McElearney v. University of Illinois at Chicago Circle Campus

• Decision Date: 21 December 1979
• Docket Number: No. 79-1254,79-1254
• Citation: 612 F.2d 285
• Parties: James McELEARNEY, Plaintiff-Appellant, v. UNIVERSITY OF ILLINOIS AT CHICAGO CIRCLE CAMPUS, J. E. Corbally, President, andD. H. Riddle, Chancellor, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 285

612 F.2d 285

James McELEARNEY, Plaintiff-Appellant, v. UNIVERSITY OF ILLINOIS AT CHICAGO CIRCLE CAMPUS, J. E Corbally, President, andD. H. Riddle, Chancellor Defendants-Appellees.

No. 79-1254.

United States Court of Appeals Seventh Circuit.

Submitted Dec. 12, 1979.

Decided Dec. 21, 1979.

Saul R. Leibowitz, Patrick J. Reilly, Chicago, Ill., for plaintiff-appellant.

John C. Tucker, Barry Sullivan, Jane A. McAtee, Chicago, Ill., for defendants-appellees.

Before SWYGERT, SPRECHER and BAUER, Circuit Judges.

PER CURIAM.

The plaintiff, James McElearney, appeals from the judgment of the district court dismissing his suit for failure to state a claim. McElearney's complaint alleged that he had been dismissed from his non-tenured faculty position with the defendant University of Illinois in violation of his rights to due process and equal protection of law. The case is now before this court on the University's motion to affirm without oral argument under Circuit Rule 15. The motion to affirm is granted.

The district court's memorandum opinion describes the allegations of McElearney's complaint and correctly disposes of the issues raised. That opinion is set out as an appendix and we adopt it as the opinion of this court. We add the following comments regarding the arguments raised on appeal.

First, on appeal McElearney relies heavily on Soni v. Bd. of Trustees of the Univ. of Tennessee, 513 F.2d 347 (6th Cir. 1975), Cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976). The Soni Case is distinguished in Haimowitz v. Univ. of Nevada, 579 F.2d 526, 529 (9th Cir. 1978), in terms fully applicable to this case:

Appellant here urges that his case presents the same factual situation as in Soni. Yet, the Soni case seems clearly distinguishable. Haimowitz was never led to believe that he had been granted a permanent position as had the teacher in Soni. Appellant here was only assured that he would be granted tenure when the time came and that his progress was satisfactory.

Moreover, Haimowitz was fully aware of his probationary status at all times. Additionally, Haimowitz was never granted the perquisites of tenure as in Soni. That the circumstances in Soni were singularly unique is borne out by the fact it is the only case of its type. Faced with similar De facto tenure claims, subsequent cases have consistently distinguished Soni and refused to extend its application. (Citations omitted.) The facts in this case, taken as alleged, do not give rise to a reasonable expectation of employment meriting protection as a property interest.

Second, McElearney raises for the first time on appeal a contention that when the University partly based its decision to terminate him on the fact that his area of research overlapped that of an already tenured professor, the University thereby chilled McElearney's freedom of expression in violation of his First Amendment rights. McElearney thus claims a deprivation of a liberty interest requiring due process protections before his dismissal. In the first place his claim was not presented to the district court and therefore need not be considered on appeal. But see United States v. Stavros, 597 F.2d 108, 111 (7th Cir. 1979) (plain violation of constitutional rights should not be disregarded even if raised for first time on appeal).

Moreover, the contention is patently frivolous. By dismissing McElearney the University administrators did not prevent him from pursuing his chosen area of research. They simply refused to underwrite it. The First Amendment does not require the State, through its University, to provide McElearney with facilities and financing for his research. Furthermore, McElearney's contention is internally inconsistent. The argument itself makes it clear that the University was not suppressing the content of McElearney's research, because the reason given was that another professor was already pursuing research in the same area. And finally, in deciding to terminate McElearney partly to avoid an overlap in research, the University merely exercised its undeniable power to determine what will be studied or taught at the University. Academic freedom does not empower a professor to dictate to the University what research will be done using the school's facilities or how many faculty positions will be devoted to a particular area. Cf. Palmer v. Bd. of Ed. of City of Chicago, 603 F.2d 1271 (7th Cir. 1979) (discussing the power of school administrators to determine subjects to be taught and citing Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972), in the university setting); Collins v. Wolfson, 498 F.2d 1100 (5th Cir. 1974) (administration's power to terminate non-tenured professor to effectuate reduction in staff, where termination not in retaliation for exercise of First Amendment rights); Hetrick v. Martin, 480 F.2d 705 (6th Cir. 1973) (power to terminate non-tenured professor because her "pedagogical style" was considered unacceptable by the University).

