Robert Jones, III v. Louisiana Board of Supervisor

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31255 United States Court of Appeals

Fifth Circuit

FILED

ROBERT C. JONES, III, December 9, 2015

Lyle W. Cayce

Plaintiff - Appellant Clerk

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

Appeal from the United States District Court

for the Western District of Louisiana

Before STEWART, Chief Judge, and JONES and GRAVES, Circuit Judges.

CARL E. STEWART, Chief Judge:

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 42 U.S.C. § 1983 suit

against the State of Louisiana, the ULS Board of Supervisors, NSU President

No. 14-31255

Randall Webb (“Webb”), and NSU Provost and Vice President for Academic

Affairs Lisa Abney (“Abney”) (collectively, “Defendants”). Jones alleged that

Defendants violated his procedural and substantive due process rights, as well

as the Contracts Clause of the U.S. Constitution. 1 The district court granted

summary judgement to all Defendants. We AFFIRM.

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 college 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.”

Jones brought other claims and originally sued other defendants, but he has

1

abandoned these other claims on appeal and voluntarily dismissed the other defendants.

2

No. 14-31255

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 summer of 2009, Provost Abney began to hold meetings with the

Program Review Committee, a group composed of representatives from NSU’s

colleges and faculty senate. The committee was charged with selecting

programs for discontinuance, employing criteria outlined in a ULS policy

memorandum. That memorandum dictated certain rights due to tenured

faculty terminated because of the discontinuation of their program: (1) “every

reasonable effort” would be made to find them a “suitable position . . . within

the university” and (2) non-tenured faculty members would be “considered for

termination” before those with tenure, absent a “compelling academic reason

to do otherwise.”

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.”

2 The final state appropriation amounts were ultimately altered somewhat due to

factors like mid-year budget reductions and federal stimulus money. Despite these budget

shortfalls, Defendants do not appear to rely on financial exigency—a term of art—to justify

Jones’s termination.

3

No. 14-31255

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 facts 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

4

No. 14-31255

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 graduate degrees in the relevant discipline, or at least 18 graduate hours

in that discipline, based on guidelines promulgated by the Southern

Association of Colleges and Schools.) Jones’s tenure, the letter continued,

would last through July 31, 2011. He was offered—and subsequently

accepted—a position as an “instructor” for a salary of $35,000, about half of

what he had been making before.

Jones appealed to a committee comprising seven faculty members,

including one faculty member from the College of Business. 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

3 Jones now alleges that the committee “permitted an appeal only of the program

discontinuance and not of tenure.” Committee minutes reveal, however, that the committee

was instructed by legal counsel that it was “not reviewing the program, but reviewing the

individual.” The committee chairman in deposition testimony also indicated that there was

individualized consideration of the claims in Jones’s appeal letter. That said, Defendants’

response to Jones’s statement of material facts states that the “Committee determined

whether or not the program had sufficient numbers in support to be continued or should

remain eliminated due to the budgetary constraints.” Viewing the facts in the light most

favorable to Jones, this statement is better aligned to his understanding of the committee’s

responsibilities.

4 Jones did not brief sovereign immunity on appeal and has therefore waived any

argument that the ULS Board of Supervisors or the State of Louisiana can be held liable in

5

No. 14-31255

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 U.S. Constitution.

Jones primarily argues, relying on Texas Faculty Association v. University of

Texas at Dallas, 946 F.2d 379 (5th Cir. 1991), that he was entitled to a hearing

on his individual termination before President Webb, the ultimate decision-

maker. 5 He also contends that his firing was arbitrary and capricious.

Defendants rely heavily on the budgetary problems faced by NSU and vacillate

between arguing that Jones was not even entitled to a hearing and contending

that the requisite process was provided.

this suit. See Walker Int’l Holdings Ltd. v. Republic of Congo, 395 F.3d 229, 232 (5th Cir.

2004).

5 Defendants contended at oral argument that, in fact, the ULS Board of Supervisors—

rather than President Webb—was the final decision-maker. They conceded, however, in

response to Jones’s statement of material facts supporting his partial summary judgment

motion, that Webb was the ultimate decision-maker. We assume for purposes of deciding this

case that Webb was the ultimate decision-maker.

6

No. 14-31255

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.” Fed. R. Civ. P. 56(a).

III. Procedural Due Process

The Fourteenth Amendment provides that no state shall “deprive any

person of life, liberty, or property, without due process of law.” U.S. Const.

amend. XIV, § 1. Where a tenured public university faculty member is

terminated, due process requires both notice and an opportunity to be heard.

See Tex. Faculty, 946 F.2d at 384; Russell v. Harrison, 736 F.2d 283, 289 (5th

Cir. 1984). In this case, it is effectively conceded by Defendants that Jones had

a protected property interest in his continued government employment. See

Perry v. Sindermann, 408 U.S. 593, 597–98 (1972). It is likewise conceded by

Jones that he was provided constitutionally adequate notice. Thus, the only

remaining question with respect to procedural due process is whether Jones

was provided an adequate hearing.

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 F. App’x

7

No. 14-31255

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.

424 U.S. at 335.

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 before a faculty committee. They also argue that

the court must defer to NSU’s interest in addressing its fiscal emergency.

