# Petition — Stebbins v. Weaver

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 429 U.S. 1041

## Text

IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1976

No. . — 46-609

JOHN L. STEBBINS, JR.,
Petitioner,

V

JOHN C. WEAVER and THE BOARD OF REGENTS OF THE
UNIVERSITY OF WISCONSIN SYSTEM,
Respondents.

PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
for the Seventh Circuit

GERRY M. MILLER
211 West Wisconsin Avenue
Milwaukee, Wisconsin 53203
(414) 271-4500
Attorney for Petitioner

Of Counsel
WALTER F. KELLY
GOLDBERG, PREVIANT & UELMEN s.c.
211 West Wisconsin Avenue
Milwaukee, Wisconsin 53203
(414) 271-4500

St. Louis Law Printing Cce., Inc., 812 Olive Street 63101 314-231-4477

oad

INDEX

Page
PEE ibn Can heads Hoge os CRG TU OLe ORO CR Ra SRE eS l
EE, o cncacdheeks spetn R. App. Doc. No. 24.

—

On June 24, 1975 Professor Stebbins filed the preceding docu-
ments, together with an affidavit of his counsel respecting the
showing of “cause” as to amendment and supplementation.**®

On July 3, 1975 the trial court in an opinion and order denied
the motion and vacated the stay order of June 13, 1975.°7

Thereafter, Professor Stebbins filed Notice of Appeal and ap-
propriate costs bond, thereby appealing the opinion, order, and

judgment of June 3, 1975 and the opinion and order of July 3,
1975.3"

On August 6, 1975 respondents cross-appealed on the
Eleventh Amendment and 42 U.S.C. § 1983 “person” rulings
by the trial court; they expressly did not appeal the trial court’s
ruling denying their motion to dismiss as to the Roth-Sinder-
mann “property”, “liberty” defense.*®

C. Facts Respecting the History of the Appellate Litigation.

The parties to the appeal and cross-appeal presented five issues
to the Court of Appeals for decision. Professor Stebbins pre-
sented the questions of (1) whether the trial court properly
reached out to the merits of his due process claims; (2) whether
the trial court properly determined the facts of and decided the
merits of his tenure-denial due process claims; and (3) whether
che trial court properly denied his motion to amend and supple-
ment his complaint, which motion sought to meet the trial
court's dismissal opinion. John C. Weaver and the Board of
Regents of the University of Wisconsin System presented the

*6 R. Ap. Doc. Nos. 25, 35, Item No. 23.

* Appendix E hereto, infra, pp. App. A-42-A-45.

sf

R. App. Doc. Nos. 27, 28 & 29.

** R. App. Doc. No. 30.

_—

questions of (4) whether they were “persons” within the mean-
ing of 42 U.S.C. § 1983; and (5) whether as to each of them
the Eleventh Amendment to the Constitution of the United
States was a bar to the declaratory and injunctive relief sought
by Professor Stebbins. The parties did not brief and did not
argue the Roth-Sindermann “property”, “liberty” issues. Dur-
ing oral arguments in the Circuit Court the bench inquired of
both counsel respecting those issues and was informed by both
counsel that those issues were not before the Circuit Court.*°

In its opinion of July 7, 1976, the Circuit Court did not
decide issues (2), (4), and (5). The Court did decide issues
(1) and (3).*' It also expressly decided that Professor Stebbins
had neither a sufficient “property” interest nor sufficient “liberty”
to invoke the due process protections of the Fourteenth Amend-
ment. Respecting “property”, it held broadly that Professor
Stebbins’ employment status was identical to that of Professor
Roth, and it thereby established a per se rule denying due process
protections to every non-tenured public employee in the states
of Illinois, Indiana, and Wisconsin. The Circuit Court also mis-
takenly determined that there had been no public disclosure of
the reasons for Professor Stebbins’ tenure denial and therefore
held that he had not been deprived of “liberty”. And, it sug-
gested by way of dicta that, even if Professor Stebbins had
either a sufficient “property” interest or sufficient “liberty” to
invoke the protections of the Fourteenth Amendment, it would
not review his claim because federal courts should not review
claims of arbitrariness and caprice in tenure-denials based on
“subjective evaluation” of tenure candidates unless that degree
of substantive arbitrariness and caprice which it characterized
as “gross abuse” could be demonstrated by the tenure candidate.

4” The oral argument was tape recorded, but it has not been tran-
scribed.

41 Supra, note 3.

_

Professor Stebbins timely petitioned for rehearing en banc due
to the Circuit Court's excess of subject-matter jurisdiction by de-
ciding unpresented issues, improper exercise of subject-matter
jurisdiction, constitutional error in not deciding presented issues,
error of law, mistakes as to record facts, and most importantly,
overbreadth of rationale as to the “property” issue and over-
breadth of dicta as to the “arbitrariness and caprice” issue with
serious consequential harm to all nontenured public employees
in the states of Illinois, Indiana, and Wisconsin.*? The petition

was denied on August 3, 1976 summarily and without explana.
tion.**

*2 Appendix B hereto, infra, pp. App. A-2-A-13.

** Appendix A hereto, infra, p. App. A-1.

= aT et

08 el ak edt

—=

REASONS FOR GRANTING THE WRIT

I. With Respect to the Question of “Property”, the Writ of
Certiorari Should Be Granted Because the United States Court
of Appeals Exceeded Its Subject Matter Jurisdiction, Usurped
the Proper Role of the District Court Judge in Determining the
Relevant Local Law of the State of Wisconsin, Incorrectly De-
termined the Relevant Local Law of the State of Wisconsin,
and Established an Overly Broad Per Se Rule Inconsistent With
Prior Decisions of This Court and Destructive of the Due Process
Rights of Non-Tenured Public Employees in the States of Ilinois,
Indiana and Wisconsin.

A. This Court has been scrupulous in assuring that federal
trial and appellate courts do not exceed their subject-matter
jurisdiction. See, e.g., City of Kenosha v. Bruno, 412 U.S. 507
(1973); Liberty Mutual Insurance Co. v. Weizel, —U.S.—, 96
S. Ct. 1202, 45 L. Ed.— (March 23, 1976). Fed. R. App.
P. 3(c) compels the appealing party to designate the whole or
part of the judgment or order from which it appeals, and com-
pliance with Rule 3 is a precondition to appellate jurisdiction.
United States v. Robinson, 361 U.S. 200 at 224 (1960). While
this Court has been quite liberal in giving interpretation to the
intent of appealing party, see, e.g., Foman v. Davis, 371 U.S.
178 (1962), see generally, 9 Moore's Fed. Prac. € 203.18 at
pp. 752-57 (Matthew Bender Co. 1975), with respect to the
issues sought to be appealed, it has never read Rule 3(c) to
permit an expressly unappealed issue to be decided. And the
entire weight of the case law in the courts of appeals, including
this circuit, is against such an excess of appellate jurisdiction,
see, e.g., Bach v. Coughlin, 508 F. 2d 303 (7th Cir. 1974),
Ruchman & Hansen, Inc. v. Contracting & Material Co., 328
F. 2d 744 (7th Cir. 1964), Moore v. Fowinkle, 512 F. 2d 629
(6th Cir. 1975), Terkildsen v. Waters, 481 F. 2d 201 (2nd Cir.

—

1973), United States v. Ramos, 413 F. 2d 743 (list Cir. 1969),
where, as here, the intent of the appealing party is clearly not
to present the issue.

B. Bishop v. Wood, —U.S.—, 96 S. Ct. 2074, 48 L. Ed. 2d
684 (June 10, 1976), expressly directs that federal judicial deci-
sions determining whether a particular employment interest con-
stitutes “property”, depending as they do upon assessments of
local law, should be decided in the first instance by federal trial
judges, who are best situated to determine the law of the locality
in which they sit. In the instant case“. . . the opinion of the
United States District Judge who sits in [Wisconsin] and prac-
ticed law there for many years”, and who, we add, is thoroughly
familiar with the law of this locality respecting the University
of Wisconsin higher educational employment system, e.g., John-
son v. Board of Regents of the University of Wisconsin System,
377 F. Supp. 227 (W.D. Wis. 1974), aff'd summ., 510 F. 2d
975 (7th Cir. 1975), held that the “property” interest asserted
by Professor Stebbins should be tried. The appellate court
usurped the trial court's role in deciding that issue over against
the trial court’s contrary assessment, and, as we shall see, did
so erroneously.

C. All the imaginable dangers of deciding an unpresented
issue, without the benefit of briefs and arguments, and over
against the decision of the trial judge to the contrary, were
realized in the Court of Appeals’ opinion of July 7, 1976, for
the Court incorrectly equated Professor Roth’s employment
status, Board of Regents v. Roth, 408 U.S. 564 (1972), at the
Oshkosh campus of the state college system with Professor Steb-
bins’ employment status at the Milwaukee campus of the Uni-
versity of Wisconsin system; failed to realize that Professor
Stebbins did indeed allege a de facto tenure similar to that
considered in Perry v. Sindermann, 408 U.S. 593 at 601
(1972) and recently reiterated in Bishop v. Wood — U.S. —,
96 S. Ct. 2074, 48 L. Ed. 2d 684 and nn. 6 and 7 (June 10,

= =

1976), and failed to examine either the applicable tenure
statutes and regulations or the common-law of contracts of the
State of Wisconsin, all of which utterly contradict the Circuit
Court's conclusion that “{a]s with Roth, it is settled that plain-
tiff ‘did not have a property interest sufficient to require’ the
Fourteenth Amendment's procedural protections.”

Professor Roth was a member of the political science depart-
ment of the Oshkosh faculty of the “old”*' state college system.
His appointment was governed by the statutes and regulations
applicable to that system. They are set forth in Board of
Regents v. Roth, 408 U.S. 564 at 566-68 and nn. 1-4, 578-79
and n. 16 (1972). Roth had essentially a one-year temporary
appointment ‘which this Court characterized as providing
‘.. no real protection for a nontenured teacher who simply is
not reemployed for the next year,” . . . “thus clearly leav[ing]
the decision to rehire a nontenured teacher for another year to
the unfettered discretion of university officials.” 408 U.S. 564
at 567 (1972).

Professor Stebbins, on the other hand, was a member of the
mathematics department of the Milwaukee campus faculty of
the “old”** University of Wisconsin system. His appointment,
two successive, three-year contracts, and employment status
were governed by the statutes and regulations applicable to
that system. The statute was § 36.06(1), (2), Wis. Stats. Ann.

44 The term “old” is used, because the two systems—state college
and University of Wisconsin—were merged at times subsequent to
the happening of the primary facts in this action. See Title VI, Ch.
36, Wis. Stats. Ann. (1973), respecting L. 1971, c. 100, initially
consolidated the two “old” systems, and respecting L. 1973, c. 335,
$§ 5 and 6, repealing “old” chapters 36 and 37 and creating “new
chapter 36, thereby legislatively effectuating the merger. The rele-
vant legislation and history is located in the pocket part of Vol. No.
5, Wis. Stats. Ann., and is reprinted in pertinent part in Appendix
F hereto, infra, pp. App. A-46-A-5S0.

4% Ibid.

== 20) <u

(1966). It is a broad authorizing statute, pursuant to which
regulations and letters and terms of appointment were issued,
all of which are in this record. See R. App. Doc. No. 32, Ex.
Nos. 49 § 10A.05, Appendix F, infra, pp. App. A-46-A-50, de-
fining a “tenure track” probationary appointment; 50, the initial,
unconditional appointment of Professor Stebbins; 51, the second,
unconditional reappointment of Professor Stebbins; 53, € 7, de-
scribing the “tenure track” commitments made to Professor
Stebbins; and 21, the “tenure track” guideline criteria of the
Milwaukee campus division of natural science of which the
mathematics department was a part. These statutes, regula-
tions, guidelines, and other documents show unequivocally, as
briefed to the trial court judge on the preliminary injunction,
see Jt. App. No. 6 at pp. 1-5, and on the subsequent motion io
dismiss, R. App. Doc. No. 35, Item No. 3 at pp. 6-7, that,
unlike Professor Roth, Professor Stebbins, a “tenure track” pro-
fessor, had a clear objective expectation of continued employ-
ment; and it was these materials and these briefs, which were
before him at the time, that led the trial court judge, in light
of his knowledge of the system, to conclude correctly that the
respondents’ motion to dismiss had to be denied as to the
“property” issue Moreover, Professor Stebbins did allege a de
facto tenure similar to that considered in Perry v. Sindermann,
408 U.S. 593 at 601 (1972). R. App. Doc. No. 2, Complaint
at ©€ 7 and 8; Jt. App. No. 6 at pp. 1-5; R. App. Doc. No. 35,
Item 3 at pp. 6-7; and R. App. Doc No. 24, Am & Supp. Comp.
at €€ 3, 22-28.

