Opposition Brief — Whiting v. University of Southern Mississippi (No. 06-460)

@) | Supreme Coun, U.S

FILED

|_OFFICE OF THE CLERK |

jn The

Supreme Court of the Anited States

; scape MELISSA WHITING,

. me Petitioner,

a V.

UNIVERSITY OF

SOUTHERN MISSISSIPPI, et al.,

Respondents.

.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

¢

BRIEF IN OPPOSITION

*

JAMES A. KEITH LEE P. GORE

JOHN S. HOOKS University Counsel

Counsel of Record THE UNIVERSITY OF

IAN C. JONES SOUTHERN MISSISSIPPI

ADAMS AND REESE LLP Southern Station Box 10051

111 EK. Capitol Street, Hattiesburg, Mississippi

Suite 350 39406

Jackson, Mississippi Telephone: 601-266-5725

39225 Facsimile: 601-266-6323

Telephone: 601-353-3234

Facsimile: 601-355-9708

Counsel for Respondents

COMKLE LAW BRIEF PRINTING CO) ose 27) Go

OR CALL COLLECT «tents ite tsi

QUESTIONS PRESENTED

Did Dr. Melissa Whiting, a non-tenured faculty

member at the University of Southern Mississippi,

have a federally protected property interest in tenure

or promotion? Even if Dr. Whiting did have a property

interest protected by federal due process, did the De-

fendants violate her property interest?

Has Dr. Whiting demonstrated the circuit court

misapplied its equal protection analysis, creating a

split among circuits?

Has—Dr. Whiting offered any evidence rebutting

testimony showing the decision regarding her appli-

cation was fair, impartial, and based on constitution-

ally permissible reasons?

TABLE OF CONTENTS

Page

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1. The Tenure and Promotion Committee... 3

2. The Department Chair ................c:0000e0 6

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1. The College Advisory Council................ 7

2. The Dean of the College..............csccsseeee 9

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1. The University Advisory Council........... 10

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Be, NEE PEDRO T vcccencscesuciscctwovsesoveveseeseevsorsovses 13

REASONS WHY THE WRIT SHOULD BE DENIED..... 14

I. Dr. Whiting failed to state a cognizable equal

I ITI cca ah scclscmahibivinenidoosadsinnnnatonddenee 14

A. The circuit court did not err in applying

Village of Willowbrook v. Olech ..........00s00000 14

TABLE OF CONTENTS - Continued

Page

B. There is no split of authority among the

circuits with respect to Olech ........csccceseeeees

II. Dr. Whiting had no property interest warrant-

ing due process protections .............ccsecereserenesees

A. Dr. Whiting has no federally protected

property interest in a grant of tenure or

DE CRIEIOE iccicssinseessvtnirentnntenincevaceiiamnnnieareiine

1. Under Mississippi law, Dr. Whiting, a

non-tenured faculty member, has no

property interest in obtaining a grant

of tenure or promotion triggering fed-

CEOS CII cniniecictnncdetticwitinintqeinviionn

2. Just as Dr. Whiting has no property in-

terest in tenure or promotion, she has

no property interest in the University’s

tenure and promotion procedures them-

NOG cchintesiitiunitnitenidpeiclecaiquinieieinancasiont

B. Because the circuit court assumed the ex-

istence of a property right for its analysis,

no property right was “ignored” ..............0++.

III. Dr. Whiting offered no proof of a biased deci-

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17

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22

26

iv

TABLE OF AUTHORITIES

Page

CASES

Batra v. Board of Regents of The Univ. of Nebraska,

Fae RA FA 8 CRE Ce, MI icchccvicaccnsniviinsvtinsinnsvessanveeseins 25

Bautista v. Crowley, 108 F.3d 1384, 1997 WL

eT CE Ses FE cwvichinenccepandsicepavshienstiacictpensnonnns 24, 25

Bd. of Regents of State Colleges v. Roth, 408 U.S.

Be ai slice hcdeniepceciinctaceriacicncrcnnencaandubecisuiin 17, 20

Bobbitt v. The Orchard Dev. Co., 603 So.2d 356

tis DUTT uiissclisiieicineiahdnteinbiidiechsciahabahipkalicieatinliabiiakinnpapinemeitocits 27

Brennan v. Stewart, 834 F.2d 1248 (5th Cir. 1988).......... 17

Campbell v. City of Champaign, 940 F.2d 1111 (7th

Oy I sacciccsassnsicitestich vticetbingiian Acsedibicenbpachieekidebcapmabensandblaniielts 25

Clemente v. United States, 766 F.2d 1358 (9th Cir.

PIPE ciccishinsdiichinvnshihenbieibhicbnipsiahcibas inichddiadiditaapivetakerdamcoesclamiiiaaieds 25

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532

Ere iscncteishiciilalintchheniscNscipieichitusi ainda chbddsanealligntotusiapipiobabesnte 24

Dube v. The State Univ. of New York, 900 F.2d 587

Se RR Se stisiaiccssn lihaicciencsciesiahuctadaiphalpagasiaciubadsiebinimlanates 25

Evans v. City of Dallas, 861 F.2d 846 (5th Cir. 1988)....... 23

Fleury v. Clayton, 847 F.2d 1229 (7th Cir. 1988).............. 24

Hall v. Board of Trustees of State Institutions of

Higher Learning, 712 So.2d 312 (Miss. 1998) ...19, 22, 23

Krystek v. The University of Southern Mississippi,

BOG FG SSE (GG CEe, LO) cevcccrcevsecesesnevessecsecnsessscesseos 29

Levi v. Univ. of Tex. at San Antonio, 840 F.2d 277

SE EE AE aditiad buhictndsschiteicabidaislintibcibdiaaniniabiaciniaetia diana 16

Memphis Light, Gas & Water Division v. Craft, 436

CRATE RL TINGE 17, 23

TABLE OF AUTHORITIES — Continued

Page

Moore v. Miss. Valley State Univ., 871 F.2d 545 (5th

Se SI vcs vnc icseccovench cue vinebshieuoiwataaasaskinwaccaobetemantiates 17

Mumford v. Godfried, 52 F.3d 756 (8th Cir. 1995) ........... 24

Olim v. Wakinekona, 461 U.S. 238 (1982) ............ecccee 19, 26

Pruett v. Dumas, 914 F. Supp. 133 (N.D. Miss.

