Akhtar v. Van de Wetering

• Decision Date: 03 March 1982
• Docket Number: No. 81-10,81-10
• Citation: 197 Mont. 205,642 P.2d 149
• Parties: , 3 Ed. Law Rep. 167 M. Iqbal AKHTAR, Plaintiff and Appellant, v. John E. VAN DE WETERING et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 149

642 P.2d 149

197 Mont. 205, 3 Ed. Law Rep. 167

M. Iqbal AKHTAR, Plaintiff and Appellant, v. John E. VAN DE WETERING et al., Defendants and Respondents.

No. 81-10.

Supreme Court of Montana.

Submitted Dec. 1, 1981.

Decided March 3, 1982.

Boschert & Boschert, Rosemary Boschert, argued, Billings, for plaintiff and appellant.

LeRoy H. Schramm, argued, Helena, for defendants and respondents.

HARRISON, Justice.

M. Iqbal Akhtar initiated this action following denial of his tenure at Eastern Montana College (EMC). He sought reinstatement with tenure and backpay, claiming violations of sections 49-3-101(1), (2) and 49-3-201, MCA; Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c et seq.; and equal protection rights secured by Article II, Section 4, of the Constitution of the State of Montana and the Fourteenth Amendment to the United States Constitution. The District Court found the denial of Dr. Akhtar's tenure application resulted from the defendants' exercise of academic judgment and did not discriminate against Dr. Akhtar either individually or as a member of a class. From that decision, Dr. Akhtar appeals.

Appellant is an assistant professor in the Department of Economics of EMC, where he has taught since his appointment there in September 1975. He is a naturalized citizen of the United States and a former citizen of Lyallpur, Pakistan. Akhtar received his PhD degree in agricultural economics from Texas A & M University in 1967. Prior to his appointment at EMC appellant taught one year at Middle Stand State University and one semester at Idaho State University.

Appellant applied for tenure according to the faculty contract procedure in October 1978. He submitted his application to the unit rank and tenure committee. After consideration, the committee made a positive recommendation to the college rank and tenure committee.

On or about January 15, 1979, Robert McRae, Dean of the Liberal Arts School, forwarded an unfavorable recommendation regarding the appellant's tenure application to the College Rank and Tenure Committee and a copy of that recommendation to Larry W. Jones, Academic Vice-President.

The College Rank and Tenure Committee sent a favorable recommendation regarding appellant's tenure application to the academic vice-president on or about March 1, 1979.

The academic vice-president forwarded appellant's application with the academic vice-president's negative recommendation to President John Van de Wetering on or about March 28, 1979.

The president informed appellant of his decision not to award tenure on April 17, 1979.

On May 1, 1979, the president received a letter from Professor Harry Gaghan, Chairman of the Department of Social Sciences, on behalf of the department, requesting the president to reconsider his decision and protesting the use of the student evaluation instrument.

The president requested a reevaluation of appellant's application excluding the student evaluation test from consideration.

On May 16, 1979, Dean McRae submitted his reevaluation of appellant's application to Vice-President Jones, indicating Dean McRae's recommendation remained unfavorable.

On May 17, 1979, the vice-president submitted his reevaluation to the president which reaffirmed his negative recommendation. The president then reaffirmed his denial of tenure to appellant.

Several issues are before this Court:

1. May appellant's claim of denial of due process rights properly be heard on appeal?

2. If so, was appellant denied guaranteed due process when he was denied tenure?

3. Was appellant denied equal protection guarantees in that he was treated differently than other similarly situated candidates for tenure and promotion at EMC?

4. Did the District Court err in refusing to receive into evidence and hear testimony on plaintiff's Exhibit No. 25, a report from an appeals committee in the tenure matter of Dr. Jerome Hurley?

5. Did the District Court err in refusing to allow the testimony of Maury Evans regarding union activities of Dr. Akhtar and other faculty?

6. Did the District Court err in refusing to allow the rebuttal testimony of Dr. Jay Kirkpatrick?

Respondents argue appellant's due process claim may not properly be heard on appeal since it was not raised at the trial court. An issue which is presented for the first time to the Supreme Court is untimely and cannot be considered on appeal. Northern Plains v. Board of Natural Resources (1979), Mont., 594 P.2d 297, 36 St.Rep. 666. The question before us, then, is whether appellant raised the due process issue below.

