Opposition Brief — Varma v. Bloustein

SUPTEMTE LOGIT, Vids

FILED

(>) JAN 3 1989

No. 88-962 JOSEPH. SPANIOL, JR.

CLERK

—_

*

t

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

MARGARET VARMA, et al.,

Petitioners,

-V.—

EDWARD J. BLOUSTEIN, ef ai.,

Respondents.

RUTGERS COUNCIL OF AAUP CHAPTERS,

Petitioner,

-V.-—

EDWARD J. BLOUSTEIN, et a/.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Davib R. ScoTT JOHN J. PEIRANO, JR.*

FRANCES LOREN KEVIN P. DUFFY

Rutgers, The State University Carpenter, Bennett &

of New Jersey Morrissey

New Brunswick, New Jersey Three Gateway Center

08903 100 Mulberry Street

Newark, New Jersey

07102-4082

(201) 622-7711

*Counsel of Record

JANUARY 1989

on

QUESTION PRESENTED

1. Did the courts below correctly conclude, as a matter of

fact and law, that petitioners did not have a constitutionally-

protected property/liberty interest in the tenure review proce-

dures and criteria at Rutgers, The State University of New

Jersey?

il

PARTIES TO THE PROCEEDINGS

AND RULE 28.1 LIST

The parties to the proceedings below were petitioners

Margaret Varma, on behalf of herself and “all others similarly

situated”, and Rutgers Council of AAUP Chapters, and

respondents Edward J. Bloustein (President of Rutgers, The

State University of New Jersey (““University” or “Rutgers’’)), T.

Alexander Pond (Executive Vice President of Rutgers), Norman

Samuels (Provost of the Newark campus at Rutgers), James

Young (former Provost of the Newark campus at Rutgers),

Walter Gordon (Provost of the Camden campus at Rutgers),

Kenneth Wheeler (former Provost of the New Brunswick cam-

pus at Rutgers), Jean Parrish (former Acting Provost of the

New Brunswick campus at Rutgers), Susan A. Cole (Vice Presi-

dent for University Administration and Personnel at Rutgers),

Elizabeth Mitchell (former Assistant Vice President for Faculty

Affairs at Rutgers), Robert Pack (Associate Provost for Person-

nel at the New Brunswick campus at Rutgers), Linda Stamato

(former Member of the Rutgers Board of Governors), Donald

Dickerson (former Member of the Rutgers Board of Gover-

nors), Floyd Bragg (Member of the Rutgers Board of Gover-

nors), Sanford Jaffe (former Member of the Rutgers Board of

Governors), Robert Kaplan (former Member of the Rutgers

Board of Governors), Harold Perl (Member of the Rutgers

Board of Governors), Norman Reitman (Member of the Rut-

gers Board of Governors), Lawrence S. Schwartz (former Mem-

ber of the Rutgers Board of Governors), David Werblin (Mem-

ber of the Rutgers Board of Governors), Adrienne Anderson

(Member of the Rutgers Board of Governors), Michael

Bongiovanni (Member of the Rutgers Board of Governors),

Peter Cartmell (Member of the Rutgers Board of Governors),

Anthony Cicatiello (Member of the Rutgers Board of Gover-

nors), James Usry (Member of the Rutgers Board of Govern-

ors), Walter Wechsler (Member of the Rutgers Board of Gov-

ernors), Rutgers, The State University of New Jersey, and the

Promotion Review Committee at Rutgers. Several professors

(Hans Fisher, Noemie Koller, Richard Poirier, Paul Fussell,

eo

iil

Lawrence Fisher, Jane Scanlon, Harvey Feder, and Amelie

Rorty) were named as defendants in petitioners’ original com-

plaint but were not named as defendants in subsequently-filed

amended complaints.

All of the individual respondents below were sued individu-

ally and in their corporate capacities.

Rutgers is a body corporate and politic under the laws of

New Jersey and is an instrumentality of the State of New Jer-

sey. N.J.S.A. 18A:65-2. Rutgers has no parent company and no

subsidiaries. The following not-for-profit corporations are

affiliates of Rutgers: The Corporation for the Application of

Rutgers Research; The Rutgers University Foundation; and The

Rutgers Research and Educational Foundation.

iV

TABLE OF CONTENTS

QUESTION PRESENTED ...... EPC ee errr ares

PARTIES TO THE PROCEEDINGS AND

Ee BS: rrr Ser rarer eit ir re

pp es ee ere errr rey

TABLE OF AUTHORITIES ............. acre ate est ioe

SPREE Ge UUM GPR oi Sk ae aa eas

i. FP PPG Re EAI ook ieee canes

ES, lay eas yak sae aaa eee aeons

REASONS WHY THE PETITION SHOULD BE

SU a ik ss A ee ey 8

THE DETERMINATION BELOW THAT PETI-

TIONERS DO NOT HAVE A_ CONSTITU-

TIONALLY-PROTECTED PROPERTY/LIBERTY

INTEREST IN THE TENURE REVIEW PROCE-

DURES AND CRITERIA IS IN COMPLETE

ACCORD WITH THE DECiSIONS OF EVERY

OTHER CIRCUIT THAT HAS ADDRESSED THE

ISSUE AND THE CONSTITUTIONAL PRIN-

CIPLES SET FORTH BY THISCOURT ..........

ee eR re Pree rrr rr rs or rer se

20

V

TABLE OF AUTHORITIES

P;

Cases —_

Anderson v. City of Philadelphia, 845 F.2d 1216

Ses BS fara sens wh ee ae oe 11-12

Assoc. of N.J. State College Faculties v. Dungan,

64 N.J. 338, 316 A.2d 425 (1974) ......0000.... 10, 16-17

Banerjee v. Bd. of Trustees of Smith College, 495 F.

