Respondent was employed in a state college system for 10 years,
the last four as a junior college professor under a series of
one-year written contracts. The Regents declined to renew his
employment for the next year without giving him an explanation or
prior hearing. Respondent then brought this action in the District
Court, alleging that the decision not to rehire him was based on
respondent's public criticism of the college administration, and
thus infringed his free speech right, and that the Regents' failure
to afford him a hearing violated his procedural due process right.
The District Court granted summary judgment for petitioners,
concluding that respondent's contract had terminated and the junior
college had not adopted the tenure system. The Court of Appeals
reversed on the grounds that, despite lack of tenure, nonrenewal of
respondent's contract would violate the Fourteenth Amendment if it
was in fact, based on his protected free speech, and that, if
respondent could show that he had an "expectancy" of reemployment,
the failure to allow him an opportunity for a hearing would violate
the procedural due process guarantee.
1. Lack of a contractual or tenure right to reemployment, taken
alone, did not defeat respondent's claim that the nonrenewal of his
contract violated his free speech right under the First and
Fourteenth Amendments. The District Court therefore erred in
foreclosing determination of the contested issue whether the
decision not to renew was based on respondent's exercise of his
right of free speech. Pp. 408 U. S.
2. Though a subjective "expectancy" of tenure is not protected
by procedural due process, respondent's allegation that the college
had a de facto
tenure policy, arising from rules and
understandings officially promulgated and fostered, entitled him to
an opportunity of proving the legitimacy of his claim to job
tenure. Such proof would obligate the college to afford him a
requested hearing where he could be informed of the grounds for his
nonretention and challenge their sufficiency. Pp. 408 U. S.
430 F.2d 939, affirmed.
Page 408 U. S. 594
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,
408 U. S. 603
BRENNAN, J., filed an opinion dissenting in part, in which DOUGLAS,
J., joined, post,
p. 408 U. S. 604
MARSHALL, J., filed an opinion dissenting in part, post,
p. 408 U. S. 605
POWELL, J., took no part in the decision of the case.
MR. JUSTICE STEWART delivered the opinion of the Court.
From 1959 to 1969, the respondent, Robert Sindermann, was a
teacher in the state college system of the State of Texas. After
teaching for two years at the University of Texas and for four
years at San Antonio Junior College, he became a professor of
Government and Social Science at Odessa Junior College in 1965. He
was employed at the college for four successive years, under a
series of one-year contracts. He was successful enough to be
appointed, for a time, the co-chairman of his department.
During the 1968-1969 academic year, however, controversy arose
between the respondent and the college administration. The
respondent was elected president of the Texas Junior College
Teachers Association. In this capacity, he left his teaching duties
on several occasions to testify before committees of the Texas
Page 408 U. S. 595
and he became involved in public disagreements with the policies
of the college's Board of Regents. In particular, he aligned
himself with a group advocating the elevation of the college to
four-year status -- a change opposed by the Regents. And, on one
occasion, a newspaper advertisement appeared over his name that was
highly critical of the Regents.
Finally, in May, 1969, the respondent's one-year employment
contract terminated and the Board of Regents voted not to offer him
a new contract for the next academic year. The Regents issued a
press release setting forth allegations of the respondent's
insubordination. [Footnote 1
But they provided him no official statement of the reasons for the
nonrenewal of his contract. And they allowed him no opportunity for
a hearing to challenge the basis of the nonrenewal.
