Upadhya v. Langenberg
| Decision Date | 18 December 1987 |
| Docket Number | Nos. 87-2422,87-2555,s. 87-2422 |
| Citation | 834 F.2d 661 |
| Parties | 43 Ed. Law Rep. 29, 2 Indiv.Empl.Rts.Cas. 1498 Kamleshwar UPADHYA, Plaintiff-Appellee, v. Donald N. LANGENBERG, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Carla J. Rozycki, Keck, Mahin & Cate, Chicago, Ill., for defendants-appellants.
Martin J. Oberman, Chicago, Ill., for plaintiff-appellee.
Before FLAUM, EASTERBROOK, and RIPPLE, Circuit Judges.
The University of Illinois hired Kamleshwar Upadhya in 1984 as an assistant professor of engineering. He was appointed to the tenure track, with a decision to be made no later than fall 1988, the beginning of his fifth year. Upadhya believes that the University committed itself to give him the full five years to demonstrate his professional skills.
The University evaluates each professor on the tenure track annually, and after evaluating Upadhya in June 1986 the University decided not to renew his contract. As the Statutes of the University require, Upadhya received a terminal appointment, expiring on August 31, 1987. He filed this suit under 42 U.S.C. Sec. 1983, contending that his discharge violated the Due Process Clause of the fourteenth amendment. The district court, 671 F.Supp. 521, held a trial and issued a permanent injunction compelling the University to "continue [Upadhya] in his present position in this employ until it has given him constitutionally sufficient due process of law with relation to his termination".
The Due Process Clause of the fourteenth amendment applies only to deprivations of "life, liberty, or property". Upadhya maintains, and the district court held, that his job is "property". The district court apparently concluded that once the University hires a professor, it may not let the professor go without providing an adversarial hearing. This is the effect of the injunction, which does not distinguish between the initial five-year period and an indefinite (tenured) appointment. We have held, however, that professors on the tenure track at the University of Illinois lack a property interest in receiving tenure. Weinstein v. University of Illinois, 811 F.2d 1091, 1097-98 (7th Cir.1987); McElearney v. University of Illinois, 612 F.2d 285 (7th Cir.1979). To the extent the district court thought that an initial appointment carries with it the right to remain until dismissed after an adversarial hearing, its decision is inconsistent with settled law.
Upadhya, however, did not request the relief the district court afforded him. He wanted only an order confirming his right to remain at the University until August 1989--the end of the five-year period commencing with his appointment. He asserted a contractual entitlement to five full years on the basis of statements made during the negotiations leading to his appointment. The University, for its part, has relied on its Statutes--bylaws having the force of administrative rules and hence "law" in Illinois. Rend Lake College Federation of Teachers v. Community College District, 84 Ill.App.3d 308, 311, 39 Ill.Dec. 611, 614-15, 405 N.E.2d 364, 367-68 (5th Dist.1980) (collecting cases). These Statutes provide that appointments to untenured positions run no longer than two years and limit extensions to those expressly approved by the President or Board of Trustees:
The terms of employment for all members of the academic and administrative staffs shall be stated explicitly in the contract of employment. [Art. IX Sec. 4d.]
Except under unusual circumstances evidenced by a special written agreement approved by the President of the University and the appointee, the tenure for the academic ranks of professor, associate professor, assistant professor, and instructor shall be as provided in this section.... During the probationary period ... an appointment as assistant professor shall be for not more than two years.... [Art. X Sec. 1a and Sec. 1a(2).]
The Board of Trustees.... expressly reserves to itself the power to act on its own initiative in all matters affecting the University, notwithstanding that such action may be in conflict ... with the provisions of these Statutes. [Art. XIII Sec. 7.]
The portions of the Statutes limiting the terms of employment, we held in McElearney and Weinstein, prevent assistant professors from possessing a legitimate claim of entitlement (and hence a "property" interest) in renewal of their contracts. The University insists that the same limited duration of the initial contract of employment governs Upadhya, who therefore lacks any current "property" interest in employment at the University. Upadhya contends, and the district court found, that the professors who recruited him promised him five years to prove himself, and that this promise creates a property interest despite the Statutes and our holdings in McElearney and Weinstein.