Supp. 1148 (D.Mass. 1980), aff'd, 648 F.2d 61

(Ist Cir.), cert. den., 454 U.S. 1098 (1981) .......... 13,17

Beitzell v. Jeffrey, 643 F.2d 870

CRU Ra BORNE cece a ec es pate sa ee acs 4, 10-11, 15,18

Bishop v. Wood, 426 U.S. 341 (1976) ....0..000..0... 18

Board of Pardons v. Allen,482 U.S. , 107 S.Ct. 2415,

me & Fh, ss rrr nen oerere 14

Board of Regents v. Roth, 408 U.S. 564

CIUTAD ices ke RRR ERR ae hae coer can 15, 17, 18,19

Booher v. U.S. Postal Service, 843 F.2d 943

GE tals POE dee eta ee a es 12

Cammarata v. Essex County Park Comm., 26 N.J. 404,

toe OF oh. : nana e Merge hiner ay. 9-10

Clark v. Whiting, 607 F.2d 634 (4th Cir. 1979) .. 0.0... 13

Cusumano v. Ratchford, 507 F.2d 980 (8th Cir. 1974),

CE: GN, BEF Rh GOTO oo ek ks oo ns cdvaes 15

Davis v. Oregon State Univ., 591 F.2d 493

eg ee i) Ee ree rere er te 13,15

Dorr v. County of Butte, 795 F.2d 875 (9th Cir. 1986) ... 12,13

Faro v. New York Univ., 502 F.2d 1229 (2d Cir. 1974) ... 17,18

Fluker v. Alabama State Bd. of Ed., 441 F.2d 201

Cs STON ae bee aes dead rue MAP eee 13-14

Goodisman v. Lytle, 724 F.2d 818 (9th Cir. 1984) ...... 10

Graham v. Oklahoma City, 859 F.2d 142

CRM tins WE oss sk 4 co oo bk aoa eee 12

vi

Page

Greenholtz v. Inmates of Nebraska Penal & Correctional

A GO TG, 7 | Be menE FoF aK 14

Griffith v. F.L.R.A., 842 F.2d 487 (D.C. Cir. 1988) .... 12

Keddie v. Pennsylvania State Univ., 412 F. Supp. 1264

PINE os 65g ee hoe LER OE eee 4, 17,18

Kilcoyne v. Morgan, 664 F.2d 940 (4th Cir. 1981), cert.

CLM, PE CS PED 6 i o's obec cee eeccerean ees 1]

Kovats v. Rutgers, The State Univ., 633 F. Supp. 1469

(D.N.J. 1986), aff'd, 822 F.2d 1303 (3d Cir. 1987)... 8

Kovats v. Rutgers, The State Univ., 822 F.2d 1303

SOMES, so 55 wesc ens annns oe daw esaaennss 2

Lovelace v. Southeastern Massachusetts Univ., 793 F.2d

a fe Re | re enn ait 11,13, 15,19

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

DM DER CLSOOD bcc idsiccasicsdesss canes saeuae ae 16

Perry v. Sindermann, 408 U.S. 593 (1972) ......... 16, 17, 19

Sabet v. Eastern Virginia Medical Auth., 775 F.2d 1266

EEE SOOOD 6.0 5055-64 645400064 540S aR Dee Ree 15

Samad v. Jenkins, 845 F.2d 660 (6th Cir. 1988) ....... 12

Schwartz v. Mayor's Comm. on Judiciary of N.Y., 816

fe Pe £m Ay) reat key 12,18

Snitow v. Rutgers Univ., 103 N.J. 116,510 A.2d 1118

| ey reer nese Cr SE

Stow v. Cochran, 819 F.2d 864 (8th Cir. 1987) ........ 12-13

Sweezy v. New Hampshire, 354 U.S. 234 (1957) ....... 19

L’padhya v. Langenberg, 834 F.2d 661 (7th Cir. 1987),

cert. den., 486U.S. — , 108 S.Ct. 2016, 100 L.Ed.2d

SEGUS sci c axes rbeacsdneneevesse saline 13,15

Vil

Page

Varma v. Bloustein, No. 84-2332 (D.N.J. Jan. 12,

1988), aff'd without op., 860 F.2d 1075 & 1077

ei ener err rer TT rrr rrr passim

Weinstein v. Univ. of Illinois, 811 F.2d 1091

4, 3 * Ab. 7) BR mn nee perro roe Nya una: 11, 13,19

Wells v. Bd. of Regents of Murray State Univ., 545 F.2d

be Ge rr re rer errr ere | 12

Wu v. Thomas, 847 F.2d 1480 (11th Cir. 1988) ......... 1]

Yeghiayan v. U.S., 649 F.2d 847 (Ct. C1. 1981) 200.00... 13

Zimmerman v. Bd. of Ed. of Newark, 38 N.J. 65, 183 A.2d

25 (1962), cert. den., 371 U.S. 956 (1963) ........... 10, 16

Constitution

Ri am GL, POU, PREM ic osc cc toe Weawtan ne eesiones passim

Statutes

Rutgers, The State University Law

Pees SI a ke rcs nace oh aveoee a eens ill

PRs ma, DUMPS EOED os o's ks cd ues apse aeaaasuns 3,8

Court Rule

Fed. R. Civ. P. 56(e) ...... a A Pe erry byte 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

MARGARET VARMA, ef ai.,

Petitioners,

-—-V.-—

EDWARD J. BLOUSTEIN, ef a/.,

Respondents.

RUTGERS COUNCIL OF AAUP CHAPTERS,

Petitioner,

-V.-—

EDWARD J. BLOUSTEIN, et a/.,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents respectfully request that this Court deny the

petition for writ of certiorari. As explained more fully infra,

there is no conflict among the circuit courts or with the constitu-

tional principles set forth by this Court. All the circuit courts

that have addressed the issue presented here have unanimously

held that nontenured faculty members do not have a

constitutionally-protected property/liberty interest in the tenure

review procedures and criteria at state institutions of higher edu-

cation. These circuit decisions as well as the decisions of this

Court have rejected petitioners’ contention that they have a con-

stitutional entitlement to the grant of tenure.

STATEMENT QF THE CASE

A. ' Proceedings Below

n their complaints, petitioners Margaret Varma, on behalf

of herself and others similarly situated, and Rutgers Council of

AAUP Chapters (‘AAUP’) alleged that respondents failed to

evaluate faculty candidates for tenure according to the proce-

dures and criteria set forth in the University Regulations (“Reg-

ulations’), the University Academic Reappointment/ Promotion

Instructions (“Instructions”), and Article X of the collectively-

negotiated agreement between the University and the AAUP

(““Agreement’’). Petitioners contended that Ms. Varma and the

purported class have a constitutionally-protected interest, akin

to a property interest, in the procedures and criteria provided by

the aforesaid documents. Petitioners asserted that the alleged

failure to act in accordance with said R¢gulations, Instructions,

and Agreement violated their rights to}due process under the

Fourteenth Amendment.

