Michael Wigginton, Jr. v. University of Mississipp

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 19-60268 FILED

July 1, 2020

Lyle W. Cayce

MICHAEL WIGGINTON, JR., Clerk

Plaintiff - Appellee

v.

CHANCELLOR DANIEL W. JONES, Individually and in his official capacity

as Chancellor; PROVOST MORRIS H. STOCKS, Individually and in his

official capacity as Provost; DEAN JOHN Z. KISS, Individually and in his

official capacity as Dean; DEAN VELMER BURTON, Individually and in his

official capacity as Dean; CHAIR ERIC LAMBERT, Individually and in his

official capacity as Department Chair,

Defendants - Appellants

Appeal from the United States District Court

for the Northern District of Mississippi

Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Dr. Michael Wigginton was denied tenure during his sixth year as an

assistant professor of Legal Studies at the University of Mississippi. He sued

several university officials in their individual capacities, alleging that they

violated his substantive due process rights when they evaluated his eligibility

for tenure in an arbitrary and capricious manner. The district court denied

defendants’ qualified immunity defenses and allowed Wigginton’s case to

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proceed to a jury. After a week-long trial, Wigginton was awarded over

$200,000 in damages for lost wages and past and future pain and suffering.

We hold that the district court erred when it denied defendants’ motions

for qualified immunity. Because Wigginton did not have a clearly-established

property right, we REVERSE and RENDER judgment in favor of defendants.

I.

In 2008, Dr. Michael Wigginton was hired by the University of

Mississippi as an assistant tenure-track professor of Legal Studies in the

School of Applied Sciences. Before entering academia, Wigginton spent his

career as a professional law enforcement agent. He became an assistant

professor after earning his PhD from the University of Southern Mississippi.

At the University of Mississippi (“the University”), his research and teaching

responsibilities focused on criminal justice, homeland security, and terrorism.

A. Tenure Policies and Guidelines

As a tenure-track employee, Wigginton was required to complete a five-

year probationary period before he would become eligible for a formal process

of tenure review. During Wigginton’s time with the University, three separate

tenure documents governed the terms of his employment. 1 The University’s

policy, which applies to all schools within the University of Mississippi system,

provides that tenure candidates will be evaluated on three different axes:

“teaching, research and/or creative achievement, and service.” The policy

defines “research and creative achievement” as scholarly work that “make[s]

contributions to the expansion of knowledge and indicate[s] the professional

vitality of the candidate.” It identifies several examples of achievement in this

1 According to the University’s “Tenure Policies and Procedures” document, the

Provost or Vice Chancellor for Academic Affairs bears the responsibility of ensuring “that

each school’s or department’s standards are consistent with the University’s mission.”

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area, including “articles in refereed or other scholarly professional journals.” 2

Textbooks are not included in the policy’s list of scholarly achievements;

instead, the University policy explains that a professor’s contributions to

textbooks are evaluated as an aspect of the professor’s teaching abilities.

The School of Applied Sciences (“the School”) maintains its own tenure

guidelines. Like the University policy, the School’s guidelines explain that

“instructional textbooks” will be evaluated as an aspect of a professor’s

teaching abilities—not his scholarly and research skills. The School’s

guidelines emphasize the importance of research, warning that tenure will not

be granted unless the professor establishes a “continuous record of scholarship

in refereed, academic journals.”

Finally, the Legal Studies Department (“the Department”) maintains its

own “Guidelines for Tenure and Promotion.” In contrast with the above

documents, the Department’s guidelines explain that a candidate’s publication

of textbooks by a “recognized professional press” will be considered when

evaluating the professor’s research and scholarship contributions. The

Department guidelines do not require professors to publish articles in refereed

journals in order to become eligible for tenure.

All three documents contain language that highlights the subjective

nature of the tenure review process. Though the University’s policy notes that

“[t]here is an understanding that good faith is a requirement for all facets of

th[e] policy,” it also explains that candidates who meet the specified criteria

are not necessarily guaranteed a tenure award. The University’s policy

explains that candidates may be denied tenure if they are not “fitted or needed

to serve the present and future needs of the University’s programs.” Likewise,

2 A “refereed” journal is a journal that ensures rigorous review of scholarship by

experts within a scholar’s field before articles are selected for publication.

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both the School and Department guidelines explain that a candidate’s

scholarship record is measured in terms of quantity and quality. The quality

of a professor’s research contributions will be judged by objective and

subjective measures, including by the opinions of peer scholars in the

professor’s field, “ranking sources for journals, [and] citations and citation

rates (when available).”