The respondent then brought this action in Federal District
Court. He alleged primarily that the Regents' decision not to
rehire him was based on his public criticism of the policies of the
college administration, and thus infringed his right to freedom of
speech. He also alleged that their failure to provide him an
opportunity for a hearing violated the Fourteenth Amendment's
guarantee of procedural due process. The petitioners -- members of
the Board of Regents and the president of the college -- denied
that their decision was made in retaliation for the respondent's
public criticism, and argued that they had no obligation to provide
a hearing. [Footnote 2
] On the
basis of these bare pleadings and three
Page 408 U. S. 596
brief affidavits filed by the respondent, [Footnote 3
] the District Court granted summary
judgment for the petitioners. It concluded that the respondent
"no cause of action against the [petitioners], since his
contract of employment terminated May 31, 1969, and Odessa Junior
College has not adopted the tenure system. [Footnote 4
The Court of Appeals reversed the judgment of the District
Court. 430 F.2d 939. First, it held that, despite the respondent's
lack of tenure, the nonrenewal of his contract would violate the
Fourteenth Amendment if it in fact, was based on his protected free
speech. Since the actual reason for the Regents' decision was "in
total dispute" in the pleadings, the court remanded the case for a
full hearing on this contested issue of fact. Id.
942-943. Second, the Court of Appeals held that, despite the
respondent's lack of tenure, the failure to allow him an
opportunity for a hearing would violate the constitutional
guarantee of procedural due process if the respondent could show
that he had an "expectancy" of reemployment. It therefore ordered
that this issue of fact also be aired upon remand. Id.
943-944. We granted a writ of certiorari, 403 U.S. 917, and we have
considered this case along with Board of Regents v. Roth,
p. 408 U. S. 564
The first question presented is whether the respondent's lack of
a contractual or tenure right to reemployment, taken alone, defeats
his claim that the nonrenewal of his contract violated the First
and Fourteenth Amendments. We hold that it does not.
Page 408 U. S. 597
For at least a quarter-century, this Court has made clear that,
even though a person has no "right" to a valuable governmental
benefit, and even though the government may deny him the benefit
for any number of reasons, there are some reasons upon which the
government may not rely. It may not deny a benefit to a person on a
basis that infringes his constitutionally protected interest,
especially his interest in freedom of speech. For if the government
could deny a benefit to a person because of his constitutionally
protected speech or associations, his exercise of those freedoms
would in effect be penalized and inhibited. This would allow the
government to "produce a result which [it] could not command
directly." Speiser v. Randall, 357 U.
, 357 U. S. 526
Such interference with constitutional rights is impermissible.
We have applied this general principle to denials of tax
exemptions, Speiser v. Randall, supra,
benefits, Sherbert v. Verner, 374 U.
, 374 U. S.
-405, and welfare payments, Shapiro v.
Thompson, 394 U. S. 618
394 U. S. 627
n. 6; Graham v. Richardson, 403 U.
, 403 U. S. 374
But, most often, we have applied the principle to denials of public
employment. United Public Workers v. Mitchell,
330 U. S. 75
330 U. S. 100
Wieman v. Updegraff, 344 U. S. 183
344 U. S. 192
Shelton v. Tucker, 364 U. S. 479
364 U. S.
-486; Torcaso v. Watkins, 367 U.
, 367 U. S.
-496; Cafeteria Workers v. McElroy,
367 U. S. 886
367 U. S. 894
Cramp v. Board of Public Instruction, 368 U.
, 368 U. S. 288
Bagett v. Bullitt, 377 U. S. 360
Elfbrandt v. Russell, 384 U. S. 11
384 U. S. 17
Keyishian v. Board of Regents, 385 U.
, 385 U. S.
-606; Whitehill v. Elkins, 389 U. S.
; United States v. Robel, 389 U.
; Pickering v. Board of Education,
391 U. S. 563
391 U. S. 568
We have applied the principle regardless of the public employee's
contractual or other claim to a job. Compare Pickering v. Board
of Education, supra, with Shelton v. Tucker, supra.
Thus, the respondent's lack of a contractual or tenure
Page 408 U. S. 598
"right" to reemployment for the 1969-1970 academic year is
immaterial to his free speech claim. Indeed, twice before, this
Court has specifically held that the nonrenewal of a nontenured
public school teacher's one-year contract may not be predicated on
his exercise of First and Fourteenth Amendment rights. Shelton
v. Tucker, supra; Keyishian v. Board of Regents, supra.
reaffirm those holdings here.