In response to an earlier opinion of the Third Circuit in this

case,’ petitioners abandoned their original claim and instead

argued before the trial court and then the Third Circuit that

there existed among faculty members an\ “expectation” — a

“common understanding” — that “the regulations and the Sen-

ate Statements ... mean that candidates shall be granted tenure

if they fulfill the criteria as defined by the achievements of past

successful candidates in the performance of their assigned

duties” (JA600-601; PAS6).° Petitioners’ argument was prem-

ised on their affiant’s belief that “tenure or promotion wi// be

granted, or is ‘automatic’, if one fulfills the criteria, as generally

understood, in the performance of one’s duties” (/d.). However,

all the relevant documents — all of which were before the courts

Kovats v. Rutgers, The State Univ., 822 F.2d 1303, 1314 (3d Cir. 1987)

(““[Pjromises of specific procedures do not create interests protected by the

*** Varma’s claim would have to be based on more than

Due Process clause

the regulations setting out procedures for tenure evaluations.”), reprinted in

Petitioners Appendix D, p.41

References herein to “JA” are to pages of the Joint Appendix filed in the

Third Circuit. References to “PA” are to pages of the appendix to the Petition

below — explicitly dispelled the idea that a nontenured faculty

member is entitled to ““automatic”’ tenure.

After reviewing the documentary evidence, the courts below

held that petitioners’ unsubstantiated claims were untenable in

the face of the explicit written guidelines that did not place “the

significant substantive restrictions on University discretion in

tenure appointments required to create a protected property

interest” (PAI0-11). Varma v. Bloustein, No. 84-2332 (D.N.J.

Jan. 12, 1988), aff'd without op., 860 F.2d 1075 & 1077 (3d Cir.

1988).

B. Facts

In evaluating a faculty member for promotion and tenure.

the evaluators do not judge the candidate in a vacuum or on the

basis of one or two objective, hard-and-fast rules. Rather, a can-

didate’s performance is evaluated on the basis of a multitude of

subjective factors.’ University Regulation 60.2a provides:

Those responsible for academic appointments, reap-

pointments, and promotions are to (1) base their recommen-

dation of professional qualifications as defined in para-

graph 3.30, page 50.9, without discrimination because of

race, religion, sex, national origin, or views on any subject:

(2) seek excellence; (3) utilize the judgments of faculty

peers, normally including some faculty at other institutions

where the position ordinarily carries tenure; (4) utilize

opinions of students, especially those with majors in the

appropriate department. [PA47; JA220 (emphasis added) |

University Regulation 3.30 adds:

Promotions to higher ranks may be made in recognition

of teaching effectiveness, scholarly or creative activity.

research accomplishments, professional activity, and gen-

The promotional criteria are established by and are within the soie province

of the University. JA481, 295, 597; N.J.S.A. 18A:65-25(h); Snitow v. Rutgers

Univ., 103 N.J. 116, 124, 510 A.2d 1118, 1122 (1986). University Regulation

50.0 explicitly provides that “[n]o rule or regulation shall be so construed as to

infringe in any way upon the powers and authority of the [University’s] Board

of Governors’ (JA481)

4

eral usefulness to the University.* The weight to be given to

each of these factors will be determined in the light of the

duties required and to be required of the appointee.’

‘ These criteria are not unique to the University. They are, in fact, the “tra-

ditional academic criteria” for tenure. Keddie v. Pennsylvania State Univ., 412

F. Supp. 1264, 1269 n.2 (M.D. Pa. 1976). Accord Beitzell v. Jeffrey, 643 F.2d

870, 872 (Ist Cir. 1981) (the “classical tenure requirements’’).

‘'PA46; JA218 (emphasis and footnote added). Petitioners claim that

instead of applying the five criteria set forth in Regulation 3.30, the University

has adopted new, secret criteria, such as: does the faculty member's work

“impact” on his or her profession; “quantity of research”: and the existence of

“important original contributions” (PA5S6; JA601). Their sole support for this

claim is the conclusory, hearsay affidavit of Wells Keddie (/d.). It is clear,

however, from a review of the published documents and case law, that a faculty

member's “impact” on his discipline, his “productivity”, and his “originality”

are relevant, legitimate, and articulated standards for determining whether a

faculty member has met the five criteria.

Thus, during the tenure review process, the University specifically requests

the outside evaluators to give their “assessment of the originality and the

impact on [the candidate’s] field of [the candidate’s] research and publication,

[the candidate's] scholarly or creative productivity, and the quality of [the

candidate’s}] other contributions to the profession” (JA248-249 (emphasis

added)). The letters of evaluations “are an important contribution to the deter-

mination of whether the candidate has achieved the professional standing in

comparison with colleagues in the field elsewhere” (JA248-249, 242). The

University Senate Policy With Respect to Academic Appointments and Pro-

motions advises, inter alia, that faculty members “should maintain an active

interest in the advances and current thinking of their subject{s]” and must

keep informed about and contribute to the advances in their chosen fields

(PAS9-61; JA239-242). And the Corson Committee Report, so heavily relied

upon by petitioners, stresses a basic reality of higher education: tenure candi-

dates, inter alia, “must be at the leading edge of their individual fields’’, “*must

be the very best scholars and investigators in their respective fields”, must pro-

duce a work product that “influence[s] the work of others in similar fields”,

and “should assume from the beginning that research productivity and schol-

arly achievement are the most important considerations in achieving tenure”

(JA621, 624, 629).

It is indeed surprising that petitioners would claim that “impact’, “quan-

tity’, and “originality” are foreign concepts in higher education. That claim is

belied by the governing University documents, the education cases cited herein,

and petitioners’ affiant’s own experience when he was denied tenure at The

Pennsylvania State University. See Keddie, 412 F. Supp. at 1280-81, where the

evaluators found, inter alia, that Professor Keddie had “no significant research

in progress and evidence|d] no inclination to begin anything truly ‘new. ”

The subjective and general nature of the criteria set forth in

Regulation 3.30 is recognized in the University Senate Policy

With Respect to Academic Appointments and Promotions:°

It is exceedingly difficult to measure and judge the

various areas of activity [of a faculty member]. ***

Such subjective judgment by persons competent to eval-

uate duties, responsibilities, services, and accomplishments

will protect the interests of professors themselves, the

department, the college, the University, and the students

better than any objective rating that could be devised.’

