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VARMA v. BLOUSTEIN

January 11, 1988

Margaret Varma, etc., et al., Plaintiffs,
v.
Edward J. Bloustein, President of Rutgers, etc., at al., Defendants



The opinion of the court was delivered by: THOMPSON

 This matter is before the court on motion filed by defendants for summary judgment dismissing the complaint. The allegations giving rise to this action have been outlined in prior decisions of the court. As summarized by this court's opinion of June 9, 1986, plaintiff Varma claims that when her candidacy for tenure was considered by Rutgers University, the defendants failed to adhere to the standards for tenure set-forth in the University regulations and instructions, thereby violating her rights to due process under the U.S. and N.J. State Constitutions. Both parties accept the well-established principle of Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972) that a property interest protected by the due process clause of the Fourteenth Amendment exists only if there is a "legitimate claim of entitlement," and not merely a unilateral expectation. As noted by the court in its earlier June 1986 decision which considered other matters, the issue of whether a protected property interest exists requires an examination of whether the tenure procedures were intended to be a significant and substantive restriction on the discretion of the University. See Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir. 1984). Defendants maintain that the relevant University regulations and instructions clearly indicate that Varma and other junior faculty members at Rutgers had no protected property or liberty interest in being awarded tenure and that summary judgment against plaintiff should be granted as a matter of law.

 The procedures for faculty reappointment and tenure review are set forth and explained in the University Regulations and Instructions, See Regulation 60.2-60.2a. The process is multi-leveled and begins with a recommendation by the tenured faculty at or above the candidate's proposed rank along with department chair. The candidate's promotion packet is then forwarded to the appropriate college's Appointments and Promotions Committee and the dean of the college. The candidate is then considered by a university-wide peer Section Committee, where appropriate, and forwarded to the Provost or Executive Vice-President. The materials are then forwarded to the Promotion Review Committee, a body of senior faculty and university administrators appointed to make faculty promotion recommendations to the President. The President then makes a final recommendation to the Board of Governors, which has the ultimate authority to make decisions involving tenure appointments and promotions. In addition, the Agreement between the faculty and the University provides for a detailed grievance procedure whereby a faculty member denied tenure may seek redress for alleged improprieties during the tenure review process.

 Both parties focus on a series of statements within the Regulations and Instructions, in particular Regulation 3.30, entitled "Promotions," which provides:

 
Promotions to higher ranks may be made in recognition of teaching effectiveness, scholarly or creative activity, research accomplishments, professional activity, and general usefulness to the University. The weight to be given to each of these factors will be determined in the light of the duties required and to be required of the appointee.

 Regulation 60.2a further adds:

 
Those responsible for academic appointments, reappointments, and promotions are to (1) base their recommendation of professional qualifications as defined in paragraph 3.30, page 50.9, without discrimination because of race, religion, sex, national origin, or views on any subject; (2) seek excellence; (3) utilize the judgments of faculty peers, normally including some faculty at other institutions where the position ordinarily carries tenure; (4) utilize opinions of students, especially those with majors in the appropriate department.

 The factors for awarding tenure are discussed further in the Instructions, particularly in the University Senate Policy Statements appended to the Instructions. Appendix D to the Instructions, entitled Policy With Respect to Academic Appointments and Promotions explains:

 
Those faculty members who have made the most important contributions to the University and have discharged their duties with the greatest distinction will be considered for promotion. Continued growth and continued contributions are required for all ranks. Advancement to a higher rank is not automatic.

 The statement continues:

 
It is exceedingly difficult to measure and judge the various areas of activity. Judgment in these matters can be made only be qualified colleagues . . . . Such subjective judgment by persons competent to evaluate duties, responsibilities, services, and accomplishments will protect the interest of professors themselves, the department, the college, the University, and the students better than any objective rating that could be devised.

 Summary judgment may be entered by a court under FED. R. CIV. P. 56(c) when the moving party demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 54 U.S.L.W. 4775, 4777, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Opponents to a motion for summary judgment may not rest on the mere allegations or denials of its pleadings, but must set forth specific facts showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 54 U.S.L.W. 4755, 4757, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Thus, where there has been adequate time for discovery, if upon motion the respondent fails to make a showing sufficient to establish the existence of an element essential to its case and on which it has the burden of proof, summary judgment may be entered against it. Celotex Corp., supra at 4777. Where the relevant University procedures and regulations for awarding tenure are set forth before the court as is the case here, summary judgment on the issue of whether a protected property interest exists is appropriate. See, e.g., Goodisman, supra at 818; Kilcoyne v. Morgan, 664 F.2d 940 (4th Cir. 1981), cert. denied, 456 U.S. 928, 72 L. Ed. 2d 444, 102 S. Ct. 1976 (1982).

 The issue before the court is whether these tenure procedures and standards sufficiently restrict the discretion of the University such that plaintiffs can claim more than a subjective expectation of promotion. Perry v. Sindermann, 408 U.S. 593, 601-2, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). As the Third Circuit instructed in its affirmance of this court's aforementioned June 1986 opinion, the mere fact that specific procedures for tenure evaluations have been set out does not create property interests protected by the Due Process clause, even if they may give rise to a claim for breach of contract. Kovats v. Rutgers, The State University, 822 F.2d 1303, 1314 (3d Cir. 1987). Defendants rely on several cases which have considered particular university regulations governing tenure criteria and which have concluded that these procedures do not create protected property interests. See, e.g., Goodisman, supra; Beitzell v. Jeffrey, 643 F.2d 870 (1st Cir. 1981); Kilcoyne, supra. While these decisions are not controlling here and this court must consider the particular regulations and criteria at issue at Rutgers, Kovats, supra, the court finds these cases instructive. The court also takes note of the fact that plaintiff, in her 70-page responsive brief does not focus on the tenure cases discussed by defendants, but instead relies on cases involving particular regulations in vastly different fields such as government construction contracts and inmate parole decisions.

 In Beitzell, after surveying various decisions and stating that in the absence of unusual circumstances, in no case it had examined had a court found that probationary university professors had a property right in a tenure appointment, the court concluded that the tenure criteria at issue there created neither "objective standards creating an automatic right to tenure" nor a reasonable expectation of a tenure grant. 643 F.2d at 875-6. The court found that the tenure criteria, which generally conformed to those recommended by the 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 ...


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