Colburn v. Trustees of Indiana University, IP87-430-C.

Citation739 F. Supp. 1268
Decision Date15 May 1990
Docket NumberNo. IP87-430-C.,IP87-430-C.
PartiesKenneth D. COLBURN, Robert Khoury, Plaintiffs, v. TRUSTEES OF INDIANA UNIVERSITY, et al., Defendants.
CourtUnited States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)



Richard L. Darst, Mantel Cohen Garelick Reiswerg & Fishman, Indianapolis, Ind., for plaintiffs.

Gregory J. Utken, Hudnall A. Pfeiffer, Baker & Daniels, Indianapolis, Ind., for defendants.


McKINNEY, District Judge.

This is a civil rights action in which two former Indiana University Assistant Professors seek relief for the defendants' actions in not reappointing them for continued employment, not promoting them to the rank of Associate Professor, and not awarding them tenure. The cause comes before the Court on the defendants' motion for summary judgment. The motion raises a number of difficult and important issues that require an extensive discussion to resolve. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the motion. Further orders of the Court are detailed at the end of this opinion.


Initially, it must be noted that the undisputed material facts relayed below are largely taken from those supplied by the defendant. Under Local Rule 11, the summary judgment movant must file a statement of material facts as to which there is no genuine issue. The defendants have done that in this case, and a review of the record shows that, while not entirely complete, the defendant's facts are, with one exception discussed later in this opinion, generally accurate.1

Local Rule 11 then requires the non-movant to file a statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated. Although plaintiffs filed a three-page document that purports to be a statement of genuine issues of material fact, this document in actuality only sets forth issues of law. It does not make any challenge to the facts set forth by the defendants, but instead lists a number of legal issues, such as "Whether the speech of the plaintiffs addressed matters of public concern."

Thus, although the defendants have identified specific references in the record supporting their facts, the plaintiffs have merely filed lengthy depositions and binders containing numerous documents without any specific indication of what portions contradict or supplant the defendants' version of the facts. It must be remembered that it is the advocates, not the courts, who must press their claims and vigorously oppose the motion for summary judgment. See, e.g., Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir.1989) (courts need not scour record to support a party's claim at summary judgment; adversaries are to pursue their cases and courts are to rule accordingly). Local Rule 11 simply reiterates this maxim.

Thus, in this instance the plaintiffs have not followed the appropriate procedures to challenge any of the facts relayed by the defendants. Accordingly, except where the Court's own review of the record has brought to light additional relevant material facts,2 this Court will similarly accept the defendants' facts, take them favorably for the non-movant plaintiffs, and focus solely on the legal arguments raised. The facts that set the framework for the legal analysis are set forth. As will be seen, given the nature of this case and number of issues raised, it is necessary to fully delineate the facts relevant to this motion.

A. The Parties:

Plaintiff Kenneth D. Colburn, Jr., is a citizen of the State of Indiana. Plaintiff Robert M. Khoury is a citizen of the State of Georgia. Colburn and Khoury were faculty members in the Department of Sociology at Indiana University in the late 1970s and early 1980s. The Board of Trustees of Indiana University is the statutorily-created entity charged with administering the University.

The individual defendants are officials of Indiana University. The positions they held at the University's Indianapolis campus at times material to this action are as follows:

                a. Glenn W. Irwin, Jr. ÔÇö Vice President of Indiana
                                         University at Indianapolis
                b. Howard G. Schaller  ÔÇö Executive Dean and Dean
                                         of Faculties
                c. William M. Plater   ÔÇö Dean of the School of Liberal
                d. Richard O. Hope ÔÇö Chairperson of the Department
                                         of Sociology
                e. John T. Liell   ÔÇö Professor in the Department
                                         of Sociology and
                                         Chairperson of the Department's
                                         Primary Committee
                                         in 1983-84
                f. Linda Hass      ÔÇö Associate Professor, Department
                                         of Sociology and
                                         Chairperson of the Department's
                                         Primary Committee
                                         in 1984-85

B. The Plaintiffs' Employment:

Colburn and Khoury were hired by the University in 1979 in the Sociology Department as probationary tenure track faculty. Both Colburn and Khoury received and signed a standard form from the University at the time of their initial appointment as Assistant Professors. These documents state that their appointment was for a "tenure probationary period," and recite that with "continued full-time service in rank at Indiana University ..., a tenure decision will be made no later than a certain date."

The notices also recite that "persons accepting offers ... 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." Above the appointees' signature, the form provides:

I agree to the terms of this appointment.... 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.

These forms also state that the plaintiffs' appointment shall begin in August of the year in question and end the following summer, with reappointment to be decided before the end of the term of appointment.

Thereafter, Colburn received annual reviews and was reappointed each year as an Assistant Professor. Khoury similarly received annual reviews and was always reappointed until 1985.

Colburn's employment ceased at the end of the spring semester of 1986, when he declined the University's offer of a one-year terminal appointment. On August 23, 1985, Khoury resigned his employment after having been notified that he would not be reappointed after the 1985-86 academic year. Both plaintiffs contend they had enforceable contracts with the University consisting of their initial appointment documents, the University's Academic and Faculty Handbooks, and other rules, regulations, and policies distributed to them.

The Faculty and Academic Handbooks specifically distinguish between dismissal and non-reappointment. Non-reappointment occurs when the University decides not to reappoint a probationary professor after the expiration of his appointment period. Dismissal occurs when the University terminates a probationary professor during the term of his appointment.

Under the terms of the Faculty Handbook, the University may dismiss a probationary faculty member only for limited reasons. Specifically, dismissal "shall only occur for reasons of (a) incompetence, (b) serious or professional misconduct, or (c) extraordinary financial exigencies of the University." As for reappointment, though, the Faculty Handbook merely provides that the faculty member shall be advised at the time of the initial appointment of the "criteria and procedures employed in recommendations and decisions about reappointment...."

The Handbook further indicates that during the period of probationary appointment the faculty member shall receive an annual review and be informed of "all matters relevant to the eligibility for reappointment and the award of tenure." The Handbook then provides that the faculty member shall have certain procedural rights upon notice of a "negative recommendation or decision on reappointment."

As for promotion and tenure decisions, the Handbook and Department Bylaws provide criteria for deciding whether a nontenured appointee should be promoted to a higher rank of professor or granted tenure. "The criteria for tenure and the criteria for promotion are similar, but not identical."3

As to tenure, the Handbook initially states, "Subject to the provisions that follow, an individual appointed to the faculty ... for full-time service shall have tenure after a probationary period of not more than seven years." Later, in the "Criteria for Tenure" section, the Handbook contains the following provisions:

After the appropriate probationary period, tenure shall be granted to those faculty members ... whose professional characteristics indicate that they will continue to serve with distinction in their appointed roles. The criteria for tenure must take into account the mission of the particular unit and the individual's contribution to that mission. Tenure will generally not be conferred unless the faculty member ... achieves, or gives strong promise of achieving, promotion in rank within the University.

The Handbook adds, "The tenure of any faculty member, however, is specific to the campus unit in which he ... is serving at the time of acquisition of tenure." "Consequently, it is the responsibility of each unit of the University to develop appropriate structures and administer the necessary procedures for the implementation of general University tenure policies." Beyond these brief passages, no further information is contained in the Handbook as to what is meant by the "general University tenure...

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