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 Univеrsity’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 McEIearney'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,
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 thаt 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 consistеntly 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
*288
place his claim was not presented to the district court and therefore need not be considered on appeal.
But see United States v. Stavros,
Moreover, the contention is patently frivolous. By dismissing McElearney the University administrators did not prevent him from pursuing his chosen arеa 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 thе 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 prоfessor 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,
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 suрport 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,
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 Me Elearney, Plaintiff,
vs.
University Of Illinois, At Chicago Circle; J. F. Corbally President; D. H. Riddle Chancellor, Defendants.
)
) 78 C 3184
)
)
)
) Before the Honorable ) George N. Leighton ) United States ) District Judge )
)
Memorandum Order
Plaintiff, a former assistant professor of chemistry at the University of Illinois’ Chicago Circle camрus, 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 *289 12(b)(6), Fed.R.Civ.P., to dismiss for failure to state a claim. Por 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 emрloyed 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 tеnure. 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 аppeals 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 рunitive 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 equal protection claim.
II.
In order to state a due process claim for his discharge, plaintiff must be able to allege that he has a constitutionally protected property interest in the expectation of continued public employment;
2
and the existence of such an interest is determined by reference to state law.
Bishop v. Wood,
The Board of Trustees of the defendant university has promulgated certain university statutes pursuant to statutory authority. Ill.Rev.Stat. ch. 144, §§ 4, 22, 28;
People ex rel. Board of Trustees of the University of Illinois v. Barrett,
An appointment for a definite term does not carry any guarantee or implication that the Board of Trustees will renew the appointment even though the appointee may have discharged his duties satisfactorily. An appointment for a definite term, if accepted, must be accepted with this stipulation.
As a probationary faculty member, under section lb(6) of Article X, plaintiff has no property interest in continued employment and no due process protections attach.
Plaintiff seeks to avoid the effect of the university statutes with three arguments, none of which is persuasive. First, plaintiff argues that the informal assurances he received from his department head and his promotion from research associate to assistant professor in 1970 implied that his professional progress was satisfactory and that he would ultimately receive tenure. These reassurances and promotions, plaintiff argues, operate to estop the university from denying him formal tenure. However, against the background of formal, explicit rules governing the tenure status of faculty members, such representations and interim promotion do not create a property interest in employment. As the court noted in
Stebbins v. Weaver,
Second, plaintiff argues that he received
de facto
tenure beсause of the length of his employment: nine years. Again, the formal, explicit rules laid down in Article X preclude the possibility that length of service may confer tenure accidentally. Section lb(2) of Article X requires formal action'by the trustees to confer tenure.
4
And other sections of Article X further establish that unless the professor’s contract specifically states that it is for a full-time position for an indefinite term, i. e., a tenure position, it is deemed one for a probationary position for a definite term.
5
Thus, the
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length of service cannot confer tenure by inadvertence. The fact that plaintiff’s probationary period was extended by a voluntary change in his tenure code is insufficient to confer
de facto
tenure and create a property interest in continued employment.
See Longarzo v. Anker,
This conclusion is consistent with decisions of other courts in similar cases which reject the notion that de facto tenure can be achieved inadvertently when there is a formal tenure code. As one court summarized:
The entire thrust of formal tenure provisions is to standardize the process of faculty selection and employment security. In other words, formal tenure regulations are designed to avoid the de facto tenure problem recognized in Perry [v. Sinder-mann,408 U.S. at 601-603 ,92 S.Ct. 2694 ]. Consequently, the existence of a formal code governing the granting of tenure precludes a reasonable expectation of continued employment absent extraordinary circumstances. The vast majority of сases considering claims of de facto expectations in the face of established tenure systems reject the idea that any protected interest may be created. Hai-mowitz v. University of Nevada,579 F.2d 526 , 528 (9th Cir. 1978) (citations omitted).
Third, plaintiff argues that the university statutes governing tenure are incomprehensible, at least to him, and that the Faculty Advisory Committee “Review of the Status of Non-Tenured Faculty Members”, attaсhed to his complaint, bears out his claim to
de facto
tenure. Ignoring the problems of plaintiff’s selective comprehension, the Review itself clearly states that the Committee does not propose detailed by-laws or revisions of the university statutes and advises “[t]he university statutes are part of the employment contract of each faculty member of the University of Illinois.” (Comp. Ex. I at 2). Plaintiff was on notice as to the terms of his employment contract. Moreover, the informal report could in no event override the formal explicit rules of Article X and does not amount to a binding legal document.
See Cusumano
v.
Ratchford,
Because the court finds that the complaint does not allege facts adequate to state а claim for violation of plaintiff’s right to procedural due process, it follows that no substantive due process claim has been stated either.
Stebbins v. Weaver,
So ordered
/s/ George N. Leighton, United States District Judge
Dated: February 8, 1979
Notes
. Plaintiff alleges that the selection process for the three members of the hearing committee was flawed in thаt his department head’s and his nominations overlapped and this overlap violated university statutes. First, plaintiffs own exhibits, incorporated into the complaint, do not support his conclusory allegations of improper selection. See Rule 10(c), Fed.R. Civ.P.; Comp. Ex. J at 7. Second, it is difficult to imagine that plaintiff could have been prejudiced by the method of sеlection, since two of the three committee members were plaintiff’s nominees. (Comp. Ex. J at 3, 7; M at 1).
. The infringement of a constitutionally protected liberty interest may also form the basis of a due process claim.
Bishop v. Wood,
. The court has considered the certified copy of Article X, attached tо defendant’s memorandum. and discussed by both parties in their memoranda. Materials dehors the pleadings may be considered in passing on a Rule 12(b)(6) motion. 5 C. Wright & A. Miller, Federal Practice & Procedure, Civil: § 1364, at 668-72 (1969).
. Section lb(2) provides:
No appointment at the rank of assistant professor or instructor shall be for an indefinite term unless the appointment contract specifically states that it is for an indefinite term.
. Section la(2) provides:
During the probationary pеriod defined in Article X, Section lb(l), an appointment as assistant professor shall be for not more than two years, and an appointment as instructor shall be for not more than one year. Such an appointment which begins after or extends beyond the expiration of the probationary period shall, subject to the exceptions stated in Article X, Sections la(3) and lb(5), be for an indefinite term and the contract shall so state. If, because of inadvertence or otherwise, a contract for such appointment does not state that it is for an indefinite term, the provisions of Article X, Section lb(5), shall apply.
Section lb(5) provides:
The total amount of credit toward completion of the probationary рeriod, including both credit for service at other institutions *291 and credit for prior service at this University, shall be stated in every contract for academic service for a definite term. In the event that an appointee for a definite term is not given notice of appointment for an indefinite term or notice of non-reappointment as required by subparagraph lb(3) above, but instead is given notice of reappointment for a definite term beginning after or extending beyond the expiration of the probationary period, such reappointment shall be for a term extending to the end of the academic year following the academic year in which either (a) the Board of Trustees gives the appointee written notice of non-reappointment as specified above in subparagraph lb(4), or (b) the appointee gives written notice to the dean or department head that he or she is about to complete, or has completed the probationary period, and either is or will be entitled to have any reappointment be for an indefinite term.