Petition for Writ of Certiorari — Viswanathan v. Board of Governors of the University of North Carolina

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(\) 96 900 DEC 21996,

OFFICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

T. M. VISWANATHAN --- PETITIONER

VS.

BOARD OF GOVERNORS OF THE UNIVERSITY OF

NORTH CAROLINA et al. --- RESPONDENTS

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Tenkasi M. Viswanathan, Pro Se

7405 Alcoa Way

Wilmington NC 28405

Tel: 910-686-5395

RECEIVED

VEL - 5 1996

OFFICE OF THE CLERK >

SUPREME COURT, U.S. y \

a

TION NTED

Where academic freedom is a vested legal right under

North Carolina laws guaranteed to all academic staff of a

(four-year) university and academic freedom includes in

its ambit research and publication, can it be said that such

matters are not of public interest and so not covered by

the First Amendment to the United States Constitution

without compromising the constitutional guarantees

provided therein?

What are the “constitutional dimensions of delay” in

due process requirements that should be stated in a

complaint to eas a claim that one was deprived of

property or/and liberty without the process that was due

to him?

LIST OF PARTIES

A list of all parties to the proceeding in the

court whose judgment is the subject of this petition is as

follows:

T. M. VISWANATHAN,

Plaintiff-Appellant;

THE UNIVERSITY OF NORTH CAROLINA

BOARD OF GOVERNORS; C.D. SPANGLER, JR

in his official capacity, THE FAYETTEVILLE

STATE UNIVERSITY BOARD OF TRUSTEES;

Dr. JESSE WILLIAMS in his official and individual

capacity; Dr. LLOYD V. HACKLEY in his official

and individual capacity; Dr. LEO EDWARDS in

His official and individual capacity,; Dr. JON

YOUNG in his official and individual capacity;

Dr. MORRIS BLOUNT, in his official and individual

capacity; Dr. JOSEPH MONROE in his official and

individual capacity; Dr. CLARENCE WHITE, in his official

and individual capacity; KAYE WEBB, in her official and

individual capacity; and Dr. FELTON THOMAS in his

individual and official capacity

Defendants-Appellees.

This petition is not being submitted by or on behalf of

any corporation, and there is no parent or subsidiary company

to be listed by the petitioner.

TABLE OF CONTENTS

Page

OPINIONS BELOW .......-----:esseeeeette 1

JURISDICTION .......--- ee eee ee eeceeee 2

MATTERS OF ACADEMIC FREEDOM 3

WHEN DOES DELAY CONSTITUTE

A CLAIM 5

THE 1991 AMENDMENT TO

42 U.S.C. SECTION 1981 AND

COLOR OF STATE LAW ......--- 7

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ......-------+:++>> 9

TABLE OF C NTS

STATEMENT OF THE CASE ..........00.00. 10

REASONS FOR GRANTING THE PETITION .. .21

FIRST AMENDMENT CLAIM UNDER

a 8 PETE Te eee ET 21

PRIOR ADMINISTRATIVE HEARINGS 26

ee ee | Pee eee ee 27

DELAY CONSTITUTES ACLAIM... 28

CAR RAM 60 CIC eee tae 30

INDEX TO APPENDICES

Page

APPENDIX A......-++ eee:

ORDER Entered by the United States Court of Appeals for

the Fourth Circuit on September 3, 1996 ......... A-1

APPENDIX B.........---+--

Judgment In Favor of the Defendants Entered on March 1,

1996 by the United States District Court for the Middle

District of North Carolina........-- ++ «+++. A-4

MEMORANDUM OPINION Entered on March 1, 1996

Accompanying JUDGMENT Granting Motion to

Beanies POR RIAN AS A-5

DECISION by The University of North Carolina Board of

Governors made on September 16, 1991....... A-27

REPORT of the Committee on Personnel and Tenure,

The University of North Carolina made on September 13,

1993 SLL A-29

DECISION by The University of North Carolina Board of

Governors made on June 16, 1992....... mie A-34

REPORT of the Committee on Personnel and Tenure,

The University of North Carolina, .

