1.    “Evidentiary findings made at an administrative hearing should not be reversed unless they are clearly wrong.” Syllabus point 1, Francis O. Day Co. v. Director, Division of Environmental Protection, 191 W. Va. 134, 443 S.E.2d 602 (1994).

        2.    “Where the plaintiff claims that he was discharged for exercising his First Amendment right of free speech, the burden is initially upon the plaintiff to show: (1) that his conduct was constitutionally protected; and (2) that his conduct was a substantial or motivating factor for his discharge. His employer may defeat the claim by showing that the same decision would have been reached even in the absence of the protected conduct.” Syllabus point 4, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983).

        3.    “The Due Process Clause, Article III, Section 10 of the West Virginia Constitution, requires procedural safeguards against State action which affects a liberty or property interest.” Syllabus point 1, Waite v. Civil Service Commission, 161 W. Va. 154, 241 S.E.2d 164 (1977).

        4.     A tenured teacher has a protected property interest in his/her position, which raises constitutional due process considerations when a teacher is faced with termination of his/her employment. W. Va. Const. art. III, § 10.

        5.     Constitutional due process principles may be used to determine whether disciplinary action taken by a public higher educational institution against a tenured teacher is too severe for the infraction occasioning such discipline. W. Va. Const. art. III, § 10.

        6.    Constitutional due process is denied when a tenured public higher education teacher, who has a previously unblemished record, is immediately terminated for an incident of insubordination that is minor in its consequences. Under such circumstances, due process requires the educational institution to impose progressive disciplinary sanctions in an attempt to correct the teacher's insubordinate conduct before it may resort to termination. W. Va. Const. art. III, § 10.  

Davis, Justice:

        George Trimble, appellant/petitioner below (hereinafter referred to as “Mr. Trimble”), appeals from a final order of the Circuit Court of Kanawha County affirming the decision of the Board of Directors of the West Virginia State College System (hereinafter referred to as “the Board”)See footnote 1 ¹ to dismiss Mr. Trimble from his position as a tenured, full-time assistant professor of English at the Southern West Virginia Community and Technical College, appellee/respondent below (hereinafter referred to as “the College”). Mr. Trimble was terminated for alleged insubordination. Here, Mr. Trimble contends that his termination violated his First Amendment rights to freedom of speech and assembly. Mr. Trimble also contends that he had a property interest in his employment and that because of his property interest, the College was required to utilize progressive disciplinary measures prior to considering termination of his employment. After reviewing the entire record, and the briefs and argument of counsel, the final order of the circuit court is reversed.

        Problems began to occur in 1996. In January of 1996, the College faculty unanimously voted a vote of no confidence for the College President, Travis Kirkland . The no confidence vote was prompted by numerous changes Mr. Travis attempted to institute at the College. Additionally, in August 1996, Mr. Trimble was instrumental in organizing WVEA/Southern (hereinafter referred to as “WVEA”), a teacher's labor organization. Mr. Trimble became President of the organization, which a majority of the College's faculty eventually joined. In fact, WVEA was extremely critical of many policy initiatives proposed by the College.

        One of the changes sought by President Kirkland was the implementation of an assessment plan known as Instructional Performance Systems Incorporated (hereinafter referred to as “IPSI”). IPSI was a computer software program used for writing course syllabi. It was designed to allow for measuring competency-based goals which could be later used to evaluate student achievement. The College faculty was first advised of the assessment plan in a memorandum issued in August 1996. A few months later, President Kirkland mandated the use of the IPSI software. President Kirkland's decision was met with faculty opposition.

        The Humanities Division objected to using IPSI. The position taken by the Humanities Division was that IPSI was impractical and unworkable for their courses, although it might have relevancy for technical or vocational programs offered by the College. Therefore, Mr. Trimble opposed the use of IPSI on the grounds that it interfered with the principles of academic freedom. The position taken by Mr. Trimble was printed in a newsletter published by WVEA.    

