Beitzell v. Jeffrey

• Decision Date: 06 March 1981
• Docket Number: No. 80-1395,80-1395
• Parties: Robert E. BEITZELL, Plaintiff, Appellant, v. William H. JEFFREY, etc. et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 870

643 F.2d 870

Robert E. BEITZELL, Plaintiff, Appellant, v. William H. JEFFREY, etc. et al., Defendants, Appellees.

No. 80-1395.

United States Court of Appeals First Circuit.

Argued Jan. 8, 1981.

Decided March 6, 1981.

Jeremiah A. Collins, Washington, D. C., with whom Michael H. Gottesman, Robert M. Weinberg, Bredhoff, Gottesman, Cohen, Chanin, Weinberg & Petramalo, David Rubin, Washington, D. C., Frank G. Chapman and Locke, Campbell & Chapman, Augusta, Maine, were on brief, for plaintiff-appellant.

Clark P. Thompson, Bangor, Maine, with whom Michael P. Friedman, Frank T. McGuire, Rudman & Winchell, Bangor, Maine, George M. Shur and Bernstein, Shur, Sawyer & Nelson, Portland, Maine, were on brief, for defendants, appellees.

Before CAMPBELL and BREYER, Circuit Judges, and WYZANSKI, Senior District Judge. ^*

BREYER, Circuit Judge.

Plaintiff, Robert E. Beitzell, an assistant professor at the University of Maine at Orono (UMO), a state university, was denied an appointment at the university with tenure. He brought this civil rights action under 42 U.S.C. § 1983 against UMO officials in the United States District Court for the District of Maine. He claimed that, in denying him tenure, the university deprived him of "liberty" and "property" without "due process of law". After a hearing the district court found there had been no such denial of Fourteenth Amendment rights and entered judgment for defendants. We affirm.

I.

The facts of this case are set forth clearly and in detail in the opinion of the district court. In summary form they are as follows: After teaching as an instructor at the University of Massachusetts, Beitzell accepted a one-year appointment as an assistant professor of history at UMO in 1967. He was reappointed as an assistant professor in 1968, and again in 1970. He was first considered for a permanent "tenured" appointment by the history department's "Policy Advisory Committee" (PAC) in November, 1971.

The PAC consisted of several tenured members of the history department, including its chairman, William Jeffrey. In the normal course of events, the PAC would recommend to the department chairman whether or not a faculty member should be granted tenure. In principle, the department chairman would decide whether or not to accept the recommendation. In practice, an unfavorable PAC recommendation was almost always followed by a denial of tenure. A favorable PAC recommendation, however, might still be reversed by the chairman, or someone higher in the university chain of command, such as the dean of the college, the vice-president for academic affairs or the university president. The procedures for awarding tenure at UMO, some of which are set out in the faculty handbook, generally follow those recommended by the American Association of University Professors, and are typical of procedures followed at numerous universities. ¹ In October, 1971, the history department supplemented the handbook by publishing an explicit statement of its "Criteria for Promotion and Tenure". These criteria consist of classical tenure requirements: a mixture of scholarship, teaching and service. ² Scholarship was essentially defined as "significant publication", teaching as "satisfactory classroom performance", and "service" as "significant contributing membership" on university or professional committees.

Beitzell's tenure case in 1971 was controversial. There is evidence that Jeffrey, the department chairman, felt that Beitzell was unstable and that Jeffrey repeated to various faculty members rumors that Beitzell drank too much. The district court found, however, that Jeffrey made a fair presentation to the PAC of Beitzell's professional qualifications for tenure. When the subject of Beitzell's drinking arose at the meeting, Jeffrey ruled it out of order and prevented further comment. At the end of a "free-wheeling" discussion, the PAC members voted unanimously against a tenure recommendation. Jeffrey, in his role as department head, accepted the negative recommendation and informed Beitzell of his decision. On an official personnel form (which was delayed in transmission to Beitzell for a year) Jeffrey wrote that Beitzell "had not lived up to his promise as a scholar", was "a less than adequate teacher", and "as advisor, he has been totally inadequate".

