Robert C. JONES, III, Plaintiff-Appellant, v. LOUISIANA BOARD OF SUPERVISORS OF UNIVERSITY OF LOUISIANA SYSTEMS; State of Louisiana; Lisa Abney; Randall Webb; Robert Crew; Carl Jones; Marcus Jones; Jerry Pierce; Darlene Williams, Defendants-Appellees.
No. 14-31255.
United States Court of Appeals, Fifth Circuit.
Dec. 9, 2015.
2015 WL 8479207
Linda Law Clark, Esq. (argued), DeCuir, Clark & Adams, L.L.P., Baton Rouge, LA, for Defendants-Appellees.
Before STEWART, Chief Judge, and JONES and GRAVES, Circuit Judges.
Plaintiff Robert C. Jones III (“Jones“) was a tenured economics professor at Northwestern State University (“NSU“), a division of the University of Louisiana System (“ULS“). Beginning around 2008, the Louisiana legislature enacted heavy budget cuts that seriously impacted the state‘s public universities. In 2010, NSU administrators tasked with reducing the university‘s budget eliminated the “economics concentration” at NSU and terminated Jones‘s tenure. He subsequently brought this
I. BACKGROUND
Viewing the facts in the light most favorable to Jones, NSU hired him in 1994 as an instructor to teach in the College of Business. In 2000, Jones was promoted to associate professor in the College of Business and granted tenure. During his time at NSU, Jones primarily taught basic micro- and macro-economics courses, but he sporadically taught a variety of finance courses as well.
ULS bylaws state that tenure “shall be granted and held only within an academic discipline that is offered at the institution and assures renewed appointments only within that discipline.” The official documents that Jones contends vested him with tenure do not reference the discipline in which he was tenured. The bylaws also state that “[t]enure assures the faculty member that employment in the academic discipline at the institution will be renewed annually until the faculty member resigns, retires, or is terminated for cause or financial exigency.” The term “cause” is defined to include “conduct seriously prejudicial to the collеge or university system” as well as financial exigency. A catchall clause follows: “The foregoing enumeration of cause shall not be deemed exclusive. However, action to discharge, terminate, or demote shall not be arbitrary or capricious, nor shall it infringe upon academic freedom.”
Beginning around 2008, NSU faced deep budget cuts that required university administrators to begin reducing expenditures by consolidating colleges and schools, discontinuing academic programs, and terminating employees. Budget documents from June 2010 indicated that NSU‘s state appropriations were trending downward rapidly, from about $49 million in FY 2008, to a projected $41 million in FY 2010 and a projected $31 million in FY 2011.2 In the
Between 2009 and 2010, the committee suggested the elimination of certain programs. The committee‘s final proposed list did not include the economics concentration. Recognizing that the list was insufficient to address the depth of the budget reduction, Abney consulted with a wide variety of ULS and NSU officials, including college deans and legal counsel, to find other areas to cut. In June 2010, Abney began a discussion with the College of Business dean about the economics concentration because, according to her affidavit, “it had a high cost,” and “had graduated few students in past years.”
At the time of Jones‘s hiring at NSU, the university offered an economics minor degree; in 2006, however, that minor was discontinued and replaced by the economics concentration. NSU records indicate that although three professors were teaching economics courses, only three students had apparently ever signed up for the economics concentration. However, the basic macro- and micro-economics courses were and continue to be prerequisites for degrees in business administration. NSU projected savings of $145,061 by eliminating the economics concentration, due entirely to the removal of the three faculty members, two of whom were tenured, including Jones. Viewing the fаcts in the light most favorable to Jones, all of the economics courses that he once taught continue to be taught, though by non-tenured faculty; the courses are also now housed in the social science college instead of the business college.
On June 16, 2010, NSU President Webb wrote to the President of the ULS that nine degree programs, five concentrations (including the economics concentration), and 12 minors should be discontinued. The ULS Board of Supervisors subsequently ratified Webb‘s plan. On June 17, Abney wrote to the three economics faculty to invite them to President Webb‘s office the following day “for an appointment to discuss the Economics concentration.” The meeting, which Jones attended, was approximately 20 minutes long. The parties agree that there was a discussion about the elimination of the economics concentration, but Jones disputes that he understood this to signify that his tenure, too, would be terminated.