        Several informational meetings were conducted by the College concerning the use of the IPSI software on the Williamson campus. Mr. Trimble failed to attend several of the meetings.See footnote 3 ³ The College sent a memo to Mr. Trimble advising him of institutional policy mandating advanced written notice of non-emergency reasons for not attending required College meetings. Mr. Trimble was further advised that “[c]ontinued non-attendance and disregard for these required meetings will result in a letter of reprimand being placed in your personnel file with additional action as needed.”

        As a result of opposition to the IPSI software by members of the Humanities Division, President Kirkland ordered every faculty member of the Humanities Division to prepare an IPSI-generated syllabus for a specific course by a certain deadline. Subsequently, Mr. Trimble and two other members of the Humanities Division filed a grievance challenging the mandatory use of the IPSI software.

        The College advised Mr. Trimble in a memo dated March 17, 1997, that his resistance to the College's efforts to require the faculty to draft IPSI syllabi was being viewed as a “flagrant and willful disregard for directions and/or inquiries of your employer” which constitutes “insubordination”. Mr. Trimble responded with a memo disputing the characterization of his actions as “insubordination”.

        During a Humanities Division meeting in April, 1997, Mr. Trimble and another faculty member indicated that they refused to complete a syllabus using the IPSI format pending resolution of their grievance.See footnote 4 ⁴ On April 14, 1997, Mr. Trimble received a letter directing him to appear in a vacant office on the College's Logan Campus at 9:00 a.m. on Wednesday, April 16, 1997, to complete a draft IPSI syllabus. Mr. Trimble failed to appear at the Logan campus on April 16, 1997.

        By letter dated May 12, 1997, President Kirkland advised Mr. Trimble of the College's intention to terminate his employment, effective May 30, 1997, for insubordination. Mr. Trimble was offered the opportunity to meet with President Kirkland to rebut the charges. He never requested a meeting. Accordingly, by letter dated May 30, 1997, Mr. Trimble's employment with the College was terminated.See footnote 5 ⁵

        Mr. Trimble filed a grievance challenging his termination. An Institutional Hearing Committee (hereinafter referred to as “IHC”) conducted evidentiary hearings on September 2 and 3, 1997. On September 22, 1997, IHC issued a letter decision in favor of Mr. Trimble, concluding that there was no proof that he was insubordinate. However, President Kirkland subsequently made his own findings and upheld Mr. Trimble's termination. Mr. Trimble appealed President Kirkland's decision to the Board. A hearing examiner was appointed to conduct evidentiary hearings.

        The hearing examiner issued a decision on November 18, 1998, recommending that the termination decision be upheld. The Board adopted the recommendation on January 26, 1999. Mr. Trimble then filed an appeal with the Circuit Court of Kanawha County. The circuit court affirmed the Board's decision on August 2, 2000. It is from the circuit court's ruling that Mr. Trimble now appeals.

        We have acknowledged that “the 'constitutional guarantee of free speech is a guarantee only against abridgement by government, federal or state.'” Riesbeck Food Mkts., Inc. v. United Food & Commercial Workers, Local Union 23, 185 W. Va. 12, 16 n.11, 404 S.E.2d 404, 408 n.11 (1991) (quoting Hudgens v. NLRB, 424 U.S. 507, 513, 96 S. Ct. 1029, 1033, 47 L. Ed. 2d 196, 202 (1976)). This Court has recognized that “public employees are entitled to be protected from firings, demotions and other adverse employment consequences resulting from the exercise of their free speech rights, as well as other First Amendment rights.” Orr v. Crowder, 173 W. Va. 335, 343, 315 S.E.2d 593, 601 (1983). There is no dispute in this case that the College is a public institution and is therefore subject to the restrictions of the First Amendment. We held in Syllabus point 4 of Orr, in part, that:

            [W]here the plaintiff claims that he was discharged for exercising his First Amendment right of free speech, the burden is initially upon the plaintiff to show: (1) that his conduct was constitutionally protected; and (2) that his conduct was a substantial or motivating factor for his discharge. His employer may defeat the claim by showing that the same decision would have been reached even in the absence of the protected conduct.

