The opinion
WEICK, Circuit Judge,
concurring:
I concur in the result.
This case involves legal as well as equitable claims. The legal claim is for compensatory and punitive damages charging a conspiracy and violations of the constitutional rights of plaintiff, an untenured teacher at Michigan State University, arising out of the failure of the University to reappoint plaintiff at the expiration of his term of employment so that he could obtain tenure. The equitable claim is for reinstatement with back pay under 42 U.S.C. § 1983 .
Under federal law, the legal claim must be tried first before a jury and the equitable claim resolved subsequently in the light of the determination of the legal claim by the jury. Dairy Queen v. Wood, 369 U.S. 469 , 82 S.Ct. 894 , 8 L.Ed.2d 44 (1962); Wright’s Federal Practice and Procedure § 2305; 5 Moore’s Federal Practice and Procedure, para. 38.13 at p. 144. See also Curtis v. Loether, 415 U.S. 189 , 98 S.Ct. 866 , 55 L.Ed.2d 40 (1974).
*714 Whether or not the issues in the legal claim are to be submitted to the jury for determination will necessarily depend on the sufficiency of the evidence which must be determined by the court applying the applicable rules if a motion is made for a directed verdict. I express no views on the sufficiency of the evidence as it is not properly before us. No motion for a directed verdict was made at the trial of this case and the court did not direct a verdict.