made on June 16, 1992... ......---- A-35

ORDER on Petition for Judicial Review Entered on February

24, 1993 by the Superior Court of New Hanover County,

North Carolina............--- A-38

DECISION of the Fayetteville State University Board of

Trustees made on October 5, 1993........ A-42

DECISION by The University of North Carolina Board of

Governors made on September 9, 1994....... A-44

REPORT of the Committee on University Governance,

The University of North Carolina... . A-46

APPENDIX C

ORDER Entered on 23" of April, 1996 by the District Court

for the Middle District Of North Carolina Stating Lack of

Jurisdiction to Rule on Plaintiff's Motion Under Rules 52(b)

PEPE ES eee A-51

APPENDIX D

TENURE POLICIES AND REGULATIONS OF

FAYETTEVILLE STATE UNIVERSITY, Section 1.

FREEDOM AND RESPONSIBILITY IN THE

UNIVERSITY ... 2.2.5. A-54

TENURE POLICIES AND REGULATIONS OF

FAYETTEVILLE STATE UNIVERSITY, Section 2.

ACADEMIC FREEDOM AND RESPONSIBILITY OF

PARAMeE Even cecacens A-55

TENURE POLICIES AND REGULATIONS OF

FAYETTEVILLE STATE UNIVERSITY, Section 3.

ACADEMIC TENURE ............. A-56

TENURE POLICIES AND REGULATIONS OF

FAYETTEVILLE STATE UNIVERSITY, Section 5.

NONREAPPOINTMENT OF FACULTY MEMBERS ON

PROBATIONARY APPOINTMENTS ..... . A-66

APPENDIX E

THE CODE BOARD OF GOVERNORS THE

UNIVERSITY OF NORTH CAROLINA SECTION 501 C.

RELATION OF PRESIDENT TO

THE UNIVERSITY .......----+--- A-75

THE CODE BOARD OF GOVERNORS THE

UNIVERSITY OF NORTH CAROLINA SECTION 502

C.(4) CHANCELLORS OF CONSTITUENT

INSTITUTIONS ...... ..--+-+:- A-76

THE CODE BOARD OF GOVERNORS THE

UNIVERSITY OF NORTH CAROLINA ACADEMIC

FREEDOM AND TENURE SECTION 600

FREEDOM AND RESPONSIBILITY IN THE

UNIVERSITY COMMUNITY .....- -----+>- A-77

THE CODE BOARD OF GOVERNORS THE

UNIVERSITY OF NORTH CAROLINA

SECTION 601 ACADEMIC FREEDOM

ANDRESPONSIBILITY OF FACULTY. ...-.. A-78

THE CODE BOARD OF GOVERNORS THE

UNIVERSITY OF NORTH CAROLINA SECTION 602

ACADEMIC TENURE. ..... .-----+>- A-79

THE CODE BOARD OF GOVERNORS THE

UNIVERSITY OF NORTH CAROLINA SECTION 604

APPOINTMENT, NONREAPPOINTMENT AND

REQUIREMENTS OF NOTICE AND

BVI oo okie oie c cde d eee vnc A-81

THE CODE BOARD OF GOVERNORS THE

UNIVERSITY OF NORTH CAROLINA SECTION 604 A.

NOTICE OF REAPPOINTMENT OR

NONREAPPOINTMENT .... ..----- +--+ 00> A-82

THE CODE BOARD OF GOVERNORS THE

UNIVERSiTY OF NORTH CAROLINA SECTION 604 B.

IMPERMISSIBLE REASONS FOR

THE CODE BOARD OF GOVERNORS THE

UNIVERSITY OF NORTH CAROLINA APPENDIX [T

THE CODE]. .DELEGATION OF DUTY AND

AUTHORITY TO BOARDS OF TRUSTEES

OP er Sr Pee Pee Ab yon st A-84

APPENDIX F

CIVIL RIGHTS STATUTES 42 U.S.C. SECTION 1981

EQUAL RIGHTS UNDER THE LAW........ A-86

CIVIL RIGHTS STATUTES

42 U.S.C. SECTION 1983 .............. A-88

CIVIL RIGHTS STATUTES 42 U.S.C. SECTION 1985.

