The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1708
OLADELE OLADOTUN OMOSEGBON,
Plaintiff-Appellant,
v.
RICHARD H. WELLS, JOE WEIXLMANN,
C. AISHA BLACKSHIRE-BELAY, individually
and in their official capacities, and
Indiana State University,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 00 C 224—Richard L. Young, Judge.
____________
ARGUED OCTOBER 28, 2002—DECIDED JULY 14, 2003
____________
Before KANNE, DIANE P. WOOD, and EVANS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Citing lukewarm per-
formance evaluations, Indiana State University (ISU)
decided not to renew Professor Oladele Omosegbon’s
contract as a junior, untenured faculty member in the
Department of African and African-American Studies.
Omosegbon—to whom we refer hereafter as “Dele,” follow-
ing the lead of his counsel—brought suit in Indiana state
2 No. 02-1708
court alleging that ISU and various members of the univer-
sity had deprived him of his due process and academic
freedom rights under the Fourteenth and First Amend-
ments to the U.S. Constitution, and had also breached
his employment contract in violation of Indiana law. ISU
removed the case to federal court and then moved for
summary judgment. The district court determined, with-
out the benefit of the Supreme Court’s recent clarification
in Lapides v. Board of Regents of University System of
Georgia, 535 U.S. 613, 122 S.Ct. 1640 (2002), that all
but Dele’s federal-law claims for injunctive relief were
barred by the Eleventh Amendment. The district court
then found that the remaining federal-law claims failed
on the merits because Dele could not show the property
or liberty interest necessary to succeed on a procedural
due process claim, and because his academic freedom
claims were otherwise meritless. Dele appeals on all
counts. In light of the Supreme Court’s decision in Lapides,
we now reverse in part the district court’s jurisdic-
tional holding, but we affirm the district court’s grant of
summary judgment on the merits as to all claims not
dismissed for lack of jurisdiction, both federal and state.
I
Dele was hired by ISU in 1998 as a junior, untenured
professor in the African and African-American Studies
Department. The offer was accompanied by a letter
which read as follows:
Tenure at Indiana State University is a status earned
through service to this institution, and eligibility exists
after the satisfactory completion of a pre-tenure proba-
tionary period of seven years of full-time university
experience. You will be reviewed for tenure during
the 2003-2004 academic year and with a positive
evaluation and recommendation, will be eligible for
No. 02-1708 3
tenure status at the beginning of the 2005-2006 aca-
demic year. Continuation during the probationary
period is based on annual faculty evaluations, which
include among their criteria scholarly and creative
activity as well as the quality of instruction, University
and professional service, and other duties assigned
by your chairperson.
Dele received two annual evaluations in accordance with
the terms outlined in the letter, in fall of 1998 and fall of
1999. Both evaluations were conducted by a Personnel
Committee of four professors from the Department, ap-
pointed by the Department chairperson, Dr. C. Aisha
Blackshire-Belay. In each case, Blackshire-Belay took the
Committee’s findings and final vote under advisement
and forwarded her own recommendation to higher-ups at
ISU. The fall 1998 evaluation was lukewarm at best. The
Personnel Committee voted 4-0 to make a conditional
reappointment to a second probationary year within the
Department. Blackshire-Belay also favored conditional
reappointment, which is obviously not as desirable as
unconditional reappointment (the other favorable possibil-
ity open to the University). Dean Joe Weixlmann of the
College of Arts and Sciences agreed and sent a letter (which
Dele also received) up the chain to Provost Richard H.
Wells, outlining various problems with his teaching duties
and his scholarly output. Provost Wells thereafter made a
conditional reappointment of Dele.
The fall 1999 evaluation was also lukewarm, but slightly
better than the first. This time, the Personnel Committee
deadlocked, with two members favoring conditional reap-
pointment, and two members favoring unconditional
reappointment. Blackshire-Belay again took the Commit-
tee’s recommendation under advisement, but this time
recommended that Dele not be reappointed to a third
probationary year. Dean Weixlmann and Provost Wells
4 No. 02-1708
separately concurred, and Wells delivered the bad news
to Dele by letter dated December 9, 1999.
Pursuant to university by-laws, Dele requested a for-
mal hearing regarding the termination decision; that
hearing took place before a committee of the ISU faculty
on May 22, 2000. The committee recommended reinstate-
ment for Dele. Under ISU’s by-laws, however, this recom-
mendation was non-binding, and Dean Weixlmann
and Provost Wells separately rejected the committee’s
position and held fast to the decision not to re-appoint
Dele. Dele responded with this suit.
