Clark v. Whiting, 77-2298

• Citation: 607 F.2d 634
• Decision Date: 17 September 1979
• Docket Number: No. 77-2298,77-2298
• Parties: Vernon CLARK, Appellant, v. Albert N. WHITING, Individually and in his capacity as Chancellor, NCCU, Walter H. Pattillo, Individually and in his capacity as Chairman, Department of Biology, NCCU, William A. Clement, Individually and in his capacity as Chairman, Board of Trustees, NCCU, North Carolina Central University, the University of North Carolina, Mary M. Townes, Individually, Charles R. George, Individually, Shahbeg Sandhu, Individually, Wiley Armstrong, Individually, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 634

607 F.2d 634

Vernon CLARK, Appellant, v. Albert N. WHITING, Individually and in his capacity as Chancellor, NCCU, Walter H. Pattillo, Individually and in his capacity as Chairman, Department of Biology, NCCU William A. Clement, Individually and in his capacity as Chairman, Board of Trustees, NCCU, North Carolina Central University, the University of North Carolina, Mary M Townes, Individually, Charles R. George, Individually Shahbeg Sandhu, Individually, Wiley Armstrong, Individually Appellees.

No. 77-2298.

United States Court of Appeals, Fourth Circuit.

Argued May 9, 1979.

Decided Sept. 17, 1979.

Thomas F. Loflin, III, Durham, N. C. (Carolyn McAllaster, Loflin & Loflin, Durham, N. C., on brief), for appellant.

Ben Irons, Asst. Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen., Edwin M. Speas, Jr., Special Deputy Atty. Gen., Elizabeth C. Bunting, Asst. Atty. Gen., Raleigh, N. C., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, RUSSELL, Circuit Judge, and JOHN T. COPENHAVER, Jr., United States District Judge for the Southern District of West Virginia, sitting by designation.

DONALD RUSSELL, Circuit Judge:

This is a § 1983, 42 U.S.C. action by an associate professor of biology at North Carolina Central University who complains of the denial of his several requests for academic promotion to a full professorship. To his alleged constitutional claim under § 1983, he has added a pendent state action in libel and slander. ¹ The district court dismissed the constitutional claim on jurisdictional grounds. The dismissal of the non-constitutional pendent action followed as a matter of course. From this dismissal the plaintiff has appealed.

For purposes of reviewing the dismissal, the parties seem agreed on the essential facts as set forth in the complaint and exhibits submitted by the parties as parts of the record. ² Unlike most federal cases in this area, the complaint makes no constitutional claim of racial or sex discrimination or of retaliation because of an exercise of First Amendment rights. Plaintiff's constitutional claim is simply that both his equal protection and due process rights were violated by the manner in which his requested promotion was handled.

The pertinent rules and regulations of the University, governing faculty promotions, provide that the central issue, in examining "qualification(s) for * * * promotion to the several instructional ranks," is whether the faculty member under consideration has demonstrated "continued growth," as evidenced by "specific instances." In determining whether there has been such "GROWTH" THREE BROAD FACTORS ARE LOOKED To: "(1) teaching effectiveness, (2) scholarly achievement and contributions, (3) contributions to the academic community." With particular reference to promotion to the highest academic rank of a full professor, the rules and regulations go further and prescribe that the faculty member must have given "concrete evidence of continued growth by scholarly contributions of his field."

The rules and regulations set forth the procedures to be followed in determining whether to promote under these general standards. The process for considering a faculty member for promotion may be begun either by a recommendation of a committee from the faculty member's department or by his own direct request submitted to the Faculty Personnel Committee. In either event, the proposed promotion is first considered by the Faculty Personnel Committee. Any report of the Committee on the proposed promotion is submitted to the president of the University, who, if the report recommends promotion and he (the president) approves the recommendation, then refers the proposed promotion with his recommendation for final action to the Board of Trustees. If, however, the president disapproves the requested promotion, that normally ends the process.