SE tiiicacaieiaris Lcsicelacntes thaekiea vas cbisacenuai ie blaiomeinint 17

Richardson v. Township of Brady, 218 F.3d 508 (6th

BRK SIPUND snipiccict ieacpansn's wins piusicieacnsulcendcicehunatebreanbacekiadbiecents kanes 24

Robinson v. Board of Trustees, 477 So.2d 1352

RS IIE sass ticick dank toda as pacanbembanchbisss oucekinnibeucciomes 23, 27

Squaw Valley Development Co. v. Goldberg, 375

ee Oe Ce Ge i escseikvucecenicnrnnivucinsusvounsvivedeierianeis 14

Staheli v. Univ. of Miss., 854 F.2d 121 (5th Cir.

PTET icciaccseiangutnshesvieadesinlanabiasdsravnavekscetaaiedinuniatinn 19, 20, 22

Village of Willowbrook v. Olech, 528 U.S. 562

INE Tis sscsssvhdis cbdoubicdash valerucoumiabendsaasteieomsddessaiees 14, 15, 16

Whiting v. The University of Southern Mississippi,

451 F.3d 339 (5th Cir. 2006).............cc00e 14, 15, 27, 28, 29

Wicks v. Mississippi Valley State University, 536

Le CRI, ROOD sekcuncnncdeniteacossincsivencttnanvietxahans passim

STATUTES

PRO, COO Ati: BB FB EE acca sicncsdtcvncecveccsceiscacbonstvesacenss 18

Miss. Code Ann. § 37-101-15(b) and (f).........:sssccsseseees 19, 21

INTRODUCTION

Dr. Melissa Whiting, a former non-tenured faculty

member at the University of Southern Mississippi, filed

this suit in state court following denial of her application

for tenure and promotion. Dr. Whiting alleges the denial

arose from ill will between her and her department chair,

Dr. Dana G. Thames, the daughter of the University

President, Dr. Shelby F. Thames. Dr. Whiting argues the

decision of President Thames denying her tenure and

promotion was motivated by the alleged ill will between

her and Dr. Dana Thames. Dr. Whiting offers nothing,

however, to rebut the testimony of President Thames that

he was unaware of alleged unconstitutional motives and

made the decision to deny her application for reasons

related to her insufficient publication record.

After removal, both the district court and the circuit

court determined that Whiting could not maintain her

claims under federal law because she 1) had not estab-

lished a property interest in tenure or promotion, 2) had

not demonstrated a lack of rational basis necessary to

maintain a “class-of-one” equal protection claim, and 3)

had not rebutted the testimony of the University’s presi-

dent showing a rational basis for his decision. Dr. Whiting

does not include in her petition the circuit court’s decision

denying her claim of a violation of liberty interest or the

decision denying her First Amendment retaliation claim.

¢

STATEMENT OF THE CASE

I, Facts

In September 1996, the Board of Trustees of the State

Institutions of Higher Learning approved the employment

of Melissa Whiting as an assistant professor in the De-

partment of Curriculum, Instruction, and Special Educa-

tion in the College of Education and Psychology at The

University of Southern Mississippi. Dr. Whiting was hired

under a nine-month contract effective August 21, 1996,

and extending until May 22, 1997. R. 381-83. The Board,

in May 1997, approved Dr. Whiting for tenure-track

status, effective August 21, 1996. R. 385-87. In addition to

the 1996-97 contract, the Board and Dr. Whiting executed

five successive nine-month contracts for academic years

1997-98, 1998-99, 1999-2000, 2000-01, and 2001-02. R.

389-93. Each contract identifies the parties (the Board of

Trustees and Melissa Whiting), the term of employment (a

nine-month period), and the annual salary. Jd. The con-

tracts state they are subject to the “laws of the State of

Mississippi and the policies and by-laws of the Board.” Jd.

In August 2001, at the beginning of her sixth year at

the University, Dr. Whiting asked the University to

consider her for tenure and for promotion to associate

professor. R. 395-96. Dr. Whiting submitted her credentials

in the form of a “dossier.” Jd. An academic dossier is a collec-

tion of materials required to be assembled and submitted by

each candidate for tenure and promotion. R. 422. The dossier

contains documentation demonstrating suitability for tenure

and promotion. Jd. The required format for tenure and

promotion dossiers is set out in a publication of the College of

Education and Psychology entitled “Policy and Procedures

for Tenure and Promotions.” Jd. The procedures require that

each candidate submit documentation about her work in the

areas of teaching, scholarship and publication, and service

activities. Id.

By the time Dr. Whiting’s dossier reached the Presi-

dent, at least twenty-nine people had participated in the

3

review of Dr. Whiting’s dossier. Fifteen recommended against

tenure, twelve recommend in favor of tenure, and two

recused themselves or abstained. Fourteen recommended in

favor of promotion, twelve recommended against promotion,

and three recused themselves or abstained. University

President Shelby F. Thames decided against tenure and

promotion. The specific process regarding Dr. Whiting’s

application for tenure and promotion is summarized below.

A. The Department Level

1. The Tenure and Promotion Committee

First, a committee of faculty from the Department of

Curriculum, Instruction, and Special Education met on

September 28, 2001, to consider Dr. Whiting’s application

for tenure and promotion. According to the summary

report of this meeting, “some questions” arose during the

committee’s deliberations about “various articles in [Dr.

Whiting’s] publication section” of her dossier. R. 424. The

committee “decided to delay consideration of her tenure

and promotion requests until Dr. John Davis, Committee

Chair, and Dr. Dana Thames, Department Chair, had the

opportunity to meet jointly with Dr. Whiting to request a

written response to these questions about various articles

in her publication section (as per procedures in the Faculty

Personnel Action, XI-17, item 13.4).” Id.

Dr. Whiting submitted a written response to the

committee. R. 426-27. “Dr. Melissa Whiting’s response to

Dr. Davis [sic] and Dr. Thames [sic] ‘Data Questions.’” In

her response, Dr. Whiting gave her explanation of the

“methodology and analysis” she used to write several

published articles. Jd.

+

The Department’s tenure committee reconvened on

October 2, 2001. Dr. Davis distributed Dr. Whiting’s

written response. R. 429-30. According to the written

summary of the committee’s meeting of October 2, 2001:

“Questions remained, however, about discrepancies in the

raw data of the two published articles and about the

similarities between the two published articles, the one in

FOCUS: Teaching English Language Arts and the one in

Journal of Research in Rural Education.” Id. According to

the committee’s report:

Extensive discussion related to Dr. Whiting’s re-

quest for promotion took place. The discussion

seemed to indicate that there were mixed opin-

ions about Dr. Whiting’s research/scholarly per-

formance. There were questions about whether

Dr. Whiting met the criterion for promotion re-

lated to consistently demonstrating quality per-

formance in research/scholarly activities, making

it questionable whether a rating in this area

could be labeled satisfactory or higher, as speci-

fied in the College of Education and Psychology:

Policy and Procedures for Tenure and Promotion,

January 1997, pages 8-11.