II
We turn first to those parts of the district court’s order
that pertain to jurisdiction. The district court held that
the Eleventh Amendment barred Dele’s claims for money
damages against the state (of which ISU is a part)
and against the individual defendants in their official
capacities. While we agree that those claims cannot go
forward, there is no need to reach the Eleventh Amendment
issue, because the state is not a “person” that can be sued
in this way under 42 U.S.C. § 1983. See Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 71 (1989); see also
Lapides, supra, 122 S.Ct. at 1643; Vermont Agency of
Natural Res. v. United States ex rel. Stevens, 529 U.S.
765, 780-81 & n.9 (2000). Dele’s claims against the individ-
uals allegedly in their individual capacity present a
slightly more complex question, but because he seeks
backpay and other forms of monetary compensation based
on an employment contract, we think it so inescapable
that any resulting judgment will be paid by the state
rather than the individual defendants that this bears no
resemblance to a bona fide individual capacity suit. (The
individuals, after all, were not even parties to the con-
tract in their individual capacity.) Accordingly, he has no
No. 02-1708 5
§ 1983 claim against these defendants either. Finally,
the district court held, and we agree, that Dele’s federal-
law claims for injunctive relief come within the Ex parte
Young exception to the Eleventh Amendment and there-
fore are not barred. See 209 U.S. 123 (1908); MCI
Telecomm. Corp. v. Ill. Tel. Co., 222 F.3d 323, 337 (7th Cir.
2000).
Where we do find error is in the district court’s dis-
missal of Dele’s state-law claims for lack of jurisdiction
under the rule first announced in Pennhurst State School
& Hospital v. Halderman, 451 U.S. 1 (1981). The fact that
this was error became clear after the Supreme Court’s
intervening decision in Lapides. The defendants conceded
the point in their brief before this court, citing Lapides
for the proposition that removal is a form of voluntary
invocation of a federal court’s jurisdiction sufficient to
waive a State’s objection to litigation of the matter in a
federal forum.
While we agree that Lapides ultimately commands
reversal of the district court’s dismissal of Dele’s state-
law claims, Lapides must be read with care. What the
Court said, more precisely, was that a state’s voluntary
invocation of a federal court’s jurisdiction through removal
waives a state’s “otherwise valid objection” to litigation
of a state-law claim in a federal forum. See Lapides, 535
U.S. at 623, 122 S.Ct. at 1646. The result is that there is
an extra layer to our sovereign immunity analysis regard-
ing Dele’s state-law claims, given this Court’s repeated
holdings that under Erie “state rules of immunity are
binding in federal court with respect to state causes of
action.” Benning v. Bd. of Regents of Regency Univs., 928
F.2d 775, 779 (7th Cir. 1991); see also Richman v. Sheahan,
270 F.3d 430, 441 (7th Cir. 2001); Magdziak v. Byrd, 96
F.3d 1045, 1048 (7th Cir. 1996). Before we find the rule
announced in Lapides to be controlling here, we must
first satisfy ourselves that Indiana’s state-law immunity
rules would have allowed an Indiana court to hear
6 No. 02-1708
Dele’s state-law contract claim had this lawsuit not been
removed to federal court.
The Indiana Supreme Court abolished common-law
sovereign immunity in 1972. See Campbell v. State, 284
N.E.2d 733 (Ind. 1972). The Indiana legislature re-
sponded with the Indiana Tort Claims Act (ITCA),
Ind.Code § 34-13-3-3, which “established extensive immu-
nity provisions which shield governmental units from [tort]
liability . . . .” Benton v. City of Oakland City, 721 N.E.2d
224, 232 (Ind. 1999). But the ITCA is neither here nor
there for the purposes of Dele’s claims, which sound in
contract, not tort. The rule for contract claims in Indiana
state courts appears to be the one announced in Campbell.
This means that an Indiana state court could have heard
Dele’s state-law claims against ISU and its officials, and
thus under Lapides that the federal court could do so
also, in the exercise of its supplemental jurisdiction.
Compare Raygor v. Regents of Univ. of Minn., 534 U.S. 533,
546 (2002) (holding that supplemental jurisdiction stat-
ute, 28 U.S.C. § 1367(d), did not toll state statute of lim-
itations for state claims against unconsenting state
when federal claim dismissed on sovereign immunity
grounds).
III
On the merits, Dele raises two principal arguments.
First, he claims that the district court erred in granting
summary judgment against him on his claims for viola-
tion of his due process and academic freedom rights
under the Fourteenth and First Amendments respectively.
Second, he urges that the district court brushed off his
breach of contract claim too hastily. We treat them in
turn, using the de novo standard of review and viewing
all facts and drawing all inferences in favor of Dele. See
Weinberger v. Wisconsin, 105 F.3d 1182, 1186 (7th Cir.
