759 F.2d 1224 (5th Cir. 1985), 84-1700, Levitt v. University of Texas at El Paso

Docket Nº:84-1700
Citation:759 F.2d 1224
Party Name:Leonard LEVITT, Plaintiff-Appellant, v. The UNIVERSITY OF TEXAS AT EL PASO and Haskell Monroe, Individually and as Representative of UTEP, et al., Defendants-Appellees.
Case Date:May 10, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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759 F.2d 1224 (5th Cir. 1985)

Leonard LEVITT, Plaintiff-Appellant,



Individually and as Representative of UTEP, et

al., Defendants-Appellees.

No. 84-1700

United States Court of Appeals, Fifth Circuit

May 10, 1985

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Leonard Levitt, pro se.

Elwyn C. Lee, Univ. of Houston Law Center, Houston, Tex., for plaintiff-appellant.

Jim Mattox, Atty. Gen., Austin, Tex., Michael H. Patterson, Asst. Atty. Gen., San Antonio, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, POLITZ and HIGGINBOTHAM, Circuit Judges.


Dr. Leonard Levitt alleges that the University of Texas at El Paso, its President, and two of its professors denied him due process of law before he was dismissed from his position as a tenured professor. Levitt had notice and a hearing before a faculty committee prior to his dismissal,

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but contends that his hearing did not comport with due process because the faculty committee that heard his case was tainted with the appearance of bias and because the University failed to follow its own rules in conducting the dismissal proceedings. The district court, 590 F.Supp. 902, granted summary judgment in favor of the defendants on all of Levitt's due process claims save those alleging bias, which were tried to the court. The district court dismissed this final claim after finding that there was no actual bias on the part of the faculty committee. We agree with the district court that the appearance of bias, without actual bias of the decisionmaker, does not offend due process, and that Levitt otherwise received the process due under the Fourteenth Amendment. Finding no error in the district court's decision, we affirm.


Levitt was a tenured Professor of Chemistry at the University of Texas at El Paso from 1966 until he was dismissed in December 1982 by the Board of Regents of the University of Texas System. The dismissal stemmed from complaints by Linda Scott, one of Levitt's students, that Levitt had made offensive sexual advances toward her. Three other female students made similar allegations against Levitt after Scott's charges were made public.

University President Haskell Monroe learned of the harassment allegations in early 1982. Pursuant to the procedures established by the Board of Regents of the University of Texas System, President Monroe formed a faculty committee to address the possible termination of Levitt's employment in a formal hearing. 1 Levitt was given notice of the charges that had been made against him and of the witnesses who would testify before the committee. Two alternates on the committee, Professors Fuller and Harris, replaced original panel members when Levitt's hearing was postponed due to scheduling problems of both Levitt and the University.

The hearing was conducted during a total of four days in August and September of 1982. Levitt was allowed to put on witnesses to refute the sexual harassment charges, and he or his lawyer, or both, were present to cross-examine all of the University's witnesses. The faculty committee determined that good cause existed for Levitt's termination and recommended that action to the Board of Regents. The Board of Regents dismissed Levitt in December 1982, and this suit followed.

Levitt's contentions below and on appeal are two-fold. He argues that he was denied due process because Professors Fuller and Harris, both members of the faculty committee that evaluated the harassment charges, were biased, or appeared to be

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biased, against him. 2 Levitt contends that the due process clause guaranteed him a hearing before a tribunal that was free of both apparent and actual bias. Levitt's second contention, somewhat related to his first, is that President Monroe, in forming the committee, failed to follow the procedures recommended by the University's Committee on Academic Rights, Privileges and Ethics. Although Levitt concedes that President Monroe formed the committee in accordance with the rules dictated by the Board of Regents for the University of Texas System, see supra n. 1, he contends that the CARPE Rules constituted a de facto faculty handbook that supplemented the Regents Rules and that the CARPE Rules should therefore have been followed. 3 Even if the Regents Rules were controlling, Levitt contends that they were not followed in all respects. The gist of these last allegations is that any failure of the University to follow its own rules in dismissing Levitt necessarily violated his right to due process.