Jones‘s tenure was formally terminated by a letter drafted by Abney on July 22, 2010. In the letter, Abney wrote that the “ULS Board approved the discontinuance of the concentration in which you currently teach.” The letter stated that a review of Jones‘s credentials demonstrated that there was “either not a position to which you can be moved in another department, or your credentials prevent you from being relocated to another position outside your original discipline.” (NSU had a general policy to only credential faculty if they had
Jones appealed to a committee comprising seven faculty members, including one faculty member from the College of Businеss. Jones drafted a seven-page letter to the committee outlining substantially the same arguments that he made to the district court and in this appeal. He did not appear before the committee and was not represented by counsel.3 On November 5, 2010, the committee unanimously rejected Jones‘s appeal.
Jones subsequently brought this suit in the district court on July 22, 2011, seeking reinstatement and damages. The district court determined that sovereign immunity insulated the State of Louisiana and the ULS Board of Supervisors from liability, and that qualified immunity applied to the claims against Webb and Abney in their individual capacities because the decision was objectively reasonable in light of NSU‘s severe budget crisis.4 The district court concluded that only “the barest procedural protections of notice and an opportunity to be heard” are applicable in the context of a tenure termination following a program-elimination decision. Reciting the extensive internal review of the decision to eliminate the economics concentration and Jones‘s lack of credentials outside of economics, the district court concluded that “NSU provided Jones with at least the Constitutionally-required minimum process of notice and an opportunity to be heard. In fact, the evidence in the record suggests he was afforded more than that.” Finally, the district court stated that its due process analysis foreclosed Jones‘s Contracts Clause claim and other claims not relevant in this appeal. Consequently, the district court granted Defendants’ motion for summary judgment, denied Jones‘s motion for partial summary judgment, and dismissed the suit with prejudice.
Jones timely appealed, raising both procedural and substantive due process claims and a violation of the Contracts Clause of the
II. Standard of Review
Appellate review of a district court‘s grant of summary judgment is de novo. Am. Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887, 895 (5th Cir. 2013). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III. Procedural Due Process
The
The type of hearing necessary—the process due—is a function of the context of the individual case. Due process “is not a technical conception with a fixed content unrelated to time, place and circumstances.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (internal quotation marks and citation omitted). Instead, “due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972); see also Sys. Contractors Corp. v. Orleans Par. Sch. Bd., 148 F.3d 571, 575 (5th Cir. 1998). To determine the requisite process, a court must analyze the “interests at stake in a given case.” Babin v. Breaux, 587 Fed.Appx. 105, 110 (5th Cir. 2014) (per curiam) (citing Mathews, 424 U.S. at 334-35). Mathews provides the three distinct interests to consider:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Jones principally argues—relying on Texas Faculty, 946 F.2d at 387-89, and Russell, 736 F.2d at 289—that he was entitled to a face-to-face hearing before NSU President Webb, the ultimate decision-maker. Defendants argue that no hearing was necessary, and alternatively that adequate procedures were employed because NSU adhered to the program discontinuance policy and provided Jones an appeal
Jones‘s private interest in retaining his government employment was significant. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 (1985) (“[T]he significance of the private interest in retaining employment cannot be gainsaid.“); Tex. Faculty, 946 F.2d at 384. It takes on perhaps added significance because Jones had been a tenured teacher at NSU for a decade and had a reasonable expectation of ongoing employment.
The risk that a particular faculty member will be terminated erroneously under the challenged post-deprivation proceedings, however, is not substantial. With respect to the unchallenged, but related, decision to eliminate programs like the economics concentration, there were multiple tiers of review, as the district court noted. The Program Review Committee selected most programs that were discontinued. Webb and his cabinet met regularly to discuss the budget crisis and address the committee‘s recommendations. And Webb‘s recommendations were reviewed by the ULS Board of Supervisors. The post-deprivation proceedings addressed to Jones‘s specific tenure termination were thinner, and posed a slightly greater threat of erroneous deprivation.6
The central procedural safeguard was the appeal hearing before the committee of seven faculty members. Jones had the opportunity to present an extended explanation via letter to the committee, which included attached documentation and a supporting affidavit from a retired College of Business administrator and professor. Jones does not contend that the committee members werе biased or unqualified.