1997).
No. 02-1708 7
A
Dele’s core claim is that defendants deprived him of
constitutionally protected property and liberty interests
by failing to re-appoint him to his position at ISU. The
standard elements of a due process claim include wheth-
er the plaintiff suffered a deprivation of a cognizable
property or liberty interest, and whether any such dep-
rivation occurred without due process. See Morrissey v.
Brewer, 408 U.S. 471, 481 (1972). Thus, a critical initial
step is Dele’s assertion that his employment contract
with ISU gave rise to a property interest under Indiana
state law, or that defendants’ decision not to re-appoint
him imposed sufficient stigmatic and reputational harm
to implicate a constitutional liberty interest. As to the
latter showing, it is unclear from his complaint whether
Dele sought to proceed in the district court under a
theory of procedural or substantive due process, but we
find the point to be of no moment to our present disposi-
tion of his claim.
To establish a protectable property interest, a plaintiff
must be able to point to a substantive state-law predicate
creating that interest. See Bd. of Regents v. Roth, 408 U.S.
564, 577 (1972). The interest must be more than de
minimis, which typically calls on the plaintiff to demon-
strate some form of provable pecuniary harm. See Swick
v. City of Chicago, 11 F.3d 85, 87-88 (7th Cir. 1993). In
the employment context, we have generally required that
a plaintiff be able to show that the terms of her employ-
ment provide for termination only “for cause,” see Farmer
v. Lane, 864 F.2d 473, 479-80 (7th Cir. 1988), or otherwise
evince “mutually explicit understandings” of continued
employment, see Crim v. Bd. of Educ. of Cairo Sch. Dist.
No. 1, 147 F.3d 535, 545 (7th Cir. 1998) (quoting Perry
v. Sindermann, 408 U.S. 593, 601 (1972)).
Under these standards, Dele has failed to establish the
necessary state-law predicate to maintain a procedural
8 No. 02-1708
due process claim on the basis of an invaded property
interest. In Colburn v. Trustees of Indiana University, 973
F.2d 581 (7th Cir. 1992), we rejected a claim almost iden-
tical to Dele’s. The plaintiffs in Colburn contended that
their annual re-appointment to “probationary” positions
on the Indiana University faculty demonstrated that
they had a protectable property interest that could not
be taken away without due process of law. We disagreed,
noting that “[a] property interest is not established by
general statements in handbooks, appointment docu-
ments or elsewhere that an employee will be judged
based on some ‘criteria.’ ” Id. at 589. We further noted
that a discretionary re-appointment system could never
serve as grounds for a property interest unless “an em-
ployer’s discretion is clearly limited so that the employee
cannot be denied employment unless specific conditions
are met.” Id.; see also Hohmeier v. Leyden Cmty. High
Schs. Dist. 212, 954 F.2d 461, 465 (7th Cir. 1992); Wallace
v. Robinson, 940 F.2d 243, 247 (7th Cir. 1991); Upadhya
v. Langenberg, 834 F.2d 661, 664 (7th Cir. 1987) (“[A]
professor serving on a series of annual appointments,
without an entitlement to renewal founded on state law,
has no property interest in his position.”). A contrary
holding, we observed, “would be inconsistent with the
existence of a formalized tenure process.” Colburn, 973 F.2d
at 590; see also Staheli v. Univ. of Miss., 854 F.2d 121, 124
(5th Cir. 1988); Haimowitz v. Univ. of Nev., 579 F.2d
526, 528 (9th Cir. 1978). In this case, Dele’s employment
contract grants broad discretion to ISU in making re-
appointment decisions. Because the agreement states
that the re-appointment process will be conducted accord-
ing to various criteria—including, as in Colburn, the usual
trio of teaching, scholarship, and university service—
Dele has failed to establish a protectable property interest
on which to base a procedural due process claim.
Dele’s efforts to show a liberty interest fare no better. A
plaintiff may prove a deprivation of a liberty interest by
No. 02-1708 9
showing damage to her “good name, reputation, honor, or
integrity,” Wisconsin v. Constantineau, 400 U.S. 433, 437
(1971), but any stigmatic harm must take concrete forms
and extend beyond mere reputational interests, Paul v.
Davis, 424 U.S. 693, 711-12 (1976). Further, a plaintiff
must show more than that she was “not rehired in one
particular job.” Sindermann, 408 U.S. at 599.