CONSPIRACY TO INTERFERE WITH

COVIG TAINEAD 6.5 6 2.55. EONS Sets A-88

TABLE OF AUTHORITIES CITED

Cases Page

Armstrong v. Manzo,

Fa TS.) a 27

Barry v. Barchi,

BORA ay COLSTON) 6 Bo ie 2a 6, 28

Board of Regents of State Colleges et al. v. Roth,

408 U.S. 564 at 582, 92 S.Ct. 2701, 2703 ..... 4, 24, 25. 27

Bone v. City of Lafayette,

763 F.2d 295, 298 (7 Cir. 1985) .......... 4

Cleveland Board of education v. Loudermill,

470 U.S. 532, 541, 547, 105 S.Ct. 1487, 1496,

Oe RnB ee (ISG). on ca cccicccdiceds, 6, 7, 28, 29

D’ Acquisto v. Washington,

640 F.Supp. 594, 618 (N.D. Ill.)............. 7,29

Fusari v. Steinberg,

419 U.S.379, 95 S.Ct. 533,

ee Ee fs) are 6, 29

Grannis v Ordean,

Zoe ne aes Se ISIE)... ae bie ceed 27

Jett v Dallas Independent School District,

ee 7, A-21

Keyishian v. Board of Regents,

Sh NS ws cree war ceca Posies 3, 24

Lawson v. Sheriff of Tippecanoe County, .

725 F.2d 1136, 1138 (7™ Cir. 1984) ........ 4

Logan v. Zimmerman Brush Co. et al,

GSS tig Ge a eck Cis ee rer eS wee 27, 28

Mathews v. Eldridge,

424 U.S. 319, 340, 342, 96 S.Ct., 893, 905, 906,

pee Bt | ee per pee 6, 29, 30

Meyer V. State of Nebraska,

262 U.S. 390, 399, 43 S.Ct.625, 627,

67 L.Ed.2d 1042 (1922/23)............ 4,21, 22, 24

Mullane v. Central Hanover Bank & Trust Co.,

Fae Shs PN + cab 0 0b nee oe oR 26, 28

Sindermann v. Perry,

430 F.2d 939, 944,945 (CA5)............ 26

Sweezy v. New Hampshire,

S58 As Bes I 4 6 64 chek siveserbin 4,24

STATUTES AND REGULATIONS

Code Page

42 US.C., Section 1981

Equal Rights Under The Law.......... 7, 8, 9, 20, A-86

42 U.S.C., Section 1983 .............. 7, 9, 20, A-88

42 U.S.C., Section 1985......... 7, 9, A-888

MONE FID oc ck eS it avensas 20

The Fayetteville State Tenure Policies

GU IIE 35 5 cow kee scan es

IE Bk ow és ove ce pene fee tee 10, 23, 26, A-54

| RE Se gee hee a REN at eestor 23, 26, A-55

PE Md he iss hoc eeew eae a3, 12, 15,

A-59, A-60, A-63, A-64

PO PAWS eich tlhe OEE 11, 27, 28, A-66

WOUND OS ose ues wee eure eel 16, 27, 28, A-66

i Ren eae er 17, 29, A-73

The Code of The University of North Carolina

Academic Freedom ............... 9, 24, 26, A-77, A-78

I I 8 he 2, A-75

ee 18, A-76

a ere re 10, A-83

Se a eT ee

|

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1996

PETITION FOR WRIT OF CERTIORATRI

Tenkasi M. Viswanathan, Petitioner respectfully prays

that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

The Opinion of the United States Court of Appeals for the

Fourth Circuit appears at Appendix A at page A-1 to the

petition and is unpublished. The opinion was entered on

September 3, 1996.

The Order and Memorandum of the United States District

Court for the Middle District of North Carolina granting

defendants’ Motion to Dismiss were entered on March 1,

1996. They appear in Appendix B at pages A-4 and A-5

respectively. Petitioner-plaintiff’s motion to make additional

findings and amend or alter the Order and the Memorandum

was denied by order filed on April 23, 1996 stating that the

District “Court lacke[d] jurisdiction to rule on Plaintiff's

Combined Motion Under Rules 52(b) and 59(e) [of the

Federal Rules of Civil Procedure].” The April 23, 1996 order

appears in Appendix C at A-51. No publication on this case

has been reported.

The three administrative Decisions of The University

of North Carolina appear in Appendix B at A-27, A-29; A-

34, A-35; and A-44, and A-46 respectively. The Decision by

the Fayetteville State University Board of Trustees appears

in Appendix B at A-42.