The common law of contracts of the State of Wisconsin,
taken together with the statutes, regulations, guidelines, and
other documents set forth supra, create a “property” right in
Professor Stebbins’ objective expectation of continued employ-
ment. See, e.g., Hortonville Joint School District No. 1 vy.
Hortonville Education Association, 66 Wis. 2d 469 at 487-89
(1975), aff'd. on this issue, — U.S. —, 96 S. Ct. 2308, 49
L. Ed. 2d 1 n. 2 (June 17, 1976) by this Court, citing Roth

=

and Sindermann; Johnson v. Board of Regents of the Unive--
sity of Wisconsin System, 377 F. Supp. 227 at 234-35 (W.D.
Wis. 1974), aff'd. summ., 510 F. 2d 975 (7th Cir. 1975).
Compare Goss v. Lopez, 419 U.S. 565 at 573-74, 576-77
(1975).

D. The Circuit Court's decision respecting “property”, writ-
ten as broadly as it is, and giving the reading that it does to
this Court's opinions in Roth, Sindermann, and Bishop, has
the effect of denying the protection of the due process clause
of the Fourteenth Amendment to the United States Constitu-
tion to every non-tenured professor in the University of Wiscon-
sin system and very likely to every non-tenured public employee
in the states of Illinois, Indiana, and Wisconsin.

Il. With Respect to the Question of “Liberty”, the Writ of
Certiorari Should Be Granted Because the United States Court
of Appeals Exceeded Its Subject Matter Jurisdiction and Ruled
Inconsistently With Prior Decisions of This Court and Because
This Court Has Granted Certiorari in Similar Cases Presently
Pending Before This Court as to Which the Courts of Appeals
Are Divided.

A. As to this ground, see Point I A, swpra, p. A-1.

B. The Circuit Court erroneously determined that Professor
Stebbins is“. . . free to seek another job . . .,” and that there
was “. . . no public disclosure of the reasons for the denia! of
tenure. However, as set forth in the statement of facts, supra,
there was, indeed, public disclosure, and the reasons were
placed in Professor Stebbins’ personnel record, and Professor
Stebbins did allege actual foreclosure from subsequent employ-
ment by virtue of the disclosure and personnel record inclusion.
Hence, the Circuit Court's opinion as to Professor Stebbins’
“liberty” is inconsistent with this Court's recent decisions in
Board of Regents v. Roth, 408 U.S. 564 at 575 (1972); Paul

=

v. Davis, —U.S. —, 96 S. Ct. 1155 at 1161-66, 47 L. Ed. 2d
405 at 414-20 (March 23, 1975), and Bishop v. Wood, —
U.S. —, 96 S. Ct. 2074 at 2077, 48 L. Ed. 2d 684 at 691-92
and n. 12 (June 10, 1976). Compare Goss v. Lopez, 419 U.S.
565 at 574-75 (1975), and Hampton v. Mow Sun Wong, —
U.S. —, 96 S. Ct. — at — and n. 23, 48 L. Ed. 2d 495 at
508 and n. 23 (June 1, 1976).

C. In Cowley v. Velger, — F. 2d — (2nd Cir. 1975), this
Court has granted the writ of certiorari to review a similar ques-
tion, 44 Law Week 3748, 45 Law Week 3023 (1976), as to
which the courts of appeals are in conflict. Compare, e.g., Rus-
sell v. Hodges, 470 F. 2d 212 (2nd Cir. 1972); Buhr v. Buf-
falo Pub. School Dist. No. 38, 509 F. 2d 1196 (8th Cir. 1974):
Huntley v. Comm. School Board of Brooklyn, — F. 2d —, 44
LW 2574 (2nd Cir. May 12, 1976); Weathers v. West Yuma
County School District R-J-1, 530 F. 2d 1335 at 1338-39 (10th
Cir. 1976). See generally Comment: The Due Process Rights
of Public Employees, 50 N.Y.U. L. Rev. 310 at 329-35 (1975);
Johnson, Probationary Government Employees and The Di-
lemma of Arbitrary Dismissals, 44 Cincinnati L. Rev. 698 at
711-13 (1975).

III. With Respect to the Question of Administrative “Arbi-
trariness and Caprice”, the Writ of Certiorari Should Be Granted
Because the United States Court of Appeals Unduly Narrowed
the Scope of Federal Judicial Review Inconsistently With Prior
Decisions of This Court and Destructively to the Due Process
Rights of Non-Tenured Public Employees in the States of Mli-
nois, Indiana, and Wisconsin, and Because This Case Presents

a Vehicle for Clarifying a Question of Public Importance as to
Which the Law Is Unsettled.

A. As to the Circuit Court's footnote alternative holding re-
specting the scope of judicial review of allegedly arbitrary and
capricious tenure denials, the Court is wrong as a matter of

= =

law in abstracting into creation a new and more rigorous stand-
ard of “gross abuse”, and wrong as a matter of application of
law to fact in implying that, because the denial of tenure to
Professor Stebbins involved “subjective” evaluation, there was no
“gross abuse” in this case.

A long line of this Court's decisions has established that the
state administrative action which deprives a citizen of “prop-
erty” or “liberty” irrationally constitutes a deprivation of due
process of law. See, e.g., Cramp v. Board of Public Instruction,
368 U.S. 278 (1961); Cafeteria Workers Union v. McElroy,
367 U.S. 886 (1961); Konigsberg v. State Bar of California,
353 US. 252 (i957); Schware v. Board of Bar Examiners,
353 US. 232 (1957): Slochower v. Board of Education, 350
U.S. 551 (1956); Wieman v. Updegraff, 344 U.S. 183 (1952).
The Circuit Court in this case, citing Chung v. Park, 514 F.2d
382 at 387 (3rd Cir. 1975), suggested an incursion upon this
elemental principle of fairness by stating “. . . im cases such
as this one, where the decision is based on a subjective evalua-
tion, we would decline to review the merits absent some show-
ing of gross abuse.” In addition to its suggestive limitation of
“administrative arbitrariness” review, that holding conflicts with
the more recently articulated view of at least one member of
this Court, see Arnett v. Kennedy, 416 U.S. 134 at 180, 183-
85 (1974). Moreover, Chung v. Park, supra, is to the con-
trary for there the court did review the decision to terminate
Dr. Chung’s employment and found it to be supported by the
evidence. In the instant case, Professor Stebbins alleges, and
the trial and appellate courts assumed as fact, that all evidence
was favorable to him and that there was no evidence unfavor-
able to him.

B. The direction set by the Circuit Court's opinion will be
clear to all state employers: simply articulate a “subjective
evaluative” basis for termination and federal judicial scrutiny
is eliminated, absent “gross abuse.” Indeed, this Court's dicta

— *s

in Bishop v. Wood, — U.S. —, 96 S. Ct. 2074, 48 L. Ed. 2d
684 at 692-93 and n. 14 (June 10, 1976), when lifted out
of its explanatory context, is susceptible of the same interpre-
tation. Hence, the instant case, coupled with Bishop's dicta
seriously endangers the right to be treated fairly of public
employees in the states of Illinois, Indiana, and Wisconsin.

C. The question of the application of the due process clause
to administratively arbitrary public employment terminations
is one to which this Court has not turned, although this Court
has considered and resolved the same question in the area of
private employment governed by federal labor law. See, e.g.,
Vaca v. Sipes, 386 U.S. 771 (1967); Hines v. Anchor Motor
Freight, Inc., — U.S. —, 96 S. Ct. 1048, 47 L. Ed. 2d 231
(March 3, 1976). The question has festered at trial and ap-
pellate levels in the federal judicial system, e.g., Buhr, supra,
Weathers, supra, Jeffries v. Turkey Run Consolidated School
District, 492 F. 2d 1 at 4 (7th Cir. 1974), Scheelhaase v.
Woodbury Cent. Community School District, 488 F. 2d 237
(8th Cir. 1973), Anonymous v. Kissinger, 499 F. 2d 1097 at
1102 (D.C. Cir. 1974), and is troubling the commentators
as well. E.g., Johnson, Probationary Government Employees
and The Dilemma of Arbitrary Dismissals, supra, at pp. 714-24
(1975), Comment: The Due Process Rights of Public Em-
ployees, 50 N.Y.U. L. Rev. 310 (1975), Comment: Substan-
tive Due Process: The Extent of Public Employees’ Protection
from Arbitrary Dismissal, 122 U. Pa. L. Rev. 1647 (1974).
Compare Frug, Does the Constitution Prevent the Discharge of
Civil Service Employees?, 124 U. Pa. L. Rev. 942 (1976)
with Tribe, Structural Due Process, 10 Harv. C. R. & C.L. L.
Rev. 269 at 275-89, 302, 308-10, 312 n. 128, 319 (1975).

=

CONCLUSION

With Respect to All Questions Presented, the Writ of Cer-
tiorari Should Be Granted to Resolve the Unsettled Questions
of the Proper Role of the Trial and Appellate Courts of the
Federal Judiciary in Scrutinizing Pursuant to the Due Process
Clause of the Fourteenth Amendment the Minimum Rationality
and Procedural Fairness of State Higher Educational Decision-
making at the Critical “Breaking-Point” of Tenure Vel Non,
Which Decisionmaking Impacts Upon a Special Class of Public
Employees Peculiarly Susceptible to Caprice and Procedural
Irregularity and Relates Directly and Substantially to the Ro-
bustness of That Class’ Exercise of Academic Freedom.

Tenure is the key to job security within the higher educational
system of this Nation. Generally speaking, neither collective
bargaining agreements, to the extent they exist within higher
educational employment systems, nor civil service statutes and
regulations, to the extent that they govern, nor “campus common
law”, to the extent it either occupies the field or fills gaps in
contract, statutory, or regulatory law, afford substantial quali-
tative protection to those professors who are not yet tenured
yet who have made substantial commitments of their lives, in
time and energy, to higher educational employment. Because
most public university systems, and especially the larger, state-
financed, integrated systems, such as the University of Wiscon-
sin system, place the responsibility and the power respecting
tenure decisions in the majoritarian institution of departmental
committees, nontenured professors are peculiarly subject to
majority authority. Structurally the danger is great that they
will do “what they have to do”, with particular respect to their
secure seniors and university administrators, to “get tenure”.
Such a structure inherently contains serious obstacles to the
full freedom of thought, inquiry, exploration, and expression
embodied in the concept of academic freedom. In this re-

== 26 au

spect, not yet tenured professors are not unlike collective bar-
gaining unit minorities who must cope with employer-bargain-
ing representative controlled grievance mechanisms to decide
their grievances. Compare Vaca v. Sipes, supra, Hines v.
Anchor Motor Freight, supra. Yet, the public law is in disarray
as to whether such professors may claim the protection of the
due process clause of the Fourteenth Amendment, and if so,
as to whether they may claim such protections to the extent of
assuring the minimum rationality of tenure vel non decision-
making, and the minimum requisites of a procedurally fair per-
sonnel system. The petitioner requests this Court to grant the
writ of certiorari in this case in order to resolve that disarray
on this full and complete record.

Respectfully submitted,

GERRY M. MILLER
Attorney for Petitioner

Of Counsel
WALTER F. KELLY

GOLDBERG, PREVIANT & UELMEN s.c.

October, 1976

APPENDIX

—

APPENDIX A

United States Court of Appeals
For the Seventh Circuit

August 3, 1976

John L. — om . } Appeal and Cross-Appeal
aintifl-Appellant, | trom the United States

i —— District Court, Western
Nos. 75- , = ’ District of Wisconsin.
John C. Weaver, et al., Civ No. 72-C-111

Defendants-Appellees, James E. Doyle, Judge.
Cross-Appellants. —

Order

On consideration of the petition of the appellant, John L.
Stebbins, Jr., for a rehearing by the Court in the above-entitled
appeal, and no member of the panel and no judge in regular
active service having requested that a vote be taken on the sug-
gestion for an en banc rehearing, and the panel having voted
to deny a rehearing,

It Is Ordered that the petition of |»= appellant for a rehearing
in the above-entitled appeal be, and the same is hereby denied.

—

APPENDIX B

In the United States Court of Appeals
For the Seventh Circuit

John L. Stebbins, Jr.,
Plaintiff-Appellant, | Appeal and Cross-Appeal
Cross-Appellee, from the United States
VS. District Court, Western
_ District of Wisconsin.
John C. Weaver and Board of { Civil Action No. 72-C-111.
Regents of the University of | (Honorable James E. Doyle)
Wisconsin System, App. Nos. 75-1845,
Defendants-Appellees, 75-1846.
Cross-Appellants. |

Petition of the Plaintiff-Appellant, Cross-Appellee for Rehearing
of This Court’s Opinion and Judgment of July 7, 1976
and Suggestion of Rehearing En Banc

To: Honorable Walter J. Cummings, Circuit Court Judge,
United States Court of Appeals for the Seventh Circuit

Honorable Robert A. Sprecher, Circuit Court Judge,
United States Court of Appeals for the Seventh Circuit

Honorable William E. Steckler, Chief Judge, United States
District Court, Southern District of Indiana, Sitting
by Designation United States Court of Appeals for
the Seventh Circuit

As the Panel that Decided this Case

And to Ail the Judges of the United States Court of Appeals
for the Seventh Circuit

—_-

Now Comes the Petitioner, John L. Stebbins, Jr., the Plaintiff-
Appellant, Cross-Appellee in this action, by his attorneys, Walter
F. Kelly and Goldberg, Previant & Uelmen s.c., 6th Floor Mid-
land Bank Bidg., 211 West Wisconsin Avenue, Milwaukee, Wis-
consin 53203, and hereby petitions the panel that decided this
case on July 7, 1976 to rehear the case, and hereby further
suggests to all the judges of the United States Court of Appeals
for the Seventh Circuit that this case be reheard en banc. The
basis for this Petition and Suggestion is set forth in full in this
Petition and Suggestion.

