Batra v. Board of Regents of University of Nebraska

• Decision Date: 26 March 1996
• Docket Number: No. 95-1600,95-1600
• Parties: 67 Empl. Prac. Dec. P 43,988, 108 Ed. Law Rep. 48 Guatam BATRA; Michael Resch; Nisar Shaikh, Plaintiffs--Appellants, v. BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA; Graham B. Spanier; Stanley R. Liberty, Defendants--Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 717

79 F.3d 717

67 Empl. Prac. Dec. P 43,988, 108 Ed. Law Rep. 48

Guatam BATRA; Michael Resch; Nisar Shaikh, Plaintiffs--Appellants, v. BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA; Graham B Spanier; Stanley R. Liberty, Defendants--Appellees.

No. 95-1600.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 19, 1995.

Decided March 26, 1996.

Appeal from the United States District Court for the District of Nebraska; Richard G. Kopf, Judge.

Before RICHARD S. ARNOLD, Chief Judge, WHITE, ^* Associate Justice (Ret.), and LOKEN, Circuit Judge.

LOKEN, Circuit Judge.

The plaintiffs in this lawsuit are former tenure-track assistant professors at the University of Nebraska-Lincoln. They brought this action under 42 U.S.C. § 1983 alleging that the Board of Regents and certain University officials (collectively the "University") violated plaintiffs' due process and equal protection rights by denying tenure and refusing to renew their employment contracts. Plaintiffs appeal the district court's ¹ dismissal of their claims, granted after the University moved for summary judgment. We affirm.

I.

Plaintiffs were appointed Assistant Professors in the College of Engineering and Technology between 1985 and 1989. These were appointments to "specific term," tenure-leading faculty positions. Each plaintiff received an appointment letter enclosing a copy of the University's Board of Regent Bylaws. Section 4.4.2 of the Bylaws, which is critical to this appeal, provides in part:

Appointments for a Specific Term. An "Appointment for a Specific Term" is a probationary appointment as a faculty member with academic rank of assistant professor or above for a term of one year, unless a longer term is specified in the contract required by Section 4.3. In no event shall the specific term exceed three years. An "Appointment for a Specific Term" shall carry no presumption of renewal, and will terminate at the end of the stated term, if written notice of non-reappointment is given to the appointee....

The appointment letters also advised that the appointee would be considered for a "continuous appointment" (tenure) after no more than seven years of specific term employment.

Each plaintiff applied for tenure in 1991 or 1992. Each was denied tenure and was notified that his specific term appointment would not be renewed. Plaintiffs filed a grievance with the University's Grievance Committee. The Committee concluded that plaintiffs did not warrant tenure but recommended they be given two more years to earn tenure. The Chancellor of the University, appellee Graham Spanier, declined this recommendation and terminated plaintiffs at the end of the 1993-1994 academic year.

Plaintiffs then commenced this action, claiming that the University denied them procedural due process, in particular by failing to timely provide them with copies of a December 1980 College of Engineering and Technology document entitled, "Criteria for Promotion and Tenure." After the district court denied plaintiffs' motion for a preliminary injunction, they amended their complaint to add the following equal protection claim:

29. That Plaintiffs were members of a protected class, tenure-track faculty at the University of Nebraska.

30. That the individual Defendants treated [Plaintiffs] differently than similarly situated class members (ie: tenure-track faculty) by withholding information from them necessary for them to properly achieve tenure.

The University then moved for summary judgment based upon the record from plaintiffs' preliminary injunction motion plus additional affidavits. The district court granted summary judgment on the due process claim, concluding plaintiffs have no protected property interest. The court dismissed the equal protection claim because plaintiffs had not alleged that they "were victimized based on some suspect classification" and had not cured this defect in responding to the University's summary judgment motion. Plaintiffs challenge both rulings on appeal. They further argue that the district court should have allowed them to amend their equal protection claim.

II.