Id.

The report also indicates similar concerns about Dr.

Whiting’s application for tenure. Jd. Although the commit-

tee “felt her teaching and service were good,” there were

concerns “about Dr. Whiting’s consistent availability to

advise students and about her sporadic attendance at

meetings.” Jd.

The committee, voting by secret ballot, decided to

award Dr. Whiting a promotion. The vote was six in favor

of promotion, three against promotion, and two absten-

tions. Id.

Next, the committee considered Dr. Whiting for

tenure. “It was pointed out,” states the report, “that IHL

guidelines and Faculty Handbook indicate that tenure

occurs between the completion of five and seven years of

continuous service to the university.” Jd. According to the

summary report: “There was general agreement that Dr.

Whiting should not request tenure until completion of her

sixth year.” Jd. (emphasis in original); see also R. 452,

Excerpts of Faculty Handbook, § X (4.7) (explaining that a

tenure candidate may request a deferral of the tenure

process until the seventh year of contracted employment).

The Department committee voted against awarding

tenure. Jd. Six members voted against awarding tenure,

four voted in favor, and one abstained. Id.

By two separate letters dated October 2, 2001, Dr.

Davis, the committee chair, notified Dr. Whiting of the

results of the promotion and tenure process. R. 492-94.

The letter regarding tenure explained the committee’s

“considerable concerns” regarding Dr. Whiting’s “re-

search/scholarly performance.” R. 494. The letter also

stated that Dr. Whiting had

the option of continuing in the process, or with-

drawing fher] request for early tenure, at this

level or any of the subsequent levels of considera-

tion. The vote of the Committee seems to indicate

that you might want to consider withdrawing

your request at this time, because you have until

the end of the seventh year to attain tenure. The

final decision about continuing the process rests

with you.

Id.

6

2. The Department Chair

By two separate letters dated October 4, 2001, Dr.

Dana Thames notified Dr. Whiting about the committee’s

determination. R. 496-98. According to University policy,

Dr. Dana Thames also prepared a written recommendation

to Dr. Carl Martray, Dean of the College of Education and

Psychology, regarding the recommendations of the Depart-

ment committee’s report. R. 500-03; R. 461, Excerpts of

Faculty Handbook, § XI (8.1). According to the letter written

by Dr. Dana Thames to Dean Martray, Dr. Whiting “re-

quested that her materials be moved forward and

reviewed for both Tenure and Promotion to Associate

Professor rank.” R. 500-03. (bold and underline in original),

See also R. 474-75, Excerpts of Faculty Handbook, § XI (13.5)

(requiring Department Chair to “prepare independent

written recommendations either concurring or disagreeing

with the recommendations of Tenure Committees”).

Dr. Dana Thames agreed with the Department’s

report “indicating that Dr. Whiting’s progress toward the

attainment of tenure is negative at this time and border-

line at the present for promction.” R. 500. According to Dr.

Thames’ letter:

In summary, I feel that Dr. Whiting’s progress

toward tenure and promotion is marginal at the

present time. In my opinion, it would be in Dr.

Whiting’s best interest for her to withdraw her

papers from tenure and promotion consideration

at this time, because she has until the end of her

seventh year to acquire tenure, and promotion

may be requested at the beginning of any aca-

demic year. I make this recommendation because

I believe that she has the potential to overcome

the concerns of departmental peers. .. .

R. 501-02. A copy of this letter was mailed to Dr. Whiting.

R. 503.

B. The College Level

1. The College Advisory Council

Notwithstanding the report of the Department com-

mittee and the recommendation of the Department chair,

by e-mail dated October 12, 2001, Dr. Whiting indicated

her desire to move her tenure and promotion application

to the College Advisory Committee (“CAC”). R. 506.

The CAC, consisting of representatives from each

department of the College of Education and Psychology,

met to consider Dr. Whiting’s tenure and promotion

dossier on October 30, 2001, and November 7, 2001. R.

508-16. According to the tenure and promotion reports, the

CAC conducted a “full and detailed discussion” of Dr.

Whiting’s dossier with awareness of the promotion and

tenure guidelines of the Faculty Handbook. Jd.

The CAC reviewed Dr. Whiting’s dossier, the letter

written by Dr. Dana Thames to Dean Martray dated October

10, 2001 (R. 500-03), and “a letter of rebuttal” submitted by

Dr. Whiting to the CAC. R. 508-16. Jd. The letter submitted

by Dr. Whiting, eleven pages in length, challenges the

recommendations of the Department committee and the

recommendations contained in the letter written by Dr.

Thames dated October 10, 2002. R. 518-27.

The CAC acknowledged the “disparity between the

annual evaluations conducted by the various department

chairs of Dr. Whiting’s department and the report and

recommendations of the promotion and tenure committee

and the clarifications of the current department chair.” R.

8

508-16. “The annual evaluations tended to be quite posi-

tive, while the report of the tenure and promotion commit-

tee was more negative.” Jd. After examining the

“credentials objectively and mak[ing] separate evaluations

of Dr. Whiting’s credentials contained in the dossier,” the

“CAC consensus was that it appeared that the annual

evaluations of the chairs in the past were more optimistic

than the credentials justified during many of the years.”

Id. According to the CAC:

In considering Dr. Whiting’s publication creden-

tials, the CAC was concerned that there ap-

peared to be a small number of refereed

publications (three) and some publications were

not in strong refereed journal outlets or repre-

sented contributions to invited publications (anno-

tated bibliographies). A number of the publications

contained in Dr. Whiting’s vita were clearly pub-

lished prior to her hire at USM (for example a

book). Since her hiring at USM, it appears that

she has published primarily annotated bibliogra-

phies. There is mention of a book chapter, but no

documents in the dossier to substantiate the con-

tract for that chapter. Although there is consid-

erable debate in the dossier about Dr. Whiting’s

research efforts (her rebuttal/clarification letter

and the Department Chair’s letter), the consen-

sus of the CAC members was that the research

activity shown at this time, whether considered

qualitatively or quantitatively, was not adequate

and did not meet college research standards.

Id. at p. 2.

* Consistent with University policy, Dr. Whiting had received

annual evaluations from her Department chairs.

9

The CAC voted to deny Dr. Whiting tenure and

promotion. The votes regarding tenure and promotion,

although conducted separately, were identical in outcome:

four against, two in favor, and zero abstentions. Jd.

2. The Dean of the College

Dr. Carl Martray, Dean of the College of Education and

Psychology, then reviewed Dr. Whiting’s dossier for tenure

and promotion as required by University policy. R. 529. Dr.