Dated at Milwaukee, Wisconsin, this 19th day of July, 1976.

Introduction

The parties to the appeal and cross-appeal in this action,
John L. Stebbins, Jr., the plaintiff-appellant, cross-appellee, and
John C. Weaver and the Board of Regents of the University of
Wisconsin System, the defendants-appellees, cross-appellants,
presented five issues to this Court for decision.

John L. Stebbins, Jr. presented to the Court the questions
of (1) whether the trial court properly reached out to the merits
of his procedural and substantive due process claims; (2)
whether the trial court properly decided the merits of his tenure-
denial procedural and substantive due process claims; and (3)
whether the trial court properly denied his motion to amend
and supplement his complaint, which motion sought to meet
the trial court's dismissal opinion. John C. Weaver and the
Board of Regents of the University of Wisconsin System pre-
sented to the Court the questions of (4) whether they were
“persons” within the meaning of 42 U.S.C. § 1983; and (5)
whether as to each of them the Eleventh Amendment to the
Constitution of the United States was a bar to the declaratory
and injunctive relief sought by John L. Stebbins, Jr.

—_—

In its opinion of July 7, 1976, this Court did not decide
issues (2), (4), and (5S). This Court did decide issues (1)
and (3). It also expressly decided that John L. Stebbins, Jr.
had neither a sufficient “property” interest nor a sufficient
“liberty” interest to invoke the procedural and substantive due
process protections of the Fourteenth Amendment. And, it
suggested by way of dicta that, even if John L. Stebbins, Jr.
had a sufficient “property” interest or a sufficient “liberty” in-
terest to invoke the substantive protections of the Fourteenth
Amendment, federal courts should not review claims of sub-
Stantive arbitrariness and caprice, in tenure denial based on
“subjective evaluation” of the tenure candidate unless that de-
gree of substantive arbitrariness and caprice which it char-
acterized as “gross abuse” could be demonstrated by the candi-
date-plaintiff.

Reasons for Petitioning for Rehearing and Suggesting Re-
hearing En Banc

(A) As to the “property” and “liberty” decisions of this
Court, the issues were expressly not presented by John C.
Weaver and the Board of Regents of the University of Wiscon-
sin System on their cross-appeal, App. Doc. No. 30, Original
Brief of the Plaintiff-Appellant, Cross-Appellee at pp. 15-16
and n. 49, Original Brief for Defendants-Appellees, Cross-Ap-
pellants at pp. 3, 8, 45, Reply-Response Brief of the Plaintiff-
Appellant, Cross-Appellee at p. 9, Reply Brief of Defendants-
Appellees, Cross-Appellants on Cross-Appeal at pp. 1, 4,! and
the trial court had ruled favorably to John L. Stebbins, Jr.
on those issues, 396 F. Supp. 104 at 111 (W.D. Wis. 1975);
and, so, this Court lacked subject-matter appellate jurisdictional
power to decide them. Fed. R. App. P. 3(c). See Bach v.

' It is counsel's recollection that the Court was also expressly in-
formed on oral argument that the “property”, “liberty” issues were
not before it.

—_* =

Coughlin, 508 F. 2d 303 (7th Cir. 1974); Ruckman & Hansen,
Inc. v. Contracting & Material Co., 329 F. 2d 744 (7th Cir.
1964). See also Moore v. Fowinkle, 512 F. 2d 629 (6th Cir.
1975): Terkildsen v. Waters, 481 F. 2d 201 (2nd Cir. 1973);
United States v. Ramos, 413 F. 2d 743 (lst Cir. 1969).?

(B) As to the “property” and “liberty” decisions of this
Court, the issues, while briefed and argued below by the par-
ties, see Joint Appendix, Nos. 2-6, App. Doc. No. 35, Item 1,
App. Doc. No. 35, Item 3 at pp. 5-10, App. Doc. No. 35, Items
10, 15-22, were neither briefed nor argued in this Court, ob-
viously because those issues were not presented to this Court.
The patent irony, in this respect, for John L. Stebbins, Jr. is
that an identical practice was visited upon him by the trial
judge as to the merits of his procedural and substantive due
process claim, which practice he asked this Court to condemn,
and now this very Court turns around and engages in the very
same practice with respect to the “property” and “liberty” issues.
Just as we argued in our Original Brief that this practice, with-
out more, by the trial court was a basis for reversal, see Original
Brief at pp. 16-20, so now we argue that this practice by this
Court, without more, is a basis for rehearing.

(C) As to the “property” and “liberty” decisions of this
Court, the very case cited by this Court in support of its hold-
ings on “property” and “liberty”, Bishop v. Wood, — US. —,
44 L.W. 4820 (June 10, 1976), expressly directs that such

* Nor are the “property”, “liberty” issues subject-matter jurisdic-
tional in the trial court and therefore raisable at any time by the -
ties or sua sponte by the Court. See generally Bator, Mishkin, Sha-
piro & Wechsler, Hart & Wechsler's THE FEDERAL COURTS
AND THE FEDERAL SYSTEM at pp. 835-840 (Foundation Press
1973). Those issues go to cause of action under the Fourteenth
Amendment and 42 U.S.C. § 1983. E.g., Board of Regents v. Roth,
408 U.S. 564 (1972); Perry v. Sindermann, 408 U.S.593 (1972);
Arnett v. Kennedy, 416 U.S. 134 (1974); Goss v. Lopez, 419 U.S.
565 (1975); Paul v. Davis, — U.S. —, 44 L.W. 4337 (March 23,
1976); Bishop v. Wood, — U.S. —, 44 L.W. 4820 (June 10, 1976).

So

decisions, depending as they do upon assessments of local law,
should be decided by the federal trial judge, who is best situ-
ated to determine the law of the locality in which he sits. See
Bishop v. Wood, — U.S. —, 44 L.W. 4820 at 4821-22 and
nn. 9 and 10 (June 10, 1976).

“We do, however, have the opinion of the United States
District Judge who, of course, sits in North Carolina and
practiced law there for many years.”

In our case “the opinion of the United States District Judge
who sits in [Wisconsin] and practiced law there for many years”,
and who, we add, is familiar with the law of the locality re-
specting the University of Wisconsin System, because so many
of the cases on his docket, e.g., Johnson v. Board of Regents
of the University of Wisconsin System, 377 F. Supp. 227 (W.D.
Wis. 1974) arise out of that System, held that the “property”
interest asserted by John L. Stebbins, Jr. should be tried. 396
F. Supp. 104 at 111.

(D) All the imaginable dangers of deciding an unpresented
issue, without the benefit of briefs and arguments, and over
against the decision of the trial judge to the contrary, were
realized in this Court's opinion of July 7, 1976, for, the Court
incorrectly equated David Roth’s legal status, see Board of
Regents v. Roth, 408 U.S. 564 (1972), at the Oshkosh cam-
pus of “old” state college system with John L. Stebbins, Jr.'s
legal status at the UW-M campus of the “old” University of
Wisconsin system; failed to realize that John L. Stebbins, Jr.
did indeed allege a de facto tenure identical to that permitted
in Perry v. Sindermann, 408 U.S. 593 at 601 (1972), and re-
cently reaffirmed in Bishop v. Wood, — U.S. —, 44 L.W. 4820
at 4821-22 and nn. 6 and 7 (June 10, 1976), and failed to
examine either the applicable tenure statutes and regulations
or the common-law of contracts of the State of Wisconsin, all
of which utterly contradict this Court’s conclusion that “{a]s
with Roth, it is settled that plaintiff ‘did not have a property

—

interest sufficient to require’ tthe Fourteenth Amendment's pro-
cedural protections.” (Slip Opinion at p. 4.) And, on the “lib-
erty” issue, this Court failed to consider that there was, indeed,
disclosure of the reasons for plaintiff's denial of tenure, and
that plaintiff did indeed allege actual foreclosure from subse-
quent employment, both of which facts give him a protected
“liberty” interest under Roth, 408 U.S. 564 at 575 (1972);
Paul v. Davis, — U.S. —, 44 L.W. 4337 at 4342, 4343 (March
23, 1976), and Bishop v. Wood, — U.S. —, 44 L.W. 4820
at 4822 and n. 12 (June 10, 1976).

(i) David Roth was a member of the political science de-
partinent of the Oshkosh faculty of the “old”® state
college system. His appointment was governed by
the statutes and regulations applicable to that system.
They are set forth in Board of Regents v. Roth, 408
U.S.564 at 566-68 and nn. 1-4, 578-79 and n. 16
(1972). Roth had essentially a one-year probation-
ary appointment which the Supreme Court charac-

terized as providing “. . . no real protection for a
non-tenured teacher who simply is not re-employed
for the next year,” .. . “thus clearly leaving) the

decision to rehire a nontenured teacher for another
year to the unfettered discretion of university officials.”
408 U.S. 564 at 567 (1972).

John L. Stebbins, Jr., on the other hand, was a mem-
ber of the Mathematics department of the UW-M

* The term “old” is used, because the two systems—state college
and University of Wisconsin—were merged at times subsequent to
the happening of the primary facts in this action. See Title VI, Ch
36, Wis. Stats. Ann. (1973), respecting L. 1971, c. 100, initially con-
solidating the two “old” systems, and rR L. 1973, c. 335, §§
5 and 6, repealing “old” chapters 36 and 37 and creating “new”
chapter 36, thereby legislatively effectuating the merger. rele-
vant legislation is located in the pocket part of Vol. No. 5, Wis.
Stats. Ann., as was cited to this Court by John L. Stebbins, Jr. at p. 7
o. his Reply-Response Brief.

—~ on

faculty of the “old”* University of Wisconsin system.
His appointment, two successive, three-year contracts,
and employment status were governed by the statutes
and regulations applicable to that system. The stat-
ute was § 36.06(1), (2), Wis. Stats. Ann. (1966).
It is a broad authorizing statute, pursuant to which
regulations and letters and terms of appointment were
issued, all of which are in this record. See App. Doc.
No. 32, Ex. Nos. 49 § 10A.05, defining a “tenure
track” probationary appointment; 50, the initial, un-
conditional appointment of John L. Stebbins, Jr.; 51,
the second, unconditional reappointment of John L.
Stebbins, Jr.; 53, © 7, describing the tenure track
commitments made to John L. Stebbins, Jr.; and
21, the tenure track guideline criteria of the UW-M
Division of Natural Science of which the Mathemat-
ics Department was a part. These statutes, regulations,
guidelines, and other documents show unequivocally,
as briefed to the trial court judge on the preliminary
injunction, see Joint Appendix No. 6 at pp. 1-5, and
on the subsequent motion to dismiss, App. Doc. No.
35, Item No. 3 at pp. 6-7, that, unlike David Roth,
John L. Stebbins, Jr., a tenure track professor, had
a clear objective expectation of continued employ-
ment; and it was these materials and these briefs,
which were before him at the time, that led Judge
Doyle to conclude correctly that the motion to dis-
miss of John C. Weaver and the Board of Regents
of the University of Wisconsin System had to be de-
nied as to the “property” issue.

(ii) John L. Stebbins, Jr. did, indeed, allege a de facto

tenure identical to that permitted in Perry v. Sinder-
mann, 408 U.S. 593 at 601 (1972). App. Doc. No.
2, €€ 7 and 8; Joint Appdx. No. 6 at pp. 1-5; App.

+ Ibid.

aS vn

Doc. No. 35, Item 3 at pp. 6-7; and App. Doc. No.
24, €€ 3, 22-28

(iii) The common law of contracts of the State of Wis-
consin, taken together with the statutes, regulations,
guidelines, and other documents set forth in D(i),
supra, create a “property” right in John L. Stebbins,
Jr.'s objective expectation of continued employment.
See Hortonville Joint School District No. 1 v. Hor-
tonville Education Association, 66 Wis. 2d 469 at
487-89 (1975), aff'd. on this issue, — U.S. —, 44
L.W. 4864 at 4866 n. 2 (June 17, 1976), by the
U.S. Supreme Court, citing Roth and Sindermann;
Johnson v. Board of Regents of the University of Wis-
consin System, 377 F. Supp. 227 at 234-35 (W.D.
Wis.1974).

