcry apart from the Administration’s testimony of his “influence” over students, from all of the evidence of his interest and concern with the students, and from the evidence of three separate acts of persuading students not to take extreme action, once at the Engineering Building and twice during the Administrative Building' event. The many acts illustrate the kind of rapport that Professor Starsky had with students, and his ability in his own words to “use that influence to try to keep people (from) engaging in lunatic fringe sorts of activity.” Common sense tells us that this kind of “influence” can only be maintained by complete frankness with students. Although we may wish that Professor Starsky had found a more polite' form of communication, his frankness with the students in giving them information of interest to them at the instant he heard it, is certainly part of the picture of his own relationships with students, and the credibility he had with them, and part of the reason he was successful on at least three occasions that we know of in controlling potentially extreme student action. In weighing Professor Starsky’s interest in imparting information which would help maintain his rapport with the students against the fears of the Administration, we are mindful of the test laid out in Tinker v. Des Moines: . in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk. Supra at 508 of 393 U.S., 737 of 89 S.Ct. The question of whether these words are protected is a difficult one, since it depends on whether the Administrators’ apprehension of disturbance had some reasonable basis in fact. There is no wish to set a precedent that can be read as protecting every informational outburst made during a tense demonstration. This Court does find that in the context of the total picture here, the Administrators’ fears are not well grounded and the words used by Professor Starsky are not of such an inflammatory nature as to lose their First Amendment protection. We do not consider that this holding is essential to our finding as to the charges based on the Administration Building incident. Even if the words were found to be sufficiently inflammatory to lose First Amendment protection, they are a small part of the whole picture and this would not be sufficient evidence to uphold the Board’s finding of a violation of ethics and regulations in student-faculty relationships based on plaintiff’s total participation in this incident. Thus, if we were to accept the Committee’s finding that the cry might have led to violence, we would still be forced to accept the Committee’s conclusion that there is not sufficient evidence to substantiate Charge IV. The copies of a letter distributed only to faculty at the entrance of a faculty meeting is “pure” speech. Our discussion of the facts basically is dis-positive of the constitutional issue, since we found that the objections to the letter derived entirely from its wording, that nothing in the letter called for immediate action at Arizona State University, and that the purpose of the letter was informational, i. e., to acquaint the faculty with the causes of unrest at Columbia University. The crux of the criticism of the letter is its disrespect for authority. The kind of “disrespect” is based on mere quotation of a dialogue involving in part advocacy of a complete change in the nature of authority. In the absence of any incitement to direct violent action, this kind of abstract revolutionary philosophy is protected. Thus in Keyishian v. Board of Regents of U. of St. of N. Y., 385 U.S. 589, 598, 87 S.Ct. 675, 682, 17 L.Ed.2d 629 (1967), a regulation barring employment of a teacher who “by word of mouth or writing willfully and deliberately advocates, advises or teaches the doctrine of forceful overthrow of government” was found unconstitutionally vague since “It may well .