The third point urged by McElearney on appeal which is not treated separately in the district court's memorandum is that the University's conduct would support a state court action based on fraud or estoppel. McElearney concludes that this amounts to protecting his job on the facts of this case and shows a state created entitlement, or property interest, requiring due process protection. It is enough to respond that not every cause of action possibly recognized by the state courts creates a constitutionally protected interest. Cf. Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976) (Due Process Clause not "a font of tort law to be superimposed upon (State system of tort law)"); Hetrick v. Martin, supra, 480 F.2d at 709 (refusing to "elevat(e) contract law to constitutional status"). The district court carefully and correctly analyzed McElearney's claims to a constitutionally protected property interest in his job under the applicable federal cases.

Accordingly, the judgment of the district court is affirmed.

                                     APPENDIX
                                       -----
                      IN THE UNITED STATES DISTRICT COURT FOR
                         THE NORTHERN DISTRICT OF ILLINOIS
                                 EASTERN DIVISION
                JAMES MC ELEARNEY,         )
                                           )        78 C 3184
                               Plaintiff,  )
                           vs.             )
                                           )
                UNIVERSITY OF ILLINOIS,    )   Before the Honorable
                AT CHICAGO CIRCLE; J. F.   )   George N. Leighton
                CORBALLY President; D. H.  )   United States
                RIDDLE Chancellor,         )   District Judge
                                           )
                              Defendants.  )
                Memorandum Order
                

Plaintiff, a former assistant professor of chemistry at the University of Illinois' Chicago Circle campus, brings this action for damages and injunctive relief against defendants, the University of Illinois, its president and its chancellor, alleging that defendants violated his constitutional rights to due process and equal protection by refusing to promote him with tenure when his final non-tenured contract expired. This court's jurisdiction is invoked under 28 U.S.C. § 1343. The cause comes before the court on defendants' motion under Rule 12(b)(6), Fed.R.Civ.P., to dismiss for failure to state a claim. For the following reasons, the motion is granted.

I.

The allegations of the complaint can be summarized as follows: Plaintiff was first employed by the university as a research associate in chemistry in September 1968. In 1970, he was promoted to the rank of assistant professor and was employed in that probationary, non-tenured capacity until his termination in August 1977. In October 1973, the chemistry department's Faculty Advisory Committee reviewed plaintiff's work and recommended his discharge. The department chairman rejected that recommendation and did not communicate its substance to plaintiff. Rather, the chairman told plaintiff that the committee had recommended that plaintiff reduce his tenure code status from six to four years, to discount the years he spent as a research associate and thus extend the period in which to develop a record for tenure consideration. He also allegedly encouraged plaintiff to believe that he would ultimately be awarded tenure. On October 29, 1973, the chairman formally requested a reduction in plaintiff's tenure code from the university's associate vice chancellor, although plaintiff did not give his written authorization to do so until January 11, 1974. Plaintiff's tenure code was reduced, allegedly in violation of university statutes and its Faculty Advisory Committee's report. Plaintiff continued to be employed under definite term contracts until 1976, when he was denied tenure and awarded a terminal contract for the 1976-77 academic year.

Plaintiff then filed a grievance challenging the manner in which his tenure decision had been handled. A hearing committee, which plaintiff alleges was improperly constituted, ¹ considered his grievance and rejected his claim. Plaintiff's appeals from the committee to various university officials were unsuccessful. On these allegations, which for purposes of this motion the court accepts as true, plaintiff charges that he was denied procedural and substantive due process, and equal protection of the laws under the Fourteenth Amendment. He seeks $54,000.00 in actual and punitive damages as well as an injunction ordering his reinstatement with tenure.

In their motion to dismiss, defendants urge that plaintiff's interest in continued employment at the university is insufficient to invoke the protection of the due process clause. Since no valid procedural due process claim can be made out, defendants urge, plaintiff cannot complain of any defect in the grievance committee hearing voluntarily afforded him, nor can he state a substantive due process claim. Finally, defendants urge, plaintiff's allegations of treatment different from that afforded colleagues are insufficient to state an...