Keddie v. Pennsylvania State University

Citation412 F. Supp. 1264
Decision Date11 March 1976
Docket NumberNo. 72-581 Civil.,72-581 Civil.
PartiesWells H. KEDDIE, Plaintiff, v. PENNSYLVANIA STATE UNIVERSITY et al., Defendants.
CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania

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Fred Speaker, Lewis S. Kunkel, Jr., Thomas B. Schmidt, III, Harrisburg, Pa., for plaintiff.

G. Thomas Miller, J. Thomas Menaker, McNees, Wallace & Nurick, Harrisburg, Pa., Delbert J. McQuaide, McQuaide, Blasko & Brown, State College, Pa., for defendants.

SHERIDAN, Chief Judge.

Plaintiff, Wells H. Keddie, filed this action under the Civil Rights Act, 42 U.S.C.A. §§ 1981, 1983, 1985, 1986, 1988, seeking damages and declaratory and injunctive relief against the defendants for the alleged violation of his constitutional rights and for defamation and wrongful discharge arising from his tenure denial and the consequent termination of his employment as a professor at Pennsylvania State University (hereinafter Penn State). The defendants are Penn State, John W. Oswald, President of Penn State since July 1, 1970, Stanley Paulson, Dean of the College of the Liberal Arts since April 1969, and the five members of the ad hoc faculty committee that reviewed plaintiff's qualifications for tenure and unanimously recommended denial thereof — Professors Robert K. Murray, Committee Chairman, Grant Farr, Robert Friedman, Carroll C. Arnold, and Gordon DeJong. Specifically, plaintiff, formerly a nontenured assistant professor at Penn State, alleges: (1) that the University's decision to deny him tenure and to terminate his employment was impermissibly predicated on his exercise of first amendment rights; (2) that his discharge without a pretermination hearing denied him procedural due process in violation of the fourteenth amendment; (3) that the failure of the defendants to afford him an opportunity to refute the reasons given for his dismissal, which harmed his good name, reputation, honor, and integrity, is a denial of due process; (4) that the defendants conspired to deprive him of his civil rights in violation of 42 U.S.C.A. § 1985(3); and (5) that the defendants wrongfully discharged plaintiff in a defamatory manner. Plaintiff's contentions will be considered seriatim.

THE FIRST AMENDMENT CLAIM

On December 17, 1964, plaintiff was offered and thereafter accepted a temporary research-teaching position as Assistant Professor of Labor Studies at Penn State for the period from February 1 to June 30, 1965. On June 8, 1965, plaintiff accepted a 42-week appointment as Assistant Professor of Labor Studies, effective July 1, 1965. This was a provisional appointment with no prior academic service credit toward tenure. On April 7, 1966, plaintiff was notified that he would have earned one year of credit toward tenure as of July 1, 1966. On April 12, 1968, plaintiff was notified that he would have earned three years credit toward tenure as of July 1, 1968. On June 24, 1970, plaintiff was notified by Dean Paulson that he would have earned five years credit toward tenure as of July 1, 1970. Seven years of satisfactory probationary service is required before tenure can be awarded. As was customary with faculty members who were approaching the seven year, tenure-eligibility mark, Dean Paulson, who ultimately had the responsibility of making the final tenure decision, appointed in May 1971, five senior faculty members to an Ad Hoc Tenure Review Committee to evaluate plaintiff's performance and qualifications and make a recommendation with respect to tenure. While ordinarily the recommendation to the Dean on tenure comes from the department in which the professor teaches, plaintiff was a member of the Department of Labor Studies, a new department at the University concerned with a relatively new academic discipline. The Department of Labor Studies lacked the necessary tenured senior faculty members to provide a properly constituted tenure review committee. Thus, as was the established practice at Penn State in such cases, Dean Paulson appointed an ad hoc interdisciplinary tenure review committee, selecting its members on the basis of their academic and leadership experience and their professional backgrounds, and without regard for their political beliefs or philosophical predilections. Professor Golatz, plaintiff's department chairman, did not object to the appointment of the ad hoc committee in May 1971. Dean Paulson submitted to the ad hoc committee all the information concerning plaintiff which the University had, including all the material submitted by Professor Golatz. Professor Golatz recommended tenure for plaintiff but conceded in the recommendation that plaintiff is generally "impatient and imprudent." Professor Golatz had previously declined to recommend plaintiff for promotion from assistant to associate professor status even though 80% of the Penn State faculty members have achieved associate professor status before being awarded tenure and even though the average time for receiving the promotion to associate professor in the College of Arts and Sciences is four and one-half years. Plaintiff had been an assistant professor for approximately six years.