173 W. Va. 335, 315 S.E.2d 593.

        (1) Determining whether conduct was constitutionally protected. Under the first prong of Orr we must determine whether Mr. Trimble's conduct was constitutionally protected. The United States Supreme Court has long held that public employees may not “be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public [institutions] in which they work.” Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811, 817 (1968). Under this standard, Mr. Trimble had a constitutionally protected right to voice concerns he may have had regarding the impact of IPSI on his students.

        Further, in Smith v. Arkansas State Highway Employees, 441 U.S. 463, 99 S. Ct. 1826, 60 L. Ed. 2d 360 (1979), the United States Supreme Court recognized that public employees do enjoy some First Amendment rights regarding their organizational attempts. The Smith court stated “[t]he public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so.” Id., 441 U.S. at 465, 99 S. Ct. at 1828, 60 L. Ed. 2d at 363 (citations omitted). Therefore, Mr. Trimble was clearly protected by the First Amendment in his peaceful efforts to organize a branch of WVEA at the College.
        
        The record in this case also clearly illustrates that Mr. Trimble refused to create an IPSI syllabus after being ordered to do so by the College. Mr. Trimble also failed to attend several meetings involving IPSI training. While Mr. Trimble may have deemed the latter conduct to be an expression of his protest to the use of the IPSI program, we do not believe that this conduct was protected by the First Amendment. We have recognized that “the right to free speech is not absolute.” Tiernan v. Charleston Area Med. Ctr., Inc., 203 W. Va. 135, 143, 506 S.E.2d 578, 586 (1998). In Orr we similarly pointed out “that the State, as an employer, also has an interest in the efficient and orderly operation of its affairs that must be balanced with the public employees' right to free speech, which is not absolute.” Orr, 173 W. Va. at 343-44, 315 S.E.2d at 601.

        Here, the College believed that the IPSI program would help in evaluating its students. Whether the College was right or wrong is of no importance or significance to our ultimate conclusion in this case. The College had the exclusive responsibility in assessing the merits of the IPSI program. It required Mr. Trimble to attend training sessions involving the IPSI program and issued a lawful mandate requiring Mr. Trimble to use this software. Mr. Trimble cannot depend upon the First Amendment for refusing to attend the training sessions and for refusing to use the IPSI program. “ Academic freedom is not a license for activity at variance with job related procedures and requirements, nor does it encompass activities which are internally destructive to the proper function of the university or disruptive to the education process.” Pickering v. Board of Educ., 391 U.S. 563, 572, 88 S. Ct. 1731, 1736, 20 L. Ed. 2d 811 (1968).

        (2) Determining whether conduct was a substantial or motivating factor for the discharge. Under the second prong of Orr we must decide whether Mr. Trimble's conduct was a substantial or motivating factor for his discharge. As we have pointed out, Mr. Trimble engaged in conduct that was protected by the First Amendment and other conduct that had no constitutional protection. The College contends that it fired Mr. Trimble because he was insubordinate in failing to attend several meetings and in refusing to create an IPSI syllabus. Mr. Trimble contends that, absent his constitutionally protected union activities, the College would not have terminated him for missing several meetings and refusing to create an IPSI syllabus.

        In our review of the record in this case, we cannot say that Mr. Trimble proved that the substantial or motivating factor in his termination was his union activities. We agree with the hearing examiner's conclusion that “[t]he evidence, while suggesting that the Administration wasn't particularly pleased with union organizing efforts on or around the College's grounds, did not demonstrate that the administration engaged in any untoward, pretextual or under-handed activities designed to result in the Grievant's termination.” We, therefore, find no First Amendment violation in the College's decision to terminate Mr. Trimble.See footnote 9 ⁹