In this case, of course, the respondent has yet to show that the
decision not to renew his contract was, in fact, made in
retaliation for his exercise of the constitutional right of free
speech. The District Court foreclosed any opportunity to make this
showing when it granted summary judgment. Hence, we cannot now hold
that the Board of Regents' action was invalid.
But we agree with the Court of Appeals that there is a genuine
dispute as to "whether the college refused to renew the teaching
contract on an impermissible basis -- as a reprisal for the
exercise of constitutionally protected rights." 430 F.2d at 943.
The respondent has alleged that his nonretention was based on his
testimony before legislative committees and his other public
statements critical of the Regents' policies. And he has alleged
that this public criticism was within the First and Fourteenth
Amendments' protection of freedom of speech. Plainly, these
allegations present a bona fide
constitutional claim. For
this Court has held that a teacher's public criticism of his
superiors on matters of public concern may be constitutionally
protected, and may, therefore, be an impermissible basis for
termination of his employment. Pickering v. Board of Education,
For this reason we hold that the grant of summary judgment
against the respondent, without full exploration of this issue, was
Page 408 U. S. 599
The respondent's lack of formal contractual or tenure security
in continued employment at Odessa Junior College, though irrelevant
to his free speech claim, is highly relevant to his procedural due
process claim. But it may not be entirely dispositive.
We have held today in Board of Regents v. Roth, ante,
p. 408 U. S. 564
that the Constitution does not require opportunity for a hearing
before the nonrenewal of a nontenured teacher's contract unless he
can show that the decision not to rehire him somehow 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. In Roth,
the teacher had not made a showing on
either point to justify summary judgment in his favor.
Similarly, the respondent here has yet to show that he has been
deprived of an interest that could invoke procedural due process
protection. As in Roth,
the mere showing that he was not
rehired in one particular job, without more, did not amount to a
showing of a loss of liberty. [Footnote 5
] Nor did it amount to a showing of a loss of
But the respondent's allegations -- which we must construe most
favorably to the respondent at this stage of the litigation -- do
raise a genuine issue as to his interest in continued employment at
Odessa Junior College. He alleged that this interest, though not
secured by a formal contractual tenure provision, was secured by a
no less binding understanding fostered by the college
Page 408 U. S. 600
In particular, the respondent alleged that the college had a
tenure program, and that he had tenure under that
program. He claimed that he and others legitimately relied upon an
unusual provision that had been in the college's official Faculty
Guide for many years:
Odessa College has no tenure system.
The Administration of the College wishes the faculty member to feel
that he has permanent tenure as long as his teaching services are
satisfactory and as long as he displays a cooperative attitude
toward his coworkers and his superiors, and as long as he is happy
in his work."
Moreover, the respondent claimed legitimate reliance upon
guidelines promulgated by the Coordinating Board of the Texas
College and University System that provided that a person, like
himself. who had been employed as a teacher in the state college
and university system for seven years or more has some form of job
tenure. [Footnote 6
Page 408 U. S. 601
Thus, the respondent offered to prove that a teacher with his
long period of service at this particular State College had no less
a "property" interest in continued employment than a formally
tenured teacher at other colleges, and had no less a procedural due
process right to a statement of reasons and a hearing before
college officials upon their decision not to retain him.
We have made clear in Roth, supra,
at 408 U. S.
-572, that "property" interests subject to procedural
due process protection are not limited by a few rigid, technical
forms. Rather, "property" denotes a broad range of interests that
are secured by "existing rules or understandings." Id.
408 U. S. 577
A person's interest in a benefit is a "property" interest for due
process purposes if there are such rules or mutually explicit
understandings that support his claim of entitlement to the benefit
and that he may invoke at a hearing. Ibid.
