159 F.3d 504 (10th Cir. 1998), 96-3402, Tonkovich v. Kansas Bd. of Regents

Docket Nº:96-3402, 96-3403, 96-3404, 96-3405, 96-3406, 96-3407, 96-3408.
Citation:159 F.3d 504
Party Name:Emil A. TONKOVICH, Plaintiff-Appellee, v. KANSAS BOARD OF REGENTS, Robert C. Caldwell, Tom E. Hammond, John B. Hiebert, Karen Krepps, John G. Montgomery, Phyllis Nolan, Frank C. Sabatini, Sidney Warner, Gene A. Budig, Delbert M. Shankel, P. Delbert Brinkman, David E. Shulenburger, Robert H. Jerry, Ii, Sidney A. Shapiro, Reginald L. Robinson, A. Kim
Case Date:October 26, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 504

159 F.3d 504 (10th Cir. 1998)

Emil A. TONKOVICH, Plaintiff-Appellee,


KANSAS BOARD OF REGENTS, Robert C. Caldwell, Tom E. Hammond,

John B. Hiebert, Karen Krepps, John G. Montgomery, Phyllis

Nolan, Frank C. Sabatini, Sidney Warner, Gene A. Budig,

Delbert M. Shankel, P. Delbert Brinkman, David E.

Shulenburger, Robert H. Jerry, Ii, Sidney A. Shapiro,

Reginald L. Robinson, A. Kimberly Dayton, Elinor P.

Schroeder, Ellen E. Sward, Sandra C. McKenzie, Ann Victoria

Thomas, Rose A. Marino, H. Rutherford Turnbull, III, Nancy

Ann Dahl, E.P. Johnsen, John Michel, Delores Ringer, and

Robert Hemenway, individually and in their official

capacities, Defendants-Appellants.

Nos. 96-3402, 96-3403, 96-3404, 96-3405, 96-3406, 96-3407, 96-3408.

United States Court of Appeals, Tenth Circuit

October 26, 1998

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Timothy Mustaine (James M. Armstrong and Mary Kathleen Babcock with him on brief), Foulston & Siefkin, L.L.P., Wichita, KS, for Defendant-Appellant in Case No. 96-3402.

William Scott Hesse, Assistant Attorney General (Carla J. Stovall, Attorney General, Kevin D. Case, Assistant Attorney General on brief), Topeka, KS, for Defendants-Appellants in Case No. 96-3403.

Andrew F. Sears (Robert F. Bennett and David C. Wetzler with him on brief), Bennett Lytle Wetzler Martin & Pishny, L.C., Prairie Village, KS, for Defendants-Appellants in Case No. 96-3404.

John I. O'Connor, Advocates Group, Pittsburg, KS, for Defendant-Appellant in Case No. 96-3405.

Thomas A. Hamill (Kathryn Gardner with him on brief), Martin, Pringle, Oliver, Wallace & Swartz, Overland Park, KS, for Defendants-Appellants in Case No. 96-3406.

Michael Evan Jaffe (James H. Hulme, Eric B. Bruce, Arent Fox Kintner Plotkin & Kahn, Washington DC, and Bruce D. Mayfield, Overland Park, KS, with him on brief), Arent Fox Kintner Plotkin & Kahn, Washington, DC, for Defendants-Appellants in Case No. 96-3407.

Jeffrey A. Chanay (J. Phillip Gragson and Gail D. Edson with him on brief), Entz & Chanay, P.A., Topeka, KS, for Defendants-Appellants in Case No. 96-3408.

Richard P. Hutchison, Landmark Legal Foundation, Kansas City, MO, for Plaintiff-Appellee.

Before HENRY, McWILLIAMS, and LUCERO, Circuit Judges.

HENRY, Circuit Judge.

This is a consolidation of seven separate appeals spawned by one district court case. Professor Emil Tonkovich, a law professor at the University of Kansas School of Law ("the Law School"), filed a complaint challenging his dismissal, alleging under 42 U.S.C. § 1983 that the University violated his First Amendment speech rights, and his Fourteenth Amendment due process and equal protection rights. He also alleged several state claims, which are not before us. Although the district court granted the defendants' motions to dismiss based on qualified immunity with respect to the First Amendment claim, it denied the motions to dismiss the Fourteenth Amendment claims. The defendants appeal this partial denial of their

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motions to dismiss, asserting their entitlement to qualified and absolute immunity. Because we resolve these appeals on qualified immunity grounds, we need not reach the issue of absolute immunity. Even taking Professor Tonkovich's allegations as true, they are insufficient to show that the defendants subjected him, or caused him to be subjected, to the violation of a clearly established right of constitutional dimension. Thus, we reverse the district court's denial of qualified immunity on Professor Tonkovich's procedural due process, substantive due process, and equal protection claims.