Here again, prior decisions foreclose any finding of the
requisite liberty interest. The district court rejected
Dele’s claim of deprivation of a liberty interest because
“there is no evidence that any statements regarding
Plaintiff’s teaching ability (or lack thereof) were ever made
public.” Moreover, the record was devoid of the kind of
evidence needed to show that a negative decision on a
renewal of a probationary contract was stigmatizing. A
denial of tenure or employment “is only stigmatizing if
it is accompanied by a publicly announced reason that
impugns the employee’s moral character or implies dis-
honesty or other job-related moral turpitude.” Hedrich
v. Bd. of Regents of Univ. of Wis. Sys., 274 F.3d 1174, 1184
(7th Cir. 2001) (citations and quotation marks omitted);
see also Roth, 408 U.S. at 573; Lawson v. Sheriff of
Tippecanoe County, 725 F.2d 1136, 1138-39 (7th Cir. 1984).
Thus, to avoid summary judgment, Dele had to show
that the news of his denial of re-appointment was both
publicly disseminated and also sullied his moral character.
Dele’s sole argument on this front is that other mem-
bers of the department were aware of ISU’s failure to re-
appoint him. Even if we were to assume that this internal
dissemination was enough to count as “public” (and we
make no finding on that), Dele offered no information
about the content of this “announcement”—i.e., whether
the non-renewal of his contract implied dishonesty or
moral turpitude in the conduct of his duties as a univer-
sity professor. In short, Dele’s attempt to establish a
liberty interest fails. With neither a property interest nor
10 No. 02-1708
a liberty interest at stake, Dele could not assert a claim
for a denial of due process, and thus the district court
correctly granted summary judgment in favor of the
defendants on these claims.
As a final note, Dele makes the innovative argument
that his claim should be evaluated under a heightened
standard because the termination of his employment
with ISU might jeopardize his prospects of obtaining a
green card, and could ultimately subject him to deportation.
The gist of his contention is that ISU has assumed “a
special position” over him “by becoming his sponsor for a
green card which was dependent upon Dele maintaining
his position as an assistant professor at ISU.” There are
at least three problems with this line of argument. First,
Dele himself concedes that he is unable to find any au-
thority for this proposition, and instead falls back on the
more general proposition that “subjecting persons to
deportation has been recognized as a liberty right under
federal law.” See, e.g., Jideonwo v. INS, 224 F.3d 692, 696-
97 (7th Cir. 2000). Second, nothing whatever indicates
that ISU assumed any “special position” vis-á-vis Dele
under federal immigration law. ISU does not make im-
migration policy and is under no obligation to do any-
thing but ensure that its employment practices comply
with the relevant federal laws and regulations. The fact
that a collateral consequence of Dele’s loss of employment
at ISU may be a change in his immigration status is not
enough to give rise to a duty of perpetual employment
on ISU’s part. Finally, it seems likely that Dele has things
backwards. If his visa was based on special skills or
needs, then ISU probably had a duty to re-certify him
periodically, using an honest evaluation of his continued
qualifications. If that evaluation produced a negative
result, then it would have had to let the immigration
authorities know.
No. 02-1708 11
B
We next turn to Dele’s academic freedom claims. Dele
finds a protected right to academic freedom in the Univer-
sity Handbook, which contains the statement that a
“teacher is entitled to full freedom in research and in the
publication of the results, subject to the adequate perfor-
mance of his/her academic duties.” He complains that
Blackshire-Belay tried to prevent him from associating
with two other faculty members in the department, Dr.
Kwasi Ampene and Dr. Francois Muyumba. Finally, Dele
construes Blackshire-Belay’s advice that he shift the
focus of his community activities from African to African-
American culture as an infringement of his academic
freedom.
Academic freedom rights are rooted in the First Amend-
ment. Generally speaking, the state may not take ac-
tion that “cast[s] a pall of orthodoxy over the classroom,”
which is traditionally the “marketplace of ideas.” Keyishian
v. Bd. of Regents, 385 U.S. 589, 603 (1967). Even so,
academic freedom “is not absolute, and must on occasion
be balanced against important competing interests.” Dow
Chem. Co. v. Allen, 672 F.2d 1262, 1275 (7th Cir. 1982).
Further, we have repeatedly noted that “one dimension
of academic freedom is the right of academic institutions
to operate free of heavy-handed governmental, including
judicial, interference.” Osteen v. Henley, 13 F.3d 221, 225-
26 (7th Cir. 1993); see also Webb v. Bd. of Trs. of Ball
State Univ., 167 F.3d 1146, 1149 (7th Cir. 1999); Piarow-
ski v. Ill. Cmty. College Dist. 515, 759 F.2d 625, 629 (7th
Cir. 1985).