In this case, the plaintiff himself initiated the request for his promotion to full professor with the Faculty Personnel Committee. His department head recommended to the Committee against promotion, finding, according to the allegations of the complaint, that the plaintiff had "failed to meet the publication requirements requisite to attaining the rank of Full Professor." According to the plaintiff's allegations, however, the Faculty Personnel Committee, despite the department head's disapproval, recommended at this time favorably on plaintiff's request and forwarded its recommendation to the president of the University. ³ The president disapproved the recommendation of the Committee and sustained the recommendation of plaintiff's department head. The plaintiff then requested a hearing before the Board of Trustees of the University. The rules and regulations of the University make no provision for a hearing in the event the president disapproves a request for promotion. Nonetheless, the request of the plaintiff for a hearing before the Board was allowed and the plaintiff was heard. The Board, also, heard from both the president and the plaintiff's department head their reasons for not recommending promotion. After the hearing, the Board of Trustees denied the plaintiff's requested promotion.

Sometime later the plaintiff renewed his request for promotion. This second request was disapproved by the plaintiff's department head, by the Faculty Personnel Committee and by the president of the University. Again, the plaintiff was heard at his request by the Board of Trustees which again sustained the denial of promotion. It was after this denial that this action was begun.

It seems agreed and it is so stated in plaintiff's complaint that the several denials of promotion of the plaintiff were based on the opinion of the University administration that the plaintiff had not given sufficient "concrete evidence of continued growth by scholarly contributions of his field" to warrant promotion to a full professorship. In fact, the plaintiff alleges expressly that "the only reason barring his promotion was his alleged lack of published scholarly work." At various points in his complaint, the plaintiff alleges that he submitted in support of his request for promotion and in evidence of his "scholarly contributions" a "self-published" laboratory manual prepared by the plaintiff for use in his classes, ⁴ his Ph.D. thesis and, finally, an article accepted for publication but not at the time published. These, he alleges, were found by the University authorities not "to meet the publication requirements requisite to attaining the rank of Full Professor."

The plaintiff bases his constitutional equal protection claim on the alleged failure of the defendants to apply the same standards in evaluating his qualifications for promotion and his "scholarly achievements" as were used "in the past" in passing on promotions of other faculty members. His due process claim relates to the hearing accorded him by the University Board of Trustees. It is his position, as stated in his complaint, that while he had an "entitlement" of right to a full-blown due process hearing, the voluntary granting of such a hearing by the Board in this case, irrespective of whether he had a legal right to such a hearing, required that the hearing granted by the Board conform to all the criteria of a complete due process hearing, including the right of confrontation and cross-examination of all witnesses heard by the Board.

The plaintiff's demand for relief, as set forth in his complaint, is that the district court "(i)ssue an injunction requiring the Defendants to grant the Plaintiff's promotion to the rank of Full Professor in the Department of Biology at North Carolina Central University and to cease violating the Plaintiff's rights to due process and equal protection of the law in their continued denials of his requests for promotion to Full Professor," ⁵ along with compensatory damages and attorney's fees. As we have stated, the district court dismissed the action on jurisdictional grounds. The appeal accordingly presents for decision the propriety of federal review under § 1983 on either due process or equal protection grounds of a denial of academic promotion premised on purely academic considerations. We agree with the district court that such review is inappropriate. We shall treat separately the two constitutional claims made by the plaintiff.

What the plaintiff assumes under his equal protection argument is that, by invoking that constitutional principle, or, as one court has aptly characterized it, by resorting to the " 'I'm just as good as you are' arguments," ⁶ he can convert federal courts into "Super-Tenure (and Faculty Promotion) Review Committee(s)," ⁷ compelled to review every denial by a state-supported college, university or school of faculty promotion. What this argument disregards is that not every difference in promotion treatment particularly a difference not in resolving questions of primary facts but in evaluating facts rises to the level of a constitutional deprivation either under equal protection or due process. It is only when such unequal treatment, accorded under reasonable rules providing for the exercise of subjective discretion, violates a positive constitutional requirement that one subjected to such violation will have a remedy under § 1983. ⁸ And this principle has often been applied in federal courts. Federal courts thus have never been hesitant to intervene on constitutional grounds in the hiring, discharge or promotion of public employees, including academic personnel, where the asserted claim is that the action taken was tainted by racial or sex discrimination or was intended to penalize for the exercise of First Amendment rights. ⁹ But, absent such impermissible sex or racial discriminations or First Amendment restraints clear violations of positive express constitutional or statutory mandate "(t)he federal court is not the appropriate forum in which to review the multitude of personnel decisions that...