Moreover, a candidate who meets the criteria of Regulation

3.30 is not guaranteed promotion and tenure. The discretionary

language of Regulation 3.30 demonstrates that. Other factors

are considered.* As the University Senate has stated:

* The Senate Policy elaborates on the amorphous meaning of each of the five

criteria. This elaboration is reprinted in Petitioners’ Appendix H, pp. 59-61.

* PA49-50; JA241 (emphasis added). See Snitow v. Rutgers, 103 N.J. at

122, 510 A.2d at 1121 (“‘*[T]he peer review system has evolved as the most

reliable method for assuring promotion of the candidates best qualified to serve

the needs of the institution.” *).

* The Senate Policy commented:

The most critical step in the promotion process is the step from assist-

ant professor to associate professor, since this appointment normally

involves academic tenure and means in effect that the University has

abandoned its freedom of action with respect to the retention of a partic-

ular individual. After one has attained an associate professorship, he or

she still has freedom to resign, but the University no longer has freedom

to dismiss, except for cause set forth in charges and proved before an

appropriate committee of peers.

For this reason the greatest care should be exercised in promoting

faculty members to the rank of associate professor. To attain this rank, a

person must be adjudged to be someone who can be counted on to partic-

ipate with colleagues in the determination for [sic] formulation of Uni-

versity policy and development with respect to his or her field of scholar-

ship. Tiitre is probably something rather different in kind as well as in

quality \to be sought in an associate professor as distinct from an assist-

ant professor.

In the case of suggested promotions to rank carrying with it academic

tenure, jt is desirable to obtain comparisons of a person’s effectiveness

with respect to colleagues in this University, and also professional stand-

6

Those faculty members who have made the most

important contributions to the University and have dis-

charged their duties with the greatest distinction will be

considered for promotion. *** Advancement to a higher

rank is not automatic. {[PA49; JA240 (emphasis added) |

The University Senate Statement on Tenure reminds the

faculty that the award of tenure “is not an automatic right” and

that the educational needs of the University must be weighed

before tenure is granted.”

When a faculty member is being evaluated for promction to

or within the tenured ranks, the evaluation process normally

commences at the departmental level. A departmental peer

review committee, composed of the department chair and all

tenured members of the department at or above the academic

rank for which the individual is being considered for promotion

and tenure, meets for the purpose of evaluating and deciding

whether to recommend the candidate for promotion and tenure.

The peer review committee’s aggregate recommendation, based

on the committee members’ individual review and subjective

evaluation of the evidence, along with its narrative summary of

the candidate’s performance, are reported on Form No. 4,

Part A. PA47, 49; JA206, 219-229, 236, 248-249, 258-260.

In reaching its decision, each evaluator reviews the candi-

date’s promotion packet. The candidate may submit for inclu-

sion in the promotion packet his curriculum vitae, a list of

potential outside evaluators, and any other documents or materi-

als he wishes to have considered. With the exception of the

external confidential letters of evaluation and the official promo-

ing with respect to colleagues in the relevant field elsewhere. [PA50-5i:

JA242 (emphasis added) ]

‘PAS2; JA246 (emphasis added). The educational needs of the University

are based on numerous parameters, such as program priorities, long-range

planning, fiscal resources, and faculty mix (PA52-54; JA246-247). The Uni-

versity Senate has noted that Regulation 3.30, by its very nature, has to be

general because, in part, “the divisions of the University which have different

goals, functions, and specialty areas musi formulate their own policies, within

the framework of the statute, to ensure equitable treatment for their respective

members’ (JA239).

tion forms, the candidate is provided with a copy of all docu-

ments that are added to the promotion packet and is permitted

to submit written responses or rebuttals to those documents.”°

Following the completion of the departmental evaluation,

the department chair, based on his review of the evidence and

the subjective criteria, enters his own independent summary

statement (including his recommendation) regarding the candi-

date’s qualifications for promotion and tenure on Form No. 4,

Part B. The department chair will notify the candidate, in writ-

ing, of the peer review committee’s recommendation. JA206,

223, 228-230, 236, 261, 269, 272.

The Appointments and Promotions (“A&P”) Committee

then reviews the entire promotion packet and, in view of the sub-

jective criteria, makes its own independent evaluation and rec-

ommendation regarding the candidate’s qualifications for pro-

motion and tenure on Form No. 5. The dean, after consideration

of the complete promotion packet and the subjective criteria,

makes his own independent recommendation on Form No. 6.

Where applicable, the appropriate University-wide peer Section

committee meets to independently evaluate the candidate’s

research accomplishments, scholarly/creative activities, and

professional activities. The Section committee’s independent rec-

ommendation is reported on Form No. 7. PA47, 49; JA219-220,

223, 229-231, 236, 263-267, 574-578.

The next level of review is the Promotion Review

Committee (“PRC”), which is composed of the three campus

Provosts, four senior members of the faculty, and the Executive

Vice President. ““The function of the [PRC] is to advise the Pres-

ident from a University-wide perspective on reappointments

involving award of tenure and on promotions to or within the

tenured ranks” (JA231). Members of the PRC do not partici-

pate at any other level of the evaluation process. PA49; JA220,

231, 236.

* JA223-228, 268-271, 296-299. At the conclusion of the promotion process

a faculty member is provided access to the official promotion forms. JA277,

285-289, 296-299.

Each PRC member individually studies the promotion

packet in light of the criteria for evaluatior, examines the basis

and rigor of the judgments made at the earlier levels of review,

and reaches an independent judgment on the candidate’s

suitability for promotion and tenure. The members of the PRC

then meet to “discuss their assessments of the evidence, and in

light of this discussion, they vote on the basis of their individual

judgments concerning the proposed action” (JA232). If the

official packet is found to be deficient, the PRC remands the

matter to the appropriate level for completion and the matter is

reprocessed through each intervening level of review. The PRC

reports its independent recommendation in a memorandum

addressed to the President. JA220, 223, 231-232, 236.

