Brenna v. Southern Colorado State College

• Decision Date: 13 December 1978
• Docket Number: No. 77-1940,77-1940
• Parties: Lyle V. BRENNA, Plaintiff-Appellant, v. SOUTHERN COLORADO STATE COLLEGE, and the Trustees of the State Colleges in Colorado, Robert W. Bartley, L. Richard Bratton, Thomas W. Ewing, Carol Gossard, Betty I. Naugle, all the above Individually and as Trustees of the State Colleges in Colorado, Phillip A. Winslow, as a present Trustee, Gerald A. Caplan, as a former Trustee, Harry P. Bowes, Individually and as President of Southern Colorado State College, Donald Janes, Individually and as Dean of Southern Colorado State College, Marion Boss, Individually and as Department Head for Office Education and Business Education, Defendants-Appellees. American Association of University Professors, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 475

589 F.2d 475

Lyle V. BRENNA, Plaintiff-Appellant, v. SOUTHERN COLORADO STATE COLLEGE, and the Trustees of the

State Colleges in Colorado, Robert W. Bartley, L. Richard

Bratton, Thomas W. Ewing, Carol Gossard, Betty I. Naugle,

all the above Individually and as Trustees of the State

Colleges in Colorado, Phillip A. Winslow, as a present

Trustee, Gerald A. Caplan, as a former Trustee, Harry P.

Bowes, Individually and as President of Southern Colorado

State College, Donald Janes, Individually and as Dean of

Southern Colorado State College, Marion Boss, Individually

and as Department Head for Office Education and Business

Education, Defendants-Appellees.

American Association of University Professors, Amicus Curiae.

No. 77-1940.

United States Court of Appeals, Tenth Circuit.

Argued Nov. 13, 1978.

Decided Dec. 13, 1978.

David M. Silberman, Bredhoff, Gottesman, Cohen & Weinberg, Washington, D.C. (Michael H. Gottesman, Robert M. Weinberg, Bredhoff, Gottesman, Cohen & Weinberg, Washington, D.C., and Larry F. Hobbs, Jesse N. Lipschuetz, Hobbs & Waldbaum, P.C., Denver, Colo., on brief), for plaintiff-appellant.

Mary J. Mullarkey, First Asst. Atty. Gen., Denver, Colo. (J. D. MacFarlane, Atty. Gen., Denver, Colo., on brief), for defendants-appellees.

David M. Rabban, Washington, D.C., for amicus curiae.

Before SETH, Chief Judge, and DOYLE and McKAY, Circuit Judges.

McKAY, Circuit Judge.

Appellant was a tenured professor at Southern Colorado State College. Because of bona fide budgetary exigencies it became necessary for the college to reduce its full time faculty from 340 to 308. Those staff cuts were allocated among the various departments by administrative decision with one cut allocated to appellant's academic department. The head of the department was assigned responsibility to recommend which faculty member "his department would best get along without." Record, vol. 2, at 64. Appellant was selected even though there was a nontenured faculty member in the department. There was testimony that appellant was selected over the nontenured professor because the college had lost its accreditation in appellant's primary area of training and expertise. Furthermore, the college administration concluded that the nontenured professor would give the department increased versatility and allow for greater flexibility in making teaching assignments in the courses still to be offered. It is conceded that this decision was made in good faith and was not pretextual.

Although contested below, there is no question on appeal that the procedures and hearings provided in the process of removing appellant satisfied the demands of procedural due process mandated by the Fourteenth Amendment. Appellant's claim here is that the decision to remove him instead of the nontenured professor was so arbitrary or capricious as to violate the concept of "substantive" due process embodied in the Fourteenth Amendment. His action to test this view was brought under 42 U.S.C. § 1983 with jurisdiction based on 28 U.S.C. §§ 1343(3) and 1331. The trial court granted a motion for summary judgment in favor of the college. We affirm.

In order to present a claim of denial of "substantive" due process by a discharge for arbitrary or capricious reasons, a liberty or property interest must be present to which the protection of due process can attach. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); McGhee v. Draper, 564 F.2d 902 (10th Cir. 1977); Weathers v. West Yuma County School District R-J-1, 530 F.2d 1335-38 (10th Cir. 1976). Professor Brenna was tenured and thus had a property interest deserving of the procedural and substantive protections of the Fourteenth Amendment. Martin v. Harrah Independent School District, 579 F.2d 1192, 1198 (10th Cir. 1978), Petition for cert. filed, --- U.S. ----, 99 S.Ct. 1062, 59 L.Ed.2d --- (1978).

Appellant acknowledges that the federal Constitution does not require that wherever possible tenured faculty be retained over nontenured faculty. ¹ Appellant also acknowledged at oral argument that not every breach of contract by a state constitutes deprivation of a property interest in violation of the Due Process Clause entitling the person aggrieved to relief under 42 U.S.C. § 1983.

We agree that the Fourteenth Amendment does not require that Southern Colorado State College use any particular selection process, so long as the procedure chosen is a reasonable one. The Fourteenth Amendment does not prohibit all state deprivations of property, but only those which are effectuated without due process of law. The term "tenure," in the constitutional context, merely provides appellant with a property interest. "Substantive" due process requires only that termination of that interest not be arbitrary, capricious, or without a rational basis. Martin v. Harrah Independent School District, 579 F.2d at 1198; Jeffries v. Turkey Run Consolidated School District, 492 F.2d 1, 3-4 (7th Cir. 1974).

The rights of appellant are measured in the first instance by the regulations under which he held tenure. Substantive due process is triggered only if those rights are dealt with in an arbitrary...