B. Tenure Denial and Termination

The events leading to the University’s decision to deny Wigginton tenure

are largely undisputed. Because this appeal follows a jury verdict, we recount

the facts “in the light most favorable to the jury’s determination.” Waganfeald

v. Gusman, 674 F.3d 475, 480 (5th Cir. 2012).

When Wigginton was hired, Dr. David McElreath, the Chair of the Legal

Studies Department during the 2008–2009 and 2009–2010 school years, told

him that the “major emphasis in [the] [D]epartment was teaching.” Consistent

with that priority, McElreath encouraged Wigginton to focus his scholarship

efforts on publishing textbooks, rather than pursuing other forms of research

and writing. McElreath gave Wigginton positive evaluations in his first two

annual reviews, expressing the opinion that Wigginton had “outstanding”

research skills and that he was “exceed[ing] all expectations for advance in

rank.”

During the 2010–2011 school year, Dr. Stephen Mallory took over as

interim Chair of the Legal Studies Department. Mallory told Wigginton to

“keep doing what [he had been]” doing under McElreath’s supervision. In

Wigginton’s third, fourth, and fifth year evaluations, Mallory gave Wigginton

high marks for his “cutting edge” research, and explained that it was his belief

that Wigginton was “making excellent progress toward meeting the

expectations for tenure-track faculty.” A month before Mallory submitted

Wigginton’s fifth-year review, Wigginton was notified that he had been

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nominated for the Thomas A. Crowe Outstanding Faculty Award—a

Department prize that recognized “meritorious faculty engagement in

scholarship, teaching, and service.” Though Wigginton was his Department’s

nominee, he was not selected as the winner of the Award.

In accordance with University policy, Wigginton formally applied for

tenure in 2013, at the beginning of his sixth year at the University. At that

time, he had co-authored five textbooks, published two peer-reviewed journal

articles and had a third accepted for publication, and published one article in

a professional, non-academic journal. Wigginton prepared his application and

submitted a list of potential external reviewers with knowledge of his work.

The Department Chair was responsible for selecting three reviewers from that

list and, in consultation with the faculty, identifying two additional reviewers

who could provide their assessment of Wigginton’s work. All five of Wigginton’s

external reviewers provided a positive review of Wigginton’s skills, research

record, and eligibility for tenure.

Wigginton’s application was forwarded to the tenured faculty members

in his Department, who voted 5 to 2 in favor of granting tenure and 4 to 2 in

favor of promoting him from assistant to associate professor. 3 The faculty

recommendation was then submitted to Dr. Eric Lambert, who had assumed

the position of Chair of the Legal Studies Department a few months earlier, in

August 2013. In a six-page letter, Lambert recommended that the University

deny Wigginton tenure and promotion. He based his recommendation

primarily on his conclusion that Wigginton’s “scholarly productivity and

quality is very low.” Though he acknowledged that Wigginton had contributed

3 When Wigginton applied for tenure, he simultaneously applied for a promotion—a

related but distinct University process. One of the tenured professors who voted to grant

Wigginton tenure was an assistant professor, so he was unable to vote for or against

Wigginton’s promotion.

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to several textbooks, he found Wigginton’s peer-reviewed articles to be “both

few and of low quality.”

Lambert submitted his recommendation to the Dean’s Committee, which

voted 3 to 2 in favor of granting tenure and promotion. Wigginton’s application

and the Dean’s Advisory Committee recommendation were then sent to Velmer

Burton, Jr., the Dean of the School of Applied Sciences. Burton echoed much of

Lambert’s assessment and recommended rejecting Wigginton’s application for

tenure and promotion. In addition to his reservations about Wigginton’s

scholarship, Burton expressed “real concerns” that the five external reviewers

who evaluated Wigginton’s work were biased in their assessment.

Dean John Kiss, the Dean of the Graduate School, agreed with Lambert

and Burton and recommended denying Wigginton tenure and promotion.

Pursuant to University policy, Wigginton’s application was forwarded to

the Tenure and Promotion Review Committee. The Committee expressed

concern that the guidelines used to evaluate Wigginton were insufficiently

clear. Nevertheless, the Committee “did not . . . find cause to consider the

negative recommendations as arbitrary, capricious, or otherwise associated

with improper grounds.”