        We have held that “[t]he Due Process Clause, Article III, Section 10 of the West Virginia Constitution, requires procedural safeguards against State action which affects a liberty or property interest.” Syl. pt. 1, Waite v. Civil Serv. Comm'n, 161 W. Va. 154, 241 S.E.2d 164 (1977). Moreover, “[a]ny claim of entitlement to a constitutionally protected property interest is determined by state law.” State ex rel. Deputy Sheriff's Ass'n v. County Comm'n of Lewis County, 180 W. Va. 420, 422, 376 S.E.2d 626, 628 (1988).See footnote 10 ¹⁰ In Clarke v. West Virginia Board of Regents, 166 W. Va. 702, 709-10, 279 S.E.2d 169, 175 (1981), we recognized a constitutionally protected property interest exists in a tenured teaching position. See Syl. pt. 3, State ex rel. McLendon v. Morton, 162 W. Va. 431, 249 S.E.2d 919 (1978) (“A teacher who has satisfied the objective eligibility standards for tenure adopted by a State college has a sufficient entitlement so that he cannot be denied tenure on the issue of his competency without some procedural due process.”); Syl. pt. 4, Waite v. Civil Serv. Comm'n, 161 W. Va. 154, 241 S.E.2d 164 (“A State civil service classified employee has a property interest arising out of the statutory entitlement to continued uninterrupted employment.”). Indeed, it is well- settled, and we so hold, that a tenured teacher has a protected property interest in his/her position, which raises constitutional due process considerations when a teacher is faced with termination of his/her employment. W. Va. Const. art. III, § 10. See Gilbert v. Homar, 520 U.S. 924, 928, 117 S. Ct. 1807, 1811, 138 L. Ed. 2d 120, 126 (1997); Board of Regents of State Colls. v. Roth, 408 U.S. 564, 578, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548, 561 (1972); Perry v. Sindermann, 408 U.S. 593, 602-03, 92 S. Ct. 2694, 2700, 33 L. Ed. 2d 570, 580 (1972); California Teachers Ass'n. v. California, 84 Cal. Rptr. 2d 425, 20 Cal. 4th 327, 975 P.2d 622 (1999); Farner v. Idaho Falls Sch. Dist. No. 91, 17 P.3d 281 (Idaho 2000); Smith v. Ouachita Parish Sch. Bd., 702 So. 2d 727 (La. App. Ct. 1997) . We recognize that the purpose of tenure is to protect competent and worthy teachers against arbitrary dismissal and to promote conditions which will encourage their professional growth. It does not, however, confer upon teachers special privileges or immunities to interfere in the efficient operation of an educational institution. See Baughman v. Unified Sch. Dist. No. 500, 10 P.3d 21, 24 (Kan. Ct. App. 2000). In the instant proceeding there is no dispute, and the circuit court so found, that Mr. Trimble's status as a tenured assistant professor gave him a constitutionally protected property interest in continued employment with the College.

        The cases decided by this Court that implicated a constitutionally protected property interest in employment dealt primarily with giving adequate notice or holding an adequate hearing prior to taking some disciplinary action against the employee. See Swiger v. Civil Serv. Comm'r, 179 W. Va. 133, 365 S.E.2d 797 (1987); Fraley v. Civil Serv. Comm'n, 177 W. Va. 729, 356 S.E.2d 483 (1987); Major v. DeFrench, 169 W. Va. 241, 286 S.E.2d 688 (1982); Clarke v. West Virginia Bd. of Regents, 166 W. Va. 702, 279 S.E.2d 169 (1981); North v. West Virginia Bd. of Regents, 160 W. Va. 248, 233 S.E.2d 411 (1977); Waite v. Civil Serv. Comm'n, 161 W. Va. 154, 241 S.E.2d 164 (1977); Snyder v. Civil Serv. Comm'n, 160 W. Va. 762, 238 S.E.2d 842 (1977). The issue of an adequate notice or hearing is not presented by the instant case. Instead, we are asked to determine whether Mr. Trimble's property interest in continued employment required the College to utilize progressive disciplinary measures before resorting to termination.

        When an employee is determined to have a property interest in his or her employment, the extent of due process required is determined as follows:

            The extent of due process protection affordable for a property interest requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of a property interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the functions involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.See footnote 11 ¹¹

Syl. pt. 5, Waite v. Civil Serv. Comm'n, 161 W. Va. 154, 241 S.E.2d 164 (footnote added). See Syl. pt. 5, Major v. DeFrench, 169 W. Va. 241, 286 S.E.2d 688. We are also reminded that “due process is a flexible concept which requires courts to balance competing interests in determining the protection to be accorded one facing a deprivation of rights.” Clarke v. West Virginia Bd. of Regents, 166 W. Va. at 710, 279 S.E.2d at 175.