The central additional process to which Jones claims he was entitled is a “face to face meeting with the ultimate decision maker,” President Webb. This additional procedural safeguard seems unlikely to provide much further protection from an erroneous decision. Though both cases involved pre-deprivation due process issues, a brief comparison between Goldberg v. Kelly, 397 U.S. 254 (1970), which required a face-to-face hearing, and Mathews, 424 U.S. at 343-46, which did not, is illustrative.7 The Goldberg Court determined that an individual whose welfare benefits are terminated is entitled to a face-to-face, pre-termination hearing. See 397 U.S. at 268-69. This decision was in part based on the likely “educational attainment” of welfare recipients and the “credibility and veracity” issues inherent in the welfare decision-making context. Id. at 269. In Mathews, which held that no face-to-face,
The termination decision here resembles more closely the disability benefits determinations in Mathews than the welfare benefits determinations in Goldberg. Decision-makers in the tenure termination context look to accreditation, academic transcripts, tenure documents, bylaws, and university policies, much like the documents relied upon in the disability context. See Mathews, 424 U.S. at 344-45. It is difficult to see exactly where veracity or credibility would come into play in a faculty termination decision unrelated to the teacher‘s actions, and certainly the “educational attainment” dilemma in Goldberg that bolstered the justification for the in-person hearing is inapplicable to Jones, who has a Ph.D., and other educated university faculty.
Finally, looking to the government‘s interest and the burden imposed by any suggested additional procedural safeguards, there can be little doubt that Defendants have a robust interest in maintaining the fiscal integrity of the public university system. See Williams v. Tex. Tech Univ. Health Scis. Ctr., 6 F.3d 290, 293 (5th Cir. 1993) (citations omitted) (“A state university has a significant interest in having reasonable discretion to administer its educational programs.“). “The strength of that interest gives schools leeway in making broad budget decisions that may affect only a few employees.” Id.; see also Tex. Faculty, 946 F.2d at 387-89; Wilson v. Louisiana, No. 11-1388, 2014 WL 1788283, at *8 (W.D.La. May 5, 2014), aff‘d, 597 Fed.Appx. 796 (5th Cir. 2015) (“The government has an equally important interest in ensuring the continuation of its institutions by making difficult decisions regarding program cuts.“). Further, “federal courts ... have been reluctant to impose due process requirements on public colleges and universities when doing so might compromise the state‘s ability to administer them effectively.” Tex. Faculty, 946 F.2d at 385; see also Bd. of Curators v. Horowitz, 435 U.S. 78, 91 (1978); Levitt v. Bd. of Trs., 376 F.Supp. 945, 950 (D.Neb. 1974).
As to the “fiscal and administrative burdens that the additional or substitute procedural requirement would entail,” Mathews, 424 U.S. at 335, it seems certain enough that providing every employee of a university an opportunity to meet with the ultimate decision-maker when their termination is the result of а budget crisis would produce a serious administrative, if not fiscal, burden. See Babin, 587 Fed.Appx. at 111 (“Requiring that, in a layoff situation, each laid off employee be afforded an opportunity to meet with the final decision maker and dispute his selection for the layoff, the policies underlying the layoff, and the evidence and research underlying those policies, would be burdensome in the extreme, and it is difficult to see here what additional value such a meeting would bring.“); cf. Sys. Contractors, 148 F.3d at 576 (holding that a public entity‘s failure to provide a transcript of hearing proceedings “would not lessen the probability of an erroneous deprivation” because the “bulk of the evidence in this case is documentary evidence“).
