(dissenting):
While it is fundamental that no person has a constitutional right to public employment, either as a school teacher or in any other position,1 it is equally fundamental that the right to public employment may not be subjected to unreasonable conditions.2 However, all teachers and persons in public employment are subject to reasonable rules and regulations.3 The regulation which barred plaintiffs from part-time employment with the University if they worked with the OEO’s Rural Legal Services Program (hereinafter referred to as the Program) was, as reflected by the record, a reasonable one, designed to insure the quality of legal education offered at the University. As noted in the majority opinion (p. 501), the Chancellor instructed the Dean of the Law School, in writing, that
“Members of the faculty of the School of Law will no longer be associated with the OEO Program after its termination on or about June 30, 1968.”
Subsequently, in a letter to the Chancellor, the Dean admitted that he had been mistaken in regard to his statement con*505cerning the free-time activities of faculty members; stated that he had informed plaintiffs that if they returned to work at the Law School there would be no restriction upon their free-time activities except those imposed by regulations by the Board of Trustees, the University and professional associations; and that he had instructed all faculty members that they would not be permitted to be employed by the Program while employed by the Law School.4
The record amply substantiates that due to the vast amount of work the plaintiffs would have been obligated to perform under the Program, the University was justified in determining that they could not satisfactorily fulfill their teaching responsibilities and, at the same time, perform additional duties with the Program.
Indeed, when Mr. McDougal, one of the participants in the Program was asked, “Have you been hampered up to now, Mr. McDougal, in the performance of your teaching duties by your activities with Legal Service?”, he replied “I think, without a doubt, I would have to say, yes, sir.” 5 He further testified that the Program engaged in all types of legal work, including divorces, garnishments, taking care of claims by creditors, desegregation cases, suits against the State Welfare Department and the whole range of legal problems that the poor might encounter today.6
Plaintiffs contend that the pivotal issue is whether a State University Law School, which permits outside and part-time employment, may adopt a rule that singles out an OEO Rural Legal Services Program as the sole activity in which its faculty members may not be employed. Defendants contend that the true issue is whether a University has the right to refuse part-time employment to a faculty member when his outside employment, because of its peculiar requirements, will seriously interfere with his regular work at the University.
The majority has concluded that the record reveals the real issue to be as postured by plaintiffs, i. e., defendants have denied plaintiffs the equal protection of the law guaranteed to them by the Fourteenth Amendment by imposing on their activities restrictions that are different and more onerous than those imposed on other professors in the same category. Notwithstanding, the majority concludes that
“We are not willing to take the position that plaintiffs have a constitutional right to participate in the Legal Services Program of the OEO, or in any other program,”
with which I heartily concur.
But I cannot agree with the majority’s holding, i. e., that plaintiffs were denied equal protection of the law because the University imposed restrictions of their activities which were different and more onerous than those imposed upon other faculty members in the same category. That such is not the case is clearly demonstrated by the record: aU members of the Law School faculty are proscribed from employment in the Program — and they have held that “we are not willing to take the position that plaintiffs have a constitutional right to participate in the Legal Services Program”. The University having ruled that none of its faculty members, Law School or otherwise, could participate in the Program, there can be no discrimination since all have been treated equally. None has been subjected to more onerous conditions than any other in the same category.
Neither the Chancellor nor the Dean of the Law School has proscribed plaintiffs from part-time employment in other legal fields — only from part-time employment in the Program.
*506This regulation is reasonable, valid and based upon sound academic reasoning which is fully supported by the record, i. e., the testimony of Mr. MeDougal, a participant in the Program who, when asked if he had been hampered in the performance of his teaching duties by participating in the Program, unequivocally answered “ * * * without a doubt * * * yes * *
It is a matter of public knowledge that many law schools must necessarily rely upon lawyers engaged in full time private practice to teach certain subjects, especially those dealing with the more practical, as differentiated from the academic, aspects of law practice. A classic example is the School of Law of Loyola University of the South, New Orleans, which has 27 law instructors only 14 of whom are full-time faculty members, the other 13 being lawyers engaged in full time private law practice or judicial duties. A former president of the Maritime Law Association of the United States takes time from his extensive practice in New Orleans to commute to Baton Rouge to teach maritime law in the Law School of Louisiana State University and several lawyers in full-time private practice in Baton Rouge teach classes at the same Law School. Tulane University’s School of Law has only 13 full-time law professors and must rely heavily on New Orleans lawyers as evidenced by the fact that it uses 11 full-time private practitioners as part-time instructors.
The University has issued no regulation which would prohibit plaintiffs, either as full or part-time private legal practitioners from teaching in its School of Law or, conversely, from full-time teaching at the School of Law and engaging in part-time law practice, so long as their outside activities do not interfere with the performance of their duties at the University.
Indeed Dr. Fortune, Chancellor of the University, specifically stated that there was no prohibition against professors participating in the Program on their own time.