(iv) In July, 1970 the reasons for John L. Stebbins, Jr.’s
denial of tenure were publicly disclosed. App. Doc.
No. 32, Stipulation 2. e., Minutes, Exec. Comm.,
7/6/70; and John L. Stebbins, Jr. did allege actual
foreclosure from subsequent employment. Joint Ap-
pendix No. 6 at pp. 6-8; App. Doc. No. 35, Item
No. 3 at pp. 7-10. See, e.g., Huntley v. Comm. School
Board of Brooklyn, — F. 2d —, 44 L.W. 2574 (2nd
Cir. May 12, 1976).

(E) As to this Court's dicta respecting the scope of ju-
dicial review of allegedly arbitrary and capricious tenure de-
nials, the Court is mistaken as to certain facts in this case,
wrong as a matter of law in abstracting into creation a new and
more rigorous standard of “gross abuse”, and wrong as a
matter of application of law to fact in implying that there was
no “gross abuse” in this case.

(i) We set forth the facts respecting the arbitrary and
capricious action in our Original Brief in complete

(ii)

(ili)

— A-10 —

detail at pp. 22-30 and nn. 56-76, pp. 39-40 and
nn. 108-116. The court completely ignored those
facts, repeated the factual errors of the trial court,
and thereby patently abused the rule of liberal con-
struction and fair inferences required by Fed. R.
Civ. P. 12.

All arbitrary and capricious administrative action
which deprives a citizen of “liberty” or “property”
constitutes a Fourteenth Amendment substantive vio-
lation, regardless of whether it meets some judge’s
idea of “gross abuse”. Arnett v. Kennedy, 416 U.S.
134 at 180, 183-85 (1974) (Opinion, White J.).
See Original Brief at p. 47. Chung v. Park, 514
F. 2d 382 at 387 (3rd Cir. 1975), cited by the
Court in justification of its “gross abuse” standard;
is not to the contrary, but rather absolutely sustains
John L. Stebbins, Jr.’s position, because it holds for
the same standard we assert. 514 F. 2d 382 at
385, 387 and nn. 8-10 (3rd Cir. 1975).

In applying the general standard of Chung v. Park,
supra to this case, the Court fails to recognize that
in Dr. Chung’s case substantial evidence sustained
the accusation of incompetence, 514 F. 2d 382 at
385, 387 (3rd Cir. 1975), whereas in this case, it is
undisputed that all the evidence sustained, and not
one shred of evidence countervailed, John L. Steb-
bins, Jr.'s case. This case takes as true that the
two “reasons” of the Executive Committee of July
6, 1970 were in fact incorrect. Hence, this is a
case of complete irrationality. Cf., Kelley v. Johnson,
— US. —, 44 L.W. 4469 at 4472 (April 5, 1976).
See generally Brest, “Constitutional Rights to Fair
and Rational Treatment”, PROCESSES OF CON-
STITUTIONAL DECISIONMAKING at p. 806
(Little, Brown & Co. 1975). A refusal to review

i

an fpht <-

such a decision on the ground that it may involve
“subjectivity” is the creation of a rule of judicial
abdication that flies in the face of the language,
history, and purpose of the Fourteenth Amendment
and 42 U.S.C. § 1983. See Original Brief at p. 47.

(F) As to the Court's decision on issue (1), the Court is
factually wrong, and therefore legally wrong as well. The
Court says the merits were raised by the motion to dismiss.
They were not! Original Brief at pp. 7-11 and nn. 21-30; 13
and n. 39; 16-20 and nn. 50-55. The Court says the merits were
adequately briefed. There was no such briefing whatsoever!
Original Brief at pp. 7-11 and nn. 21-30; 13 and n. 39; 16-20
and nn. 50-55; 49-50 and nn: 128-135. The Court says the
trial judge gave John L. Stebbins, Jr.’s complaint the benefit
of liberal construction and fair inferences. The trial judge did
not! Original Brief at pp. 22-41 and nn. 56-122. The Court
says the trial judge considered the entire record before ruling,
and the Court cites for that proposition the trial judge’s stand-
ard-form closing recitation “. . . upon the basis of the whole
record...” However, again, as we pointed out in our Original
Brief, the trial judge did not consider the entire record, for that
record, even more so than the pleadings, contravenes the trial
judge’s “findings” of fact. Original Brief at pp. 6 and nn. 19
and 20: 29-30 and nn. 74-76; 41 and nn. 117-122. The Court
says the trial judge invited further factual information. He did
not! Original Brief at pp. 13-14 and nn. 40-41; 19 and nn.
54-55; 30 and n. 76; 41 and n. 121; 49-51 and nn. 128-135.
The Court says no further factual information came forth from
John L. Stebbins, Jr. It did! App. Doc. No. 24; Original
Brief at pp. 30 and n. 76; 41 and n. 121; 49-51 and nn. 128-
135. Then, the Court concludes by telling us that “[iJn such
a setting, there was no abuse of Rule 12.” The trouble is there
was no “such a setting”; there was, rather, a setting which, as
this paragraph AND THE RECORD show, is in every respect
the opposite of this Court’s description. Once the real setting

— A-12 —

is admitted, the conclusion of the Court falls: there was glar-
ing abuse of Rule 12. Original Brief at pp. 16-20 and nn.
50-55.

(G) As to the Court’s decision on issue (3), the Court is again
factually wrong, and therefore legally wrong as well. The Court
says the amended and suppiemental compaint “alleged no new
facts which would have required the court to reconsider its
earlier decision.” But a simple comparison of App. Doc. No. 2,
the original complaint, and App. Doc. No. 24, the amended
and supplemental complaint, shows the specific allegation of ap-
proximately one hundred new facts, all of which were alleged
to meet directly the trial court’s erroneous factual assumptions
and inferences. All this, too, was set forth in our Original Brief;
and, here too, once the reality is admitted, the Court’s con-
clusion that the motion to file the amended and supplemental
complaint “was properly denied,” must fall. Original brief at
pp. 48-53 and nn. 128-142.

(H) It follows from paragraphs (A) through (G), hereof, that
this Court is also legally obliged on this record to decide, and
cannot lawfully avoid, issues (2), (4), and (5), i.e., the proce-
dural and substantive due process merits, the 42 U.S.C. § 1983
“persons” questions, and the Eleventh Amendment immunity
questions. Those were the dispositive questions below; they
were properly brought here on appeal and cross-appeal; they
were briefed and argued; and Article II] compels them to be
decided. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
(Marshall, C.J.). See also Marbury v. Madison, 5 US. (1
Cranch) 137 (1803) (Marshall, C.J.), See generally Wechsler,
Toward Neutral Principles of Constitutional Law, 73 Harv. L.
Rev. 1, 6-9 (1959).

(1) This Court’s decision respecting “property” and “liberty”
and this Court’s dicta on the scope of judicial review of arbitrary
and capricious tenure denial decisions have the effect of deny-

— A-13 —

ing the protection of the Fourteenth Amendment to the United
States Constitution to every non-tenured professor in the Uni-
versity of Wisconsin system and very likely to every non-tenured
public employee in the States of Illinois, Indiana, and Wisconsin.

(J) This Court’s choice not to decide the three major sub-
stantive questions decided by the trial court leaves the law dis-
turbed and unsettled as to important and basic constitutional
and statutory questions, critical to this case, to state govern-
ments and those who seek properly to sue them, and to the fed-
eral trial courts in this Circuit.

SUMMARY

In sum, this Court's brief Per Curiam opinion works a grave
abridgement of the individual rights of John L. Stebbins, Jr.,
while at the same time setting precedent which forecloses the
Fourteenth Amendment rights of public employees and failing
to set precedent—though obliged to do so—which would re-
solve important and basic, currently unresolved questions of law
as to which citizens, state governments, and the federal trial
courts in this Circuit require guidance.

Respectfully submitted,

/s’ WALTER F. KELLY

GOLDBERG, PREVIANT &

UELMEN s.c.
6th Floor Midland Bank Building
211 West Wisconsin Avenue
Milwaukee, Wisconsin 53203
(414) 271-4500

Attorneys for Plaintiff-Appellant, Cross-

Appellee, John L. Stebbins, Jr.

—_

APPENDIX C

John L. Stebbins, Jr.,
Plaintiff-Appellant, Cross-Appellee,

v.

John C. Weaver and Board of Regents of the
University of Wisconsin System,
Defendants-Appellees, Cross-Appellants.

Nos. 75-1845, 75-1846.

United States Court of Appeals,
Seventh Circuit.

Argued Feb. 27, 1976.
Decided July 7, 1976.

Rehearing and Rehearing En Banc
Denied Aug. 3, 1976

Before CUMMINGS and SPRECHER, Circuit Judges, and
STECKLER, District Judge.*

PER CURIAM.

In this civil rights action filed under 42 U.S.C. § 1983, plain-
tiff, formerly an assistant professor in the Mathematics Depart-
ment of the University of Wisconsin-Milwaukee, challenges de-
fendants’ refusal to grant him tenure. Plaintiff was first em-
ployed as an assistant professor in 1965 pursuant to a 3-year
contract. Thereafter he received another 3-year contract. At

* The Honorable William E. Steckler, Chief Judge of the Southern
District of Indiana, is sitting by designation.

ee

— A-15 —

the time of his 1965 appointment plaintiff was informed that with
normal development in the areas of teaching, research and com-
munity service he could expect to obtain tenure. During his six
years’ service, he had an extremely successful teaching career
and was productive in terms of academic publishing and com-
munity service. However, in March 1970, the dean of the Col-
lege of Letters and Science advised plaintiff that his appoint-
ment would terminate in June 1971 upon the expiration of his
second contract of employment.

In January 1970, the Executive Committee of the Depart-
ment of Mathematics voted to deny plaintiff tenure. At its July
1970 meeting, the Executive Committee gave the following rea-
sons for its action:

1. His research was not such as to warrant promotion;

2. His area of complex analysis was adequately covered by
tenured faculty in the department.

In late March and early April 1971, the Executive Committee
of the Mathematics Department considered whether to reopen
its earlier decision regarding plaintiff's tenure. During the four
days of hearings, he was given an opportunity to present infor-
mation concerning his qualifications, but nevertheless the Com-
mittee did not change its original decision. Two of the com-
mittee members did not attend all the hearings but participated
in the final vote. The Committee refused plaintiff's request that
the decision be based solely on the evidence adduced at the
hearings. It refused to disqualify members who had participated
in the earlier decision under review. Plaintiff was not allowed
to examine members of the Committee as to the evidence upon
which they had made their earlier decisions, and the Committee
refused to state in writing the evidence on which it based its de-
terminations. At this session, no information or evidence un-
favorable to the plaintiff was presented but information over-
whelmingly favorable to him was considered.

— A-16 —

Plaintiff's subsequent appeals were respectively denied by the
dean of the College of Letters and Science of the University of
Wisconsin-Milwaukee, the University Committee there, the presi-
dent of the University of Wisconsin System and finally by the
Board of Regents.

This action against the president and the Board of Regents
of the University of Wisconsin System was then instituted. Plain-
tiff sought a judgment that their decision not to promote and
grant him tenure violated his rights under the Fourteenth Amend-
ment. He also sought reinstatement as an assistant professor
and an injunction against defendants’ filling any tenured posi-
tions in the Mathematics Department of the University of Wis-
consin-Milwaukee “until a final determination is made in ac-
cordance with procedural due process as to whether the Plaintiff
should be granted tenure as a professor” in the department.

The district court ultimately granted defendants’ motion to
dismiss the action on the ground that the complaint failed to
state a claim on which relief could be granted. Stebbins v.
Weaver, 396 F.Supp. 104 (W.D.Wis.1975).

In his comprehensive opinion, the district judge overruled
defendants’ contentions that they were not persons within the
meaning of 42 U.S.C. § 1983 and that the suit was barred by
the Eleventh Amendment. He pointed out that plaintiff had
alleged “an explicit, though unwritten, contractual agreement
under which he was entitled to tenure provided certain condi-
tions on his part were met, and he has alleged that those con-
ditions were met.” 396 F.Supp. at 111. Therefore, Judge Doyle
concluded that dismissal for lack of a protected property in-
terest in reemployment would be improper in the absence of
whatever evidence plaintiff might be able to submit.

Balancing the interests of the State and the plaintiff, the
court decided that he was constitutionally entitled to “some

—_ <<

minimal due process.” 396 F.Supp. at 112. However, the court
found that the procedure followed by the defendants in this
case was sufficient to comply with the requirements of due -
process. We affirm the decision of the district court to dismiss
the suit, but we rely on different reasons.

[1] Initially, plaintiff attacks the district court's failure to
permit him to file an amended and supplemental complaint. -
Plaintiff sought to file this pleading after the court had rendered
but stayed its original ruling. The new complaint alleged no
new facts which would have required the court to reconsider
its earlier decision. Consequently, the motion to file the com-
plaint was properly denied. Asher v. Harrington, 461 F.2d 890,
895 (7th Cir. 1972); O'Bryan v. Chandler, 352 F.2d 987,
990-991 (10th Cir. 1965), certiorari denied, 384 U.S. 926,
86 S.Ct. 1444, 16 L.Ed.2d 530.