The process provided to Jones met the constitutionally mandated minimum requirements for due process. Jones‘s interest in retaining his tenure was substantial. See Loudermill, 470 U.S. at 543. Defendants, however, had a consid-
Finally, the process afforded Jones comports with established rules for handling tenure termination. See Tex. Faculty, 946 F.2d at 388 (“Initially, the administration probably need only consider, in good faith, a written submission from each affected faculty member setting out why he or she deserves to be retained.“); Levitt v. Univ. of Tex. at El Paso, 759 F.2d 1224, 1228 (5th Cir. 1985) (requiring “a hearing before a tribunal that possesses some academic expertise and an apparent impartiality toward the charges“); cf. William A. Kaplin & Barbara A. Lee, The Law of Higher Education § 6.7.2.4 (5th ed. 2013) (same).
Jones‘s reliance on Texas Faculty and Russell—for the proposition that he was entitled to meet with President Webb—is misplaced. In Texas Faculty, the court repeatedly emphasized that the additional procedural safeguard mandated—a right to meet with the ultimate decision-maker if the terminated professor could make a “colorable showing” that he deserved to be retained in another academic program, 946 F.2d at 388—was dependent on the particular system of tenure at the university at issue. There, faculty were “tenured to their particular component institution rather than to a particular school or program within that institution.” Id. at 386. By contrast, Jones‘s tenure was, according to ULS bylaws, “only within an academic discipline that is offered at the institution and assures renewed appointments only within that discipline.” To be sure, the ULS policy memorandum addressed to program discontinuance states that, upon the elimination of a tenured professor‘s program, “every reasonable effort will be made to find another suitable position for the faculty member within the university.” But the “every reasonable effort” language falls far short of the commitment made by the university in Texas Faculty. Texas Faculty‘s supplementary procedural protection—dependent as it was on a far more generous tenure scheme—is inapplicable here.
Russell, too, is inapposite. In that case, while the court explained that terminated faculty have “the right to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decision,” 736 F.2d at 289, the court reversed a grant of summary judgment because there was a genuine issue of material fact “as to whether plaintiffs were given the opportunity to rebut the reasons given for their termination at a hеaring or otherwise.” Id. at 290 (emphasis added). In other words, the reversal was because it was not clear whether there had been any opportunity for a hearing, not because there had been no opportunity to address the final decision-maker. This is the only reading that reconciles Russell with Texas Faculty, which provided that certain conditions be met before a hearing with the final decision-maker becomes compulsory. See 946 F.2d at 388. Consequently, Jones has not shown a deprivation of his procedural due process rights, and the district court properly granted summary judgment on this claim.
IV. Substantive Due Process
Although Jones does not explicitly brief substantive due process, some of his claims sound there rаther than in procedural due process. “Public officials violate substantive due process rights if they act arbitrarily or capriciously.” Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 562-63 (5th Cir. 2003). To prove a substantive due process violation in this context, an employee must show that a public employer‘s decision “so lacked a basis in fact” that it could be said to have been made “without professional judgment.” Texas v. Walker, 142 F.3d 813, 819 (5th Cir. 1998). The bar is high because “a federal court is generally not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies.” Honore v. Douglas, 833 F.2d 565, 569 (5th Cir. 1987) (citation omitted); see also Bishop v. Wood, 426 U.S. 341, 350 (1976) (“The Due Process Clause ... is not a guarantee against incorrect or ill-advised personnel decisiоns.“). The standard may be even more demanding in the context of higher education personnel decisions because of repeated refusals by the Supreme Court, as well as this court, to “use the Fourteenth Amendment as an excuse to regulate the internal affairs of public universities.” Tex. Faculty, 946 F.2d at 385.
Jones‘s substantive due process arguments can be distilled into four key contentions. First, he argues that he was in fact tenured to the business administration program rather than to the economics concentration that was eliminated. Second, he maintains that he taught finance classes in the past, could have continued to teach those courses as a tenured professor, and could also have been selected to be the director of the school of business. Third, he asserts that non-tenured faculty were retained to teach the same courses he had previously taught. Finally, Jones argues that his termination was arbitrary because another professor was permitted to keep her tenure in similar circumstances.8
Defendants argue that Jones was tenured to economics, and emphasize that once the economics concentration was eliminated there was no longer a position for him. They also maintain that he lacked credentials outside of economics. They emphasize the significant budget cuts that NSU faced and the faculty appeal committee‘s unanimous rejection of Jones‘s petition.