Wigginton’s application was sent to Provost Morris Stocks, who

recommended denying tenure and promotion because Wigginton’s research

“d[id] not rise to the level of outstanding.”

Wigginton sought review of these recommendations by the Tenure and

Promotion Appeals Committee, which held a hearing in April 2014. Though

the Committee did not believe that university officials acted improperly by

failing to consider evidence of Wigginton’s record, it did find flaws with

Wigginton’s review process. The Committee was concerned that Wigginton had

received inconsistent advice throughout his probationary period, and also

expressed the opinion that Wigginton’s external reviews should have been

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viewed with more deference. It ultimately recommended that the University

grant Wigginton an extended probation period “so that he can demonstrate his

ability to meet [the University’s tenure] expectations.”

The Committee’s assessment was forwarded to Daniel Jones, Chancellor

of the University. Jones agreed with the previous administrator

recommendations and declined to nominate Wigginton for tenure or promotion.

Jones declined the Committee’s recommendation to grant Wigginton an

extended probationary period, and instead granted Wigginton a contract for a

final year of employment. Wigginton’s employment at the University concluded

on May 10, 2015.

C. Procedural History

Wigginton filed this lawsuit in June 2015. He asserted a variety of

federal and state-law claims, including claims for age, sex, and race

discrimination; retaliation; and a violation of his substantive due process

rights. After a week-long trial, the jury returned a verdict in favor of Wigginton

on his substantive due process claim and awarded him $218,000 in damages. 4

The defendants filed a renewed motion for judgment as a matter of law

and a motion to alter or amend the judgment. The district court denied

defendants’ motions in their entirety, and this appeal followed.

II.

We review a challenge to a district court’s denial of a motion for judgment

as a matter of law “de novo, applying the same standard applied by the district

court.” Montano v. Orange County, 842 F.3d 865, 873 (5th Cir. 2016). Under

Federal Rule of Civil Procedure 50, judgment as a matter of law is appropriate

if “a party has been fully heard on an issue during a jury trial and the court

4 Only two of Wigginton’s claims were submitted to the jury: his substantive due

process claim and his age discrimination claim. The jury found no liability on Wigginton’s

age discrimination claim. Wigginton does not challenge that finding on appeal.

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finds that a reasonable jury would not have a legally sufficient evidentiary

basis to find for the party on that issue.” Fed. R. Civ. P. 50(a)(1).

Defendants argue that the district court erred when it denied their

motions for qualified immunity. Defendants raised their qualified immunity

defense multiple times in the district court, both before and after the jury

issued its verdict. 5 See Fed. R. Civ. P. 50(b) (authorizing the losing party to file

a renewed motion for judgment as a matter of law within 28 days of entry of

judgment). They argue that they are entitled to qualified immunity because

the terms of Wigginton’s employment did not give rise to a clearly-established

protected property interest—a necessary prerequisite for the viability of his

substantive due process claim.

“Whether an asserted federal right was clearly established at a

particular time . . . presents a question of law, not one of ‘legal facts.’” Elder v.

Holloway, 510 U.S. 510, 516 (1994). We review questions of law, including the

district court’s qualified immunity conclusion, de novo. See id.; see also Tamez

v. City of San Marcos, 118 F.3d 1085, 1091 (5th Cir. 1997) (“We review de novo

[the court’s] legal conclusions, whether regarding federal or state law, in

entering judgment under Rule 50(b).”). “Qualified immunity shields

government officials from civil damages liability unless the official violated a

statutory or constitutional right that was clearly established at the time of the

challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (emphasis

added). “To be clearly established, a right must be sufficiently clear ‘that every

reasonable official would [have understood] that what he is doing violates that

right.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The court

5 Specifically, defendants moved for qualified immunity on at least five separate

occasions: in their motion to dismiss; in their post-discovery motion for summary judgment;

at the close of Wigginton’s case-in-chief; at the close of all evidence; and after the jury verdict

was announced.

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must be able to point to “controlling authority—or a ‘robust consensus of [cases

of] persuasive authority’—that defines the contours of the right in question

with a high degree of particularity.” Morgan v. Swanson, 659 F.3d 359, 371–

72 (5th Cir. 2011) (footnote omitted) (quoting al-Kidd, 563 U.S. at 742). This

inquiry “must be undertaken in light of the specific context of the case, not as

a broad general proposition.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)

(quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)).

In addition to their qualified immunity defenses, defendants make

several additional arguments in favor of an amended judgment or new trial.