Finally,

[a]fter considering all the evidence from these diverse

sources, the President makes his own recommendations for

reappointments and/or promotions involving the tenure

ranks to the Board of Governors. The Board of Governors

also considers all available information in reaching its own,

final decision. [JA232]

All recommendations for promotion and tenure are merely

advisory and are not binding on the Board of Governors; only the

Board of Governors has the authority to promote a faculty mem-

ber to or within the tenured ranks.'’ Each nontenured faculty

member’s employment contract explicitly states: “Academic ten-

ure is conferred upon eligible faculty members solely by action

of the Board of Governors of Rutgers—The State University.

No administrative officer of the University has the authority to

promise or to award such status to anyone under any circum-

stances” (JA597). Moreover, the evaluators at each level of

review exercise independent judgment. “[T]hat is, judgments at

each level should be based on all the evidence submitted to that

level and should not merely rely on, or concur in, judgments at

earlier levels” (JA223).

"JA202, 219-220, 597; N.J.S.A. 18A:65-25(h); Kovats v. Rutgers, The State

Univ., 633 F. Supp. 1469, 1479 (D.N.J. 1986), aff'd, 822 F.2d 1303 (3d Cir.

1987); Snitow v. Rutgers, 103 N.J. at 122-23, 510 A.2d at 1121-22.

9

The faculty member concerned is given prompt notice of

the final action taken in the review process. The faculty member

may request from the dean a written explanation of the reasons

for his non-reappointment or non-promotion. A disappointed

faculty member may also invoke the detailed and comprehensive

grievance procedures that are set forth in the Agreement. If the

grievance is sustained, the University is required to rectify the

defect that arose during the first tenure review and reevaluate

the candidate.”

REASONS WHY THE PETITION SHOULD BE DENIED

THE DETERMINATION BELOW THAT PETI-

TIONERS DO NOT HAVE A_ CONSTITU-

TIONALLY-PROTECTED PROPERTY/LIBERTY

INTEREST IN THE TENURE REVIEW PROCE-

DURES AND CRITERIA IS IN COMPLETE

ACCORD WITH THE DECISIONS OF EVERY

OTHER CIRCUIT THAT HAS ADDRESSED THE

ISSUE AND THE CONSTITUTIONAL PRINCI-

PLES SET FORTH BY THIS COURT.

After reviewing the documents governing the grant of ten-

ure at the University, the courts below were compelled to come

to the legal conclusion they reached. The governing documents,

with clarity and no equivocation, provide that the decision to

grant tenure is inherently subjective and solely within the discre-

tion of the Board of Governors (PA10-11). The courts below

correctly observed that the University’s tenure review proce-

dures and criteria simply did not “restrict the traditional discre-

tion of university officials to make tenure awards” (PA15).*°

*JA232, 236, 269-299. See Snitow v. Rutgers, 103 N.J. at 123, 510 A.2d at

1122 (University’s failure to fashion an appropriate remand remedy is

grievable).

‘Indeed, any such restriction would violate the express and unequivocal pub-

lic policy of New Jersey that decisionmakers have unrestricted latitude with

respect to tenure decisions. The New Jersey Supreme Court so stated in

Cammarata v. Essex County Park Comm., 26 N.J. 404, 412, 140 A.2d 397,

401 (1958):

10

Not surprisingly, every other circuit court to address the

issue is in agreement. In Goodisman v. Lytle, 724 F.2d 818, 821

(9th Cir. 1984), the Ninth Circuit held that procedural steps

and substantive guidelines for tenure review (such as “outstand-

ing ability in teaching or research”, “respect from colleagues”,

and “substantial contributions... to the University”) do not

create a constitutionally-protected interest triggering the due

process clause:

These guidelines do not significantly limit University

officials’ discretion in making tenure decisions. They pro-

vide only an outline of relevant considerations. They do not

enhance a candidate’s expectation of obtaining tenure

enough to establish a constitutionally protected interest.

Similarly, in Beitzell v. Jeffrey, 643 F.2d 870, 875-76 (Ast Cir.

1981), the First Circuit stated:

Given the university’s overall mission, the creation and

transmission of knowledge, the very need for strong proce-

dural protections to prevent the wrongful dismissal of a ten-

ured teacher concomitantly suggests a need for wide discre-

tion in making an initial tenure award. *** [T]he initial

decision to grant tenure, like various other academic mat-

It is difficult to evaluate the character, industry, personality, and

responsibility of an applicant from his performance on a written exami-

nation or through cursory personal interviews. Knowledge and intelli-

gence do not alone make a good policeman. The crucial test of his fitness

is how he fares on the job from day to day when suddenly confronted by

situations demanding a breadth of resources and diplomacy. Many

intangible qualities must be taken into account, and, since the lack of

them may not constitute good cause for dismissal under a tenure statute,

the park commission is entitled to a period of preliminary scrutiny, dur-

ing which the protection of tenure does not apply, in order that it may

make pragmatically informed and unrestricted decisions as to an appli-

cant’s suitability. [emphasis added]

This “same thoughtful philosophy applies with manifold emphasis to the selec-

tion of school teachers.” Zimmerman v. Bd. of Ed. of Newark, 38 N.J. 65, 73.

183 A.2d 25, 30 (1962), cert. den., 371 U.S. 956 (1963). Accord Assoc. of N.J.

State College Faculties v. Dungan, 64 N.J. 338, 351, 316 A.2d 425, 432

(1974).

1]

ters, typically calls for the exercise of subjective judgment,

confidential deliberation, and personal knowledge of both

the candidate and the university community. *** These

facts suggest why it would be objectively unreasonable for

a probationary teacher to rely upon an award of ten-

ure. *** And, they suggest the inappropriateness of courts

determining what procedures universities ought to follow in

making initial tenure awards.

