American Association of University Professors and comparable to those at many universities, merely reiterated the traditional criteria for academic promotions of teaching, scholarship, and service. As the court discussed, it is well-accepted that the educational function of a university requires a wide range of discretion in making the initial tenure award and generally calls for the exercise of subjective judgment concerning the qualifications of the candidate and the needs of the university community. Id. at 875.
Similarly, the court in Goodisman also considered whether the existence of substantive criteria to be employed in the making of tenure recommendations rendered a tenure award a protected property interest. The court found that the provision of relevant considerations such as ability in teaching or research, respect from colleagues, and service to the University, did not so constrict the University's discretion so as to create a constitutionally-protected interest. 724 F.2d at 820-1.
The court has now reviewed the criteria and procedures for tenure evaluations utilized at Rutgers. The court finds that the guidelines set forth in Regulation 3.30, and as further explicated in the aforementioned Senate Statement, does not provide the significant substantive restrictions on University discretion in tenure appointments required to create a protected property interest. On the contrary, in Regulation 3.30 the University merely has set forth general standards of excellence in teaching, scholarship and research, professional activity, and usefulness to the University that would be common to any tenure evaluation process at a major academic institution. The Senate Statement on Academic Promotions clearly states that promotion is considered only for faculty who have excelled and that "advancement to a higher rank is not automatic." It further counsels that promotion requires the exercise of subjective judgment on the part of the evaluators and rejects the idea of an objective rating system. It also specifically notes that the most critical step in the process is the appointment to a tenured position, recognizing that once such a grant is made, the University loses its freedom to dismiss, except for cause. In addition, the Senate Statement on Tenure, Appendix F to the Instructions, also expressly states that in considering tenure grants the University will consider two kinds of factors: criteria for the advancement of individual faculty members as well as the educational needs of the University faculty as a whole. Furthermore, the fact that the introduction to the Regulations states that" no rule or regulation shall be construed as to infringe in any way upon the power and authority of the Board of Governors" provides further support that there was no intent to establish a set of objective criteria to govern tenure decisions to the exclusion of the exercise of the subjective discretion of the evaluators.
Plaintiffs now seek to argue, apparently for the first time in this litigation, that a mutually explicit common understanding that there would be an "automatic" grant of tenure to probationary faculty who measure as well against the criteria of Regulation 3.30 as had past tenured members of the Rutgers faculty at the time of their promotion. Plaintiffs assert that educational needs have never been a factor in tenure evaluations at Rutgers, and seem to maintain, in essence, that the University has surrendered its ability to improve the quality of its permanent faculty through the tenure process. The court finds that such a position is untenable given the generalized nature of the Rutgers tenure criteria, the inclusion of specific references to the use of educational needs in the process, and explicit statements that the grant of tenure is not automatic. As discussed above, the Senate Statement explains that the tenure appointment is a critical decision whose end is to reward excellence and that comparisons should be made to both faculty within the department and within the appropriate academic discipline in general.
The support plaintiffs present for its position is a single affidavit recently filed by Wells Keddie, president of the Rutgers Council of AAUP Chapters, who states that this "automatic" grant of tenure previously existed. The court finds this evidence inadequate to resist a motion for summary judgment as plaintiffs have not come forward with facts showing a genuine issue for trial exists and based upon which a reasonable jury could return a verdict for them. Anderson, supra at 4757. A mere pattern of results in the past is not support for a guarantee of tenure in the future Lovelace v. Southeastern Massachusetts University, 793 F.2d 419, 424 (1st Cir. 1986). Moreover, numerous courts routinely have rejected claims of reliance on informal policies or practices where formalized, written tenure procedures and policies exist at a University. See, e.g., Sabet v. Eastern Virginia Medical Authority, 775 F.2d 1266, 1270 (4th Cir. 1985); Beitzell supra at 877.
Plaintiffs also refer to the Carson Report, an outside study of the tenure process at Rutgers; however, this document does not support the contention that the tenure process has created a protected property interest, although it does recognize that is more difficult for current faculty to obtain tenure. On the contrary, it explains that Rutgers is in a state of transition as a university and that faculty tension, although probably a temporary phenomenon, is present and may rise as promotions are rejected during the transition period.
Plaintiffs' reliance on Stana v. School District of Pittsburgh, 775 F.2d 122 (3d Cir. 1985) is inapposite. In Stana, the court found a protected property interest in remaining on a public school teaching eligibility list for at least two years when it was undisputed that Stana met the objective criteria for the list and uncontested by any party that a clear, well-established policy existed for maintaining names on the list for a specified period of time. Id. at 126. In contrast, plaintiffs here, after a reasonable time for discovery, have not presented evidence such that a jury could find that an explicit understanding existed that the University had agreed to award "automatic" tenure to all faculty who were as "qualified" as those who had been granted tenure previously. It should be noted that in Stana the court did not find that the plaintiff had a protected interest in actually being granted a position once she was on the eligibility list; the school district retained its discretion to hire a teacher for an actual position whether or not she was on the list. Id. at 131. Furthermore, in Stana, the well-established, explicit understanding that potential teachers could remain on the list was not inconsistent with either the statutes regulating the school district or its educational objectives. There being nothing in the written tenure and promotion materials at Rutgers which could support the extraordinary restriction on a University's ability to improve academically which plaintiffs advance, the court finds that plaintiffs could not have had a reasonable expectation of an automatic grant of tenure and rejects this attempt to create a disputed issue of material fact.