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

8

No. 14-31255

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. 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 were biased or unqualified. 6

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

6 Jones argues that the committee could not address his individual termination, but

only the elimination of the economics concentration. The record reveals, however, that the

committee did evaluate Jones’s particular circumstances and qualifications. Even if the

committee had no power to correct his termination (outside of reinstating the program),

Provost Abney and at least one other NSU official communicated with Jones about his

qualifications and whether NSU could find an adequate position for him. Due process does

not require exclusively formal opportunities to challenge a deprivation of property. See Tex.

Faculty, 946 F.2d at 389 (“In most faculty-termination cases, the aggrieved instructor was

afforded a relatively formal procedure as a matter of state law or institutional policy. We

believe that the due process clause, of its force, requires little formality.”).

7 The Mathews test derived from the Goldberg decision, see Mathews, 424 U.S. at 335,

and is applicable both to pre- and post-deprivation hearings. See Tex. Faculty, 946 F.2d at

384–86 (applying Mathews in post-deprivation context).

9

No. 14-31255

“credibility and veracity” issues inherent in the welfare decision-making

context. Id. at 269. In Mathews, which held that no face-to-face, pre-

deprivation hearing was compulsory in the context of disability benefits

termination, the Court noted that most disability cases will turn on “routine,

standard, and unbiased medical reports by physician specialists.” 424 U.S. at

344 (internal quotation marks and citation omitted).

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 F. App’x 796 (5th Cir.

2015) (“The government has an equally important interest in ensuring the

continuation of its institutions by making difficult decisions regarding program

10

No. 14-31255

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 a budget crisis would produce a serious administrative, if not

fiscal, burden. See Babin, 587 F. App’x 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 considerable interest in cutting staff in order to preserve the fiscal

integrity of the ULS system and NSU in particular. See Williams, 6 F.3d at

293. Although NSU apparently did not declare a financial exigency, the

system-wide budget cuts were considerable, and required immediate,

significant changes to the structure of public universities in the state. The

district court properly showed deference to that weighty interest. Jones had an

11

No. 14-31255

opportunity to make his case on appeal to an impartial panel of his peers

(including one professor from the College of Business), and directly to officials

including Provost Abney. Buttressing our conclusion is the probable futility

of—and administrative burden associated with—the additional procedural

safeguard Jones proposes: a hearing before NSU’s president. See Babin, 587 F.

App’x at 111 (noting that such an opportunity to meet with a “final decision

maker” for all employees in a layoff situation “would be burdensome in the

extreme”).

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.”

12

No. 14-31255

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 hearing 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 rather 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

13

No. 14-31255

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 decisions.”). 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

8 Jones also argues that NSU lacked the authority to terminate him under its program

discontinuance policy. This contention is undermined by the sizeable authority provided in

the ULS bylaws. That “program discontinuance” was only added as an enumerated

justification for tenure termination after Jones’s termination, is irrelevant: the policy in place

at the time contemplated for-cause termination for financial reasons, and also provided that

the list of possible justifications “shall not be deemed exclusive.” Some courts have even

determined that there is an implied power to terminate tenured faculty for program

14

No. 14-31255

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 exclusively economics courses. And while it appears that the

basic economics courses he taught continue to be taught by non-tenured

faculty, it is equally clear that NSU administrators decided to deprioritize

economics by offering fewer total economics courses and eliminating all

economics programs. In the context of the serious budget crisis facing the

university, we will not second-guess the good-faith decision-making that led to

the elimination of the economics concentration or the complex reorganization

of personnel and programs that followed. See Honore, 833 F.2d at 569 (“[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.”);

Wilson, 2014 WL 1788283, at *9 (“This Court will not . . . function as a super

personnel department as long as the minimum due process required was

provided.”).

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

discontinuance. See Jimenez v. Almodovar, 650 F.2d 363, 368 (1st Cir. 1981); Joseph G. Cook

& John L. Sobieski Jr., Civil Rights Actions § 9.13[A] (2015).

15

No. 14-31255

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

16

No. 14-31255

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

considerations, fall short” (internal quotation marks and citation omitted)).

NSU had a profoundly legitimate interest in preserving its fiscal integrity.

Taking that interest into account, we conclude that Jones’s substantive due

process claims are without merit and that the district court appropriately

granted summary judgment to Defendants on this issue.

V. Contracts Clause

Jones’s final claim is for a violation of the U.S. Constitution’s Contracts

Clause, which precludes states from “pass[ing] any . . . law impairing the

obligation of contracts.” U.S. Const. art. I, § 10, cl. 1. The district court did not

address this claim other than to note that the court’s due process analysis

foreclosed it. Jones’s challenge under the Contracts Clause appears to be a

general challenge to the legislature’s decision to reduce funding for public

universities in the state during the recession. 9

Where a state can provide a justification for the impairment that serves

“a significant and legitimate public purpose”—and where the challenged law

9 Although Jones conceded at oral argument that he did not sign a contract, we assume

without deciding that the tenure bylaws resulted in a contractual relationship between him

and NSU. See Ind. ex rel. Anderson v. Brand, 303 U.S. 95, 100 (1938) (“[I]t is established that

a legislative enactment may contain provisions which, when accepted as the basis of action

by individuals, become contracts between them and the State or its subdivisions within the

protection of article 1, § 10.” (citation omitted)). But see Kaplin & Lee, The Law of Higher

Education § 6.2.2 (“[I]f there is no contract protecting the employees . . . the contracts clause

is not at issue.”).

17

No. 14-31255

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.

18