[2] Plaintiff also asserts that the district court should not
have decided the merits of this case under Rule 12 of the Fed-
eral Rules of Civil Procedure. However, the merits were put
in issue by virtue of defendants’ motion to dismiss for failure
to state a claim upon which relief could be granted and were
adequately briefed below. Judge Doyle accepted the truth of
the allegations of the complaint, construed liberally to the plain-
tiff, and considered the entire record before ruling. 396 F.
Supp. 106, 117. He even invited further factual information,
but none wdas forthcoming. In such a setting, there was no
abuse of Rule 12.

[3] Because the case is before us on defendants’ motion to
dismiss, we also must take as true plaintiff's allegation that he
was informed that he could eventually expect tenure if he met
certain standards of professional competence. This is of course
true of most neophyte members of university faculties, includ-
ing this very institution. Board of Regents v. Roth, 408 U.S.
564, 566-567, 92 S.Ct. 2701, 33 L.Ed.2d 548. As with Roth,

— A-18 —

it is settled that plaintiff “did not have a property interest suf-
ficient to require” the Fourteenth Amendment's procedural pro-
tections. 408 U.S. at 578, 92 S.Ct. at 2710.' Our decision in
Hostrop v. Board of Junior College District No. 515, 523 F.2d
569 (7th Cir. 1975), certiorari denied, — U.S. —, 96 S.Ct.
1748, 48 L.Ed.2d 208, 44 LW 3624 (Hostrop Il) is not to
the contrary, for there the junior college president was dis-
charged in July 1970 even though he had a valid employment
contract at least through June 30, 1971.

As to plaintiff's liberty right, there is no allegation that de-
fendants have injured his good name, reputation, honor or in-
tegrity by charging him with dishonesty or immorality. He is
free to seek another job. There has been no public disclosure
of the reasons for the denial of tenure. Therefore he has not
been deprived of liberty. Board of Regents v. Roth, supra, 408
U.S. at 573-575, 92 S.Ct. 2701; Bishop v. Wood, supra, —
U.S. at —, 96 S.Ct. at 2077, 44 LW at 4822.

[4-6] Plaintiff also asserts that the defendants’ arbitrary and
capricious action in denying him tenure violated his constitu-
tional right to substantive due process. This argument in effect
asks us to review the merits of the decision to deny plaintiff
tenure.- We decline to do so. The right to substantive due

! See also Bishop v. Wood, — U.S. —, —, —, 96 S.Ct. 2074,
2077-2080, 48 L.Ed.2d 684, 44 LW 4820, 4821-4822. In Perry
v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, the
plaintiff was entitled to show his entitlement to continued employ-
ment because of the de facto tenure program at Odessa College.

- Even if plaintiff were entitied to procedural due process, our
scope of review of the tenure decision would be limited to determin-
ing whether it was arbit. wy or capricious. Chung v. Park, 514 F.2d
382, 387 (3d Cir. 1975) certiorari denied, 423 U.S. 948, 96 S.Ct.
364, 46 L.Ed.2d 282, 44 LW 3280; Thompson v. Gallagher, 489
F.2d 443, 447 (Sth Cir. 1973). However, in cases such as this one,
where the decision is based on a subjective evaluation, we would de-
cline to review the merits absent some showing of gross abuse.
Chung v. Park, supra... ..

— A-19 —

process, as then Judge Stevens admonished, is no greater than
the right to procedural due process in this type of case. As seen,
Stebbins had no property or liberty right entitling him to pro-
cedural due process, and accordingly there is no basis upon
which we can say the denial of tenure was error.* Jeffries v.
Turkey Run Consolidated School District, 492 F.2d 1, 4 (7th
Cir. 1974); Miller v. School District Number 167, Cook
County, Illinois, 495 F.2d 658, 660 (7th Cir. 1974); cf. TA
Moynahan Properties, Inc. v. Lancaster Village Corp., Inc.,
496 F.2d 1114, 1117 (7th Cir. 1974).

Because the due process and other points have been resolved
in defendants’ favor, it is unnecessary to resolve whether they
are “persons” within 42 U.S.C. § 1983 and whether they are
immunized by the Eleventh Amendment, as presented by the
cross-appeal.

Judgment affirmed.

* Of course, had plaintiff been able to demonstrate that the de-
cision was based on an impermissible discrimination, such as on the
basis of race, or made in retaliation for the exercise of a protected
right, we would review it. Hostrop II, supra, 523 F.2d at 573; Illinois
State Employees Union v. Lewis, 473 F.2d 561, 568 (7th Cir.
1972), certiorari denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d
590.

— A-20 —

APPENDIX D

John L. STEBBINS, Jr., Plaintiff,
Vv.
John C. WEAVER and Board of Regents
of the University of Wisconsin
System, Defendant.

No. 72-C-111.

United States District Court,
W. D. Wisconsin.

June 3, 1975.

JAMES E. DOYLE, District Judge.

This is a civil action for declaratory and injunctive relief.
Jurisdiction is invoked pursuant to 42 U.S.C. § 1983. The
amount in controversy is alleged to exceed ten thousand dollars
exclusive of interest and costs.

Plaintiff seeks a declaratory judgment holding that, both as
to form and result, the procedures by which he was denied tenure
as a member of the faculty of the University of Wisconsin-Mil-
waukee violated the due process clause of the Fourteenth Amend-
ment of the United States Constitution. He further seeks injunc-
tive relief reinstating him as an assistant professor, and barring
the defendants both from denying him tenure without awarding
him a hearing procedure comporting with constitutional require-
ments and from filling any tenured positions in the Mathematics
Department of the University of Wisconsin-Milwaukee until
such time as a final decision regarding the plaintiff's tenure is
reached by means of a constitutionally adequate decision-mak-
ing process.

— A-21 —

Defendants have moved to dismiss this action on the grounds
that this court lacks jurisdiction over the subject matter and
that the complaint fails to state a claim upon which relief can
be granted. It is to this motion that this opinion and order are
addressed.

For the purpose of this motion, I take as true the allegations of
the complaint, construed liberally to the plaintiff. Those allega-
tions are summarized in the following section of this opinion
headed “Facts.”

Facts

Plaintiff is a Wisconsin resident. Defendants Weaver, Presi-
dent of the University of Wisconsin System, and the Board of
Regents of the University of Wisconsin System are legally em-
powered to govern and manage public higher education in Wis-
consin, and to appoint professors at the University of Wisconsin-
Milwaukee. In 1965 plaintiff was retained by the predecessors
of the defendants as an assistant professor in the Mathematics
Department of the University of Wisconsin-Milwaukee pursu-
ant to a three-year contract. At the time of his appointment, the
plaintiff was informed that with normal development in the areas
of teaching, research, and community service he could expect
to obtain tenure. During the ensuing six years the plaintiff en-
joyed an extremely successful teaching career, was productive
both in terms of academic publishing and community service,
received a second three-year contract at the conclusion of the
first three years, was awarded merit salary raises, and was as-
signed expanded duties. |

In January of 1970, however, the Executive Committee of
the Department of Mathematics met and voted to terminate
plaintiff's faculty appointment. Plaintiff was not notified of the
meeting, nor given an opportunity to be heard, nor allowed to
confront the witnesses against him, nor permitted to submit to

— A-22 —

the Committee copies of his professional works or a record of
his accomplishments.

On July 6, 1970 the Executive Committee met again, and
took a position on the reasons for which the plaintiff was de-
nied tenure: (a) his research was not such as to warrant promo-
tion; and (b) his area, namely, complex analysis, was adequately
covered by tenured faculty in the Department. Again the plain-
tiff was not given an opportunity to be present at the Com-
mittee’s meeting. Four months later, the Committee voted to
promote and to award tenure to an assistant professor, other
than plaintiff, who was also untenured and who had the same
research specialty. Because the conduct and decisions of the
Executive Committee were repeatedly disapproved by the Dean
of the College of Letters and Science, the Executive Committee
became hostile toward plaintiff.

In March of 1971, the Executive Committee held hearings on
the issue of reopening its earlier decision regarding the plaintiff's
tenure status. After four days of hearings, during which the
plaintiff was given an opportunity to present information con-
cerning his qualifications the Committee voted to allow their
original decision to stand, thus denying the plaintiff tenure
status and effectively terminating his employment at the Uni-
versity. Two of the committee members who participated in the
vote on whether the plaintiff's case should be reopened did not
attend the “substantive portions of the hearings.” The Com-
mittee refused plaintiff's request that its decision be based solely
on the evidence adduced at the hearing. The Committee re-
fused to disqualify from participation in the hearing or subse-
quent vote members who had participated in the earlier decision
then under review. Plaintiff was not allowed to examine Com-
mittee members as to the evidence upon which they had made
their earlier decisions to deny him promotion. The Committee
refused to state in writing the evidence upon which it based its
determinations. No information unfavorable to the plaintiff was

ee en

— A-23 —

presented at the hearing. Information overwhelmingly favorable
to the plaintiff was presented at the hearing.

The plaintiff then appealed both alleged procedural errors by,
and the substantive decisions of, the Executive Committee to
the Dean of the College of Letters and Science of the University
of Wisconsin-Milwaukee, then to the University of Wisconsin-
Milwaukee University Committee, then to the defendant Weaver,
and finally to the defendant Board of Regents. Each reviewing
agency or person allowed the decision of the Executive Com-
mittee to stand.

Opinion
I. Jurisdiction

A. 28 U.S.C. § 1343(3).

[1] Defendant Weaver argues that this court lacks subject
matter jurisdiction over this suit against him, as he is being sued
in his “official capacity” and is therefore not a “person” within
the meaning of 42 U.S.C. § 1983.' I hold that defendant Weaver
is a “person” for the purpose of § 1983 regardless of whether he
is being sued in an individual or official capacity.

[2, 3] Since Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5
L.Ed.2d 492 (1961), it has been clear that state officials charged
as individuals with unconstitutional activity are amenable to
suit under 42 U.S.C. § 1983. Federal jurisdiction may also be
exercised through § 1983 to redress constitutional wrongs

. through requiring appropriate official acts by officials
sued in their representative capacities.” Harkless v. Sweeny
Independent School District, 427 F.2d 319, 323 (Sth cir. 1970).
The Supreme Court has frequently permitted relief under § 1983

! It may be that only a § 1983 cause of action can provide a fed-
eral court with subject matter jurisdiction under § 1343(3). See
City of Kenosha v. Bruno, 412 U.S. 507, 511-513 (1973); The Su-
preme Court, 1972 Term, 87 Harv.L.Rev. at 254, footnote 15.

a Dt

against state officials sued in this representative capacity.* See,
e. g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d
506 (1964); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11
L.Ed.2d 481 (1964). Although the distinction between a suit
against a state official individually and one naming that same
defendant in an official capacity may be relevant to issues of
constitutional or common law immunity (see the following sec-
tion of this opinion), it is immaterial to the definition of the
term “person” in § 1983. Defendant Weaver is a “person” under
$ 1983, and subject matter jurisdiction over the suit against
Weaver is present under 28 U.S.C. § 1343(3).

The defendant Board of Regents also contends that this court
lacks subject matter jurisdiction in this suit against it, arguing
that state agencies are not “persons” for the purpose of § 1983.
It is true that other circuits have held state agencies in general
and educational institutions in particular to be outside the scope
of § 1983. See, e. g., Whitner v. Davis, 410 F.2d 24 (9th cir.
1969); Blanton v. State University of New York, 489 F.2d 377
(2nd cir. 1973). The law of the Seventh Circuit, however, is
quite clearly to the contrary. In Lee v. Board of Regents of
State Colleges, 441 F.2d 1257 (7th cir. 1971), a state agency
similar to the present Board was held to be a “person” for the

* The exclusion of “municipalities” from the scope of § 1983, see
Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.
2d 596 (1973) and City of Kenosha v. Bruno, 412 U.S. 507, 93
S.Ct. 2222, 37 L.Ed.2d 109 (1973), has no bearing on whether
State officers are “persons” within the meaning of that statute. And
the notion that the term “person” in § 1983 was not intended to refer
to individual state officers, whether sued in their representative ca-
pacity or not, is so strained and would produce such a substantial
reduction in the power of the federal courts to vindicate federal
rights, that I would be loathe to accept it without explicit direction
from an appellate court.