Plaintiffs devote considerable space to its allegations that the University does not properly consider the promotion criteria or follow the correct procedures in evaluating candidates for tenure. Plaintiffs also seek to illustrate the number of grievances which are filed by denied candidates and the alleged unsatisfactory nature of the grievance process. However, the question before the court is not whether the tenure decisions of the University are correct; it does not sit as a "Super-Tenure Review Committee." Keddie v. Pennsylvania State University, 412 F. Supp. 1264, 1270 (M.D. Pa. 1976). The question presented here is whether a protected property interest in tenure has been created. Of course, even if no constitutional deprivation is present, plaintiffs may have a breach of contract claim if the promotion criteria or grievance process was violated in some manner. Kovats, supra at 1314; Lovelace, supra at 425; Kilcoyne, supra at 942.
Plaintiffs also argue that they can claim a liberty interest in receiving tenure which is protected by the Fourteenth Amendment. However, in Roth, the Supreme Court rejected the position of some general liberty right to employment. 408 U.S. at 573. Instead, the Court instructed that such an interest exists only in the case of a severely defamatory charge which would seriously damage one's community standing or where a stigma was imposed that would foreclose the individual's freedom to seek other employment opportunities. Id. As the Court stated: "It stretches the concept too far to suggest that a person is deprived of 'liberty' when he simply is not rehired in one job but remains free as before to seek another." Id. at 575. Moreover, even if it is the policy of Rutgers not to hire in another capacity a candidate rejected for tenure, the University has not foreclosed his or her "eligibility for a type of professional employment," as plaintiffs maintain. Id. at 574. A faculty member denied tenure remains free to seek an educational position at another institution; the fact that the tenure process at a single state university has not recommended that a faculty member be retained simply does not suffice to implicate a constitutionally protected liberty interest. See Beitzell, supra at 878.
Plaintiffs also raises an argument that they have not been allowed to "teach freely" and that tenure decisions have been prejudiced against "work exciting a political or gender bias." Although teachers at state institutions possess First Amendment freedoms, by itself, the interest in holding a teaching position at a state university is not a protected free speech interest. Roth, supra at 575. In addition, it is well-established that the "four essential freedoms" of a university include the ability "to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Regents of the University of California v. Bakke, 438 U.S. 265, 312, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978) (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957)). As discussed above, it is inappropriate for the court to second-guess the judgment of a university tenure review as to the academic worth of a particular individual's research or instruction. Keddie, supra at 1270. The court finds insufficient support to find that plaintiffs, or other faculty similarly situated, were denied tenure on the basis of their exercise of speech protected by the First Amendment.
Finally, the court finds that the cases dealing with prisoner releases, transfers, and paroles to be unsupportive of plaintiffs' contention with respect to the tenure process at Rutgers. These decisions hold that a prison inmate has a protected liberty interest only where substantive limitations on official discretion exist in the form of particularized standards or criteria. Olim v. Wakinekona, 461 U.S. 238, 249, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983); Winsett v. McGinnes, 617 F.2d 996, 1005-6 (3d Cir. 1980), cert. denied, Anderson v. Winsett, 449 U.S. 1093, 66 L. Ed. 2d 822, 101 S. Ct. 891 (1981). As discussed at length above, the court finds that the regulations and instructions concerning tenure decisions at Rutgers do not restrict the traditional discretion of university officials to make tenure awards. Therefore, these cases do not affect the court's holding here that plaintiffs have not been deprived of any liberty or property interest protected by the Fourteenth Amendment.
Therefore, the court having found that plaintiffs have no interest in being awarded tenure which is protected by the Fourteenth Amendment of the Constitution, it need not determine whether the procedures provided by the tenure review and grievance processes afford due process. Therefore, summary judgment will be entered for defendants on the federal causes of action. Moreover, as the federal claims have been dismissed prior to trial, the court will decline to exercise pendent jurisdiction over any state law claims and the complaint will be dismissed. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).
ORDER GRANTING SUMMARY JUDGMENT DISMISSING THIS ACTION
This matter having been brought before the Court on October 19, 1987 on the return of defendants' motion for summary judgment; the Court having considered the moving papers of the defendants, the response papers of the plaintiffs and the proceedings heretofore had in this cause; the attorneys for the respective parties having had the opportunity to be heard; and good cause appearing;
IT IS on this 11th day of January, 1988;
ORDERED that summary judgment is granted to defendants and the Complaint is hereby dismissed.
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