A written contract with an explicit tenure provision clearly is
evidence of a formal understanding that supports a teacher's claim
of entitlement to continued employment unless sufficient "cause" is
shown. Yet absence of such an explicit contractual provision may
not always foreclose the possibility that a teacher has a
"property" interest in reemployment. For example, the law of
contracts in most, if not all, jurisdictions long has employed
Page 408 U. S. 602
a process by which agreements, though not formalized in writing,
may be "implied." 3 A. Corbin on Contracts §§ 561-572A (1960).
Explicit contractual provisions may be supplemented by other
agreements implied from "the promisor's words and conduct in the
light of the surrounding circumstances." Id.
at § 562. And
"[t]he meaning of [the promisor's] words and acts is found by
relating them to the usage of the past." Ibid.
A teacher, like the respondent, who has held his position for a
number of years, might be able to show from the circumstances of
this service -- and from other relevant facts -- that he has a
legitimate claim of entitlement to job tenure. Just as this Court
has found there to be a "common law of a particular industry or of
a particular plant" that may supplement a collective bargaining
agreement, Steelworkers v. Warrior & Gulf Co.,
363 U. S. 574
363 U. S. 579
so there may be an unwritten "common law" in a particular
university that certain employees shall have the equivalent of
tenure. This is particularly likely in a college or university,
like Odessa Junior College, that has no explicit tenure system even
for senior members of its faculty, but that nonetheless may have
created such a system in practice. See
C. Byse & L.
Joughin, Tenure in American Higher Education 17-28 (1959).
In this case, the respondent has alleged the existence of rules
and understandings, promulgated and fostered by state officials,
that may justify his legitimate claim of entitlement to continued
employment absent "sufficient
Page 408 U. S. 603
cause." We disagree with the Court of Appeals insofar as it held
that a mere subjective "expectancy" is protected by procedural due
process, but we agree that the respondent must be given an
opportunity to prove the legitimacy of his claim of such
entitlement in light of "the policies and practices of the
institution." 430 F.2d at 943. Proof of such a property interest
would not, of course, entitle him to reinstatement. But such proof
would obligate college officials to grant a hearing at his request,
where he could be informed of the grounds for his nonretention and
challenge their sufficiency.
Therefore, while we do not wholly agree with the opinion of the
Court of Appeals, its judgment remanding this case to the District
MR. JUSTICE POWELL took no part in the decision of this
The press release stated, for example, that the respondent had
defied his superiors by attending legislative committee meetings
when college officials had specifically refused to permit him to
leave his classes for that purpose.
The petitioners claimed, in their motion for summary judgment,
that the decision not to retain the respondent was really based on
his insubordinate conduct. See n
The petitioners, for whom summary judgment was granted,
submitted no affidavits whatever. The respondent's affidavits were
very short, and essentially repeated the general allegations of his
The findings and conclusions of the District Court -- only
several lines long -- are not officially reported.
The Court of Appeals suggested that the respondent might have a
due process right to some kind of hearing simply if he asserts to
college officials that their decision was based on his
constitutionally protected conduct. 430 F.2d at 944. We have
rejected this approach in Board of Regents v. Roth, ante
at 408 U. S. 575
The relevant portion of the guidelines, adopted as "Policy Paper
1" by the Coordinating Board on October 16, 1967, reads:
"Tenure means assurance to an experienced faculty member that he
may expect to continue in his academic position unless adequate
cause for dismissal is demonstrated in a fair hearing, following
established procedures of due process."
"A specific system of faculty tenure undergirds the integrity of
each academic institution. In the Texas public colleges and
universities, this tenure system should have these components:
"(1) Beginning with appointment to the rank of full-time
instructor or a higher rank, the probationary period for a faculty
member shall not exceed seven years, including within this period
appropriate full-time service in all institutions of higher
education. This is subject to the provision that, when, after a
term of probationary service of more than three years in one or
more institutions, a faculty member is employed by another
institution, it may be agreed in writing that his new appointment
is for a probationary period of not more than four years (even
though thereby the person's total probationary period in the
academic profession is extended beyond the normal maximum of seven
"* * * *"
"(3) Adequate cause for dismissal for a faculty member with
tenure may be established by demonstrating professional
incompetence, moral turpitude, or gross neglect of professional
The respondent alleges that, because he has been employed as a
"full-time instructor" or professor within the Texas College and
University System for 10 years, he should have "tenure" under these
We do not now hold that the respondent has any such legitimate
claim of entitlement to job tenure. For
"[p]roperty interests . . . 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. . . ."