* * *

[T]hose criteria did not set objective standards conferring

an automatic right to tenure, nor did they create a reason-

able expectation of receiving it. Rather, they simply reiter-

ated the traditional criteria for promotion at universities:

teaching, scholarship, and service. *** Aside from the

mere existence of these criteria, there is not a word in the

record suggesting that [the university’s] ‘“‘tenure’’ was

meant to be granted routinely or to be withheld only for

‘cause’, nor is there a word suggesting that the tenure pro-

cedure was meant to be less judgmental or subjective than

elsewhere. [footnotes omitted]

No circuit has reached a contrary result. See, e.g., Lovelace

v. Southeastern Massachusetts Univ., 793 F.2d 419, 422, 424

(Ist Cir. 1986) (“[b]y specifying in writing the usual! criteria for

promotion... a university does not thereby set objective crite-

ria, constricting its traditional discretion or transforming a

largely judgmental decisional process into an automatic right to,

or property interest in, tenure”; fact that all prior tenure candi-

dates were granted tenure does not create a protected property

interest); Kilcoyne v. Morgan, 664 F.2d 940, 942 (4th Cir. 1981)

(no property interest in university’s tenure procedures and crite-

ria), cert. den., 456 U.S. 928 (1982); Weinstein v. Univ. of IIli-

nois, 811 F.2d 1091, 1097-98 (7th Cir. 1987) (same, adding that

[t]he rule of law is clear enough that even a wilful!y blind liti-

gant cannot misunderstand”); Wu v. Thomas, 847 F.2d i480,

1485 (11th Cir. 1988) (‘a prospective promotion [in rank at a

university] is not a property or liberty interest protected by the

fourteenth amendment’’); Anderson v. City of Philadelphia, 845

F.2d 1216, 1221 (3d Cir. 1988) (where the criteria for appoint-

12

ment or promotion are subjective and discretion is vested in the

decisionmaker, a candidate for employment or promotion simply

cannot have a tenable claim of entitlement to employment or

promotion); Griffith v. F.L.R.A., 842 F.2d 487, 496-501 (D.C.

Cir. 1988) (the subjective nature of the governing criterion, the

legislature’s specific vesting of decisionmaking authority regard-

ing promotions in the agency head, the fact that a promotion is

involved, and the manifest need for flexibility combine to compel

the conclusion that an employee has no protected property inter-

est in merit pay increases/promotions); Schwartz v. Mayor's

Comm. on Judiciary of N.Y., 816 F.2d 54, 57 (2d Cir. 1987)

(neither the mandatory procedures utilized by a judicial

screening committee nor the fact that most incumbent judges

had previously been reappointed create a property or liberty

interest); Dorr v. County of Butte, 795 F.2d 875, 877-78 (9th

Cir. 1986) (“[t}]he power of the appointing authority to deter-

mine, on a purely subjective basis, whether a probationary

employee has performed satisfactorily undercuts any expectation

of continued employment”); Graham v. Oklahoma City, 859

F.2d 142, 146 (10th Cir. 1988) (a personnel manual setting

forth circumstances constituting cause for discharge does not

create a property interest in continued employment where stat-

ute vests supervisor with discretionary authority to determine

whether an employee should be retained or dismissed); Wells v.

Bd. of Regents of Murray State Univ., 545 F.2d 15, 16-17 (6th

Cir. 1976) (nontenured faculty members do not have protected

property. interests in continued employment where state law

places exclusive authority in the Board of Regents to grant ten-

ure and a formalized tenure procedure is in place); Booher v.

U.S. Postal Service, 843 F.2d 943, 943-44 (6th Cir. 1988)

(postal regulation allegedly requiring supervisor to advise proba-

tionary employee of his shortcomings and provide him an oppor-

tunity to conform does not give said employee a protected prop-

erty interest in continued employment); Samad v. Jenkins, 845

F.2d 660, 663 (6th Cir. 1988) (faculty member does not have a

protected property interest in being granted emeritus status

where the grant of such status is within the discretion of his

peers); Stow v. Cochran, 819 F.2d 864, 866-69 (8th Cir. 1987)

13

(procedural guidelines governing disciplinary actions, including

discharge, and/or unauthorized oral assurances do not create a

protected property interest in continued employment; Lovelace,

Weinstein, and Dorr followed); Yeghiayan v. U.S., 649 F.2d 847,

851-53 (Ct. Cl. 1981) (an administrative regulation enumer-

ating grounds for separation of nontenured employees cannot

limit the full scope of the discretion that the legislature has

vested in the hiring authority; therefore, said employees do not

have protected property interests in continued employment);

Banerjee v. Bd. of Trustees of Smith College, 495 F. Supp.

1148, 1160-61 (D.Mass. 1980) (the fact that plaintiff was

“measured against a more rigorous standard for tenure” than

used in the past reflected the needs of the defendant-college to

be more selective as the pool of qualified tenure candidates

expanded and to avail itself of an opportunity to strengthen its

faculty), aff'd, 648 F.2d 61 (Ist Cir.), cert. den., 454 U.S. 1098

(1981); Clark v. Whiting, 607 F.2d 634, 639-44 (4th Cir. 1979)

(a university is not constitutionally required to apply same

standards in evaluating plaintiff as it used “in the past” with

respect to earlier candidates: “‘[a] teacher’s competence and

qualifications for tenure or promotion are by their very nature

matters calling for highly subjective determinations, determina-

tions which do not lend themselves to precise qualifications and

are not susceptible to mechanical measurement”); Davis v.

Oregon State Univ., 591 F.2d 493, 495-96 (9th Cir. 1978) (oral

assurances that tenure is granted as a matter of course do not

create a property interest where the governing documents pro-

vide that tenure is not automatic and vests final authority to

grant tenure in the president); Upadhya v. Langenberg, 834 F.2d

661, 663-67 (7th Cir. 1987) (oral assurances regarding length of

employment, although accurate depictions of the past practices,

“do not transmute probabilities into entitlements”, particularly

when the university regulations provide that nontenured faculty

have contracts of limited duration and that only the president

and board of trustees have the authority to bind the university to

longer-term appointments), cert. den., 486 U.S. , 108 S.Ct.

2016, 100 L.Ed.2d 603 (1988); Fluker v. Alabama State Bd. of

Ed., 441 F.2d 201, 207 (Sth Cir. 1971) (plaintiffs were not

14

deprived of due process by failure of the university to apprise

them of the standards for continued employment: ‘Appellants’

proposal of this requirement also ignores the highiy subjective

nature of employer-employee relationships. *** [T]here are an

enormous number of fact situations in which the

nonreappointment of an employee may be justified by highly

subjective and perhaps unforeseeable considerations. ’).