We agree that Wigginton fails to establish that his rights were clearly

established, and we therefore do not reach defendants’ other arguments in

support of reversal.

III.

The district court erred when it denied defendants’ motion for qualified

immunity and concluded that Wigginton had a clearly-established property

interest. In reviewing a substantive due process claim, the existence of a

protected property interest is a threshold issue we must reach before we

consider whether the defendants’ actions were arbitrary and capricious. See

Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993). “If there is no

protected property interest, there is no process due.” Spuler v. Pickar, 958 F.2d

103, 106 (5th Cir. 1992); see also Whiting v. Univ. of S. Miss., 451 F.3d 339, 344

(5th Cir. 2006), abrogated on other grounds by Sims v. City of Madisonville,

894 F.3d 632 (5th Cir. 2018). We regularly grant qualified immunity in

substantive due process cases where the plaintiff fails to establish a clearly-

established property interest. See, e.g., Wilkerson v. Univ. of N. Tex. By and

Through Bd. of Regents, 878 F.3d 147, 155 (5th Cir. 2017); Williams v. Tex.

Tech. Univ. Health Scis. Ctr., 6 F.3d 290, 294 (5th Cir. 1993). Because

Wigginton fails to identify any state or federal law that placed defendants on

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notice that his alleged contractual right to a fair tenure-review process was a

constitutionally-protected interest, we reverse.

In order to have a property interest in a benefit, “a person . . . must have

more than an abstract need or desire for it,” and he must be able to establish

“more than a unilateral expectation” that he would receive it. Bd. of Regents of

State Colls. v. Roth, 408 U.S. 564, 577 (1972). To succeed on his substantive

due process claim, Wigginton must show that he had a “legitimate claim of

entitlement” to the interest he asserts. Id. Property interests are created and

defined by “existing rules or understandings that stem from an independent

source such as state law.” Id. However, whether a state-created property

interest “rises to the level” of a constitutionally-protected interest is a matter

of federal constitutional law. Town of Castle Rock v. Gonzales, 545 U.S. 748,

757 (2005). 6

By definition, the establishment of a discretionary tenure policy

demonstrates that “teachers without tenure are not assured of continuing

employment.” Staheli v. Univ. of Miss., 854 F.2d 121, 124 (5th Cir. 1988).

Discretionary tenure policies provide universities with the flexibility to grant

or deny tenure based on subjective criteria, rather than “restrict[ing] . . .

administrators’ discretion by objective criteria and mandatory language.”

Wicks v. Miss. Valley State Univ., 536 So. 2d 20, 23 (Miss. 1988). Consistent

with these principles, we have rejected claims by professors who argue that

positive annual reviews create a de facto right to tenure. See Whiting, 451 F.3d

at 345 (“[P]ositive annual reviews do not serve to generate a property interest

6 In Regents of University of Michigan v. Ewing, 474 U.S. 214 (1985), Justice Powell

suggested in a concurrence that “substantive due process rights are created only by the

Constitution.” Id. at 229 (Powell, J., concurring) (emphasis added). Since then, however, this

circuit has held that substantive due process rights can be derived from state law, and are

therefore treated in the same manner as rights that give rise to a procedural due process

claim. See Schaper v. City of Huntsville, 813 F.2d 709, 718 (5th Cir. 1987).

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in tenure.”); Staheli, 854 F.2d at 124 (rejecting a professor’s claim that the

University had an “informal tenure obligation” because he met the policy’s

specific standards of excellence and his department chairman had “assured

him that his progress [toward tenure] was satisfactory”).

Though an automatic or non-discretionary tenure policy may give rise to

a protected property interest, see Honore v. Douglas, 833 F.2d 565 (5th Cir.

1987), the University’s policies and guidelines clearly indicated that Wigginton

was not guaranteed tenure. The policies and guidelines explained that even

professors who meet the tenure criteria may not be “automatically fitted or

needed to serve the present and future needs of the University’s programs.”

Moreover, Wigginton’s tenure evaluation process was based on a qualitative

assessment, and the policies and guidelines made clear that he was not

guaranteed tenure simply by fulfilling a specific set of numerical criteria. Id.

The University’s tenure system thus demonstrates the “inexorable internal

logic” of a tenure system: “The whole purpose of the distinction between

tenured and non-tenured faculty [is] to give the University discretion over the

employment of non-tenured teachers.” Staheli, 854 F.2d at 124–25.