The district court evaluated the administrative record of the proceedings surrounding Levitt's termination, including the notices sent Levitt before the hearing, the transcript of his hearing, and the committee's letter relating its findings. The court then granted summary judgment in favor of the defendants on all of Levitt's due process claims of improper proceedings in the formation of the hearing committee and in the conduct of the hearing, but ordered a bench trial on the bias allegations. 4

Harris and Fuller, as well as President Monroe, testified at the trial and explained the incidents that Levitt alleged demonstrated their bias against him. Levitt put on three witnesses who testified in support of his bias theories. The district court accepted the defendants' testimony and concluded that despite Levitt's allegations, he had not been the victim of bias when the committee evaluated the charges brought against him, and that the evidence before the committee amply supported its recommendation that Levitt be terminated.


We enunciated the due process protections to which a tenured professor is entitled before he may be dismissed in Ferguson v. Thomas, 430 F.2d 852 (5th Cir.1970).

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These minimum standards describe the boundaries within which the State has discretion to adopt the procedures it finds most appropriate. These include the right of a professor to: (1) be advised of the cause for his termination in sufficient detail so as to enable him to show any error that may exist; (2) be advised of the names and the nature of the testimony of the witnesses against him; (3) a meaningful opportunity to be heard in his own defense within a reasonable time; and (4) a hearing before a tribunal that possesses some academic expertise and an apparent impartiality toward the charges. Id. at 856. We address first Levitt's claims of bias and second, his contention that the University failed to follow its own procedures in his dismissal proceeding.


Levitt seizes on the "apparent impartiality" language in the fourth requirement of Ferguson v. Thomas, and argues that the district court erred in requiring him to prove actual bias on the part of the faculty committee in order to establish a violation of due process. Even if Fuller and Harris were not actually biased against him, Levitt argues, their very presence on the committee tainted its proceedings with an appearance of bias that due process will not tolerate.

We disagree. This court rejected identical assertions in Duke v. North Texas State University, 469 F.2d 829 (5th Cir.1972), cert. denied, 412 U.S. 932, 93 S.Ct. 2760, 37 L.Ed.2d 160 (1973), and Megill v. Board of Regents, 541 F.2d 1073 (5th Cir.1976). As we noted in Megill: "In Duke ... this Court refused to adopt any per se rule disqualifying administrative hearing bodies. The record must support actual partiality of the body or its individual members." 541 F.2d at 1079 (emphasis supplied).

Levitt attempts to distinguish Duke and Megill on the ground that both involved assertions of structural bias--that is, a draw upon a pool of decisionmakers whose status presented the appearance of bias, such as university administrators chosen to resolve faculty-administration disputes--and on the ground that neither case involved a tenured professor. These distinctions are unconvincing; both Duke and Megill followed and applied the due process test set out in Ferguson and construed its bias prohibition to interdict only actual bias, not the mere appearance of bias. Accord, Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482, 493, 96 S.Ct. 2308, 2314, 49 L.Ed.2d 1 (1976) (no due process violation where board of education that engaged in collective bargaining with teachers made decision to fire teachers for striking in violation of state law). See also Chrysler Corp. v. Texas Motor Vehicle Com'n, 755 F.2d 1192, 1199 (5th Cir.1985) (dealer members of Texas Motor Vehicle Commission, which resolves consumer-manufacturer disputes under the state's "lemon law," did not have a sufficient stake in those disputes so as to make the Commission a biased decisionmaker forbidden by the due process clause). The district court was correct in requiring proof of actual bias.

After listening to the testimony of numerous witnesses, the district court reached the factual conclusion that, despite Levitt's allegations, see supra n. 2, neither defendants Fuller nor Harris, nor any committee members, were actually biased against him. That conclusion is amply supported by the evidence and is not clearly erroneous. Fed.R.Civ.P. 52(a). 5

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Levitt argues alternatively that even if the procedures afforded him satisfied the minimum requirements of Ferguson v. Thomas, the University nevertheless violated his procedural and substantive due process rights because it did not follow its own regulations in dismissing him. As explained above, Levitt contends that President Monroe should have followed the CARPE Rules in forming the faculty committee that heard Levitt's case, see supra n. 3, and he challenges the district court's decision on summary judgment that the Regents Rules, rather than the CARPE Rules, governed his dismissal. In addition, Levitt argues...

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