The contention of the defendant that state officials sued in their
official capacity are not “persons” because they are the “state,” is an
attempt to raise an Eleventh Amendment defense as if it were a
Statutory claim. It will be discussed in the following section on the
Eleventh Amendment.

ee

oe NO RS as 6 EI Ret Oe

—~ =

purpose of 42 U.S.C. § 1983. See also Roth v. Board of Re-
gents of State Colleges, 310 F.Supp. 972, 974 (W.D.Wis.1970),
aff'd 446 F.2d 806 (7th cir. 1971) rev'd on other grounds, 408
U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

The defendar. Doard argues that these Seventh Circuit de-
cisions were implicitly overruled by the Supreme Court's de-
cisions in Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct.
1785, 36 L.Ed.2d 596 (1973) and City of Kenosha v. Bruno,
412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). In
Moor, elaborating on its holding in Monroe v. Pape, supra, the
Court held counties not to be “persons” for the purposes of
$ 1983. Bruno established that municipalities were not “per-
sons” under § 1983 irrespective of the relief requested in any
action brought against them. The defendant argues that a state
agency is a “political subdivision” of the state, and therefore no
more subject to suit under § 1983 than are cities and counties.
See Moor, 411 U.S. at 693, 93 S.Ct. 1785.

The Monroe, Moor, and Bruno decisions were exercises in
statutory interpretation. In each case the Court turned to the
legislative history of § 1983 to find an explicit intent to exclude
cities and counties from the scope of that statute. The decision
to exclude “municipalities” from the reach of § 1983 was
prompted by a fear on the part of influential House members
that Congress lacked “the constitutional power to impose li-
ability” upon such entities. Moor, 411 U.S. at 709, 93 S.Ct. at
1796. In the opinion of these congressmen, the Congress had
the power to impose liability on the states on the one hand and
individuals on the other, but not “local subdivisions” of govern-
ment. /bid., footnote 24. The Conference Committee was told
by the delegates from the House that a section of the Senate’s
proposed bill imposing liability upon towns and counties
“. . . must go out or we should fail to agree.” 411 U.S. at 709,
93 S.Ct. at 1796. Congress had no doubt that states were sub-
ject to the provisions of the Fourteenth Amendment and could

a ee

— A-26 —

be held responsible for the preservation of a citizen’s rights un-
der the Constitution. See Moor, 411 U.S. 709, at footnote 24,
93 S.Ct. 1785. The argument that liability could clearly be
placed upon the states was advanced against imposing such li-
ability upon cities and counties. If liability could be constitu-
tionally imposed on the states, it could be imposed on their
agencies as well. While cities and counties were frequently
mentioned in legislative debate as examples of the “subdivisions”
not to be included as “persons” under § 1983, state agencies
were not. Congress saw no constitutional impediment to im-
posing liability on state agencies and no need to place them be-
yond the ambit of § 1983.

[4] I follow the law of this circuit holding such agencies to be
“persons” for the purpose of § 1983. Subject matter jurisdic-
tion in this suit against the defendant Board of Regents exists
under 28 U.S.C. § 1343(3).

B. The Eleventh Amendment

B. The Eleventh Amendment to the Constitution of the
United States provides: “The Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United
States by Citizens of another State . . .” The Eleventh Amend-
ment is considered to bar suits in federal court in which an un-
consenting state is named as a defendant by one of its own
citizens. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed.
842 (1890); Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154,
64 L.Ed. 280 (1920); Parden v. Terminal R. Co., 377 US.
184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). Defendant
Weaver contends that because he is being sued in his official
capacity, the plaintiff's suit against him is a suit against the state
of Wisconsin for the purpose of the Eleventh Amendment. He
considers it irrelevant that the plaintiff has requested only in-
junctive and declaratory relief, rather than monetary damages.

Ce

ee ae ena ee ae ses a

—

He states that the law of Wisconsin considers a suit against a
state officer in his or her “official” or “representative” capacity
to be a suit against the state. I will assume that defendant Weaver
is correct in that contention.

[5-7] The proper interpretation of the Eleventh Amendment
is a question of federal law. State law is relevant only to the
extent that federal law makes it so. The history of the Eleventh
Amendment reveals its purpose to be protection from suits
brought in the federal courts seeking to impose a liability which
must be paid from state governmental funds. Cohens v. Virginia,
19 U.S. 264, 405, 5 L.Ed. 257 (1821); Edelman v. Jordan,
415 US. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). It bars
actions which are “in essence one(s) for the recovery of money
from the state . . . even though individual officials are nominal —
defendants.” Ford Motor Co. v. Department of Treasury, 323
U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945); accord,
Edelman v. Jordan, supra.

[8] In situations where a state official is sued for damages or
a retroactive injunction compelling payments of some kind, a
federal court may be required to consider the relationship under
state law between the defendant official and the state. If that
relationship is such that any monetary judgment rendered against
the defendant official would necessarily be paid out of a state
treasury rather than out of the official’s personal resources, then
a suit for monetary relief against that official will be considered,
for the purpose of the Eleventh Amendment, a suit against the
state. Great Northern Life Insurance Co. v. Read, 322 US.
47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944); Kennecott Copper
Corp. v. State Tax Comm'n, 327 U.S. 573, 66 S.Ct. 745, 90 L.
Ed. 862 (1946).

{9] Under constitutional principles long established and re-
cently reaffirmed, however, the Eleventh Amendment does not
bar a suit by a citizen against a state officer where the relief re-

— A-28 —

quested is a prospective injunction against allegedly unconstitu-
tional behavior on that officer’s part. Ex Parte Young, 209 U.S.
123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Edelman v. Jordan,
415 US. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Scheur
v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

The Young principle—that a state official can be acting “under
color of state law” for the purpose of the Fourteenth Amendment,
though not qualifying as the “state” for the purpose of the
Eleventh—has been called a “fiction.” 3 Davis, Administraitve
Law § 27.03 (1958). If so, it is a durable fiction, critical to the
network of protections afforded constitutional liberties. Long
after the passage of the Eleventh Amendment, the Fourteenth
Amendment created for the first time constitutional guarantees
against the unwarranted exercise of state, as opposed to federal,
power. Congress radically expanded the jurisdiction of the fed-
eral courts, demonstrating its intention to establish the federal
judiciary as the primary “guarantor of basic federal rights against
State power.” Mitchum v. Foster, 407 U.S. 225, 238-239, 92
S.Ct. 2151, 2160, 32 L.Ed.2d 705 (1972); see also Frankfurter
and Landis, The Business of the Supreme Court: A Study in the
Federal Judicial System, 64 (1928). This guardianship could
not be maintained by the federal courts if they lacked the power,
claimed in Young and reaffirmed consistently since then,* to
enjoin unconstitutional actions by state officials.

Defendant Weaver maintains that if defendants are enjoined
to rehire plaintiff, his future wages will be paid out of state funds.
It is a rare prospective injunction against a state official that will
not affect a state treasury in the same way.* Acceptance of de-
fendant’s position would severely limit Young. Defendant urges
that Edelman v. Jordan and Scheur v. Rhodes, supra, \end sup-

* See, e. g., Georgia R.R. & Banking Co. v. Redwine, 342 U.S.
299, 304, 72 S.Ct. 321, 96 L.Ed. 335 (1952).

4 See Justice Rehnquist’s discussion of this point in Edelman, 415
U.S. at 651, 94 $.Ct. 1347.

ao 5 ee Ae ee tas

s — A-29 —

port to his contention. Examination of Edelman or Scheur
reveals that they explicitly rejected any narrowing of the Young
principle. In Edelman, the court heid the Eleventh Amendment
a bar to a suit in federal court seeking the payment of back wel-
fare benefits illegally withheld by a state agency from eligible
recipients. The Court stated clearly that the Eleventh Amend-
ment posed no bar to that part of the suit seeking an injunction
to compel the payment of such benefits prospectively. The Court
found that “such an ancillary effect on the state treasury is a
permissible and often an inevitable consequence of the principle
announced in Ex Parte Young, supra.” 415 U.S. at 669, 94
S.Ct. at 1358. The Court is equally clear in Scheur that the rule
of Young “that the Eleventh Amendment prevides no shield for
a state official confronted by a claim that he had deprived an-
other of a federal right under the color of state law” remains
“well settled” in cases involving “a question of the federal courts’
injunctive power, [as opposed to claims] for monetary damages.”
416 US. at 238-239, 94S.Ct. at 1687.

{10} Suits against state educational officers have been upheld
against an Eleventh Amendment defense on previous occasions
in this court. See, e. g., Roth v. Board of Regents of State Col-
leges, 310 F.Supp. 972 (W.D.Wis.1970), aff'd 446 F.2d 806
(7th Cir. 1971), rev'd on other grounds, 408 U.S. 564, 92 S.Ct.
2701, 33 L.Ed.2d 548 (1972); Lee v. Board of Regents of
State Colleges, 306 F.Supp. 1097 (1971) aff'd 441 F.2d 1257
(1971). Plaintiff's claim for prospective injunctive relief against
defendant Weaver is not barred by the Eleventh Amendment.

{11} Defendant Board of Regents also claims that the plain-
tiff's suit against it is a suit against the state barred from federal
court by the Eleventh Amendment. If this were a suit for
damages I would be required to examine carefully whether any
monetary judgment against the Board would be satisfied out of
the state funds. See, e. g., Hopkins v. Clemson College, 221
U.S. 636, 31 S.Ct. 654, 55 L.Ed. 890 (1911). However, the

— A-30 —

relief requested is solely a prospective injunction. The prin-
ciple of Young is as applicable to a suit against a state agency
for prospective injunctive or declaratory relief as it is to a suit
against an individual state officer. Lee v. Board of Regents,
supra at 441 F.2d 1260. Plaintiff's suit against the Board is
not barred by the Eleventh Amendment.

Il. Motion to Dismiss for Failure to State a Claim

A. Presence of “property” interest.

Defendants contend that Board of Regents v. Roth, 408 US.
564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Perry v. Sind-
ermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)
conclusively hold that a nontenured faculty member whose con-
tract has expired has no remaining interest in employment pro-
tected by the due process clause, and therefore can be severed
from state employment without being afforded the procedural
and substantive protections available when one’s liberty or prop-
erty is at stake. In Roth, the court noted that the record dis-
closed simply that a person hired by the state for one year had
not been rehired for a second. It found in these circumstances
alone no legally cognizable interest in continued employment
requiring protection under the Fourteenth Amendment. But in
Perry the Court stated that the absence of an explicit tenure
provision in one’s contract “. . . may not always foreclose the
possibility that a teacher has a ‘property’ interest in re-employ-
ment.” 408 U.S. at 601, 92 S.Ct. at 2769. It held that a
plaintiff could well possess an interest in continued employment
created by some other sort of contractual provision, expressed
or implied, of which he or she could not be deprived constitu-
tionally without being afforded due process. “Subjective ex-
pectancy” of future employment by a plaintiff is not sufficient
to invoke constitutional protections, but a plaintiff claiming a
protected property interest “. . . must be given an opportunity to

Se eae ae eae eae.

SOR Ree ce ee on

oe me ee

ee ee tae See me

— A-31 —

prove the legitimacy of his claim of such entitlement in light of
“the policies and practices of the institution.” 408 U.S. 603,
92 S.Ct. at 2700.

[12] In the present case the plaintiff has alleged an explicit,
though unwritten, contractual agreement under which he was
entitled to tenure provided certain conditions on his part were
met, and he has alleged that those conditions were met. Dis-
missal for lack of such a protected interest would be proper only
after consideration of whatever evidence the plaintiff may be
able to submit.

B. Nature of appropriate due process protection.

The Supreme Court has made clear that due process guar-
antees vary with factual and institutional contexts. See, for ex-
ample, Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593,
33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778,
93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In determining the
nature of the due process protections to which the plaintiff in
this case is entitled, I must “. . . begin with a determination of
the precise nature of the governmental function involved as well
as of the private interest that has been affected by governmental
action.” Cafeteria and Restaurant Workers v. McElroy, 367
U.S. 886, 895, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1961).

[13] The basic governmental and private interests at stake
in tenure decisions are readily identifiable. Wisconsin has a
valid and substantial interest in maintaining the highest possible
standards of quality in the educational opportunities offered in
its institutions of higher learning. Because the grant of tenure
is virtually a lifetime guarantee of the opportunity to teach and
to engage in research within the University of Wisconsin system.
the state has an interest in ensuring that those who are offered
tenure are highly qualified to meet those responsibilities. The
state is entitled to investigate the academic qualifications of
faculty candidates, to assess those qualifications, and to grant or

— A-32 —

deny tenure to a given candidate on the basis of that assess-
ment. The interest of the plaintiff in the tenure decision is also
substantial. To be denied this virtual lifetime guarantee is a
significant loss.°

Balancing these interests of the state and the plaintiff, I con-
clude that plaintiff was constitutionally entitled to some minimal
due process.

It is plain from the complaint that during the period of more
than two years while the initial decision of the Executive Com-
mittee was under review, plaintiff was afforded: a statement of
the reasons why the university intended not to promote him;
notice of a hearing at which he could respond to the stated rea-
sons; and a hearing. But plaintiff contends that he was con-
stitutionally entitled to further specific protections, which were
denied him. Before considering separately his claims to each
such protection, I offer an observation about the institutional
context of this case which bears upon all of his claims.