Board of Regents v. Roth, supra
at 408 U. S. 577
If it is the law of Texas that a teacher in the respondent's
position has no contractual or other claim to job tenure, the
respondent's claim would be defeated.
MR. CHIEF JUSTICE BURGER, concurring. *
I concur in the Court's judgments and opinions in
but there is one central
point in both decisions that I would like to underscore, since it
may have been obscured in the comprehensive discussion of the
cases. That point is that the relationship between a state
institution and one of its teachers is essentially a matter of
state concern and state law. The Court holds today only that a
state employed teacher who has a right to reemployment under state
law, arising from either an express or implied contract has, in
turn, a right, guaranteed by the Fourteenth Amendment, to some form
of prior administrative or academic hearing on the cause
Page 408 U. S. 604
for nonrenewal of his contract. Thus, whether a particular
teacher in a particular context has any right to such
administrative hearing hinges on a question of state law. The
Court's opinion makes this point very sharply:
"Property interests . . . are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law. . . ."
Board of Regents v. Roth, ante
at 408 U. S.
Because the availability of the Fourteenth Amendment right to a
prior administrative hearing turns in each case on a question of
state law, the issue of abstention will arise in future cases
contesting whether a particular teacher is entitled to a hearing
prior to nonrenewal of his contract. If relevant state contract law
is unclear, a federal court should, in my view, abstain from
deciding whether he is constitutionally entitled to a prior
hearing, and the teacher should be left to resort to state courts
on the questions arising under state law.
* This opinion applies also to No. 71-162, Board of Regents
of State Colleges et al. v. Roth, ante,
p. 408 U. S. 564
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS joins,
dissenting in No. 71-162, ante,
p. 408 U. S. 564
dissenting in part in No. 70-36.
Although I agree with Part I of the Court's opinion in No.
70-36, I also agree with my Brother MARSHALL that
"respondent[s] [were] denied due process when [their]
contract[s] [were] not renewed and [they were] not informed of the
reasons and given an opportunity to respond."
at 408 U. S. 590
Since respondents were entitled to summary judgment on that issue,
I would affirm the judgment of the Court of Appeals in No. 71-162,
and, to the extent indicated by my Brother MARSHALL, I would modify
the judgment of the Court of Appeals in No. 70-36.
Page 408 U. S. 605
MR. JUSTICE MARSHALL, dissenting in part.
Respondent was a teacher in the state college system of the
State of Texas for a decade before the Board of Regents of Odessa
Junior College decided not to renew his contract. He brought this
suit in Federal District Court claiming that the decision not to
rehire him was in retaliation for his public criticism of the
policies of the college administration in violation of the First
Amendment, and that, because the decision was made without giving
him a statement of reasons and a hearing, it denied him the due
process of law guaranteed by the Fourteenth Amendment. The District
Court granted summary judgment for petitioners, but the Court of
Appeals reversed and remanded the case for further proceedings.
This Court affirms the judgment of the Court of Appeals.
I agree with Part I of the Court's opinion holding that
respondent has presented a bona fide
First Amendment claim
that should be considered fully by the District Court. But, for the
reasons stated in my dissenting opinion in Board of Regents v.
No. 71-162, ante,
p. 408 U. S. 587
I would modify the judgment of the Court of Appeals to direct the
District Court to enter summary judgment for respondent entitling
him to a statement of reasons why his contract was not renewed and
a hearing on disputed issues of fact.