Martray concluded that “after a thorough review of the

recommendations of the CAC and the issues raised by the

committee as well as a review of the portfolio materials

submitted, I can find no compelling reason to recommend

against the recommendations of the CAC.” Jd. Dr. Martray

transmitted Dr. Whiting’s application materials to the

Provost without recommending either promotion or tenure.

Id.

By letter dated November 27, 2001, Dean Martray

notified Dr. Whiting of his decision, enclosing copies of the

CAC reports. R. 532. Dr. Martray reminded Dr. Whiting

that: “Upon receipt of this letter, you have the options of

withdrawing your application for tenure and promotion

and requesting that the recommendation be deferred to

the seventh year (as recommended by your chair and

departmental committee) ... ” Id. Dr. Whiting did not

withdraw her dossier from consideration. According to the

tenure and promotion policy, the Provost sought input

from the University Advisory Council. R. 481.

10

C. The University Level

1. The University Advisory Council

The University Advisory Council (“UAC”) met on at

least two occasions to consider Dr. Whiting’s dossier. R.

534-36. The UAC met on March 27, 2002, and on April 11,

2002. Id. Dr. Whiting was invited to attend the meetings

but declined to attend on the advice of her attorney. R.

535, 536. Dr. Whiting did present a letter to the members

of the UAC, however, alleging “prejudicial failures of due

process” and violations of due process rights under the

Fourteenth Amendment. R. 538-39. The UAC invited a

number of witnesses to appear before the UAC: Dr. Carl

Martray, Dr. Dana Thames, Dr. Carolyn Reeves-Kazelskis,

and Dr. John Davis. R. 534-36.

According to the report of the UAC, dated April 24,

2002: “The concerns expressed by the department and

college committees, chair, and dean pertaining to Dr. Whit-

ing’s research productivity and record of service were dis-

cussed at length. The UAC shared many of their concerns

related to research, but found the area of service as docu-

mented to be more than adequate.” R. 540-41. The UAC

ultimately voted in favor of awarding tenure to Dr. Whiting.

The vote was five in favor of tenure, three against, and one

recusal. Jd. Regarding promotion, the UAC did not reach a

definitive conclusion, with four voting in favor, four voting

against, and one recusal. Jd. As Dr. Whiting’s dossier moved

forward to the Office of the Provost, Dr. Whiting supple-

mented her dossier again. R. 543.

2. The Provost

Dr. Anselm Griffin, then Provost, concurred with the

recommendation of the UAC to grant Dr. Whiting tenure.

11

By letter to Dr. Whiting dated May 17, 2002, Dr. Griffin

indicated that he was “recommending to President Shelby

F. Thames that you be granted tenure as a faculty mem-

ber....” R. 545-46. Although the UAC reached a tie

regarding its vote for promotion, Dr. Griffin recommended .

promotion. Id.

D. The President

After carefully reviewing Dr. Whiting’s credentials,

University President Dr. Shelby Thames mailed Dr.

Whiting two letters by Federal Express dated August 23,

2002, to her addresses in Petal, Mississippi, and Vinita,

Oklahoma. R. 548-49. These letters, identical except for

different addresses, requested a meeting with Dr. Whiting

to discuss his concerns about her tenure application:

I would like to discuss this matter with you prior

to making my decision. I can meet with you on

Tuesday, August 27, at 9:00 a.m. If you are un-

able to meet on Tuesday, I invite you to schedule

a telephone conference. Please contact Ms. Polly

Odom at 601-266-5301 to confirm a meeting on

Tuesday or to schedule a telephone call.

Id.

Dr. Whiting chose not to meet with President Thames

(in person or by telephone) to discuss his concerns about

Dr. Whiting’s tenure and promotion application. R. 551.

Accordingly, President Thames wrote Dr. Whiting another

letter on August 30, 2002, stating:

I am disappointed that you did not take advan-

tage of my invitation to meet with me and/or talk

with me via conference call to discuss your ten-

ure and promotion. This was an opportunity for

12

you to talk with me about some of the issues

raised during this process, and thus, I would

have preferred to hear from you personally be-

fore making a decision.

I have reviewed your tenure and promotion dos-

sier and all the related materials. My conclusion

is that I will not recommend to the Board of

Trustees that you be granted tenure or promotion

at The University of Southern Mississippi.

This letter constitutes notice of non-renewal of

your employment at USM. A contract of employ-

ment will not be offered to you after this aca-

demic year ending in May 2003.

Id.

E. The Board of Trustees

Dr. Whiting appealed the decision of President Thames

to the Board of Trustees on September 16, 2002. R. 553.

On November 11, 2002, Dr. Thomas D. Layzell, then

Commissioner of Higher Education, sent Dr. Whiting’s request

for an appeal to the Board. Commissioner Layzell recom-

mended the Board decline to consider the appeal. R. 573.

After discussing Dr. Whiting’s request for an appeal in

executive session during its meeting of November 21,

2002, the Board of Trustees declined to consider Dr.

Whiting’s appeal. The Board unanimously denied review of

the President’s decision regarding promotion and tenure

because Dr. Whiting had already filed suit on August 6,

2002 — even before the President had made his decision. R.

575-78. The Board notified Dr. Whiting of its decision by

letter to her attorney dated November 21, 2002. R. 580.

13

II. Procedural History

On August 6, 2002, Dr. Whiting filed a complaint

against the University and Drs. Shelby F. Thames, Carl

Martray, and Dana G. Thames alleging damages arising

from the tenure and promotion process. The complaint,

filed originally in the Circuit Court of Forrest County,

Mississippi, seeks several forms of relief, including dam-

ages in the amount of $5,000,000.00. The individual

defendants are named in both their official and personal

capacities. R. 568-71, Original Complaint.

The Defendants timely removed the complaint to federal

court. The district court denied Dr. Whiting’s motion to

remand. Whiting amended her complaint on March 10, 2003,

naming the Board of Trustees of Mississippi’s Institutions of

Higher Learning as an additional defendant.

Dr. Whiting alleges violations of her constitutional

rights under the Civil Rights Act, 42 U.S.C. § 1983. She

claims the Defendants deprived her of substantive and

procedural due process, as well as rights protected by the

Equal Protection Clause and the First Amendment. Under

state law, Dr. Whiting alleges breach of contract and

“nepotism.” In addition to her claims for “compensatory

and actual” damages of $5,000,000.00, Dr. Whiting seeks

punitive damages, “appropriate injunctive relief,” and “all

relief to which she is entitled pursuant to 42 U.S.C. § 1983

et seq. to include attorneys fees.” Id.