        Constitutional due process protections are to be defined by the facts of a particular case. It is generally recognized that if it is determined that constitutional due process applies, “the question remains what process is due.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494, 503 (1985) (internal quotation and citation omitted). Because of the “flexible” nature of due process, we believe, and accordingly hold, that constitutional due process principles may be used to determine whether disciplinary action taken by a public higher educational institution against a tenured teacher is too severe for the infraction occasioning such discipline.See footnote 12 ¹² W. Va. Const. art. III, § 10.

        Our decision in Oakes v. West Virginia Department of Finance and Administration, 164 W. Va. 384, 264 S.E.2d 151 (1980), although involving civil service and not invoking constitutional principles, provides some guidance for our resolution of the instant case.See footnote 13 ¹³ In Oakes the employee was terminated from his tenured civil service position as a postmaster for the state capitol post office. The employee was fired because he allegedly was negligent in failing to ensure two pieces of registered mail, containing bid proposals for financing the state's purchase of an airplane, were delivered before the closing deadline for such bid. We held that “good cause” was not shown to justify terminating the employee. In Syllabus point 1 of Oakes we stated, in part, that good cause “means misconduct of a substantial nature directly affecting the rights and interest of the public, rather than . . . trivial or inconsequential matters, or mere technical violations of statute or official duty without wrongful intention.”See footnote 14 ¹⁴ 164 W. Va. 384, 264 S.E.2d 151. Our decision in Oakes was based in part upon the fact “that nothing in the record indicate[d] that Mr. Oakes had a prior history of negligent or inefficient conduct in his supervision of the Capitol Post Office, nor that he had received any reprimands or been subjected to any disciplinary proceedings.”See footnote 15 ¹⁵ Oakes, 164 W. Va. at 386, 264 S.E.2d at 153. See West Virginia Dept. of Health v. West Virginia Civil Serv. Comm'n, 178 W. Va. 237, 358 S.E.2d 798 (1987) (finding no good cause for dismissal); Blake v. Civil Serv. Comm'n , 172 W. Va. 711, 310 S.E.2d 472 (1983) (same); City of Logan v. Dingess, 161 W. Va. 377, 242 S.E.2d 473 (1978) (same); Guine v. Civil Serv. Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1965) (same).

        In Fox v. Board of Education of Doddridge County, 160 W. Va. 668, 236 S.E.2d 243 (1977), a case not involving constitutional due process, we were required to determine whether a teacher's unexcused absence from a parent-teacher conference constituted wilful neglect of duty warranting his dismissal. The teacher had been employed with the Doddridge County Board of Education for 23 years. This Court found that the dismissal was not supportable and so reversed. In doing so, we made the following observations:

        We believe [dismissal was not warranted] for the simple reason that the punishment does not fit the misdeed. Unexcused absence from those occasions at which attendance is expected may be valid grounds for disciplinary action such as a temporary suspension from teaching responsibilities. But it does not follow that the same recalcitrant conduct calls for permanent banishment of the errant teacher from the school system. Suspension, responsibly exercised, may be a reasonable means of maintaining order and authority over school board employees. Dismissal undoubtedly has therapeutic disciplinary qualities, but we believe that dismissal predicated upon an isolated incident of unexcused absence from a parent-teacher conference is so unduly severe as to be arbitrary and unreasonable.

Fox, 160 W. Va. at 671-72, 236 S.E.2d at 246. See also Beverlin v. Board of Ed. of Lewis County, 158 W. Va. 1067, 216 S.E.2d 554 (1975) (determining that dismissal of teacher for unexcused absence during part of first school day to register for evening class at university was unreasonable, arbitrary and capricious).

         Other courts have also found that dismissal for insubordination may be arbitrary in light of an employee's otherwise excellent employment record. For example, in Tucker v. Board of Education of the Town of Norfolk, 418 A.2d 933 (Conn. 1979), a tenured teacher was fired for insubordination when she took a two-day leave of absence after her superiors had denied permission for such leave. The court in Tucker found that dismissal was too harsh and held:

            We are of the opinion that, although there are circumstances indicating that the plaintiff was “insubordinate” in her conduct, a review of the entire record discloses that the drastic disciplinary action of dismissal constituted exceedingly excessive punishment for the plaintiff's misconduct, and an abuse of discretion, especially in the light of the plaintiff's excellent and unblemished school record as a capable, dedicated teacher.