The ad hoc committee reached its decision without interference by Dean Paulson, to whom its recommendation was to be made and who, as was his custom, was prepared to accept the recommendation of such a committee. At no time did Dean Paulson discuss with the ad hoc committee plaintiff's political or other extramural activities or his support of organizations or groups. Nor did Dean Paulson or any other member of the University suggest to the committee in any manner what decision they should reach. Indeed, the existence and actual membership of the committee was known only to the five committee members, who agreed the membership of the committee would be confidential, and to Dean Paulson and President Oswald. The committee was free to seek any additional information it desired.

The ad hoc committee was an interdisciplinary group of five senior tenured professors who were chosen on the bases of their acknowledged scholarship in departments in the social sciences with which the interdisciplinary Labor Studies program is related and their experience in evaluating faculty members for tenure and academic advancement. The committee consisted of: Robert K. Murray, Professor of American History; Grant Farr, Professor of Economics; Robert Friedman, Professor of Political Science; Gordon DeJong, Professor of Sociology; and Carroll C. Arnold, Professor of Speech Communication. This committee based their evaluation of plaintiff on the usual academic criteria of teaching performance, research and publication, continuing education activities, service to the University, and scholarship and professional growth. After carefully evaluating plaintiff's performance and accomplishments in each of these categories, the committee unanimously concluded as follows: "It is therefore the committee's collective opinion, after careful examination, discussion, and deliberation, that the overall performance of Dr. Wells Keddie has been below the minimum it deems necessary for retention as a tenured staff member." While the committee's assessment of plaintiff's work in continuing education was favorable, their evaluation of teaching effectiveness was partially favorable and partially unfavorable, their evaluation of publications and research, of scholarship and professional growth were unfavorable, and service to the University was considered minimal.1 In short, faculty tenure is conferred at Penn State as an award for excellence, and the ad hoc committee found that plaintiff's performance was not outstanding. A professor's work and qualifications must exceed mere competence to justify an award of tenure and hence permanent employment at Penn State.

Plaintiff asserts that the ad hoc committee in reaching its decision impermissibly penalized him for his political and other extramural activities. Plaintiff was an active participant in political and student causes. He was a vocal critic of some policies of the United States Government, particularly its involvement in Vietnam and its social policies with respect to blacks, the poor, and other disadvantaged groups. Plaintiff believed that the Penn State administration was insensitive to the needs and demands of students and blacks, and he was a strong advocate of giving students a greater role in the governance of the University. He helped to organize and participated in protest activities directed at the University administration as well as the United States Government. He served as faculty adviser to Students for a Democratic Society and to the Ad Hoc Committee for Student Rights. He served as counsel for students charged with violating University rules before the Judiciary Board. He was an active participant in the Vietnam teachin, Mayday anti-war rally, moratorium days, and other Vietnam protest activities. He was a member of such organizations as Coalition for Peace, Citizens Against Capital Punishment, Union for Radical Economics, Union for Radical Political Economy, and the Executive Council of the New University Conference. Plaintiff participated in the activities on the Penn State campus directed at ending the war in Southeast Asia, ending alleged racism in the United States, and in numerous campus movements directed at changing the situation of students at Penn State. He acted as counsel to students, spoke at student meetings and rallies, acted as a mediator in campus disputes, and raised bail money for students in jail. He was openly critical of the Penn State administration for many of its policies and for the failure of the University to become actively involved in social and political causes he deemed just. Plaintiff was a controversial figure on campus as a result of these activities. Plaintiff, however, has not proven that these activities affected in any manner the tenure...

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