The district court granted the Defendants’ motion for

summary judgment with respect to all federal claims and

remanded Dr. Whiting’s state-law claims to state court. Dr.

Whiting appealed the award of summary judgment and

appealed the district court’s decision to remand the state-

law claims to state court. A three-judge panel of the Fifth

14

Circuit unanimously affirmed the district court. See

Whiting v. The University of Southern Mississippi, 451

F.3d 339, 349 (5th Cir. 2006).

+

REASONS WHY THE

PETITION SHOULD BE DENIED

I. Dr. Whiting failed to state a cognizable equal

protection claim,

A. The Fifth Circuit did not err in applying

Village of Willowbrook v. Olech. °

Dr. Whiting’s analysis of equal protection is confusing.

At the outset, she invokes this Court’s standard articulated

in Village of Willowbrook v. Olech, 528 U.S. 562 (2000),

requiring the plaintiff to show “she has been intentionally

treated differently from others similarly situated and that

there is no rational basis for the difference in treatment.”

Petition, p. 9 (citing Olech, 528 U.S. at 564). Then, on the

next page, Dr. Whiting criticizes the circuit court for holding

that “Dr. Whiting must, in addition to the foregoing Olech

standard, also establish or negate whether there was any

rational basis for the government’s action.” Petition, p. 10.

This is illogical. The rational basis test applied by the Fifth

Circuit is not “in addition to” the Olech test — it is the exact

standard mandated by Olech.

Next, Dr. Whiting criticizes the circuit court for not

requiring Dr. Whiting to “show that the defendant’s conduct

was motivated by animus and that the state’s proffered

‘rational’ reason was pretextual.” Petition, p. 14 (quoting

Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944-48 (9th

Cir. 2004)). She criticizes the Fifth Circuit for not requiring

Dr. Whiting to prove animus rather than simply a lack of

15

rationality. Dr. Whiting appears to want to replace this

Court’s objective Olech standard with a subjective one.

Regardless of Dr. Whiting’s understanding, the Fifth

Circuit correctly applied Olech. In Olech, this Court

confirmed that a plaintiff need not show ill will or animus

so long as she proves there is no rational basis for a

difference in treatment among similarly situated persons.

Olech, 528 U.S. at 564. (This, of course, assumes the equal

protection claim is not based on membership in a protected

class like race, religion, or gender).

The circuit court assumed arguendo that Dr. Whiting

had met her burden of establishing different treatment of

similarly situated individuals, and then determined whether

there was no rational basis for the decision to deny tenure.

Whiting v. The University of Southern Mississippi, 451 F.3d

339, 349 (5th Cir. 2006).’ The Fifth Circuit correctly applied

the rational basis test of Olech and did not “require proof of

motive.” In applying the rational basis test, however, the

Fifth Circuit necessarily addressed Dr. Whiting’s own

allegation that the “rational reasons put forth by the defen-

dants are no more than pretext for the underlying, irrational

reason for her denial of tenure, i.e., President Thames’s

purported bias against her as a result of the ill will his

daughter Dr. Thames, bore her.” Whiting, 451 F.3d at 350.

The Fifth Circuit concluded that “[ajll decisions were

at least debatable, and none reveals a failure to exercise

* Dr. Whiting misstates the Defendants’ position by arguing that

“the Defendants have conceded that they applied a different standard

to Dr. Whiting than every other person who has been tenured and

promoted.” Petition, p. 8. The Defendants’ position is better stated by

the Fifth Circuit. See Whiting v. The University of Southern Mississippi,

451 F.3d 339, 349 (5th Cir. 2006).

16

professional judgment.” Jd. (quoting Levi v. Univ. of Tex. at

San Antonio, 840 F.2d 277, 280 (5th Cir. 1988)). The circuit

court did not require Dr. Whiting prove ill motive, ill will,

or animus. Rather, the court necessarily considered

whether there was evidence of iil will because of Dr.

Whiting’s own allegations that rational reasons given by

the Defendants were a pretext for ill will and animus. The

circuit court did not err in its analysis.

B. There is no split of authority among the

circuits with respect to Olech.

The survey of cases offered by Dr. Whiting as evidence

of a split among circuits in interpreting Olech is protean

and difficult to follow. But one thing is clear: Nowhere does

Dr. Whiting show how the circuit court’s decision creates a

split among circuits regarding the application of Olech. As

set out above, the circuit court correctly applied the

rational basis test articulated in Olech, considering the

issue of motive and ill will only because they were offered

by Dr. Whiting as evidence of a Jack of a rational basis for

the University’s alleged difference in treatment.

II. Dr. Whiting had no property interest war-

ranting due process protections.

Dr. Whiting’s Complaint is vague with regard to

whether she claimed a property interest in tenure and

promotion, in the tenure and promotion procedures, or

both. Regardless, Dr. Whiting has no federally protected

property interest in either.

17

A. Dr. Whiting has no federally protected

property interest in a grant of tenure or

promotion.

The “threshold requirement of any due process claim, be

it substantive or procedural, is a showing that the govern-

ment deprived the plaintiff of a liberty or property interest.”

Pruett v. Dumas, 914 F. Supp. 133, 187 (N.D. Miss. 1996)

(citing Moore v. Miss. Valley State Univ., 871 F.2d 545, 548

(5th Cir. 1989); Brennan v. Stewart, 834 F.2d 1248, 1257 (5th

Cir. 1988)). Unless a plaintiff can show deprivation of a

protected liberty or property interest, “no right to due process

can accrue.” Pruett, 914 F. Supp. at 137.

1. Under Mississippi law, Dr. Whiting, a

non-tenured faculty member, has no

property interest in obtaining a grant of

tenure or promotion triggering federal

protection.

Whether Dr. Whiting had a protected property interest

entitling her to substantive or procedural due process in

gaining tenure or promotion first depends on state law. Bd.

of Regents of State Colleges v. Roth, 408 U.S. 564, 566-67

(1972). Once a property interest is found to exist under state

law, “federal constitutional law determines whether that

interest rises to the level of a ‘legitimate claim of entitlement’

protected by the Due Process Clause.” Memphis Light, Gas &

Water Division v. Craft, 436 U.S. 1, 9 (1978).

In Roth, a non-tenured faculty member at a state

university was employed under a one-year contract that

was not renewed. 408 U.S. at 566-67 (1972). Roth was not

provided a hearing to challenge the merits of the decision

not to rehire him. Roth claimed he had a property interest

18

in being rehired and the state had deprived him of that

property interest without due process. Jd. at 568. This

Court disagreed, finding Roth had no property interest

triggering due process protection. Id.