Because academic freedom rights must ultimately flow
from the First Amendment, claims of their violation are
subject to all the usual tests that apply to assertions of
First Amendment rights. See Keen v. Penson, 970 F.2d
252, 257-58 (7th Cir. 1992) (rejecting an academic free-
12 No. 02-1708
dom claim on the grounds that the communication in
question did not implicate a matter of public concern); see
also Piarowski, 759 F.2d at 628-29 (applying public
forum analysis to an academic freedom claim). In light of
this fact, we agree with the district court that Dele’s
academic freedom claim fails because he did not allege
that he was ever restricted from or sanctioned for speak-
ing publicly about an issue. Neither of the two actions
upon which Dele focuses his argument—Blackshire-
Belay’s advice not to associate with particular faculty
members, and her advice to devote more time to com-
munity activities involving African-American, as opposed
to African, culture—restricted his ability to disseminate
publicly his views as a teacher or scholar. Any disputes
Dele had concerning his association with other faculty or
his community activities concerned the performance of
his duties as an employee of the university and a mem-
ber of the department, not as an interested citizen or an
academic communicator of protected ideas. See Clark v.
Holmes, 474 F.2d 928, 931 (7th Cir. 1973). See generally
Connick v. Meyers, 461 U.S. 138, 146 (1983); Pickering
v. Bd. of Educ., 391 U.S. 563, 568, 574-75 (1968).
Further, even though we must assume at the sum-
mary judgment stage that Blackshire-Belay made the
comments in question, we are required to draw only the
reasonable inferences from those comments that favor
Dele. If the case were otherwise in doubt, we would
find that no reasonable jury could find that Blackshire-
Belay’s advisory comments amounted to restrictions on
his basic speech rights. Dele’s academic freedom claims
were properly dismissed by the district court.
C
We turn finally to Dele’s state-law contract claim. As
noted previously in our consideration of jurisdiction, the
No. 02-1708 13
district court did not resolve the merits of Dele’s state-
law claims, instead dismissing them on Eleventh Amend-
ment grounds. On appeal, Dele now asserts that the dis-
trict court abused its discretion by failing to remand his
state-law contract claim for adjudication in state court.
ISU, on the other hand, urges us to reach the merits of
the state-law claims, because they can be resolved as a
matter of law.
It is not entirely clear that the district court con-
sidered the question whether it should remand the state
claims, in lieu of dismissing them on Eleventh Amend-
ment grounds. At the time, believing itself bound by the
Supreme Court’s decision in Wisconsin Department of
Corrections v. Schacht, 524 U.S. 381 (1998), the district
court may have thought it had only one option available
to it—that of dismissal. One option for us would there-
fore be to remand this case to the district court to give it
an opportunity to exercise its discretion under 28 U.S.C.
§ 1367(c)(3) to decide whether to retain the supple-
mental claim or to remand it. Under the circumstances,
however, we believe that this would be a waste of judi-
cial resources. The question of law presented by Dele’s
state-law claim is straightforward. Because we may
affirm a district court on any ground supported by the
record, see Payne for Hicks v. Churchich, 161 F.3d 1030,
1038 (7th Cir. 1998), we can decide whether a trial is
warranted or not on de novo review.
The merits of Dele’s breach-of-contract claims closely
track those of his property-based due process claim. While
Dele may have been something more than an at-will
employee, his employment contract specified that his
services were being tapped for a period of one year. Re-
newal of the contract was contingent on performance
evaluations according to particular criteria. As is the case
in most states, Indiana law provides that an enforce-
able employment contract is created when the parties
14 No. 02-1708
agree that employment shall continue for a fixed or ascer-
tainable period. Orr v. Westminster Village North, Inc.,
689 N.E.2d 712, 717 (Ind. 1997). The duration term of
such a contract, however, is an essential element that
is fully enforceable by either party. Id.; see also Ewing v.
Bd. of Trs. of Pulaski Mem. Hosp., 486 N.E.2d 1094, 1098
(Ind. Ct. App. 1985). Here, it is undisputed that ISU
allowed each of Dele’s two contracts to run for its com-
plete one-year term. With no disputed issue of material
fact relevant to the contract theory, ISU was entitled
to summary judgment on the merits. Accordingly, we
modify the dismissal of these claims from one for want
of jurisdiction to dismissal with prejudice on the merits.
IV
In conclusion, the district court properly dismissed
Dele’s federal claims for money damages. Dele does not
have the necessary property or liberty interest to support
a due process claim, and the facts do not support any
First Amendment academic liberty claim either. Finally,
ISU is entitled to judgment on Dele’s breach of contract
claims. We AFFIRM the judgment of the district court, as
modified in accordance with this opinion to reflect the
change in the court’s jurisdiction over the state-law
claims against ISU.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-14-03