[14] Because the quality of the faculty of the university is
importantly affected by the exercise of the tenure decision, the
state has a valid and substantial interest in placing the power of
operative decision in appropriate hands. Initially, the ques-
tion is whether to place this power within or without the uni-

5 Whether I may consider, without specific evidence of record,
that negative consequences flow from the denial is unclear. In Roth
v. Board of Regents of State Colleges, 310 F.Supp. 971, 979 (W.D.
Wis.1970), I stated: “. . . [I]t is realistic to conclude that non-
retention by one university or college creates concrete and practical
difficulties for a professor in his subsequent academic career.” The
Court of Appeals noted “the substantial adverse effect non-retention
is likely to have upon the career interests of an individual professor.”
446 F.2d 806, 809. The Supreme Court emphasized (408 U.S. at
574, 92 S.Ct. 2701, N. 13) that this was no more than an “assump-
tion,” so far as the case record in Roth was concerned, but said that
even if the assumption were made, “liberty,” within the meaning of the
due process clause, is not at stake when a decision against tenure
by one employer renders a teacher less attractive to some other em-
ployees.

Ot teense ten ee i on

— A-33 —

versity community; it is reasonable to place it within the uni-
versity. The question then becomes where to place it within
the university; it is reasonable to place the power with the mem-
bers of the departmental faculty concerned.

If this allocation of power within the institution comports
with the due process clause of the Fourteenth Amendment, and
I believe it does, many consequences flow. Perhaps the most
consequential is that the operative decision will be formed by the
departmental faculty over a period of years, based upon observa-
tion of the candidate, based upon intuitive responses to the
candidate, based upon the particular member's developing
opinion, and based upon the developing opinions entertained
by other members to the extent that these opinions are shared
from time to time, whether expressly or subtly. Although it is
to be hoped that the members of the departmental faculty will
develop their opinions of the candidate with all the objectivity
and care they can muster, it is quite apparent that inevitably
the subjectivity quotient will be high.

When the time for decision comes, it will not be entered upon
a blank page—as it might be by a judge or a jury carefully
chosen so as to exclude from the process any earlier acquaint-
ance with the candidate and any earlier knowledge of his pro-
fessional capacity and personal characteristics. To demand of the
members of the departmental faculty that they consciously shed
all earlier impressions of the candidate would be sharply to
diminish the very justification for lodging with them the power of
decision.

As against all this is the candidate's interest in a favorable
decision on tenure. It does not follow inexorably that a favor-
able decision is less likely to flow from the extended, complex,
and somewhat obscure process I have described than from a
formal procedure in which the decision is reached in a neutral
and detached forum strictly upon the evidence presented to it.

—_ <a

But when the time for decision comes, and the initial decision
is unfavorable, the candidate’s immediate interest lies in getting
it changed. It is at this stage that there arises an intense desire
on the part of the candidate for a wholly new forum, and, if
not for a wholly new forum, then for procedural arrangements
which lend maximum difficulty to adherence by the present
forum to its initial decision. This represents the more precise
setting within which the interests of the government and those
of the candidate are to be balanced, and I am persuaded that the
balance must be struck generally favorably to the interests of the
government.

1. Participation in initial decision making.

[15] Plaintiff contends that the failure of the defendants to
allow him to participate in the deliberations of the Executive
Committee between January and July of 1970, during which
the Committee initially determined that he was not qualified for
tenure, constituted a violation of procedural due process. One
might well benefit from being present at every stage of a decision-
making process which may adversely affect one’s interest in
liberty or property. The state can fairly claim, however, that
informed and intelligent decision making is served by allowing
certain stages of that same process to unfold free of the limits
on candor and informality imposed by adversarial circumstances.
In the particular institutional context of this case the exclusion
of a tenure candidate from participation in the initial discussion
by a faculty committee on whether to deny tenure is not a
denial of due process. The state’s constitutional ability to exclude
an affected party from this initial stage of decision making is,
however, contingent on the adequacy of the opportunity to
respond to that decision later.

2. Impartiality.

Plaintiff alleges that the later hearing afforded him before the
Executive Committee was constitutionaly inadequate because

ee ee

A cent RE A ah A lene MT OR eee te

ee eee

ee ee ee en eee ee es

— A-35 —

(a) the same committee had earlier voted to deny him tenure;
and (b) the committee had become hostile toward him because
its conduct and decisions had been repeatedly disapproved by
the dean.

Contention (a) must fail, particularly in light of Withrow v.
Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975).
At stake in Larkin was a physician's license to practice medicine
in Wisconsin, surely an economic stake at least comparable to
plaintiff's economic stake in his teaching position. The mem-
bers of the state medical examining board conducted an “in-
vestigative hearing” at which numerous witnesses testified and
at which the physician's counsel was present. The board en-
tered findings, conclusions, and a decision in which it found
that the physician had engaged in specified conduct proscribed
by statute. Its “decision” stated that there was probable cause
to believe that the physician had violated criminal provisions
of the statutes, and probable cause for a court action to revoke
his license. Meantime, the board proposed to hold a “contested
hearing” to determine whether the physician's license should be
suspended temporarily. A three-judge district court had pre-
liminarily enjoined the board from proceeding with the said
contested hearing. The Supreme Court reversed, holding that
it was quite unlikely that the physician would ultimately pre-
vail in his contention that it would be a denial of due process
for the same board to hold a contested hearing on the issue of
temporary suspension of the license after having conducted the
investigative hearing and after having entered its findings, con-
clusions, and “decision.” The Court emphasized (421 US.
55, 95 S.Ct. 1468):

No specific foundation has been presented for suspecting
that the Board had been prejudiced by its investigation or
would be disabled from hearing and deciding on the basis
of the evidence to be presented at the contested hearing.
The mere exposure to evidence presented in nonadversary

— A-36 —

investigative procedures is insufficient in itself to impugn
the fairness of the board members at a later adversary
hearing. Without a showing to the contrary, state ad-
ministrators, “are assumed to be men of conscience and
intellectual discipline, capable of judging a particular con-
troversy fairly on the basis of its own circumstances.”
United States v. Morgan, 313 U.S. 409, 421 [61 S.Ct. 999,
85 L.Ed. 1429] (1941).

[16] I appreciate that there are many distinctions to be
drawn between the facts in Larkin and the facts as alleged in
the complaint in this case. During the “investigative” stage in
Larkin, the members of the board presumably were not drawing
upon their personal experiences with the particular physician
over a period of time and were not engaging in subjective judg-
ments about his qualifications; also, counsel for the physician was
permitted to be present. Nevertheless, Larkin appears to be
strong and fresh authority for the proposition that, in the
absence of a showing of actual bias, an administrative board
is not foreclosed from conducting a hearing on the merits of an
issue simply because it has earlier examined into the facts and
formed conclusions about them. For reasons I have stated
above, this should be particularly so with respect to depart-
mental faculty members and the question of tenure.

I appreciate that despite what I have said, fundamental fair-
ness might require that when the ground for initial decision is
narrowly factual—for example, alleged improper conduct on a
specific occasion—, the conduct of the subsequent hearing and
the review of the initial decision be consigned to another forum.
But this complaint alleges that the Executive Committee's two
stated reasons were that plaintiff's research was not such as to
warrant promotion and that his area of complex analysis was
adequately covered by tenured faculty. Plaintiff does not allege
that the true reason was neither of these. He alleges only, as we
shall see later, that neither of the stated reasons was supported
by evidence presented at the hearing.

a ed

—*

[17] With respect to the matter of actual bias, I must accept
presently as true plaintiff's allegation that prior to his hearing
the Executive Committee had become hostile to him because its
earlier actions had been criticized by the dean. A decision-
making process which left final control over a determination
in the hands of a board hostile to the party might well be con-
stitutionally defective regardless of the substantiality of the
state’s interest in a given allocation of decision-making power.
In this case, however, the state made available to the plaintiff
some four levels of review through which the final decision
of the Executive Committee could be, and was in fact, appealed.
At none of these levels is it alleged that the reviewing parties
were persons involved in any of the deliberations of the Execu-
tive Committee. The state thus took steps to insure that its
interest in having the plaintiff's hearing held before the Executive
Committee was not furthered at the cost of the plaintiff's interest
in a fair and unbiased review of his initial tenure decision. I
consider these stages of review constitutionally sufficient with
respect to the allegations of actual bias. Also, they served as a
corrective measure for whatever residual difficulties may have
persisted from the fact that the Executive Committee engaged
in a hearing to consider the merits of its own initial decision.

3. Confrontation with board members.

Plaintiff argues that the failure of the Executive Committee
to allow him to examine its members at his hearing was a vio-
lation of due process. As I have noted, there is nothing in the
plaintiff's complaint, however, to suggest that the initial action
of the Executive Committee depended on findings of primary
fact. That action was ostensibly based on a subjective evalua-
tion of the nature and quality of the plaintiff's research. In such
a situation, the opportunity to question the members of the
Executive Committee might be constitutionally required if
needed to provide the plaintiff with an adequate description of
the grounds on which the Committee initially denied him tenure.

— A-38 —

But according to the allegations of the complaint, the statement
given the plaintiff permitted him to marshall and present at his
hearing evidence overwhelmingly favorable to him and so ex-
tensive that the hearing lasted some four days.

4. Grounds not adduced at hearing.

[18] Plaintiff contends that the failure of the Executive Com-
mittee to base its final decision solely on evidence adduced at
this hearing violated his right to procedural due process. Had
the initial decision been based ostensibly on narrow factual
grounds, fundamental fairness might require that all the evidence
purporting to support those grounds be revealed and that the
board consider only that evidence in making its determinations.
But the original decision of the Executive Committee purported
to evaluate the performance of the plaintiff in fulfilling his teach-
ing and research responsibilities over some five years. Fairness
required that before its decision became final, the Committee
consider all evidence as to the quality of that performance that
the plaintiff could marshall. But as I have said more fully
earlier, it was not fundamentally unfair for the members of
the Committee to give weight to their own subjective opinions
of the plaintiffs work, formed over years of knowing and ob-
serving him. Such opinions are a rational and necessary in-
gredient of the qualitative evaluation at the heart of the tenure
process.

5. Incomplete participation by members.

[19} Plaintiff argues that his hearing was constitutionally de-
fective in that two members of the Executive Committee did
not attend some part of the proceedings, though they later
participated in the vote to reaffirm the original decision of the
Committee denying the plaintiff tenure. No doubt the shoddy
manner in which a hearing is conducted can sometimes support
a finding that the aggrieved party has not received a hearing

— A-39 —

“at a meaningful time and in a meaningful manner.” Armstrong
v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d
62 (1965). From the allegations of the complaint it appears
that though the plaintiff's hearing stretched over some four
days, ten members were present at all times. The absence of
two members from part of the hearing did not render the hear-
ing constitutionally inadequate.

6. Substantive arbitrariness.

Plaintiff alleges that the decision of the Executive Commit-
tee, following the hearing, “was arbitrary and capricious in
that it ignores the overwhelmingly favorable information placed
before the Executive Committee.” Plaintiff alleges that no ad-
verse information whatever was presented to or by the committee
at the hearings. He alleges that the arbitrariness of the decision
is demonstrated by the committee’s award of tenure to another
assistant professor with the same research specialty, four months
after the committee had asserted that plaintiff's area of complex
analysis was already covered by tenured faculty.

It is not altogether clear in this circuit whether the “substan-
tive” arbitrariness of an administrative decision raises a federal
constitutional question under the due process clause. In Jeffries
v. Turkey Run Consolidated School District, 492 F.2d 1 (7th
cir. 1974), a public school teacher contended that the school
board’s decision not to renew her contract was completely with-
out basis in fact or logic, and that such an arbitrary and capri-
cious action violated her federal constitutional right to substan-
tive due process. The Court affirmed a dismissal of the com-
plaint on the ground that plaintiff had alleged no stake in “prop-
erty” or “liberty” entitled to either “substantive” or “procedural”
protection by the due process clause of the Fourteenth Amend-
ment. In a rather strong dictum, the Court severely questioned
whether federal judges should impose their own view as to what
may be related or unrelated to the educational process or as to
working relationships within schools. 492 F.2d, at 4. In Miller

— A-40 —

v. School District Number 167, Cook County, Ill., 495 F.2d 658,
660 (7th cir. 1974), one of the claims of a non-renewed public
school teacher was that the reasons for non-renewal as stated by
the board were untrue “and that the board’s action was arbitrary
in the sense that it was completely unsupported by any acceptable
reason... ..” The court described this claim as “comparable to
the ‘substantive due process’ argument which we recently rejected
in Jeffries [citation omitted], and is therefore foreclosed by that
decision.” Thus, the dictum of Jeffries became a holding in
Miller, binding on me. However, in T. A. Moynahan Prop.,
Inc. v. Lancaster Village Coop., Inc., 496 F.2d 1114, 1117 (7th
cir. 1974), the court declared that the cancellation of an agree-
ment by a federal agency “could be challenged by demonstrating
that there was no rational basis for the decision. . . . Cf. Jeffries
v. Turkey Run Consolidated District, 492 F.2d 1, 3 (7th cir.
1974).” The court proceeded to decide that there was a ra-
tional basis for the agency's decision in Moynahan.