First, there is no evidence in the record to suggest that Jones was tenured to the business administration program. ULS bylaws provide that Jones was only tenured in his “discipline,” which he admits was economics. He taught almost exclu-
Jones‘s next argument is essentially that NSU failed to find him a “suitable position.” But the ULS policy for program discontinuance provides only that the university must make “every reasonable effort” to do so, and NSU did pass around Jones‘s name to “provosts and presidents from the other ULS universities.” The university‘s adherence to its credentialing guidelines—which, in this context, required at least 18 hours of graduate courses in a discipline—was reasonable, and it was therefore not arbitrary to deny Jones (who indisputably lacked the requisite hours) a position teaching finance or any other non-economics business course. Jones‘s assertion that he was well-suited for the open director position at the College of Business—in light of the requirement that the candidate have experience teaching “modern computer technology” and the preference for candidates with “[a]dministrative experience“—is also unsupported: the record lacks evidence that he has experience in either area.
His third argument, that non-tenured faculty were retained in his place, falls short since the policy on which he relies requires only that non-tenured teachers be “considered for termination” before terminating teachers with tenure. Jones has failed to put forward any evidence that this did not take place. And in any case, retention of less senior employees is not inherently problematic. See Russell, 736 F.2d at 289 n. 9 (“Testimony was introduced to establish that at the time plaintiffs were dismissed, employees with less seniority were retained. This alone, however, does not indicate that the plan allegedly employed by defendants was invalid.“); Bignall v. N. Idaho Coll., 538 F.2d 243, 250 (9th Cir. 1976).
Jones‘s final argument relates to the retention of another teacher, apparently with a degree in vocational education, to teach finance. Jones argues that NSU‘s willingness to transfer that teacher from the College of Education to the College of Business without terminating her tenure—and its unwillingness to permit him to retain his own tenure—shows that NSU acted arbitrarily. The record is extremely underdeveloped on this issue, as is Jones‘s argument. We are unwilling to say based on the evidence before us that the retention of another professor to teach finance establishes the arbitrariness of NSU‘s decision to terminate Jones‘s tenure in economics.
Just as the budget crisis factored into the preceding procedural due process analysis, it must also be accounted for in the substantive due process analysis. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 850 (1998) (explaining that conduct which might trigger a substantive due process violation in one circumstance might, “in other circumstances, and in the light of other consider-
V. Contracts Clause
Jones‘s final claim is for a violation of the
Where a state can provide a justification for the impairment that serves “a significant and legitimate publiс purpose” and where the challenged law was “reasonably necessary” to achieve an adequate purpose—the state does not violate the Contracts Clause. United Healthcare Ins. Co. v. Davis, 602 F.3d 618, 627 (5th Cir. 2010). Importantly, Jones‘s argument on this issue does not relate to the circumstances of his particular termination; he traces his injury instead to the state of Louisiana‘s legislative decision to reduce funds to the ULS system. That decision served the legitimate state interest of addressing the grave economic crisis triggered by the Great Recession. See Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 411-12 (1983) (recognizing that “remedying ... a broad and general social or economic problem” qualifies as a “significant and legitimate public purpose“). Jones provides no argument about how the budget reduction could have been more narrowly tailored to accomplish this legitimate purpose.
Additionally, there is no indication that the budget cuts were designed to provide “a benefit to a narrow group or special interest,” which is why Davis, 602 F.3d at 631, on which Jones relies, is wholly distinguishable. Consequently, the district court properly granted summary judgment to Defendants on this claim.
VI. Conclusion
We therefore AFFIRM the district court‘s grant of summary judgment to Defendants in all respects. In light of our resolution, we do not reach Defendants’ prescription argument or the district court‘s decision on qualified immunity.