As a review of the Regulations, the Instructions, and the

Agreement reveals, the procedures and criteria set forth in those

documents, like those in the foregoing cases, do not in any way

restrict the University’s discretion in tenure matters." Instead,

the procedures and criteria serve as guidelines for the University

to utilize when exercising its sole authority to make academic

judgments in the evaluation process. Nothing in the record dem-

onstrates that by setting forth procedures and subjective criteria

for tenure review decisions, the University intended to relinquish

its normal discretion and academic judgment in deciding (a)

what procedures and criteria should be followed in making ten-

ure awards and (b) who should be awarded tenure. Simply put,

the University has advised probationary faculty members that

they may be considered for tenure and has clearly stated that

tenure is not an automatic right. The record and case law, both

discussed in detail above, overwhelmingly compel the conclusion

that the University has not relinquished its discretion. The law in

New Jersey clearly places the University’s academic responsibil-

ity for tenure on one and only one body, the Board of Governors.

And, the record before this Court so demonstrates.

‘As petitioners readily admit (pp.13-19), their entire due process case is

premised on a series of cases dealing with prisoner releases, transfers, and

paroles. See, e.g., Board of Pardons v. Allen, 482 US. , 107 S.Ct. 2415, 96

L.Ed.2d 303 (1987): Greenholtz v. Inmates of Nebraska Penal & Correctional

Complex, 442 U.S. 1 (1979). As the courts below ably noted, these cases not

only are inapposite (PA9), but also further demonstrate that the tenure review

procedures and criteria do not restrict the University’s traditional discretion in

such a manner as to give a tenure candidate a property/liberty interest in the

tenure process or tenure itself (PA1I5). Nothing in the tenure review proce-

dures and criteria evidences an intent to significantly limit the University’s dis-

cretion or a requirement that all candidates that meet the five criteria of Regu-

lation 3.30 must be granted tenure

15

To accept petitioners’ “automatic tenure” argument

(PA56) would pervert the entire tenure system—as it exists at

the University and other major research universities—and would

directly contravene the documents governing employment at the

University and the clear public policy of New Jersey. There is an

inherent difference between tenured and nontenured faculty. For

a tenured faculty member, “termination” or “discharge’’ must

be based on adequate cause. However, a nontenured faculty

member, at the end of his contract period, need not be rehired—

no showing of adequate cause js required before a nontenured

faculty member is not offered reempicyment. What petitioners

now seek here for nontenured faculty is de facto tenure, i.e., that

they cannot be discharged without adequate cause. Such a con-

tention was rejected by this Court in Board of Regents v. Roth,

408 U.S. 564 (1972). In that case, the Court noted that none of

the university documents provided that a nontenured ficulty

member would be rehired absent sufficient cause; such a conten-

tion was untenable because the governing rules provided that

discharge for cause was applicable only to tenured faculty. 408

U.S. at 566-67 & n.3, 578. Simply put,

It is unlikely in the extreme that an institution which has a

formal tenure policy stated with precision in writing in a

generally circulated and available faculty handbook has

also developed an altogether inconsistent informal policy."

This Court has made it clear that to have a property inter-

est, petitioners clearly must have more than a subjective or “‘uni-

lateral expectation” of receiving a specific benefit; they must,

instead, have a “legitimate claim of entitlement” to it. Roth, 408

U.S. at 577. That claim must be based, at a minimum, on

’° Sabet v. Eastern Virginia Medical Auth., 775 F.2d 1266, 1270 (4th Cir.

1985). Accord Beitzell, 643 F.2d at 876-77; Cusumano v. Ratchford, 507 F.2d

980, 984 (8th Cir. 1974) (the entire thrust of a formalized tenure provision is

to prevent the creation of de facto tenure from some unwritten “common law”

in a particular university), cert. den., 423 U.S. 829 (1975); Davis, 591 F.2d at

495-96 (oral assurances regarding tenure insufficient where written tenure sys-

tem exists); Lovelace, 793 F.2d at 423-24 (same); Upadhya, 834 F.2d at

663-67 (same).

16

“mutually explicit understandings’ between the parties. Perry v.

Sindermann, 408 U.S. 593, 601 (1972).

As the courts below recognized, there is no mutually

explicit understanding between the individual petitioners and

the University regarding “‘automatic” tenure.’ None of the pub-

lished documents provide (a) that nontenured faculty members

are automatically entitled to tenure or (b) that nontenured

faculty members must be rehired unless adequate cause for

nonrenewal exists. The documents—-in accordance with the

mandaie of New Jersey public policy’’—-clearly provide just the

'® Petitioners cannot cite to any documents that state that they have an auto-

matic right to tenure. The only source they cite for this automatic tenure argu-

ment is an affidavit from Professor Keddie (PAS6), the vast majority of which

contains mere conclusory statements and hearsay. Petitioners did not present

an affidavit from any member of the purported plaintiff class -— including Ms.

Varma, the class representative — that demonstrated that a class member in

fact had this common understanding of automatic tenure and the source

thereof. As the courts below held, the abstract, conclusory statements in

Professor Keddie’s affidavit were not sufficient to defeat respondents’ sum-

mary judgment motion. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Moreover, even if the

deficiencies in the Keddie affidavit are overlooked, that affidavit simply does

not establish that there was a mutually explicit understanding between any

class member and the University.

‘The New Jersey Supreme Court has already rejected a plaintiff-union’s

argument that satisfactory classroom or professional performance mandates

the award of tenure to faculty members. Assoc. of N.J. State College Faculties

v. Dungan, 64 N.J. at 351, 316 A.2d at 432; accord Zimmerman vy. Bd. of Ed.

of Newark, 38 N.J. at 73-75, 183 A.2d at 29-31 (plaintiffs proffer of testi-

mony of school principal to the effect that tenure would “automatically” follow

when a teacher has received satisfactory ratings rejected as contrary to the law

of New Jersey). In Dungan, the Supreme Court noted:

Historicaily many considerations other than unsatisfactory classroom or

professional performance have entered into discretionary determinations

not to afford tenure and the determinations have not been interfered

with judicially. *** [T]he educational priorities and institutional needs

may properly be considered, along with the pertinent individual factors,

in determining whether to grant tenure.

