Soni v. Board of Trustees of University of Tennessee

• Decision Date: 12 March 1975
• Docket Number: No. 74-1602,74-1602
• Citation: 513 F.2d 347
• Parties: Dr. Raj P. SONI, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF the UNIVERSITY OF TENNESSEE et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 347

513 F.2d 347

Dr. Raj P. SONI, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF the UNIVERSITY OF TENNESSEE et al Defendants-Appellants.

No. 74-1602.

United States Court of Appeals Sixth Circuit.

March 12, 1975.

Ronald C. Leadbetter, Knoxville, Tenn., for defendants-appellants.

L. Caesar Stair, III, Bernstein, Dougherty & Susano, Knoxville, Tenn., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge, and O'SULLIVAN, Senior Circuit Judge.

PHILLIPS, Chief Judge.

Dr. Raj P. Soni, a mathematics professor at the University of Tennessee, filed a complaint in the District Court alleging that he was denied procedural due process when the University failed to renew his teaching contract without giving him adequate notice or a hearing. District Judge Robert L. Taylor, sitting without a jury, held that Dr. Soni was entitled to a due process hearing and to back pay from the date of contract termination until the University provided such a hearing. Judge Taylor's opinion is reported at 376 F.Supp. 289 (E.D.Tenn.1974). The University appeals. We affirm.

Jurisdiction is invoked under 28 U.S.C. §§ 1331 and 1343(3).

Dr. Soni was born and reared in India. He attended an Indian university from which he received a Bachelor of Arts degree and a Master of Arts degree in mathematics. For several years Dr. Soni taught mathematics at the college level in India, and in 1959 he came to the United States to obtain his Ph.D. degree in mathematics from Oregon State University, which he received in 1963.

In September 1967, Dr. Soni joined the Mathematics Department of the University of Tennessee as a Visiting Associate Professor. At this time, Dr. Soni's teaching experience at the college level included six years as an instructor in India and one year as an Associate Professor at Oregon State University.

On several occasions during the 1967-1968 school year, Dr. Soni discussed with the then head of the Department of Mathematics, Professor John H. Barrett, the question of his being granted a permanent position at the University. At that time Dr. Soni was concerned about the permanency of his job status with the University and was interested in having a decision made one way or the other. As a result of these discussions, it was agreed between Dr. Soni and Professor Barrett that his visiting appointment would be extended for the 1968-1969 school year, and that a decision about a permanent appointment would be made in the fall of 1968.

On October 3, 1968, Professor Barrett issued "A recommendation for consideration by Professors and Associate Professors (with tenure)" regarding Dr. Soni and his wife, Mrs. Kusum Soni:

I recommend that Professor Raj Soni be offered an Associate Professorship with tenure.

Shortly after he arrived, he and I agreed that a two-year visiting position woud be appropriate and that during this time we would consider him for a permanent position.

Since it is not possible for two people in the same family to have tenure in the same department, there is no question of tenure for Mrs. Soni. However, I recommend that we express our intention to keep her on the staff permanently.

Later that month Dr. Donald J. Dessart, who was appointed Acting Head of the Department of Mathematics when Professor Barrett became ill, called a special meeting of the Department's tenured faculty solely to consider approving Dr. Soni for a permanent appointment. At the meeting on October 29, 1968, Professor Dessart summarized the contents of Professor Barrett's memorandum recommending tenure for Dr. Soni. During the ensuing discussion, Professor Dessart pointed out that Dr. Soni was not a citizen of the United States and, consequently, could not be appointed formally to a permanent position in view of a University regulation and a state law, T.C.A. § 49-1303, quoted in footnote 1, providing that although aliens could be appointed to temporary positions at the University, they could not receive permanent appointments.

Because of the state law, the University regulation, and Dr. Soni's foreign citizenship, no formal vote was taken at the meeting on appointing Dr. Soni to a permanent faculty position with the University. Instead, Dr. Soni was changed from a Visiting Associate Professor to an Associate Professor for the 1969-1970 school year. Immediately following the special meeting, Dr. Soni was congratulated by those faculty members who had attended and was assured by his colleagues that the action taken at the meeting had been favorable.