JURISDICTION

The date on which the United States Court of Appeals

decided the case was September 3, 1996. Petitioner invokes

the jurisdiction of the Supreme Court of the United States

under 28 U.S.C., Section 1254(1).

The jurisdiction of the Supreme Court of the United

States to review the Orders in question by writ of certiorari is

conferred by Rule 10.(c) of the Rules of ‘ Supreme Court

of the United States:

MATTERS OF ACADEMIC FREEDOM

This case involves a question on academic freedom of

university faculty members that is secured by state law and

regulations. Under these regulations research and publication

and matters of concern and inquiry into knowledge are

included in academic freedom and academic freedom is

secured and guaranteed as a matter of law as an essential

condition for faculty members to discharge their duties.

Under these circumstances, the decision of the Fourth

Circuit Court of Appeals affirming the District Court’s

finding that concern about research and publication are not of

public concern conflicts with relevant decisions of this Court.

This Supreme Court has already decided this question in

Keyishian v. Board of Regents, 385 U.S. 589, 603 (academic

freedom is of transcendent value) cited in Board of Regents

. ssaiaaeiiniiiiaaliamaia

of State Colleges et al. v. Roth, 408 U.S. 564 at 582, 92 S.Ct.

2701, 2703; in Sweezy v. New Hampshire, 354 U.S. 234,

261-262 (Mr. Justice Frankfurter concurring in result)

(research is for society’s good and in the interest of wise

government), cited in Roth at 408 U.S. 564 at 581; and in

Meyer V. State of Nebraska, 262 U.S. 390, 399, 43 S.Ct.625,

627, 67 L.Ed.2d 1042 (1922/23) (freedom to engage in the

profession of a teacher and to exercise what is essential to

that profession is a liberty right). Any liberty interest is a

matter of public concern. This is particularly so, when there

is a regulation that guarantees this interest.

Moreover, the United States Court of Appeals for the

Seventh Circuit has made decisions on this question in ways

that conflict with the decision of the Fourth Circuit Court of

Appeals. In Bone v. City of Lafayette, 763 F.2d 295, 298

(7™ Cir. 1985), the Circuit Court held that liberty interest

includes the general freedom to take advantage of such

opportunities as may arise in one’s occupation. Please see

also Lawson v. Sheriff of Tippecanoe County, 725 F.2d

1136, 1138 (7" Cir. 1984). Academic freedom including

questions and concerns on research, publication and the like

is such an opportunity, which is further secured by the state

as an essential condition of the profession of university

teaching. Any such liberty needs to be jealously guarded and

So is a matter of public concern.

WHEN DOES DELAY CONSTITUTE A

CLAIM?

This case provides the Court with an opportunity to

define the “constitutional dimensions of delay” that should be

stated in a complaint to survive a motion to dismiss? This

case started in February, 1990 and the final administrative

decision was made only in September, 1994. During the four

and one-half years of its course, the case followed a tortuous

path going through one judicial review (Appendix B at A-

38), three administrative reviews by the Respondent

University of North Carolina Board of Governors (“UNC

Board” or “UNC Board of Governors” hereinafter), a hearing

before the Respondent Fayetteville State University Board of

Trustees (“FSU Trustees”), and two hearings before the

Fayetteville State University (“FSU” hereinafter) Hearing

and Reconsideration Committee. Please see Appendix B at

A-29, A-35, A-44, and A-42. When all of it was done,

Petitioner did not get the process that was his due. The two

lower courts did not consider plaintiff's claim that this delay

and the due process that was finally given to Petitioner did

not meet constitutional standard under the Fourteenth

Amendment. The decision of the two lower courts to

consider this question does not comport with the

“constitutional dimensions of delay” set out in this Court’s

decision in Barry v. Barchi, 443 U.S. 55, 66 (1979) (“At

some point, a delay in the post-termination hearing would

become a constitutional violation.”’), cited in Loudermill, 470

U.S. at 547, 105 S.Ct. at 1496. See also Mathews v.