It appears that any difficulty arising from this uncertainty as
to the law of the circuit can be avoided here, however. The com-
plaint does not allege that the stated reasons for the decision
were arbitrarily or irrationally inappropriate. It alleges, rather,
that no evidence to support the stated reasons was presented at
the hearing. Perhaps if there was available to the Executive
Committee no factual basis whatever for its stated grounds of
decision, the due process clause would be violated. Thompson v.
Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960).
See Jeffries, supra, at 5, n. 14. But both of the stated grounds
for the decision here involved qualitative judgments of some
sort, either of the plaintiff's abilities or of those of the tenured
members of the Mathematics Department. Perhaps such decisions
can never be found to be without basis in fact, for they are not
wholly factual decisions. When a decision purports not to re-
solve questions of primary facts but to evaluate facts, the deci-
sion will often be based on the opinions of persons considered
qualified to make qualitative judgments in a particular area of

—

expertise. Such opinions may be considered an “evidentiary”
basis.

[20] There is a narrower basis on which the plaintiff's claim
must be rejected. He does not claim that the Executive Com-
mittee lacked any evidence on which to base its decision, but
only that no such evidence was presented at his hearing. Thus
his claim that the Executive Committee’s decision was arbitrary
is dependent on the validity of his claim that only evidence pre-
sented at his hearing could be considered when the Committee
voted to affirm or reverse its original decision to deny the plain-
tiff tenure. Because I believe that the Committee was not bound
to consider only evidence laid before it at the hearing, an al-
legation that the hearing evidence was exclusively favorable to
the plaintiff is not sufficient to support a claim that the action
of the Committee subsequent to the hearing was arbitrary and
capricious.

Order

Upon the basis of the entire record herein, defendants’ motion
to dismiss is hereby granted and this action is dismissed on its
merits, together with costs.

— A-42 —

APPENDIX E
John L. Stebbins, Jr.,
Plaintiff,
V
Opinion and Order
John C. Weaver and Board of Regents [{ 72-C-111
of the University of Wisconsin
System,

Defendants. !

Defendants moved to dismiss this action on the ground that
subject matter jurisdiction is lacking because of the Eleventh
Amendment and because neither defendant is a “person” within
the meaning of § 1983; and on the ground that the complaint
fails to state a claim upon which relief can be granted because
it fails to show possession of a job interest entitled to protection
under the Fourteenth Amendment. The brief accompanying the
motion included argument to the effect that, assuming that
plaintiff enjoyed a job interest entitling him to protection under
the Fourteenth Amendment, the complaint shows that he re-
ceived such protection. Plaintiff served and filed a memorandum
in opposition to the motion to dismiss. Defendants served and
filed a reply memorandum repeating their contention that,
assuming plaintiff possessed a protected job interest, due process
requirements had been met in his case, as the case is alleged
in the complaint.

The briefing schedule issued by the clerk following the filing
of defendants’ motion end supporting brief provided that plain-
tif might have a certain time within which to serve and file
“an answering brief, together with such documents as are per-
mitted by Rule 56(e), Federal Rules of Civil Procedure, to be
filed in opposition to a motion for summary judgment.” Pro-
vision was made in the notice for a time within which defend-
ants might serve and file “a rebuttal brief, together with such

|
:
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on £43 —

rebuttal documents as are permitted by Rule 56(e) to be filed
in support of a motion for summary judgment.”

On June 3, 1975, I entered an opinion and order on defend-
unts’ motion to dismiss. I accepted as true the allegations of
the complaint, construed liberally to plaintiff. I decided that
the complaint supported subject matter jurisdiction, as against
defendants’ contentions. I decided that the dismissal for lack
of allegation of a sufficient interest in the job was unwarranted.
But I decided that the complaint did not state a claim that plain-
tiff had been denied the protections afforded him by the due
process clause of the Fourteenth Amendment. Judgment was
entered dismissing the action.

Thereafter, on plaintiff's motion, | ordered that said judgment
be stayed to permit plaintiff to serve and file a motion for leave
to amend and supplement the complaint. A motion for leave
to amend and supplement the complaint, together with a
proposed amended and supplemental complaint, has now been
filed, and it is to this motion that the present opinion and order
are directed.

Plaintiff contends that he was surprised that in its June 3,
1975, opinion and order the court went to the merits of whether
the complaint stated a claim that the due process clause had
been violated. I believe that plaintiff was fairly warned by
defendants’ brief in support of their motion and by their reply
brief that this was one of their contentions.

The language of the scheduling letter then in use by the
clerk of this court, but since modified, was somewhat awkward.
It was not intended as an evaluation of defendants’ motion by
the clerk, characterizing the motion as either a Rule 12(b)(6)
motion or as a Rule 56 motion or as some other kind of motion.
It was intended to convey the meaning,that if a party con-
sidered it permissible and appropriate to submit factual informa-
tion beyond the allegations of the complaint, such submission

am Abt a

must conform to the requirements imposed by Rule 56 with
respect to motions for summary judgment (affidavits on personal
knowledge, such facts as would be admissible in evidence, and
so on). Assuming that plaintiffs counsel found the clerk's
language confusing, I believe that no unfairness could reasonably
have resulted. In their reply brief, defendants emphatically
asserted that their motion was not a motion for summary judg-
ment. If plaintiff remained in doubt, the doubt could have
been expressed to the court at the time and the matter could
have been resolved. However, there is a more basic reason for
my belief that no unfairness could reasonably have resulted.
The adequacy of the complaint te state a claim was clearly put
in issue by defendants’ motion, however the motion might be
classified, and also by both the original brief and the reply brief
of the defendants.

The remaining grounds for plaintiff's motion for leave to
amend and supplement the complaint relate to the “highly fluid
state of the law respecting the constitutional obligations of a
university public employer to its professional employees,” and
to plaintiff's desire to add numerous parties defendant to cope
with defenses relating to “persons” under § 1983 and to “common
law immunity.” The latter consideration is surely untimely. As
to the former, I agree that the state of the law on the subject
is uncertain. However, the complaint herein was filed in April,
1972, and plaintiff has had abundant opportunity long since to
amend his complaint, more than once if reason for it had been
shown.

There comes a time to allow a matter to rest. The time has
come in ‘this case.

Order
Upon the basis of the entire record, it is ordered that:

1. Plaintiff's motion for leave to file an amended and sup-
plemental complaint is“denied.

20. Se RNS RE FSS RS whe

Co eee

— A-45 —
2. The order entered herein June 13, 1975, staying the
judgment entered herein June 3, 1975, is vacated.
Entered this 3rd day of July, 1975.

By the Court:

/s' James E. Doyle
District Judge

—_e

APPENDIX F

Constitutional and Statutory Provisions
Involved

Amendment 14, Section 1, United States Constitution
. . nor shall any State deprive any person of life, liberty, or
property, without due process of law; . z

Wisconsin Statutes
37.11(3), Wis. Stats. (1966)

“To remove at pleasure any president, assistant or other officer
or person from any office or employment in connection with any
such college, but discharges of teachers shall be governed by
§ 37.31.”

37.31(1) (im), Wis. Stats. (1966)

All teachers in any state university shall initially be employed
on probation. The employment shall be permanent, during
efficiency and good behavior after 4 years of continuous service
in the state university system as a teacher. An official leave of
absence shall not constitute a break in continuous service, noi
shall it count toward the 4 years required to attain tenure. No
teacher who has become permanently employed as herein pro-
vided shall be discharged except for cause upon written charges.
Within 30 days of receiving the written charges, such teacher
may appeal the discharge by a written notice to the president
of the board of regents of state colleges. The board shall cause
the charges to be investigated, hear the case and provide such
teacher with a written statement as to their decision. The actior
and decision of the board in the matter shall be final. The term
“teachers” as used in this section includes all persons engaged in
teaching as their principal occupation but shall not include any
university president or acting president in his capacity as presi-
dent of any of the state universities.

ee eee ee et

EO ae ee te ea eee

ee

— A-47 —

A teacher shall lose tenure upon discharge or resignation
from the state university system. A resignation withdrawn and
the withdrawal accepted by the board before the beginning of
the next school semester, not including the summer session, shal!
not be considered as voiding tenure. A teacher losing tenure
must upon re-employment serve another probation period.
36.06(1) (2), Wis. Stats. (1966)

The board of regents shall enact laws for the government of
the university in all its branches; elect a president and the requi-
site number of professors, instructors, officers and employes,
and fix the salaries and the term of office of each, and deiermine
the moral and educational qualifications of applicants for ad-
mission to the various courses of instruction: but no instruction,
either sectarian in religion or partisan in politics, shall ever be
allowed in any department of the university; and no sectarian
or partisan tests shall ever be allowed or exercised in the appoint-
ment of regents or in the election of professors, teachers or
other officers of the university, or in the admission of students
thereto or for any purpose whatever.

The board shall have power to remove the president or any
professor, instructor or officer of the university when, in the
judgment of the board, the interests of the university require it.

Laws and Regulations of the University of
Wisconsin System (1966)

Section 10A.05.

Probationary Appointment Defined. A probationary appoint-
ment is an appointment held by a full-time member of the
academic staff during the probationary period which precedes
determination of tenure status. The conditions of appointment
in the case of either a new appointment or a reappointment to
a probationary position shall be stated in writing in a letter to
the appointee at the time the appointment or reappointment is
made.

—_

UW System Merger and Consolidation (1971)

L.1973 c. 335, §§ 5 and 6 repealed former chapters 36 and 37,
titled respectively: University of Wisconsin and State Universities,
and consisting of sections 36.01 to 336.96 and 37.01 to 37.36
as affected by L.1973, c. 90, 96, 243 and 284. L.1971, c. 100
initially consolidated the University of Wisconsin and the state
universities. The following quoted excerpts L.1971, c. 100 in-
dicate the areas affected by the UW system consolidation and
set forth uncoded transitional and temporary provisions: § 20(4):

Faculty tenure retained. Faculty of the former university
of Wisconsin employed prior to the effective date of merger
shall continue to hold or earn tenure under the tenure rules
in effect on the date of merger. Faculty of the former Wis-
consin state universities employed prior to the effective
date of merger shall continue to hold or earn tenure under
section 37.31 of the statutes and any rules established there-
under. For factulty employed after the date of merger,
existing tenure rules and statutes shall remain in effect until
new rules or statutes become effective. If new tenure rules
or statutes become effective any faculty member mentioned
in this section may elect to hold or earn tenure under the
new rules or statutes.

36.13, Wis. Stats. (1973), Faculty tenure and probationary ap-
pointments

(1) Definitions. In this section:

(a) “Tenure appointment” means an appointment for an un-
limited period granted to a ranked faculty member by the board
upon the affirmative recommendation of the appropriate chan-
cellor and academic department or its functional equivalent
within an institution.

(b) “Probationary appointment” means an appointment by
the board held by a faculty member during the period which may
precede a decision on a tenure appointment.

SS

—_—S

(2) Appointments. (a) A tenure appointment may be
granted to any ranked faculty member who holds or will hold
a half-time appointment or more. The proportion of time pro-
vided for in the appointment may not be diminished nor in-
creased without the mutual consent of the faculty member and
the institution subject only to sub. (5) and s. 36.21.

(b) A probationary appointment shall not exceed 7 consecu-
tive academic years in a full-time position in an institution. A
leave of absence, subbatical or a teacher improvement assign-
ment shall not constitute a break in continuous service nor shall
it be included in the 7-year period.

(3) Rules. The board and its faculties after consultation with
appropriate students shall adopt rules for tenure and proba-
tionary appointments, for the review of faculty performance and
for the nonretention and dismissal of faculty members. Such
rules shall be adopted under ch. 227.

(4) Continuation of appointment. (a) Any person who holds
a tenure appointment under chs. 36 and 37, 1971 stats., and
related rules on the effective date of this act (1973) shall con-
tinue to hold tenure as defined under those chapters and related
rules.

(b) Any person who holds the equivalent of a probationary
appointment under chs. 36 and 37, 1971 stats., and related rules
on the effective date of this act (1973) shall continue to enjoy
the contractual rights and guarantees as defined under those
chapters and related rules, and may clect to be considered for
tenure according to the procedures existing under that appoint-
ment or under sub. (2).

(5) Procedural guarantees. Any person having tenure may
be dismissed only for just cause‘ and only after due notice and
hearing. Any person having a probationary appointment may

— A-50 —

be dismissed prior to the end of the person's contract term only
for just cause and only after due notice and hearing. The action
and decision of the board in such matters shall be final, subject
to judicial review under ch. 227. The board and its several
faculties shall develop procedures for the notice and hearing
which shall be adopted by rule under ch. 227.

(6) Limitation. Tenure and probationary appointments are
in a particular institution. A tenure appointment is limited to
the institution in which the appointment is held.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0826%3A1. Public record. Not legal advice.