The district court acknowledged that Wigginton did not have a protected

property interest in “continued employment,” 7 but it concluded that he

presented sufficient evidence to establish a different kind of protected

interest—an interest in “a fair merit-based inquiry free from irrationality as to

whether he should receive tenure and promotion.” We hold that the district

court erred in denying defendants’ motion for qualified immunity because

7 It is well-established that a tenure-track employee in Mississippi does not have a

property interest in continued employment. See Whiting, 451 F.3d at 344 (“Mississippi law is

clear that neither state legislation nor state regulations create a legitimate expectation of

continued employment for a non-tenured faculty member.”); Wicks, 536 So. 2d at 23 (citing

Miss. Code. Ann. § 37-101-15(f) for the principle that state law “does not create a legitimate

expectation of continued employment for a non-tenured employee”).

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there was neither controlling authority nor a robust consensus of persuasive

authority that placed Wigginton’s rights beyond debate. See Morgan, 659 F.3d

at 371–72, 382; Pearson v. Callahan, 555 U.S. 223, 242 (2009) (permitting

courts to determine whether a right is clearly established before determining

whether a constitutional violation occurred).

In Klingler v. University of Southern Mississippi, an unpublished

decision issued in 2015, we observed that Mississippi law recognizes that an

employee’s “contract rights . . . constitute enforceable property interests, and

‘employee manuals become part of the employment contract, creating contract

rights to which employers may be held.’” 612 F. App’x 222, 227–28 (5th Cir.

2015) (footnote omitted) (first citing Univ. of Miss. Med. Ctr. v. Hughes, 765 So.

2d 528, 536 (Miss. 2000); then quoting Whiting, 451 F.3d at 345). We have also

been clear, however, that not all employment contracts or manuals rise to a

vested property right. Protected property interests are “not incidental to public

employment,” Muncy v. City of Dallas, 335 F.3d 394, 398 (5th Cir. 2003), and

the Mississippi Court of Appeals has explicitly held that “[t]he mere existence

of a faculty handbook does not create [a protected property interest].” Suddith

v. Univ. of S. Miss., 977 So. 2d 1158, 1171 (Miss. Ct. App. 2007) (emphasis

added). “In determining whether statutes and regulations limit official

discretion, the Supreme Court has explained that we are to look for ‘explicitly

mandatory language . . . .’” Ridgely v. FEMA, 512 F.3d 727, 735 (5th Cir. 2008)

(quoting Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 463 (1989)). In other

words, “[i]t matters what the handbook actually says.” Suddith, 977 So. 2d at

1172.

Wigginton fails to cite “explicitly mandatory language” in his tenure

policies that created a clearly-established property interest. See Ridgely, 512

F.3d at 735. To support his claim, he points to the University’s “understanding

that good faith is a requirement for all facets of [the tenure] policy.” He also

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observes that the University’s policies and guidelines established specific

criteria for tenure, arguing that the defendants were required to apply that

criteria in a consistent manner.

We have rejected substantive due process claims brought by tenure-track

employees who assert that similar contractual language or tenure procedures

gave rise to a clearly-established protected property interest. In Klingler, for

example, citing Whiting, 451 F.3d at 346, we rejected a tenure-track employee’s

claim that he had a protected property interest in “satisfy[ing] the tenure

criteria” promulgated by his employer. 612 F. App’x at 228. Like Wigginton,

the plaintiff in Klingler was employed by a university with a discretionary

tenure policy, which meant that “the decision over his continued employment

[was] entirely within the discretion of the board.” Id. Because Klingler had no

“legitimate expectation of attaining tenure,” we held that “[i]t follows, a

fortiori, that Klingler could have no legitimate expectation in an opportunity

to satisfy the tenure criteria.” Id. (first emphasis added). We have also held

that a university’s failure to follow its own internal rules does not always

establish to a due process violation. See Levitt v. Univ. of Tex. at El Paso, 759

F.2d 1224, 1230 (5th Cir. 1985). And, outside of this circuit, courts have

resisted the efforts of plaintiffs to “construct a property interest out of

procedural timber.” Bunger v. Univ. of Okla. Bd. of Regents, 95 F.3d 987, 990–

91 (10th Cir. 1996). Against this backdrop, Wigginton fails to demonstrate that

the language in his contract that allegedly guaranteed him a “fair process of

tenure review” gave rise to a clearly-established property right.