Eldridge, 424 U.S. 319, 340, 342, 96 S.Ct., 893, 905, 906, 47

L.Ed.2d 18 (1976); Fusari v. Steinberg, 419 U.S.379, 95

S.Ct. 533, 42 L.Ed.2d 521 (1975). Both Mathews and Fusari

discuss constitutional dimensions of delay between first and

second stage hearings. “Too much postponement for too

long will be a violation regardless of the adequacy of the first

stage hearing. The Supreme Court said as much in

Loudermill.”, citing Cleveland Board of education v.

Loudermill, 470 U.S. 532, 541, 547, 105 S.Ct. 1487, 1496,

84 L.Ed.2d 495 (1985). Quoted from D’Acquisto v.

Washington, 640 F.Supp. 594, 618 (N.D. Ill.). Even though

this Court has dealt with this problem in the above cases at

“the proof stage of the claim”, it has not explicitly dealt with

the question of what are the elements of such a claim to

survive a motion to dismiss.

THE 1991 AMENDMENT TO 42 U.S.C

SECTION 1981 AND COLOR OF STATE LAW

This Court decided in 1989 in Jett v Dallas

Independent School District, 491 U.S. 701 (1989) that when

State actors are involved, 42 U.S.C., Section 1983 was

intended to be the exclusive federal remedy for violation of

rights guaranteed under 42 U.S.C., Section 1981. However,

in the year 1991, Congress amended Section 1981 and has

brought that section more in line with Title VII of the Civil

Rights Act of 1964 (42 U.S.C. Section 2000e et seq.) as

amended in 1970. “Impairment under color of State law” is

part of the text of the amended act. Moreover, the

amendment includes both “impairment by governmental

discrimination and impairment under color of State law.”

Appendix F at A-86. This Court has not decided this

question after the i991 amendment. After the amendment,

Section 1981 takes the character and color of Section 1985

as well as Title VII of the Civil Rights Act as amended in

1970. Section 2 of Pub.L. 102-166 authorizing the

amendment stated:

The Congress finds that ---

(1) “additional remedies under Federal Law are

needed to deter unlawful harassment and

intentional discrimination in the workplace;

@:s.%

(3) “legislation is necessary to provide additional

protections against unlawful discrimination in

employment.”

Moreover, Petitioner has proceeded pro se and has

never had any opportunity to conduct any discovery related

to the case, as the regulations do not provide for depositions,

interrogatories or other forms of discovery. Thus in spite of

the fact that the case has ran its course over a period of five

and one-half years, there has not been any discovery at all.

The dismissal means also the loss of an opportunity even to

litigate. Would such a dismissal be just under the tortuous

circumstances of this case? The lower courts have applied a

very harsh standard.

These important questions of federal law have not

been, but should be, settled by the United States Supreme

Court.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Petition involves Constitutional Amendment One, the

Due Process Clause of the Fourteenth Amendment, and

applications of these provisions under 42 U.S.C., Section

1983. Appendix F at A-88. The case involves claims under

42 U.S.C., Section 1981, 1985, 1986 as well as 2000¢e et seq.

Petitioner appeals to the regulations in The Code of The

University of North Carolina, (Appendix E) and those in the

10

Tenure Policies and Regulations of Fayetteville State

University. (Appendix D)

STATEMENT OF THE CASE

Petitioner Viswanathan was Plaintiff-Appellant before

the United States Court of Appeals for the Fourth Circuit.

Petitioner (Plaintiff) was appointed during the academic year

1989-90 to a tenure-track position as an Associate Professor

to the faculty of the Department of Mathematics and

Computer Science of Fayetteville State University (FSU

hereinafter). Fayetteville State University is one of the 16

constituent institutions of The University of North Carolina.

By letter dated February 8, 1990, he was given timely notice

that he would not be reappointed to a second one-year term.

Even though Viswanathan was holding a probationary

appointment, the fact that he was an associate professor

entitled him to the “incidents of academic tenure” designed to

protect academic freedom in constituent institutions of The

UNC. The regulations state as follows in Section 604 B.

under the heading “Impermissible Reasons for

11

Nonreappointment” of faculty members on probationary

appointments (Appendix E at A-83):

In no event shall a decision not to reappoint a

faculty member be based upon (a) the exercise by the

faculty member of rights guaranteed by the First

Amendment to the United States Constitution, or by

Article I of the North Carolina Constitution, or (b)

discrimination based upon the faculty member’s race,

sex, religion, or national origin; or (c) personal

malice.