In reaching its decision, the Court first looked to state

law to determine whether a state employee has a property

interest in his or her job. Jd. at 577. Under Wisconsin law,

Roth had no protected property interest in being re-

employed with the university. Roth -— a non-tenured

professor — was statutorily entitled to nothing beyond his

one-year appointment. Jd. at 577.

Here, whether Dr. Whiting has a protected property

interest entitling her to substantive or procedural due

process in gaining tenure or promotion depends first on

Mississippi law. The Mississippi Supreme Court has

consistently said a non-tenured professor has no property

interest in continued employment. In Wicks v. Mississippi

Valley State University, 536 So.2d 20, 23 (Miss. 1988), Dr.

David Wicks, a professor of history and social studies at

Mississippi Valley State University, applied for tenure in

1983. The president of the university, after reviewing the

recommendations resulting from the tenure process,

decided to deny tenure to Dr. Wicks based on lack of

credentials in the teaching field. Jd. Dr. Wicks filed suit

alleging due process violations.

Relying on Roth, the Mississippi Supreme Court, as

part of the first step in its due process analysis, examined

Mississippi law to determine if Dr. Wicks had a property

interest warranting due process protections. Jd. at 22. The

Supreme Court determined that Miss. Code Ann. § 37-101-

15, setting forth the general powers and duties of the

Board of Trustees of the State Institutions of Higher

19

Learning, and subsections 37-101-15(b) and (f), granting

authority to the Board of Trustees for general supervision

of all matters incident to the proper functioning of univer-

sities and for the employment of professors, do “not create

a legitimate expectation of continued employment for a

non-tenured employee.” Wicks, 536 So.2d at 22. “There is

no property interest in the grant of tenure.” Jd. at 20.

Although the University has a written tenure policy,

the policy does not give Dr. Whiting a property interest in

actually obtaining tenure: “No protected interest is created

by a state rule or regulation which in no substantive way

limits by particularized standards the discretion of the

administrator.” Id. at 23 (citing Olim v. Wakinekona, 461

U.S. 238 (1982)). The president’s discretionary decision to

recommend tenure was not restricted by mandatory

language like “shall” or “must,” reflecting the principle

that “the President is allowed to determine what is best

for the University.” Jd. Although “Wicks was unhappy with

the way that the University exercised its discretion, but

that does not create in him a protected property interest.”

Id. at 23-24 (quoting Staheli v. Univ. of Miss., 854 F.2d

121, 125 (5th Cir. 1988)). “As held in Roth;-a non-tenured

college teacher has no constitutionally protected property

interest in his job.” Jd. at 23.

Later, the Mississippi Supreme Court affirmed Wicks’

holding. In Hall v. Board of Trustees of State Institutions of

Higher Learning, 712 So.2d 312 (Miss. 1998), Hall, a

professor at the University of Mississippi Medical Center,

had not been granted tenure by the faculty or the Board.

“Therefore, Dr. Hall did not have a legitimate expectation

of, nor entitlement to, continued employment at UMC, and

furthermore, the renewal of Dr. Hall’s contract was subject

to approval of the Board.” Jd. at 321. Dr. Hall, therefore,

20

“did not have a protected property interest in his employ-

ment at UMC, and thus, he is not entitled to substantive

protection under the due process clause as the result of the

arbitrary deprivation by government action of a protected

property interest.” Jd.

The point of tenure is to give tenured professors — not

professors without tenure —- some assurance of continuing

employment. This is the point made by the Mississippi

Supreme Court in Wicks:

The whole purpose of the distinction between ten-

ured and non-tenured faculty was to give the Uni-

versity discretion over the employment of non-

tenured teachers. ... The institution of tenure has

an inexorable internal logic: the very existence

of a tenure system means that those teachers

without tenure are not assured of continuing

employment. See Board of Regents v. Roth, supra,

(non-tenured college teacher had no constitution-

ally protected property interest in his job).

Wicks, 586 So.2d at 23 (quoting Staheli v. Univ. of Miss.,

854 F.2d 121, 125 (5th Cir. 1988) (emphasis added)).

Wicks and Hall confirm that the statutory framework

governing university employment and the Policies and

Bylaws of the Board of Trustees do not create a legitimate

expectation of continued employment for a non-tenured

faculty member. Central to the Mississippi Supreme

Court’s reasoning in these cases is the discretion left to

Mississippi’ university presidents in deciding to award or

deny tenure and promotion and in the Board of Trustees’

ultimate authority to approve presidential recommenda-

tions. “It shall be the policy of the board to permit the

executive head of each institution to nominate for election

by the board all subordinate employees of the institution

21

over which he presides.” Miss. Code Ann. § 37-101-15(f).

The actions of the faculty and various committees below

the level of President are advisory only, as indicated by the

word “recommendations.” They do not bind the President

or otherwise limit him from exercising his discretion in

deciding whether to recommend a faculty member to the

Board of Trustees for tenure. Wicks, 536 So.2d at 23.

The Board Policies and Bylaws define tenure as

“continuing employment that may be granted to a faculty

member after a probationary period upon nomination by

the Institutional Executive Officer for election by the

Board.” R. 169. The President’s decision is the final deci-

sion for the University, unless appealed to the Board of

Trustees. R. 173. Furthermore, “Board approval shall be

required for the award of tenure.” R. 168. “The award of

tenure is not vested until notice of the award is given in

writing by the Institutional Executive Officer, after ap-

proval by the Board, and the written notice is actually

received by the faculty member.” R. 169 (emphasis added).

A candidate simply cannot create a property right to

tenure or promotion simply through his or her subjective

expectation of tenure or promotion.

The Faculty Handbook also shows that Dr. Whiting

had no legitimate expectation of continued employment.

The Faculty Handbook defines tenure as “a status that is

granted to college and university faculty members after a

probationary period in the profession. It protects them

against involuntary suspension or termination of employ-

ment except upon stipulated grounds and in accordance

with specified procedures.” R. 171 (emphasis added). In

other words, faculty who have not obtained tenure do not

enjoy the protections of tenure.

22

Dr. Whiting essentially argues for “pre-tenure tenure.”

But Mississippi law is clear: “A non-tenured college

teacher has no constitutionally protected property interest

in his job.” Wicks, 536 So.2d at 23. The tenure policies of

the University do not “create or confer an expectation of

continued employment.” Jd. at 23. If they did, “the Univer-

sity will have received powerful incentives to make its

tenure policy less specific and therefore less helpful to

[faculty] seeking to discern and fulfill the requirements for

tenure.” Jd. at 24 (quoting Staheli, 854 F.2d at 126).

“Whatever actual expectations [Dr. Whiting] may have

had, they cannot be constitutionally baptized a ‘legitimate

claim of entitlement’ to permanent employment.” Jd. Dr.