A. Legal Standard

On appeal from a motion to dismiss, we must accept all of the well-pleaded allegations in the complaint as true. Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). However, we need not accept conclusory allegations. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). We must liberally construe the pleadings and draw all reasonable inferences in favor of the plaintiff. Id. Accordingly, the facts recited herein are gleaned from Professor Tonkovich's first amended complaint. 1 As we analyze the issues presented by the doctrine of qualified immunity, which we shall discuss below in greater detail, we are guided by the Supreme Court's statement of our task:

An appellate court reviewing the denial of the defendant's claim of immunity need not consider the correctness of the plaintiff's version of the facts, nor even determine whether the plaintiff's allegations actually state a claim. All it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions....

Mitchell v. Forsyth, 472 U.S. 511, 527-28, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

B. Overview

Professor Tonkovich was employed as a faculty member at the Law School beginning in August 1981. In 1986, he became a tenured faculty member. In 1991, a graduating law student ("the Law Student") complained that, during her first year of law school, Professor Tonkovich had engaged in a sexual act with her after discussing her grades. Officials in the Chancellor's office conducted an investigation, enlisting the assistance of various Law School faculty members and the Dean of the Law School.

During the investigation, the Chancellor's office issued written findings and recommendations regarding the appropriate disciplinary action to be taken in Professor Tonkovich's case. A period of settlement negotiations ensued. Eventually, the Chancellor filed official written charges against Professor Tonkovich. An evidentiary hearing was conducted before a standing University Hearing Committee, which issued its decision and recommendation to the Chancellor, who dismissed Professor Tonkovich from the faculty in 1993. Professor Tonkovich then took an appeal to the Board of Regents. What follows are the details of the events surrounding Professor Tonkovich's dismissal, which form the basis of his claims.

C. Facts

In May 1991, just after her graduation from the Law School, the Law Student went to Robert Jerry, Dean of the Law School, and complained that Professor Tonkovich had made a pass at her in the fall of 1988. Dean Jerry informed Professor Tonkovich that a female student had complained about his conduct. However, he did not name the student, nor did he provide any details about the nature of the allegation. Professor Tonkovich denied misconduct and asked to confront his accuser. During July and August 1991, Professor Tonkovich repeatedly requested that Dean Jerry disclose the name of

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his accuser and the nature of the allegation, but the Dean refused to do so.

In August 1991, the Law Student filed a formal written statement with Vice Chancellor P. Delbert Brinkman, alleging that in July 1988, when she was a first-year law student, she had engaged in a sexual act with Professor Tonkovich, who was her professor at the time, and that the act was preceded by a discussion of law school grades. That same day, a local television news crew came to the Law School. The station later aired a segment about allegations of sexual misconduct against various law professors, who were not named. Later that day, Professor Tonkovich learned the name of his accuser. Shortly after the Law Student filed her written statement, Law Professor Elinor Schroeder told Vice Chancellor Brinkman that some faculty members thought the Law Student was unstable and that the accusations were part of a conspiracy against Professor Tonkovich.

The University established September 6, 1991 as the deadline for submitting complaints against Professor Tonkovich. Professor Tonkovich's response, filed on September 9th, denied the Law Student's allegation and denied sexually harassing any student. Two days later, he submitted an affidavit of Jean Younger, one of the Law Student's classmates. Ms. Younger had hosted the party that preceded the alleged sexual activity. Ms. Younger stated (and later testified at the hearing) that at the party, the Law Student was flirting with Professor Tonkovich.

The following is Professor Tonkovich's version of the events that took place on the evening of the party. The Law Student followed him around the party for approximately five hours. She flirted with him, but he did not return her flirtations. When Professor Tonkovich left the party, she followed him out. She asked him for a ride home, claiming she was too drunk to drive. However, she did not appear too drunk to drive. He agreed to drive her home, but he was concerned that she had romantic intentions. He suggested that they go for a drive. He drove her to the campus police department parking lot where they got out and took a walk. During their walk, she attempted to kiss him. When they returned to the car, she attempted to sit in the driver's seat with him. When Professor Tonkovich said they should go, she became upset. He then drove her back to her car, dropped her off, and left. He did not have sex with her, nor did he discuss grades with her. 2

During the course of the investigation, in September 1991, Dean Jerry issued a memorandum to the Law School faculty, stating that the guidelines of the Association of American Law Schools apply to the faculty. In particular, Dean Jerry pointed out the guideline concerning the inappropriateness of a professor engaging in sexual conduct with a student enrolled in his or her class. Dean Jerry's memo stated that the guidelines were relevant to the ethics provision of the University's Faculty Code of...

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