We start with the writings, the essence of the contract. The first writing is a letter dated July 30, 1984, from Chien H. Wu, Head of the University's Department of Civil Engineering, Mechanics, and Metallurgy. The letter, written after the faculty of the Department had interviewed Upadhya and recommended his appointment, states (emphasis added):
On behalf of the department and with the concurrence of the Dean, I am happy to be able to offer you a tenure-track assistant professorship with an initial salary of ... for the nine-month academic year. A summer appointment of two-ninths of your academic salary, which requires you to teach one course during the eight-week summer quarter, is guaranteed for the first summer.
A tenure code of A2 must be assigned to your appointment to recognize your previous experience. This means that a recommendation for promotion or termination must be submitted by the department no later than the beginning of your fifth year of service on Campus. For a favorable recommendation, however, it will be necessary for you to demonstrate your ability to conduct independent research and to attract outside sponsorship.
... I hope very much that you will find our offer acceptable. You may indicate that fact by signing the enclosed copy of this letter and returning it to me as soon as possible so that we may proceed to resolve the other formalities.
The "other formalities" included securing the approval of the University's Board of Trustees.
Upadhya signed the copy of Wu's letter and moved to Chicago. He found waiting a "Notification of Appointment", dated August 29, 1984, stating in part:
By authority of The Board of Trustees of the University of Illinois, you have been appointed to the following position(s) in the University: Assistant Professor of Metallurgical Engineering--Engineering, Civil, Mechanical and Metallurgy ... Tenure Code 2 ... Percent time 100 ... Period of service Academic year 1984-85 ... Period of payment from 09-01-84 through 08-31-85 ... This appointment is made subject to all applicable laws and to the University of Illinois Statutes.... Please indicate your action (acceptance or declination of this appointment) on the attached copy and return it.... Delay in returning the acceptance may result in delay in payment of salary.
Upadhya promptly signed the attached copy and took up his duties. An administrator testified that a two-page extract of the Statutes pertinent to terms of employment is included with all such notifications. Upadhya testified that no extract came with his, that he did not obtain the Statutes from any other source despite the notification's warning that "[c]ertain terms of employment ... appear ... in the enclosed document", and that he was unacquainted with the Statutes' contents. The district court credited this testimony. Upadhya received a similar notification in September 1985 appointing him to service for "ACAD YEAR 1985-86" with a tenure code of 3; he testified, and the district court concluded, that he did not receive the extract of the Statutes with this notification either. Each notification included the advice: "When a number appears in the Tenure Code column it indicates the number of years which will be credited at the end of this appointment period toward the completion of the [seven year] probationary period identified in Article X, Section 1 of the University of Illinois Statutes." Upadhya testified, and the district court found, that he did not read this advice.
These three documents (the Wu letter and the two notifications), when read in conjunction with the Statutes, show that the University was giving Upadhya a series of year-to-year contracts, with a limit of five before a tenure decision had to be made. Under Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548 (1972), a professor serving on a series of annual appointments, without an entitlement to renewal founded on state law, has no property interest in his position.
Upadhya relies on the circumstances of his appointment to create a property interest. He was invited to Chicago to present a paper; he was asked to move from Minneapolis to Chicago to take up a new job; he was told that he had to publish and secure outside funding, which would take time; surely, he says, these things require greater security than year-to-year appointments. Upadhya also relies on conversations preceding the July 30 letter. He discussed with Wu and other members of the department how long assistant professors had to prove themselves; they indicated that he would have five years. This is how Upadhya interpreted the tenure code 2: as a promise that he would have five years before the University would make an up-or-out decision. The district court found that such conversations took place and that Upadhya had an expectation that his term would be not less than five years.
If Upadhya had a contractual five-year term, then the Due Process Clause would require notice and an opportunity for a hearing if the...
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