Tucker, 418 A.2d at 938. See also Board of Educ. of Round Lake Area Schs., Community Unit Sch. Dist. No. 116 v. State Bd. of Educ., 685 N.E.2d 412 (Ill. App. Ct. 1997) (concluding that dismissal for insubordination was too harsh); Rust v. Clark County Sch. Dist., 683 P.2d 23 (Nev. 1984) (same) ; Harris v. Mechanicville Cent. Sch. Dist., Mechanicville, Saratoga County, 382 N.Y.S.2d 251 (1976) (same) ; Hall v. The Board of Trustees of Sumter County Sch. Dist. No. 2, 499 S.E.2d 216 (S.C. 1998) (same); See also State ex rel. Richardson v. Board of Regents of Univ. of Nev., 269 P.2d 265 (Nev. 1954) (reversing dismissal for insubordination) .

        The prior employment termination decisions of this Court and decisions in other jurisdictions, lead us to our conclusion and result and holding that constitutional due process is denied when a tenured public higher education teacher, who has a previously unblemished record, is immediately terminated for an incident of insubordination that is minor in its consequences. Under such circumstances, due process requires the educational institution to impose progressive disciplinary sanctions in an attempt to correct the teacher's insubordinate conduct before it may resort to termination. W. Va. Const. art. III, § 10.

        Prior to Mr. Trimble's problems surrounding the IPSI program, he faithfully served the College without incident for 19 years. The circuit court specifically found that Mr. Trimble's “teaching ability, his quality as a teacher is not being called into question. . . . The parties stipulated that [Mr. Trimble's] work with students was not 'anything less than excellent.'” While we do not condone Mr. Trimble's failure to attend several IPSI meetings and his refusal to prepare an IPSI syllabus, we find that, in view of his 19 years of outstanding service and unblemished record, the College acted arbitrarily and capriciously in terminating him. See DeVito v. Board of Educ., 173 W. Va. 396, 317 S.E.2d 159 (1984) (finding dismissal of teacher was arbitrary and capricious); Syl. pt. 3, in part, Beverlin v. Board of Ed. of Lewis County, 158 W. Va. 1067, 216 S.E.2d 554 (“The authority . . . to dismiss a teacher . . . must be exercised reasonably, not arbitrarily or capriciously.”).

        Because of Mr. Trimble's property interest in continued employment with the College and his previously unblemished record, due process required the College to utilize progressive disciplinary measures against Mr. Trimble. This conclusion is in keeping with a long held principle by this Court that “'[a] teacher may not be lightly shorn of the privileges for which he [or she] fairly contracted.'” Fox v. Board of Ed. of Doddridge County, 160 W. Va. at 672, 236 S.E.2d at 246, (quoting White v. Board of Educ. of Lincoln County, 117 W. Va. 114, 125, 184 S.E. 264, 268 (1936)). In other words, “[t]he state may not convey a property interest, such as tenure, and then arbitrarily terminate employment in violation of that interest.” Wuest v. Winner Sch. Dist. 59-2, 607 N.W.2d 912, 918 (S.D. 2000) . We therefore order that Mr. Trimble be reinstated with backpay and benefits from the effective date of his improper termination.See footnote 16 ¹⁶

            To have a property interest, an individual must demonstrate more than an abstract need or desire for it. He must instead have a legitimate claim of entitlement to it under state or federal law. Additionally, the protected property interest is present only when the individual has a reasonable expectation of entitlement deriving from the independent source.

embodied in Article III, Section 10 of the West Virginia Constitution, which are[:] First, the more valuable the right sought to be deprived, the more safeguards will be interposed. Second, due process must generally be given before the deprivation occurs unless a compelling public policy dictates otherwise. Third, a temporary deprivation of rights may not require as large a measure of procedural due process protection as a permanent deprivation.

S.E.2d 684 (1971).

and participation in the IPSI program.