Plaintiffs' procedural due process claim fails unless they had a protected liberty or property interest in their specific term appointments as tenure-track assistant professors. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The University's alleged failure to follow its own procedural rules and regulations did not, without more, give rise to a protected liberty or property interest. See Swenson v. Trickey, 995 F.2d 132, 134 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 568, 126 L.Ed.2d 468 (1993); Stow v. Cochran, 819 F.2d 864, 867-68 (8th Cir.1987).

Plaintiffs did not assert a liberty interest in continued employment and most surely did not have one. See Roth, 408 U.S. at 574 n. 13, 92 S.Ct. at 2707 n. 13. For a property interest to arise, a government employee must have a "legitimate claim of entitlement" to continued employment, as opposed to a mere subjective expectancy. Id. at 577, 92 S.Ct. at 2709. "Absent unusual circumstances, a teacher in a position without tenure or a formal contract does not have a legitimate entitlement to continued employment." Geddes v. Northwest Mo. State Univ., 49 F.3d 426, 429 (8th Cir.1995).

Section 4.4.2 of the Board of Regents Bylaws clearly states that plaintiffs' appointments were probationary and carried no presumption of renewal. The very purpose of this type of tenure regulation is to avoid an ambiguous relationship that may, in hindsight, be construed as "de facto tenure." See Cusumano v. Ratchford, 507 F.2d 980, 984 (8th Cir.1974), cert. denied, 423 U.S. 829, 96 S.Ct. 48, 46 L.Ed.2d 46 (1975). Applying Geddes, we held in Akeyo v. O'Hanlon, 75 F.3d 370, 374 (8th Cir.1996), that a University of Nebraska assistant professor did not have a property interest because section 4.4.2 of the Bylaws "could not create an expectation of entitlement." Akeyo controls the due process issue in this case.

Plaintiffs argue that a statement in section 4.4.2--"In no event shall the specific term exceed three years"--created a reasonable expectation of special status when their specific term appointments were renewed beyond three years. We disagree. The appointment letters stated, consistent with section 4.10 of the Bylaws, that the specific term appointments could not exceed a total of seven full academic years. This put plaintiffs on notice that their probationary appointments could last up to seven years before they would be considered for tenure. Like the district court, we find no unusual circumstances in the record that would entitle plaintiffs to a protected property interest in their non-tenured appointments.

III.

Appellants next argue that the district court erred in dismissing their equal protection claim. The claim is that the University treated them differently than other similarly situated tenure-track assistant professors by withholding information necessary to achieve tenure, principally the College of Engineering's "Criteria for Promotion and Tenure" document. ² The district court dismissed this claim because plaintiffs failed to allege or prove that they were denied tenure "based on any suspect classification." On appeal, plaintiffs argue that their complaint did state a valid equal protection claim, or that they should have been allowed to amend it.

A.

We have some difficulty with the district court's reasoning. That court observed that a class consisting of tenure-track assistant professors "neither involve[s] fundamental rights, nor proceed[s] along suspect lines" such as race or sex or national origin. But the equal protection clause does not only protect "fundamental rights," and does not only protect against "suspect classifications" such as race. It also protects citizens from arbitrary or irrational state action. Most equal protection cases involve facial or as-applied challenges to legislative action. Absent a "suspect classification" such as race, courts review legislative actions under the highly deferential "rational basis" standard. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446-47, 105 S.Ct. 3249, 3257-58, 87 L.Ed.2d 313 (1985).

Plaintiffs in this case do not challenge legislative action; they concede that the Board of Regent Bylaws are unobjectionably even-handed. Indeed, plaintiffs allege that University officials violated section 4.5 of the Bylaws by withholding vital tenure information that must be "published and disseminated to the faculties," with the result that plaintiffs were treated differently than other similarly situated members of the tenure-track faculty. If that type of "withholding," without more, were enough to trigger a "rational basis" analysis of why the information was withheld, virtually every negligent governmental action could be converted into an equal protection violation. Thus, courts have consistently required equal protection plaintiffs to...