While it might well be argued that the University of Mississippi is discriminating against the Program, this is not the issue before the Court but, in my opinion, it is the trap into which the majority has fallen.
Further, the majority concedes that it is not willing to take the position that plaintiffs have a constitutional right to participate in the Rural Legal Services Program of the OEO or in any other program, nor do they have a constitutional right to engage in part-time employment while teaching part-time at the Law School as, in isolation, no such right exists (pp. 501-502 majority opinion). To reiterate, the majority merely holds that plaintiffs have a constitutional right to be treated by a state agency in no significantly different manner from others who are members of the same class, i. e., members of the faculty of the University of Mississippi School of Law, in which holding I heartily concur.
Succinctly, one, and only one, issue is before the Court: is it permissible for a University to deny employment to faculty members whose outside activities would hinder the fulfillment of their duties at the University. Since the uncontrovert-ed testimony of Mr. MeDougal makes it abundantly clear that employment with the Program was detrimental to the fulfillment of his duties as a member of the faculty of the School of Law, and plaintiffs were identically situated, there was, under these circumstances, only one course of action left open to the University — forbid all of its faculty members from engaging in that Program. To reiterate, it is fundamental that all teachers or other persons in public employment are subject to reasonable rules and regulations.7
A University should and must be able to establish sensible guidelines for the outside activities of its teaching personnel. To hold that certain activities are permissible and at the same time pro*507scribe others which it may deem to be incompatible with the fulfillment of its academic responsibilities is clearly not an invasion of any party’s civil rights, particularly when its ruling is unequivocally supported by uncontroverted evidence.
Unfortunately, in my opinion, the majority has misconceived the basic issue by confusing academic freedom with academic responsibility. While academic freedom and academic responsibility are compatible there is, nevertheless, a clear line of demarcation between them and a University may legitimately proscribe any activities which it deems to be detrimental to academic responsibility. A University has a legitimate right to sanction some outside activities on the part of its faculty members and, at the same time, prohibit others which would impede and interfere with their academic responsibilities.
The majority makes much of a comparison of the work which plaintiffs would do in the Program with that done by others who teach part-time but who are not full-time faculty members at the Law School.8 The University has done nothing which proscribes the plaintiffs from participating in exactly the same type of activity as any of the others who are engaged as part-time faculty members. Had it done so, I would join the majority with alacrity but until it does, I am convinced the majority is in error. Clearly, the University acted within the well settled bounds of Johnson v. Branch,9 which held:
“ * * * the * * * court may not usurp the discretionary power of the school board but must judge the constitutionality of its actions on the basis of the facts which were before the Board and on its logic.” (Emphasis added.)
Equally apropos is the legal principle that a reviewing court will not undertake to substitute its judgment for that of an administrative body unless it appears from the evidence that the action of the administrative body was arbitrarily or capriciously performed. Since the record substantiates that: (1) the action of the University was neither arbitrary nor capricious; (2) plaintiffs’ employment would have indeed interfered with their teaching duties; (3) the University uniformly proscribed employment of any and all of its faculty members, not just plaintiffs, by the Rural Legal Services Program; (4) and the University did not proscribe plaintiffs from engaging in any other form of part-time employment, including employment during their non-duty hours, which regulation equally applied to all other members of the law school faculty, I can arrive at no other conclusion but that the judgment of the district court should be affirmed. Accordingly, I respectfully dissent.
. Parker v. Board of Education of Prince George's County, Md., 237 F.Supp. 222 (D.Md.-1965) aff'd. 348 F.2d 464 (CA 4-1965), cert. den. 382 U.S. 1030, 86 S.Ct. 653, 15 L.Ed.2d 543 (1966).
. McLaughlin v. Tilendis, 398 F.2d 287 (CA 7-1968) ; Williams v. Kimbrough, 295 F.Supp. 578 (W.D.La.-1969).
. Bradford v. School District No. 20, 244 F.Supp. 768 (ED S.C.-1965).
. P. 499, majority opinion. Appended to this letter was a quote from the November 17, 1966 Minutes of the Board of Trustees of Institutions of Higher Learning referring to Outside Employment Policies which is set forth on p. 501 of the majority opinion.
. Pp. 41, 42, Record.
. P. 6, Record.
. Bradford v. School District No. 2, supra.
. Messrs. Price and Connel both being engaged in full-time law practice; Mr. Con-don being in full time practice with the Lafayette County Rural Legal Services, and Dr. Derian being a full time member of the faculty at the University School of Medicine. Other part-time professors are the Chief Justice of the Mississippi Supreme Court as a visiting lecturer, and Messrs. Blass, Chryst and Wathins who, although considered full-time faculty members at the Law School, work either full or part-time with the Legal Institute of Agriculture and Resource Development, jointly sponsored by Mississippi State University, the United States Department of Agriculture and the Law School.
. 364 F.2d 177 (CA 4-1966).