973 F.2d 581 (7th Cir. 1992), 91-2866, Colburn v. Trustees of Indiana University

Docket Nº:91-2866.
Citation:973 F.2d 581
Party Name:Kenneth D. COLBURN, Jr. and Robert M. Khoury, Plaintiffs-Appellants, v. TRUSTEES OF INDIANA UNIVERSITY, Glenn W. Irwin, Jr., Howard G. Schaller, et al., Defendants-Appellees.
Case Date:August 27, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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973 F.2d 581 (7th Cir. 1992)

Kenneth D. COLBURN, Jr. and Robert M. Khoury, Plaintiffs-Appellants,

v.

TRUSTEES OF INDIANA UNIVERSITY, Glenn W. Irwin, Jr., Howard

G. Schaller, et al., Defendants-Appellees.

No. 91-2866.

United States Court of Appeals, Seventh Circuit

August 27, 1992

Argued April 14, 1992.

As Corrected Sept. 1, 1992.

Rehearing and Rehearing En Banc

Denied Nov. 20, 1992.

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Richard L. Darst (argued), Mantel, Cohen, Garelick, Reiswerg & Fishman, Indianapolis, Ind., for plaintiffs-appellants.

Gregory J. Utken, Hudnall A. Pfeiffer (argued), Baker & Daniels, Dorothy A. Frapwell, Office of the University, Counsel, Indianapolis, Ind., for defendants-appellees.

Before RIPPLE and MANION, Circuit Judges, and WILL, Senior District Judge. [*]

WILL, Senior District Judge.

Kenneth D. Colburn, Jr. and Robert M. Khoury were employed as faculty members at Indiana University. They filed suit against the Trustees of the University and various University officials alleging that they were denied promotion, reappointment and tenure in violation of their rights to free speech and due process under the First and Fourteenth Amendments, and that their employment contracts had been breached by the defendants. The district court granted the defendants' motion for summary judgment. We affirm.

I.

The district court has provided an extensive discussion of the facts in this case, 739 F.Supp. 1268 (S.D.Ind.1990), so we will give an abbreviated version here. Kenneth Colburn and Robert Khoury were both hired to teach in the Department of Sociology at Indiana University--Purdue University at Indianapolis (IUPUI) in 1979. 1 Colburn was initially hired as a lecturer for a one

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year "non-tenured/non-probationary period." After he completed the requirements for his doctorate, he was reappointed as an assistant professor for a one year "tenure probationary period" beginning in 1980 and was reappointed annually until the end of the 1985-1986 academic year. Khoury was appointed as an assistant professor for a one year "tenure probationary period," and he was also reappointed each year until he resigned in August, 1985.

Both plaintiffs received and signed a document titled

"INDIANA UNIVERSITY NOTICE OF TERMS OF INITIAL APPOINTMENT"

at the time of their appointments. This document set out

the salary each would receive and the beginning and ending

dates for their one year appointments. It also stated as follows:

In accordance with the policy approved by the Indiana University Board of Trustees on October 27, 1972, persons accepting offers which will result in the recommendation of their name for initial appointment to the University are to be notified in writing of the terms of the appointment, and of criteria and procedures relating to reappointment and the awarding of tenure. The appointee must acknowledge in writing that the conditions and terms of the initial appointment, as well as the criteria and procedures for reappointment, and tenure, are agreed to.

Above the candidate's signature line it stated:

I agree to the terms of this appointment as indicated above. I have read and agree to the criteria and procedures employed in recommendations and decisions about reappointment and the awarding of tenure at Indiana University and any special procedures customarily employed in the department, school, program, or division of the University in which my appointment is to be recommended.

The procedures relating to promotion, tenure and reappointment recommendations are found in two handbooks, the IUPUI Faculty Handbook and the Indiana University Academic Handbook. These handbooks identify the criteria for promotion, which include teaching, research, creative work and service. The handbooks state that the criteria for promotion and for tenure are "similar, but not identical" and that "tenure ... is not conferred unless a faculty member achieves or gives a strong promise of achieving promotion in rank within the University." They also provide that subject to each handbook's provisions, a full-time faculty member "shall have tenure after a probationary period of not more than seven years" and that tenure "shall be granted to those faculty members ... whose professional characteristics indicate that they will continue to serve with distinction in their appointed roles." Regarding reappointment, in addition to notice and appeal provisions, the handbooks state that faculty members "shall be advised in writing ... of the criteria and procedures employed in recommendations and decisions about reappointment and the award of tenure ..." and require each faculty member to agree to these criteria and procedures in writing.