64 N.J. at 351-52, 316 A.2d at 432-33. The Supreme Court also took note of

the accepted principle that an academic institution of higher education simply

Cannot grant tenure to all candidates who otherwise meet the requirements for

tenure:

17

opposite: tenure is not automatic. The documents expressly pro-

vide that it is the tenured professor—not the nontenured faculty

member—who has indefinite tenure and who can be dismissed

only for adequate cause. The practice at the University simply

reflects the reality of higher education: meeting the minimum

standard of performance does not guarantee that tenure will be

granted.”

Petitioners attempt to circumvent the foregoing case law by

arguing that they have a liberty interest that has been

wrongfully deprived by respondents. According to petitioners,

this liberty interest includes the right to future employment as a

Rutgers faculty member and the right to free speech (pp.

21-23).

As the courts below recognized (PA13-15), the simple fact

of the matter is that this Court, in Roth and Sindermann,

rejected the existence of such liberty interests. First, in Roth, the

Court noted two situations in the context of employment where

the liberty interest would be “implicated”: (1) “ ‘[w]here a per-

“(A]n institution in which all faculty members are tenured would find

itself in an intolerable situation.” It would “quickly stagnate internally

and lose most, if not all, of its ability to develop and change over time,

consistent with its need to be responsive to the society in which it exists.”

It must retain “a degree of flexibility in the allocation of its faculty

resources” so that it may start new programs, introduce young scholars,

and meet urgent social policy by conduct such as active recruitment of

“minority and female faculty members.”

64. N.J. at 342, 316 A.2d at 427-28.

'* See, e.g., Faro v. New York Univ., 502 F.2d 1229, 1232 (2d Cir. 1974) (in

all walks of life, especially in businesses and the professions, of the numerous

equally-qualified candidates, only one may be selected fer tenure, or partner-

ship, or vice-presidency, or judicial clerkship); Banerjee, 495 F. Supp. at

1155-56, 1160 (among a group of tenure candidates there will be faculty mem-

bers “as to whom both a decision granting tenure and a decision denying ten-

ure could be justified as a reasonable exercise of discretion by the tenure-

decisionmaking body.”); Keddie, 412 F. Supp. at 1269, 1274 (a university need

not rehire faculty members who are merely competent; rather, the institution

may limit tenure to those candidates who, subjectively, are deemed to be

excellent).

'* Petitioners’ assertion that they have been deprived of academic freedom

(pp.21-22) is not supported in the record by any competent evidence.

18

son’s good name, reputation, honor, or integrity is at stake

because of what the government is doing to him,” and (2)

where the State “imposed on him a stigma or other disability

that foreclosed his freedom to take advantage of other employ-

ment opportunities.” 408 U.S. at 573. Respondents have not

published any charges of moral turpitude—such as dishonesty or

immorality—against petitioners that have defamed them.” And

respondents have not barred the petitioners from seeking

employment at other state institutions of higher education in

New Jersey or elsewhere.*’ Mere proof that petitioners’ record of

nonretention at the University “might make [them] somewhat

less attractive to some other employers would hardly establish

the kind of foreclosure of opportunities amounting to a depriva-

tion of ‘liberty.’ °’**

Second, this Court specifically rejected the argument

advanced by petitioners that a due process liberty interest exists

* Roth, 408 U.S. at 573; Keddie, 412 F. Supp. at 1274 (nonrenewa! on the

basis of either professional incompetence or non-excellent performance does

not implicate liberty interest); Beitze/l/, 643 F.2d at 878 (“the discussion of

Beitzell’s tenure credentials—whether he is an adequate teacher, scholar,

member of the university community—T[does not] threaten his reputation... .

Such discussions accompany many, if not all, decisions to hire, or to promote,

as well as to discharge, an employee). No such wrongful conduct has been

alleged by petitioners.

** Roth, 408 U.S. at 573; Bishop v. Wood, 426 U.S. 341, 348 (1976). Peti-

tioners alleged that the denial of future employment at Rutgers violates due

process (p. 23). If that were true, then every time a nontenured employee is

denied tenure—i.e., future employment—there would be a due process viola-

tion. Roth and Bishop clearly rejected that argument. Moreover, in New Jer-

sey there are numerous other state institutions of higher education: New Jersey

Institute of Technology, University of Medicine and Dentistry of New Jersey,

and extensive state and community college systems.

* Roth, 408 U.S. at 574 n.13 (emphasis added). Accord Keddie, 412 F.

Supp. at 1274; Beitzell, 643 F.2d at 878. See Faro, 502 F.2d at 1232 (a faculty

member denied tenure “is in no way different from hundreds of others who

find that they have to make adjustments in life” when their career goal (such

as tenure or partnership) is not fulfilled); Schwartz, 816 F.2d at 57 (failure to

be reappointed to a judgeship does not implicate a liberty interest).

19

where petitioner is allegedly discharged for exercising his right

of free speech.” In sum, plaintiffs have not been deprived of any

liberty interest.

** Roth, 408 U.S. at 575 n.14; Sindermann, 408 U.S. at 599 n.5. Indeed, one

court recently noted that “[jJudicial interference with a university's selection

and retention of its faculty would be an interference with academic freedom.”

Weinstein, 81} F.2d at 1097 n.4. See Snitow v. Rutgers, 103 N.J. at 122, 510

A.2d at 1121 (“‘“[T]he four essential freedoms” of a university’ have been.

said to include the freedom ‘to determine for itself on academic grounds who

may teach, what may be taught, how it shall be taught, and who may be admit-

ted to study.’ ”’), quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957)

(Frankfurter, J., concurring). Moreover, petitioners’ reliance (p.21) on Univer-

sity documents concerning academic freedom as the source for their free

speech claim is misplaced. Any alleged violation of the University’s academic

freedom guidelines would at most give rise to “a contract claim, not a constitu-

tional one”. Lovelace, 793 F.2d at 426 n.2.

20

CONCLUSION

For these reasons, the petition for writ of certiorari should

be denied.

Respectfully submitted,

JOHN J. PEIRANO, JR.*

KEVIN P. DUFFY

CARPENTER, BENNETT &

MORRISSEY

Three Gateway Center

100 Mulberry Street

Newark, New Jersey 07102-4082

(201) 622-7711

DAVID R. SCOTT

FRANCES LOREN

Rutgers, The State University

of New Jersey

New Brunswick, New Jersey 08903

* Counsel of Record

JANUARY 1989