Exercise 3.1 You Rule! McMillan v.

NMSU

Bill McMillan accepted a 1-year appointment as a nontenured track lecturer in the Department of
Political Science at Northern Minnesota State University. He worked hard during the semester,
preparing and teaching three classes and working on publications. He commented to his
departmental colleagues on multiple occasions that he thought the college dean could do a better
job at allocating teaching loads. He also observed that faculty salaries were not up to par with
those of other state universities. He thought things were going well.
However, on January 23, as the spring term began, he received official word that the university
would not review his contract for the next academic year. No explanation was given.
Disappointed, angry, and having just taught a course on the Constitution and Bill of Rights,
Professor McMillan sued the university. He claimed the administration had infringed on his First
Amendment right to free speech and his Fourteenth Amendment rights to due process, because
he did not receive reasons for the contract nonrenewal and was not afforded an administrative
hearing to challenge the action.

1. If you were a judge hearing this case, how would you rule?

Although the long history of these kinds of cases brought differents results, recent trends shows that, the
courts are taking the statement "No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or
property without due process of law. .... ,, of Fourteenth Amendment as a basis and applies it to a teacher
without tenure or an expectancy of reemployment as well. I would have taken a similar approach,
although the whole case need detailed scrutiny and Privilege Doctrine and the respondent`s position
should be taken into account before final verdict.

2. What rights does an untenured professor have to employment with the state?

All the basic rights reflected in Acts and Amendments are applicable to both tenured and untenured
professors, except the fact that untenured professors` job security might not be subject to protection like
that of tenured professors. However, it may differ in certain states.

3. Is there reason to believe that Professor McMillan’s right to free speech was violated?

No, based on Board of Regents v. Roth case of 1972, we can come to conclusion that, “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.”

4. Is the university obligated to provide procedural due process to Professor McMillan?

No, since “… 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.” (Board of Regents v. Roth case of 1972)

References:

1. https://scholar.smu.edu/cgi/viewcontent.cgi?article=3488&context=smulr
2. https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1206&context=lawreview
3. https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=2541&context=clevstlrev
4. https://supreme.justia.com/cases/federal/us/408/564/