Beitzell was again considered for tenure in the Fall of 1972. By that time, Beitzell's book had been accepted for publication by a prestigious publisher. Galleys were made available to the PAC, as were summaries of interviews with students, largely favorable to Beitzell. Jeffrey invited Beitzell to a meeting of the PAC to make his own case, but Beitzell declined. Instead, Jeffrey made the presentation on his behalf a presentation described as "bland", but without offensive remarks. The district court found that all "relevant information supportive of plaintiff's application for tenure was accumulated in advance of the meeting and was available for inspection by members of the committee". The PAC again recommended that the chairman deny Beitzell tenure, this time by a vote of 7 to 6, with Jeffrey abstaining.

Beitzell then hired a lawyer. He sought review of the history department's decision by a Faculty Professional Relations Committee (FPRC) empowered to hear faculty grievances, to conciliate, and to make recommendations. The FPRC met with Beitzell, then with Jeffrey and others. After discussing the PAC decision in detail, Jeffrey made available to the FPRC a two and one-half page document he had prepared as a basis for his appearance before it. That document was very critical of Beitzell, it detailed behavior which it described as "irresponsible", it cast doubt on whether Beitzell's improved performance would continue and it repeated allegations made by others that Beitzell drank too much. Beitzell met again with the FPRC to rebut some of the charges made against him, but the FPRC did not disclose all of the derogatory claims made by Jeffrey or others. The FPRC concurred in the decision of the PAC.

Beitzell next invoked a new, more formal, grievance procedure, which UMO had just created. Acting under this procedure, the UMO president created a special ad hoc board to hear Beitzell's grievance and make a recommendation. The Grievance Board held a hearing, with lawyers present, during which both Beitzell and representatives of the University were allowed to present testimony and documentary evidence and to cross-examine witnesses. Jeffrey testified and, after he made some references to the document he had used before the FPRC, Beitzell's counsel asked that it be placed in the record. Despite efforts to keep the proceedings confidential, word of Jeffrey's criticisms spread on the campus. The Grievance Committee eventually recommended that the PAC give Beitzell further consideration, particularly in respect to the quality of his book and his teaching. And, the Committee criticized Jeffrey, claiming that his FPRC testimony and the document he prepared were professionally speaking "unethical".

The UMO president then asked the PAC whether it felt it should reopen Beitzell's case. The PAC responded that its hearing had been fair and that it was up to the president to decide whether to reopen. Jeffrey evidently told the president the PAC opposed reopening, and the president wrote Beitzell, denied his request for reopening and affirmed that Beitzell's probationary appointment expired in the summer of 1973. Then, after learning that the PAC actually had not decided whether to reopen, the president gave Beitzell an extension of his appointment through the Fall and told the PAC to decide whether to reopen the case. The PAC voted 12 to 2 not to reopen; the decision was affirmed by a new UMO president; Beitzell exhausted all his internal appeals, and he then filed this lawsuit.

After trial, the district court found that Beitzell had not been deprived of "liberty" or "property" without "due process of law", within the terms of the Fourteenth Amendment. The court found that Beitzell had no protected "liberty" interest: any injury to his reputation was not caused by "University officials in connection with the non-renewal of his contract". While the court found that Beitzell had a "property" interest, it held that he had received all the "process" that was "due", for he received notice, an opportunity to submit to the PAC any information he considered appropriate, the right to present his case to the PAC personally, the right to be evaluated under the history department criteria, and a statement of reasons for denial of tenure.

Beitzell, on appeal, contends that the University, in making public "false and stigmatizing" charges against him without a proper hearing, deprived him of "liberty" without "due process of law". He also claims that procedural protections UMO accorded him were constitutionally inadequate to protect his "property interest" in tenure.

II.

We first take up the question of whether Beitzell had a constitutionally protected "property" interest in tenure. ³ At least since 1970, the Fourteenth Amendment term "property" has referred not simply to "actual ownership of real estate, chattels, or money", but also to "interests that a person has already acquired in specific (governmental) benefits". Board of Regents v. Roth, 408 U.S. 564, 572, 576, 92 S.Ct. 2701, 2706, 2708, 33 L.Ed.2d 548 (1972); Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970). As so interpreted, Fourteenth Amendment protections previously given land owners are provided as well to many others who depend heavily upon the continued availability of, for example, welfare, ⁴ social security, ⁵ or government employment. ⁶

The broadening of the term "property" to include this "new property", ⁷ has required the courts to determine when an interest in a government benefit rises to the level of protected "property". The Supreme Court has made clear that the...