Whiting does not have a property interest triggering due

process protections, and her federal due process claims

were, therefore, appropriately dismissed.

2. Just as Dr. Whiting has no property in-

terest in tenure or promotion, she has

no property interest in the University’s

tenure and promotion procedures them-

selves.

Although Wicks and Hall confirm that a non-tenured

faculty member has no property interest in tenure or

promotion, Dr. Whiting attempts to circumvent these cases

by claiming the University’s written tenure and promotion

policy contained in its Faculty Handbook are part of her one-

year contract, providing procedural rights that warrant

federal due process protections. But Dr. Whiting never

accounts for the fact that in Wicks and Hall the Mississippi

Supreme Court was construing written tenure policies

promulgated by the Board of Trustees of State Institutions of

Higher Learning — the same board that promulgated the

23

policy at issue in this case. In Wicks and Hall, the Mississippi

Supreme Court held that the written tenure policies of two of

Mississippi's public universities (Mississippi Valley State

University and The University of Mississippi, respectively)

did not afford due process protections. Nevertheless, Dr.

Whiting contends the procedures entitle her to special due

process protections Mississippi's highest court has never

before discovered. This is not so.

The University does not dispute that its Faculty Hand-

book may well become part of an employment contract,

according to the Mississippi Supreme Court’s holding in

Robinson v. Board of Trustees, 477 So.2d 1352 (Miss. 1985).

But even if the tenure and promotion procedures became

part of the non-tenured employment contract Dr. Whiting

held while applying for a tenured position, this does not

mean the procedures are a right protected by the federal

constitution. As explained above, the determination of

whether there is a property interest protected by federal law

is a two-step inquiry. Assuming Dr. Whiting has satisfied the

first step — that the procedures are part of a contract in

which she has a property interest — she must then satisfy the

second step: whether under “federal constitutional law ...

that interest rises to the level of a legitimate claim of enti-

tlement’ protected by the Due Process Clause.” Memphis

Light, Gas & Water Division v. Craft, 436 U.S. 1, 9 (1978).

Federal courts answering this question have repeatedly

held that unless a public employee has a legitimate property

right to an employment position, the procedures used in

evaluating his or her suitability for the position do not create

property rights protected by the due process clause of the

Federal Constitution. According to the Fifth Circuit: “The

existence of such procedures cannot be used as a bootstrap to

aid the finding of an entitlement.” Evans v. City of Dallas,

24

861 F.2d 846, 850 (5th Cir. 1988) (citing Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 542 (1985)).

In Mumford v. Godfried, 52 F.3d 756, 759 (8th Cir.

1995), Mumford, a university professor, brought an action

against a state university and faculty administrators

alleging he was wrongfully denied tenure. He focused on

the language in the university's faculty handbook regard-

ing procedures to be followed by each department in

making tenure decisions. Jd. Mumford argued that the

university’s “written rules governing tenure decisions

‘constitute an integral part of the contractual structure

defining the employment relationship and, thus constitute

a valid contract.’” Jd. Because he had a contractual right

to have certain procedures followed, Mumford argued, he

also had a property interest in those procedures triggering

due process protections. Jd. The Eighth Circuit disagreed

“for the simple reason that a contractual right to have

certain procedures followed does not create a property

interest in the procedures themselves.” Jd. (emphasis in

original). The district court’s summary judgment dismissal

of Mumford’s due process claim was therefore affirmed.

Other courts agree that employment procedures do

not give rise to federally protected due process interests:

“There is neither a ‘liberty’ nor a ‘property’ interest in

procedures themselves.” Fleury v. Clayton, 847 F.2d 1229,

1231 (7th Cir. 1988) (citing Olim v. Wakinekona, 461 U.S.

238, 248-51 (1983)); see also Richardson v. Township of

Brady, 218 F.3d 508, 518 (6th Cir. 2000) (holding that the

plaintiff “can have no protected property interest in the

procedure itself”); Bautista v. Crowley, 108 F.3d 1384,

1384, 1997 WL 120827 (9th Cir. 1997) (unpublished)

(holding that alleged failure of university to follow em-

ployment procedures is not a violation of due process,

25

because “this approach mistakes the ‘procedure’ with the

‘right’ being protected. To recognize a constitutionally

protected interest in the procedures themselves ... would

stand the due process analysis on its head... . Appellant

cannot have a property interest in process alone.”) (cita-

tions omitted)); Batra v. Bd. of Regents of The Univ. of

Nebraska, 79 F.3d 717, 720 (8th Cir. 1996) (“The Univer-

sity’s alleged failure to follow its own procedural rules and

regulations did not, without more, give rise to a protected

liberty or property interest.”); Dube v. The State Univ. of

New York, 900 F.2d 587, 599 (2d Cir. 1990) (“Based on the

record before us, which indicates only that Dube was

entitled to be considered for tenure in accordance with

established contractual procedures, we conclude that Dube

has failed to meet the threshold requirement of establish-

ing a protected ‘liberty’ or ‘property’ interest.”); Campbell

v. City of Champaign, 940 F.2d 1111, 1113 (7th Cir. 1991)

(“[A] contract which merely creates a right to specified

procedures does not create an entitlement upon which a

claim of deprivation of property without due process of law

can be founded.... When the claimed deprivation of

property is the loss of a job, the entitlement must be to a

job, rather than just to a set of disciplinary procedures.”).”

* Here, the lack of a property interest in the procedures themselves

is enhanced because the ultimate decision regarding tenure and

promotion is made by the president and is discretionary. See Bautista v.

Crowley, 108 F.3d 1384, 1384, 1997 WL 120827 (9th Cir. 1997) (unpub-

lished) (“Nothing in the Department’s evaluation criteria creates an

expectation of entitlement to a high performance rating. To the

contrary, they reserve a significant measure of discretion to UNR

decision makers.”)); Clemente v. United States, 766 F.2d 1358, 1365 (9th Cir.

1985) (“If the procedures required pose no significant limitation on the

discretion of the decision maker, the expectation of a specific decision is not

enhanced enough to establish a constitutionally protected interest in the

(Continued on following page)

26

No matter how Dr. Whiting tries to characterize her

claim, as a matter of law, she has no property interest

protected by due process.

B. Because the circuit court assumed the ex-

istence of a property right for its analysis,

no property right was “ignored.”

