Staheli v. University of Mississippi, 87-4087

• Citation: 854 F.2d 121
• Decision Date: 09 September 1988
• Docket Number: No. 87-4087,87-4087
• Parties: 48 Ed. Law Rep. 407, 3 Indiv.Empl.Rts.Cas. 1280, 26 Fed. R. Evid. Serv. 1139 Albert C. STAHELI, Plaintiff-Appellant, v. The UNIVERSITY OF MISSISSIPPI, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 121

854 F.2d 121

48 Ed. Law Rep. 407, 3 Indiv.Empl.Rts.Cas. 1280,

26 Fed. R. Evid. Serv. 1139

Albert C. STAHELI, Plaintiff-Appellant, v. The UNIVERSITY OF MISSISSIPPI, et al., Defendants-Appellees.

No. 87-4087.

United States Court of Appeals Fifth Circuit.

Sept. 9, 1988.

David G. Hill, Hill and Lewis, Oxford, Miss., for plaintiff-appellant.

Ed Davis Noble, Jr., Asst. Atty. Gen., University of Mississippi Medical Center, Jackson, Miss., Mary Ann Connell, University of Mississippi, Edwin Lloyd Pittman, Atty. Gen., Jackson, Miss., for defendants-appellees.

John H. Dunbar, Oxford, Miss., for Allie Smith.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GEE, DAVIS and SMITH, Circuit Judges.

GEE, Circuit Judge:

The University of Mississippi employed Dr. Albert Staheli as an associate professor of geology under a series of one-year contracts. Dr. Staheli was on "tenure track"; that is, he was hired with the mutual expectation that he would be considered for tenure after five years. When he eventually applied for tenure, however, the University did not grant it. He then brought suit against the University and certain of its employees, lost, and now appeals. We affirm.

A. Facts and Prior Proceedings

Dr. Staheli contends that he was denied tenure in retribution for the exercise of his right to free speech. He also contends that the manner of denial violated his right to due process. The first contention went to a jury, which found for the University. The second was resolved in favor of the University on a motion for summary judgment. We set out the facts accordingly: the record facts related to free speech we summarize most favorably to the University and the jury verdict; those related to due process we summarize most favorably to Dr. Staheli, the opponent of summary judgment.

1. First Amendment Facts

Dr. Staheli's residence bordered a field where the University buried dead laboratory animals--but not deeply enough, he discovered, since scavenger animals were removing them. Upset by this untidy situation, Staheli wrote to the University comptroller, asking him to do something about the problem.

About the same time, two University employees--supposedly because they had forgotten the gate key to the burial field and Dr. Staheli's yard was handy--buried a dead mouse there. Dr. Staheli was hiding in a bush nearby and observed this untoward event. The employees' supervisor found out about the incident on the same day and immediately drove out to apologize. After this incident, Dr. Staheli wrote another, more pointed letter to the comptroller. This came to the attention of the Chancellor, who gave it to one of his assistants and asked him to look into and correct the problem.

Within a few weeks, the University stopped using the field to bury animal remains, arranging for other means of disposal with the State Department of Health. The Department was pleased with the University's prompt resolution; and the comptroller in turn wrote to Dr. Staheli, thanking him for reporting the problems, reporting on how they had been solved, and apologizing for any personal affront. All this took place in 1980, approximately two years before the tenure process began in earnest.

2. Due Process Facts

The University maintains an elaborate formal tenure policy, set out in detail and circulated among the faculty. It includes a general discussion of the areas in which a teacher must excel: teaching, research, and service. These are not further defined, but a related University policy on promotion describes research as follows:

The benchmarks of [research] quality have been generally established: books which have been published by commercial or by University presses; articles in refereed journals of national prestige as contrasted with those whose standards are less demanding; papers accepted for presentation before regional and national organizations where competition is keen as contrasted with state or local organizations; and awards of major research grants. However, each publication or paper should be evaluated primarily on its own merits as a product of research.

The tenure policy provides that a teacher be advised when hired of the standards of performance required for achieving tenure, be advised of any changes in those standards, and be evaluated yearly on his current performance and prospects of eventually gaining tenure.