Decisions relating to professional advancement begin at the department level, in the department's primary committee, and go through a series of review levels. The Sociology Department's primary committee was also where Colburn and Khoury's career problems began. There is no dispute that the Sociology Department was riddled with interpersonal conflict. At the core of this conflict was Professor John Liell, who was the Chairperson of the primary committee from 1983-1984. He was also a central player in what the parties have referred to as "The Group," or the "them" faction, which was a majority faction in the department. This divisiveness apparently started after Professor Liell exchanged insults with a fellow professor, Colin Williams. The result was that other department members took sides with one or the other. Plaintiffs contend that the groups were also separated based on membership and non-membership in the faculty union.

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Colburn and Khoury were aligned with the minority or "us" faction, along with Williams and two other faculty members, Sue Hammersmith and Brian Vargus. In March 1984, members of this group each individually requested the Executive Dean and Dean of Faculties, Howard Schaller, to hold an external review of the workings of the Sociology department's primary committee by the University Tenure Committee. Colburn sent a letter to Schaller asking for external review in which he expressed concern about the state of the department and his own professional future. Khoury similarly requested external review of the committee's activities noting that he was aware of and had been a party to problems within the committee.

In response to these letters, Schaller, along with William Plater, Dean of the School of Liberal Arts, urged the department to attempt to resolve its differences internally and deferred review of the primary committee. Joseph Taylor, an assistant to IUPUI Vice President Glenn Irwin, was appointed to meet with members of the department and solicit their viewpoints. Taylor proposed an interim structure for the department, which passed in a department vote. The "us" faction abstained because this group believed that the plan simply maintained the department's status quo. Colburn and Khoury, along with two members of their faction, sent a memorandum to the Department Chairperson Richard Hope in which they decried the "deplorable and intolerable [situation], especially for junior members of the department who face discrimination by the now unchallenged dominant group within because they are not members of this group."

A new primary committee was elected by a departmental vote in September, 1984. The committee included four members of "The Group"--a clear majority since the committee only consists of four tenured, and one non-tenured faculty members. The Chairperson of the committee was defendant, Professor Linda Hass.

After the election, Colburn and Khoury each nominated themselves for promotion. The primary committee recommended against both requests. Each application went through the remaining stages of the University's review process and neither was given a promotion. In early 1985, the primary committee and Department Chairperson Hope also recommended that Colburn not be reappointed. The primary committee's recommendation noted, in part, that Colburn's "written and verbal comments to people outside the department have hurt the image of the Sociology faculty and undermined the integrity of the peer review process." Dean Plater also recommended against reappointment. On April 23, 1985, Colburn was notified in a letter from Vice President Irwin of the official decision not to reappoint him.

Khoury was reviewed for tenure, and received a favorable recommendation from the primary committee, but a negative recommendation from Hope. Ultimately, Schaller and Irwin recommended against tenure and informed Khoury about their recommendations in a letter, which was the last information he received about his tenure application. Khoury was also denied reappointment. He resigned on August 23, 1985, after refusing the University's offer of a one year terminal appointment.

Colburn brought a grievance before the Faculty Board of Review which he stated was in conjunction with Khoury, though Khoury apparently never filed a grievance on his own behalf. Colburn was given a hearing after which the Board recommended that the Sociology Department undergo a self-study and that Colburn be given a two year terminal appointment through the 1987-1988 academic year. The University instead offered Colburn a one year terminal appointment, which Colburn declined. Colburn's further appeals to the University's President and Board of Trustees were also unsuccessful.

On April 21, 1987, Colburn and Khoury filed the present case charging that the defendants had failed to promote, reappoint and grant them tenure in retaliation for their requests for external review of the

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primary committee. 2 They alleged that they were terminated in violation of their rights under the First and Fourteenth Amendments, and that their employment contracts had been breached.

The district court granted the defendants' motion for summary judgment. The...

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