10 F.4th 569
6th Cir.2021Background
- Dr. Henry J. Kaplan was a tenured professor and Chair of the University of Louisville’s Department of Ophthalmology and Visual Sciences; he had a strong prior record and was reappointed through 2021.
- After university-wide cost-control measures in 2018, Kaplan negotiated an off-campus lease without administrative approval, solicited private equity interest for the clinical practice, formed an LLC (Louisville Eye Specialists), and obtained patient and financial data used in investor outreach.
- UofL opened a “special chair review,” then escalated the probe to Compliance and Audit Services (CAS); Kaplan was placed on paid administrative leave, barred from campus and from communicating with colleagues, and advised he might lose tenure.
- CAS’s report recommended discipline up to termination based on multiple grounds (unauthorized lease, financial mismanagement, sharing patient data, attempting to separate the practice, failure to make academic program support payments, etc.).
- The dean recommended termination of tenure; Kaplan had a two-day faculty hearing where the panel sustained four of six grounds; the Board of Trustees terminated his tenure. Kaplan sued under §1983 alleging procedural due process, liberty-interest deprivations (reputation and career), and First Amendment academic-freedom violations. The district court dismissed; the Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Kaplan) | Defendant's Argument (UofL) | Held |
|---|---|---|---|
| Eleventh Amendment sovereign immunity for UofL | UofL is subject to suit under §1983 / Ex parte Young theory | UofL is a state agency cloaked with Eleventh Amendment immunity; no waiver or congressional abrogation | Affirmed: UofL immune; Ex parte Young inapplicable to the university itself |
| Property interest in Chair (due process) | Chair is an appointed position with entitlement meriting pre-deprivation process | Chairs serve at pleasure of Board/President and not tenure-track; no for-cause guarantee | Affirmed: No cognizable property interest in Chair; no process due |
| Procedural due process re: paid suspension and eventual tenure termination | Paid suspension and deprivation of duties (research, clinic, teaching) required predeprivation hearing | Paid leave and prompt postdeprivation procedures satisfied Mathews balancing given risk to university finances and investigatory needs | Affirmed: Mathews/Gilbert balance favors university; Kaplan received sufficient process (post-suspension interviews, written responses, two-day hearing) |
| Liberty interest — reputation (stigma-plus) | Public statements and removal stigmatized Kaplan and required a name-clearing hearing | Kaplan failed to request a name-clearing hearing; no basis to excuse that failure | Affirmed: Claim dismissed — plaintiff never requested name-clearing hearing (failure fatal) |
| Liberty interest — career (right to pursue occupation) | Suspension and termination deprived Kaplan of ability to practice and harmed career | Relief was limited to a single employment relationship; Kaplan remains free to pursue his profession elsewhere; no statewide bar | Affirmed: No deprivation of a liberty interest in career |
| First Amendment — academic freedom | Suspension interfered with academic activities (grants, research) and chilled academic freedom | Suspension was disciplinary (financial/administrative reasons), not content- or viewpoint-based censorship | Affirmed: No First Amendment academic-freedom violation |
| Injunctive/declaratory relief | Requests for reinstatement or declaration of rights | Remedies depend on viable §1983 claims | Affirmed: No underlying constitutional violations, so no injunctive or declaratory relief |
Key Cases Cited
- Ex parte Young, 209 U.S. 123 (1908) (doctrine allowing suits against state officials for ongoing violations of federal law)
- Alden v. Maine, 527 U.S. 706 (1999) (Eleventh Amendment bars certain suits against states)
- Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743 (2002) (Eleventh Amendment context and sovereign immunity principles)
- Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (limits on congressional abrogation of state sovereign immunity)
- Bd. of Regents v. Roth, 408 U.S. 564 (1972) (property interests for due-process purposes created by independent sources)
- Perry v. Sindermann, 408 U.S. 593 (1972) (mutually explicit understandings can create property interests)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (three-factor balancing test for required process)
- Gilbert v. Homar, 520 U.S. 924 (1997) (postdeprivation process can suffice when prompt investigation is needed)
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (notice-and-opportunity-to-hear principle for public employee terminations)
- Univ. of Pa. v. EEOC, 493 U.S. 182 (1990) (academic-freedom claims concern attempts to control content of speech)
- Quinn v. Shirey, 293 F.3d 315 (6th Cir. 2002) (stigma-plus doctrine and name-clearing hearing requirement)
- Gunasekera v. Irwin, 551 F.3d 461 (6th Cir. 2009) (property interest in specific faculty benefits tied to defined criteria)
- Garvie v. Jackson, 845 F.2d 647 (6th Cir. 1988) (department-head appointments that serve at pleasure do not create property interests)