The tenure policy also outlines the decisional process, which begins with review of the tenure application by the department, a recommendation by the department chair, and recommendations by each dean up the administrative ladder to the Chancellor. The Chancellor makes the tenure decision. The applicant may "appeal" an adverse decision to the faculty senate, which then gives an opinion by means of a resolution and a vote on the candidate. The Chancellor is free to accept or reject the senate's advice.

Professor Fred Manley, the chairman of Dr. Staheli's department, had been meeting with Dr. Staheli each of the first four years of teaching to advise him of his status and his progress toward tenure. Year by year, Professor Manley assured him that he was making satisfactory progress. Instead of telling him to concentrate on publishing in scholarly journals, Professor Manley instructed him to focus his research efforts on submitting papers to and making presentations at professional meetings in order to gain exposure for the geology department. In May 1982, however, only a few months before he was to apply for tenure, Dr. Staheli was informed by Allie Smith, the Dean of the School of Engineering and new acting chairman of the geology department, that he was not progressing toward tenure because he had not published in a scholarly journal.

Undaunted, Dr. Staheli applied for tenure in the fall of 1982. His new department chair, Professor William Reynolds (who had replaced Manley, with Smith acting as department head in the interim) recommended him; but Dean Smith recommended that he not be granted tenure. Smith gave a number of reasons: lack of any publication in refereed journals, poor teaching ability, grade inflation, and Staheli's constituting a divisive influence on the faculty. As the application ascended the administrative hierarchy, each successive reviewer recommended against tenure, generally relying on Smith's initial negative recommendation. At last, the Chancellor--the only person authorized to grant or deny tenure under the University's written rules--decided against Dr. Staheli. Pursuant to University procedures, Dr. Staheli "appealed" the denial of tenure to an advisory decision of the faculty senate, which voted 30 in favor of and 6 opposed to granting it, with 2 abstentions. Unmoved, the Chancellor again denied it. The following year, Dr. Staheli was considered for tenure for the second and final time. He had made no attempt to publish in the interim, however; and he did not bother to submit a formal application. This time, the two tenured members of his department voted against tenure, ending the matter.

3. Proceedings in the District Court

Dr. Staheli sued the University ¹ and most of the officials involved in the tenure decision on various federal and state law theories; but the only claims relevant to our purposes are that he was deprived of a property interest in his teaching job without due process of law and that he was denied tenure because of the exercise of his First Amendment right to speak out on a matter of public concern. The district court granted summary judgment on the due process claim, holding that Dr. Staheli had no protected property interest in his probationary teaching position. 621 F.Supp. 449. The district court ruled that certain statements and activities of Dr. Staheli involving the University's disposal of laboratory animal carcasses were protected by the First Amendment and set for trial the question of causation: was the protected activity sufficiently galling to the University officials that it became a substantial factor in the decision to refuse tenure? Dr. Staheli did not request a directed verdict on the issue of causation at the close of evidence. The jury determined, in response to an interrogatory based on Mt. Health City Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), that Dr. Staheli's protected activities were not a "substantial or motivating factor in the decision of the defendant to deny the plaintiff tenure."

Dr. Staheli appeals.

B. The Due Process Claim

Dr. Staheli's due process argument is this: Although there was a written tenure policy at the University that permitted only the Chancellor to make a tenure decision, the remainder of that policy set out specific standards of excellence that he met. Moreover, in his view, the tenure policy created the practice of yearly review by the department chairman and in those meetings his department chairman assured him that his progress was satisfactory. The specific standards in the policy, which he had met, coupled with the understanding that he had with his department head, created an informal tenure obligation that over-rode the requirement that only the Chancellor could grant tenure. In consequence, the argument runs, he had an implicit, mutual understanding with the University that his job would continue: a de facto tenure. ² That de facto tenure was rudely interrupted when the University decided he had no de jure tenure. This interruption, Dr. Staheli asserts, was the deprivation of a property interest protected by the Fourteenth Amendment.

We do not agree. The institution of tenure has an inexorable internal logic: the very existence of a tenure system means that those teachers without tenure are not assured of continuing employment. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 568 (1972) (non-tenured college teacher had no constitutionally protected property interest in his job). Based...