Please see also Section 5.A of the FSU Tenure Policies and

Regulations (“FSU Tenure Policies” hereinafter). The section

is entitled” NONREAPPOINTMENT” OF FACULTY

MEMBERS ON PROBATIONARY APPOINTMENTS,

and it provides the procedural due process that is applicable,

when the decision not to reappoint is contested. Appendix D

at A-66. Section 3.C.(2) of the FSU Tenure Policies regulates

how a “Decision Not to Reappoint Upon Expiration of

Probationary Terms” should be made. Appendix D at A-63.

The regulations define the channel for academic review at A-

62. The regulations also use the term “chairman” in a generic

way; “chairman” could mean “Dean [of a college or

12

school]”, or the “Vice Chancellor for Academic Affairs”.

Similarly, “Department” could mean “College”, “School”, or

“the Division of Academic Affairs”. Appendix D at A-61.

In order to guarantee academic freedom, the regulations

under Section 5 require that the decision not to reappoint be

pinned on a single academic officer, who should also be the

first such officer making the first decision not to reappoint in

the channel for administrative review. Under the regulations

in Appendix D at A-64, the decision not to reappoint is final,

“except as it may be later reviewed in accordance with the

provisions of Section 5.” Appendix D at A-64.

If the Canaialien makes the final decision, then the

internal campus review process in Section 5 of the FSU

Tenure Policies will not be applicable. In such a case, a

direct appeal to the UNC Board would lie under Section 501

C(4) of The Code of The University of North Carolina. This

direct appeal is in Appendix E at A-75. Please see footnote 6

in Section 5 of the FSU Tenure Policies, Appendix D at A-

67.

——————————————oEeEeEeEeEeEeEeEeE—EeEeee

13

The 1990 decision of FSU not to reappoint Petitioner

was made by Respondent Dr. Joseph Monroe, then Vice

Chancellor for Academic Affairs at FSU. Petitioner stated in

paragraph 51(a)(1) of his Complaint that “[i]n the early fall of

1989, [he] made statements at several meetings of the faculty

which were quite critical of the academic administration at

FSU.” He also stated in paragraph 51(a)(6) that “[o]n

December 4, 1989, at a faculty meeting with the Chancellor,

[he] publically criticized Dr. Monroe for failing to emphasize

publication and research.”

Petitioner contested the 1990 nonreappointment

decision of Respondent Monroe alleging that Dr. Monroe’s

decision was retaliation for the exercise of his rights

guaranteed by the First Amendment to the U.S. Constitution

or Article 1 of North Carolina’s Constitution. Petitioner also

contested that Dr. Monroe’s decision was based on personal

malice. Petitioner followed the procedures in Section 5 of

the FSU Tenure Policies and appealed to the FSU Hearing

and Reconsideration Committee, which reported that

Petitioner had “adequately supported his contentions

regarding the reasons [personal malice and retaliation for .

exercise of First Amendment rights] for his non-

reappointment.” The Committee recommended that the non-

renewal decision be reversed.” Respondent Hackley did not

accept the recommendation and Petitioner then appealed to

the FSU Trustees and the UNC Board. The UNC Board

stated as follows in its report (paragraph 52, Complaint):

The evidence presented tends to show that the

negative recommendation of the Vice Chancellor

could have been based in part on Professor

Viswanathan’s critical remarks. Because the remarks

appear to be protected speech, this possible

motivation on the Vice Chancellor’s part would

violate the First Amendment to the U.S. Constitution.

The UNC Board ordered the following remedy

(paragraph 53, complaint):

An appropriate remedy in cases where a

nonreappointment decision is based on an

impermissible reason is to conduct a new review of

the faculty member’s credentials. Such a review

should be removed from the prior taint, but should

also allow the institution an opportunity to consider

the current credentials of the faculty member. To

accomplish these ends, the Committee recommends

that the nonreappointment decision be reversed.

15

The UNC Board reversed the 1990 FSU decision on

or about September 13, 1991. Soon after, Petitioner made the

request for reappointment to his original position at FSU.

Paragraph 81, Complaint. Respondents Blount, Young,

Edwards, and Hackley did not conduct the new review

ordered by the UNC Board (Paragraph 82, Complaint).