Shortly thereafter, Dr. Soni received a letter dated October 29 from Professor Dessart stating in part as follows:

(I)t was recommended that you be appointed an associate professor without tenure . . .. The question of recommending tenure will be considered by a similar departmental group at the time you become a citizen of the United States. In addition, it was recommended that you receive the full benefits of participation in TIAA/CREF at the first feasible opportunity . . ..

The TIAA/CREF is a financial retirement program at the University that was restricted at that time to "permanent type personnel."

In contrast to the congratulations of his colleagues, the October 29 letter seemed unfavorable and indefinite to Dr. Soni, and accordingly he sought out Professor Dessart for an explanation. Professor Dessart informed Dr. Soni that state law prohibited a grant of tenure to aliens, but he also gave assurances that the meeting in fact had been favorable, that the faculty wanted Dr. Soni to stay at the University, and that Dr. Soni's prospects with the University were good. According to Dr. Soni, he also was told that he would be treated like any other tenured professor.

Satisfied that his nontenured status was a matter of form necessitated by a technical state law, Dr. Soni purchased a home in the Knoxville area and stopped looking for employment elsewhere. He continued teaching at the University through the 1971-1972 school year, and on December 15, 1971, he became a naturalized United States citizen. During this time Dr. Soni was given no reason to believe that he was not a permanent member of the faculty. As stated above, Dr. Soni was permitted to participate in the University retirement program, which was ordinarily available only to permanent personnel. He attended departmental meetings and voted on tenure for other teachers, and he received further verbal assurances from his colleagues.

On March 8, 1972, however, Dr. Soni was notified that his appointment would be terminated as of August 31, 1973, because his performance as a teacher and as a research mathematician had "not been of the quality we expect of our tenured staff."

He was never granted a due process hearing as provided by the University's tenure policy. This policy statement is made Appendix A to this opinion.

1) Reasonable Expectation of Continued Employment

Judge Taylor found as a fact that despite Dr. Soni's awareness of the disqualifying statute, ¹ "there existed sufficient objective evidence to vest in plaintiff a cognizable property interest in the form of a reasonable expectation of future and continued employment," 376 F.Supp. at 292, within the meaning of Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

The District Court further held that the University "objectively acted toward plaintiff in such a manner as to reasonably lead him to believe that he was a person with a relative degree of permanency in the academic community of this University. Upon acquiring this property interest, it cannot be terminated without procedural due process." 376 F.Supp. at 292.

On the record before us, these findings cannot be held clearly erroneous, but to the contrary are supported by substantial evidence. Based on his findings, Judge Taylor correctly concluded that Dr. Soni's employment could not be Appellants contend, however, that Dr. Soni could not have acquired a reasonable expectation of continued employment because the University of Tennessee had a well-established tenure system that would have prevented any expectancy from arising in a professor who had not been granted formal tenured status. We do not find this argument convincing. The Supreme Court has stated that a legitimate expectancy of continued employment "is particularly likely in a college or university . . . that has no explicit tenure system even for senior members of its faculty, but that nonetheless may have created such a system in practice." Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2694, 2700 (1972). The Court did not say, as it easily could have, that a reasonable expectancy can not arise in the context of a formal tenure system. The existence of such a system is but one factor for the trial court to consider in analyzing the due process claim of a formally nontenured professor.

terminated without notice and a hearing before an appropriate tribunal.

In this case, we believe that Judge Taylor properly considered all of the circumstances of the employment relationship and correctly concluded that Dr. Soni "had a viable understanding that his employment would continue on a permanent basis with the Department of Mathematics, notwithstanding the statement contained in the October 29 correspondence that (Dr. Soni's) position was one without tenure." 376 F.Supp. at 292.

2) Award of Back Pay

Judge Taylor held that Dr. Soni is entitled to back pay from August 31, 1973 until the University completes a due process hearing meeting the requirements set forth in his opinion. 376 F.Supp. at 293. The University contends that this award violates the eleventh amendment and must be reversed under Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

The eleventh amendment, which has remained unchanged since its ratification was announced formally to the Congress in 1798, provides as follows:

The judicial...