Appellant's complaint alleges violations of sections 49-3-101(1), (2) and 49-3-201, MCA; Title VI of the Civil Rights Act of 1964; and the equal protection guarantees of the Fourteenth Amendment to the Constitution of the United States and Article II, Section 4, of the Constitution of the State of Montana. The complaint was never amended and makes no reference to due process violations.

Appellant does, however, refer to due process extensively in both his trial brief and his proposed conclusions of law. And, the District Court states in its Finding of Fact No. 9: "Plaintiff alleges that he was discriminated against in regard to said tenure application and that he was not accorded the same protection and due process that was accorded other faculty members ..." We find this a sufficient indication of the presence of the due process issue at the trial level to consider it on appeal.

Appellant claims his due process rights were violated because (1) he was not given adequate notice and hearing prior to the denial of his tenure application, and (2) the decision to deny tenure was arbitrary and capricious and founded on a violation of appellant's equal protection rights.

The first question to be answered is whether appellant had a property or liberty interest which is accorded due process protection by the Fourteenth Amendment to the United States Constitution and Article II, Section 17, of the Montana Constitution. Board of Regents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Schend v. Thorson (1976), 170 Mont. 5, 549 P.2d 809; Reiter v. Yellowstone County (1981), Mont., 627 P.2d 845, 38 St.Rep. 686. Only if such an interest is established, may the question of whether due process protections have been violated be considered.

Appellant claims the denial of his tenure request violates a liberty interest by imposing a stigma on him which impairs his freedom to obtain other employment. He makes no claim of false or defamatory statements being publicized about him in connection with his tenure evaluation but grounds his claim on the sole fact tenure was denied.

In Roth, supra, the United States Supreme Court considered the case of an untenured university teacher hired for a fixed one-year term. State statute provided tenure status was available only after four years of year-to-year employment. Nevertheless, Roth claimed denial of his due process rights because he was given no notice or hearing prior to his nonretention.

The Court found Roth had not been denied a liberty interest because the state had not imposed any stigma on him which deprived him of other employment opportunities nor had it impinged his "good name, reputation, honor or integrity." 408 U.S. at 573, 92 S.Ct. at 2707, 33 L.Ed.2d at 559.

More recently in Bishop v. Wood (1976), 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684, a permanently employed policeman was discharged without a pretermination hearing. He claimed a due process violation because of a city ordinance which limited the grounds for discharge of permanent employees to inefficiency, negligence, unfitness or failure to perform duties. The Court said the fact that an employee's discharge made him less attractive to other employers was not alone a deprivation of a liberty interest.

While the fact appellant did not receive tenure at EMC will not benefit him in his pursuit of other employment, it does not place such a stigma on him as to deprive him of a liberty interest.

Appellant also claims a protected property interest. Roth, supra, sets out a guide to determining such an interest. In Roth, the Court held:

"... To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it ..." 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561.

The source of an entitlement establishing a property interest may be found in state law or in rules and understandings existing between the individual and his employer. Roth, 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561.

In Roth's companion case, Perry v. Sindermann (1972), 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, a teacher had taught in the Texas state college system for ten years under a series of one-year contracts. When, following his public disagreements with college policies, his contract was not renewed, the teacher brought an action claiming the decision infringed his right to freedom of speech and denied him procedural due process. The Court found that, even without a formal contractual tenure provision, a protected property interest may exist through a de facto tenure agreement promulgated by rules and understandings of state officials. The Court also noted the likelihood of the existence of such a de facto agreement is greater where no explicit tenure system exists. 408 U.S. at 602, 92 S.Ct. at 2700, 33 L.Ed.2d at 580.

Appellant argues that, having taught the requisite number of years and obtained the academic rank of assistant professor, he has satisfied the objective requirements for tenure at EMC and thereby has sufficient entitlement to tenure to require due process protections.

Appellant relies primarily on McLendon v. Morton (W.Va.1978), 249 S.E.2d 919, in which an assistant professor at a community college sought a writ of mandamus claiming ...