Wigginton cites a number of additional cases to support his claim that

his constitutional rights were clearly established, but those cases are similarly

unavailing. As the party defending against a claim of qualified immunity,

Wigginton bears the burden of demonstrating that clearly-established law

placed defendants on notice that they were violating his protected property

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interest. Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019). The cases he

relies upon do not define his asserted property right with sufficient

particularity to defeat defendants’ qualified immunity defense. See Morgan,

659 F.3d at 372.

First, though Wigginton cites Honore v. Douglas to support his claim that

his property interest was clearly established, that case involved an automatic

tenure process—not the discretionary process at issue here. 833 F.2d at 569.

Likewise, in Spuler, we rejected the plaintiff’s argument that his employment

manual established a property interest in a “reasonable expectation of

achieving tenure if he was qualified.” 958 F.2d at 106. We held that the

handbook, which gave the administrators the right to grant or deny tenure as

they chose, “bestowed no contractual rights on [plaintiff] and no concomitant

obligations on the University.” Id. at 107. And though we recognized that

employment contracts may create clearly-established property rights in

Klingler, that case dismissed a claim that was similar to Wigginton’s, further

undermining Wigginton’s argument that defendants were on notice of his

constitutional rights. 612 F. App’x at 227 (holding that plaintiff had no

property interest in satisfying the tenure criteria outlined in his employment

handbook).

Moreover, to the extent that the district court relied upon our decision in

Harrington v. Harris to conclude that Wigginton’s property right was clearly

established, there are several distinguishing circumstances in that case that

set it apart from Wigginton’s. In Harrington, a group of tenured professors

argued that their employer, Texas Southern University, awarded merit-based

pay increases in an arbitrary and capricious manner. 118 F.3d 359, 368 (5th

Cir. 1997). We assumed without deciding that plaintiffs “had a property

interest in a rational application of the university’s merit pay policy.” Id.

Unlike Wigginton, however, the plaintiffs in Harrington already had tenure,

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giving them a stronger claim to a clearly-established protected property

interest. See Levitt, 759 F.2d at 1231 (holding that tenured employees have a

constitutional interest in continued employment). The court in Harrington also

reached its decision without conducting any analysis regarding the plaintiffs’

property right, assuming that a property right existed because the defendants

failed to contest it. 118 F.3d at 368. In light of these distinctions, we decline to

find that Harrington defined the contours of Wigginton’s constitutional rights

with enough specificity to place defendants on notice. See Morgan, 659 F.3d at

371–72.

Wigginton cites a handful of Sixth Circuit cases involving similar claims,

but those cases also fail to persuade. In Purisch v. Tennessee Technological

University, the Sixth Circuit held that a professor “who is eligible for tenure

consideration” may have “some minimal property interest in a fair tenure

review process.” 76 F.3d 1414, 1423 (6th Cir. 1996); see also Webb v. Ky. State

Univ., 468 F. App’x 515, 521 (6th Cir. 2012). But the Sixth Circuit reached that

conclusion in cases involving procedural due process claims—not the

substantive due process claim at issue here. Though property interests may be

established in the same manner for both substantive and procedural due

process claims, see Schaper v. City of Huntsville, 813 F.2d 709, 716 (5th Cir.

1987), Wigginton’s claims are materially distinct from the interests identified

in Purisch and Webb. He does not argue that the defendants failed to provide

him with the required tenure review process—indeed, he admits that he

received several rounds of appeals and hearings. In Purisch itself, the Sixth

Circuit rejected the plaintiff’s claims, concluding that he had been given

sufficient process when the University afforded him the opportunity to present

his tenure-related grievance orally and in writing. 76 F.3d at 1424; see also

Webb, 468 F. App’x at 521–22 (holding that plaintiff who was provided with

opportunity to appeal a tenure decision was not deprived of a property

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interest). Even if these out-of-circuit cases supported Wigginton’s claim, they

do not constitute robust, persuasive authority sufficient to defeat a motion for

qualified immunity. Morgan, 659 F.3d at 371; al-Kidd, 563 U.S. at 742.

In Spuler, we held that tenure-track employees face an uphill battle

when challenging the denial of tenure under a discretionary tenure system.

“[I]n future challenges, officials formulating tenure decisions in circumstances

similar to the instant case will likely benefit from qualified immunity.” 958

F.2d at 108. Because Wigginton has failed to demonstrate that clearly-

established law placed defendants on notice that he had a protected property

interest, we reverse the district court’s denial of their qualified immunity

defense.

IV.

For the foregoing reasons, we REVERSE and RENDER judgment in

favor of defendants.

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