In analyzing her due process claims, the Fifth Circuit

first rejected Dr. Whiting’s argument that she had an

“expectation of continued employment sufficient to gener-

ate a protected property interest.” Jd. at 344-45. The Fifth

Circuit also rejected Whiting’s claims that positive per-

formance reviews (either annual evaluations or a third-

year review) were sufficient to generate a property interest

in tenure. Jd. (citing Wicks, 536 So.2d at 24). According to

the Fifth Circuit:

Language in the Faculty Handbook ... consis-

tently reiterates that promotion and tenure are not

guaranteed, even by positive performance reviews:

the Handbook states, for example, “[p]romotion in

academic rank is not guaranteed by contracted

employment or earned solely by the duration of

employment” and “|t]he privilege of tenure is not

guaranteed by tenure-track appointment, by prior

academic rank, or by duration of employment.”

Further, as the district court noted: “the same fac-

ulty handbook reiterates that, notwithstanding the

procedures.”)). As set out above, the Mississippi Supreme Court has

confirmed the discretion of university presidents in making tenure and

promotion decisions: “It is well recognized that the final decision to

grant tenure lies with the President, and the grant of tenure is discre-

tionary. The President is allowed to determine what is best for the

University.” Wicks, 536 So.2d at 23.

27

procedures, tenure is awarded at the discretion of

the board of trustees upon nomination by the

president.” Given such language and existing state

law precedent, we cannot construe an expectation

of continued employment sufficient to generate a

protected property interest.

Whiting, 451 F.3d at 345.

According to the Fifth Circuit, “Where a tenure policy

exists, non-tenured university employees under Mississippi

law do not have a property interest in their continued

employment that warrants protection under the due

process clause.” Id.

This determination was entirely consistent with the

district court’s earlier ruling that “the procedures set out

in the faculty handbook” do not perform “the necessary

alchemy of transforming her expectations into protectable

interests. That argument in my opinion founders ...

because the same faculty handbook reiterates that, not-

withstanding the procedures, tenure is awarded at the

discretion of the board of trustees upon nomination by the

president.” (See Exhibit “A,” to Appellees’ Brief, Excerpt of

Transcript of Hearing).

The Fifth Circuit then determined whether “some other

property interest in a benefit afforded by her current con-

tract with the state university” could give rise to a protected

property interest. Whiting, 451 F.3d at 345. The court

acknowledged that in Mississippi an employee manual

becomes part of an employment contract, “creating contract

rights to which employers may be held, such as Dr. Whiting’s

right to the procedures outlined in the handbooks.” Jd. at 13

(citing Robinson v. Bd. of Trustees, 477 So.2d 1352, 1353

(Miss. 1985); Bobbitt v. The Orchard Dev. Co., 603 So.2d 356,

28

361 (Miss. 1992)). But the court did not conclude that Dr.

Whiting’s contractual rights were sufficient to give rise to a

property interest warranting due process protection under

federal law — the second step in the inquiry.

Instead, showing deference to Dr. Whiting, the Fifth

Circuit assumed the existence of that right for purposes of

its analysis: “However, even if Dr. Whiting’s contractual

rights are sufficient to constitute a property interest

warranting due process protection, it is not clear she has

adequately alleged any sort of deprivation.” Whiting, 451

F.3d at 346. The court then examined each alleged breach

of the Faculty Handbook: (1) the timeliness of the decision

regarding promotion and tenure, (2) the fact that Dr.

Whiting was not granted tenure despite the positive

evaluations, and (3) the idea that Dr. Whiting was entitled

to de facto or automatic tenure in light of the annual and

third-year evaluations. Jd.

The Fifth Circuit ultimately concluded that these

alleged breaches of the tenure and promotion procedures

did not “establish a genuine question of material fact as to

whether she has been deprived of any property interest.

Accordingly, her due process clause claims, both substan-

tive and procedural, fail insofar as they are based on

deprivation of a property interest.” Jd.

Dr. Whiting claims the court ignored her protected

property interest. But the circuit court assumed the

existence of the property interest for purposes of its due

process analysis, ultimately concluding that no due proc-

ess violation occurred even if Dr. Whiting had a property

interest. The issue, then, of whether the circuit court erred

in its determination that Dr. Whiting did not have a

property interest protected by federal law is moot.

29

II. Dr. Whiting offered no proof of a biased

decision maker.

Dr. Whiting claims President Shelby Thames was

biased in making his decision regarding her tenure and

promotion application because of 1) the lawsuit Dr. Whit-

ing had earlier filed against him and 2) the alleged ani-

mosity between Dr. Whiting and President Thames’

daughter, Dr. Dana Thames, the Chair of the Department

in which Dr. Whiting worked.

There is no evidence that President Thames’ decision was

motivated or informed by constitutionally impermissible

motives. See Whiting, 451 F.3d at 351. The President reviews

de novo all recommendations arising from departmental,

college, and Provost or vice presidential levels. R. 482, 449,

Excerpts of Faculty Handbook, § XI (22), § XI (3.3). President

Thames swore in his affidavit that, before making his deci-

sion, he never discussed Dr. Whiting’s tenure and promotion

application with his daughter, Dr. Dana Thames. R. 612-13.

President Thames based his decision not to award tenure on

his own careful and independent review of Dr. Whiting’s

dossier. Id. The basis of his decision — that Dr. Whiting had

not sufficiently complied with the publication requirement for

tenure and promotion — is constitutionally permissible.

Krystek v. The University of Southern Mississippi, 164 F.3d

251, 253-54 (5th Cir. 1999); Wicks, 536 So.2d at 20-22. Dr.

Whiting offers no proof to rebut President Thames’ testimony."

+

* In fact, the basis of President Thames’ decision as set out in his

affidavit testimony is ignored by Dr. Whiting who says, in her Petition,

that “Shelby Thames provided no rationale for his decision. He referred

to not one iota of some deficiency regarding Dr. Whiting’s performance.”

Petition, p. 7.

30

CONCLUSION

All Defendants respectfully request the petition be

denied. Dr. Whiting cannot maintain her claims under

federal law because she 1) has no property interest in tenure

or promotion (or in the procedures regarding tenure or

promotion); 2) has not demonstrated a misapplication of this

Court’s jurisprudence regarding her “class-of-one” equal

protection claim; and 3) has not rebutted the testimony of

the University’s president showing a rational, constitu-

tionally permissible basis for his decision denying tenure

and promotion.

Respectfully submitted,

JAMES A. KEITH LEE P. GORE

JOHN S. HOOKS University Counsel

IAN C. JONES THE UNIVERSITY OF

ADAMS AND REESE LLP SOUTHERN MISSISSIPPI

111 E. Capitol Street, Southern Station Box 10051

Suite 350 Hattiesburg, Mississippi

Jackson, Mississippi 39406

39225 Telephone: 601-266-5725

Telephone: 601-353-3234 Facsimile: 601-266-6323

Facsimile: 601-355-9708

Counsel for Respondents