Interpreting the rule in Appendix D at A-59, A-60 of the FSU

Tenure Policies, Petitioner contended that FSU should have

made a decision on the reappointment by February 15, 1992

and that he was entitled for an automatic reappointment

under the said regulation.

In the absence of any initiative from FSU, Petitioner

made a second appeal to the UNC Board. The UNC

prescribed May 8, 1992 as a deadline. FSU conducted the

review and on or about March 20, 1992, the Department

Chairman, Kespondent Blount sail Petitioner’s

reappointment. Paragraph 84, Complaint.

On May 6, 1992, FSU announced that FSU would not

reappoint Petitioner. Paragraph 88, Complaint. Petitioner

16

then asserted that “important procedures” in Sections 5 of the

FSU Tenure policies were not followed. Paragraph 98,

Complaint. Dissatisfied with the FSU 1992 decision, he “had

to seek a judicial review of the 1992 decision of FSU and the

UNC Board, pursuant to N.C.G.S., Section 150B-45.

Paragraph 100, complaint. This “court order became

necessary to initiate review under Section 5 [of the FSU

Tenure Policies].” Paragraph 98, Complaint. He also alleged

that the 1992 “review for reappointment was not ‘initiated at

the department level’” as ordered by the UNC Board through

its Order of September 13, 1991. Paragraph 99,-Complaint.

After the judicial review under N.C.G.S., Section

150B-45, and the court order resulting therefrom, the review

under Section 5 of the FSU Tenure Policies was ‘initiated

after a year’s break in March, 1993.” Paragraph 98,

Complaint. The FSU Hearing Committee did not give a

timely review under Section 5.D of the FSU Tenure Policies,

even after the Court order. Paragraph 98, Complaint.

17

The 1992 non-reappointment decision was made by

respondent Jon Young. Viswanathan alleged impermissible

reasons for the nonreappointment decision. A hearing took

place and in July, 1993, the FSU Hearing and

Reconsideration Committee found that “the 1992-

nonreappoitment decision of Dr. Jon Young, Acting dean of

the College of Arts and Sciences (CAS) was based upon the

impermissible reasons of personal malice, of plaintiff

Viewahaiteca’s eneneiesaldabesasnasialashi tins

Amendment to the United States Constitution, and of

discrimination based on national origin.” Paragraph 101,

Complaint.

When the Section 5 review of the 1992 decision was

undertaken after the court order (Appendix B at A-38), the

procedure in Section 5.G. of the FSU Tenure Policies was not

followed. Paragraphs 105, 106, 107 , and 98 of the

Complaint. The regulation under Section 5.G. required that

respondent Young manifest himself in writing, based on the

recommendation of the FSU Hearing Committee, as to what

18

modification he would make as to his original decision not to

reappoint. Appendix D at A-73. It is always his decision that

should be reviewed, keeping the impermissible reasons on

focus. The Chancellor or any other officer is prohibited from

speaking on his behalf.

After the July, 1993 decision of the FSU Hearing and

Reconsideration Committee, FSU made yet another

administrative decision by the FSU Chancellor. Paragraph

114, Complaint. Under the FSU regulations, the FSU

Chancellor as an executive officer has no appellate

jurisdiction. He only serves as a medium of

communication between the Hearing Committee and the FSU

Trustees. Section 502.C.(4), The Code. Appendix E at A-76

The regulations accord great preeminence to academic

freedom. They require that the non-reappointment decision

be that of a single administrative officer. There is no shared

responsibility for a nonreappoitment decision of a faculty

member at FSU.

19

The review process died with a letter that Respondent

Hackley wrote on or about August 2, 1993. Paragraph 114,

Complaint.

Petitioner alleged serious violations and continued the

appellate process. The process continued with the FSU

Trustees (October 5, 1993 at A-42). The UNC Board made

its final decision on or about September 9, 1994. Appendix

B at A-46.

Plaintiff filed suit immediately on or about Sounder

13, 1994 in U.S. District Court for the Middle District of

North Carolina. Plaintiff asserted that he had a right for the

review under Section 5 and that he did not get the process

that was his due. Paragraphs 117, and 122, Complaint.

He alleged that the 1990 nonreappointment decision

of respondent Monroe was retaliation for the exercise of his

First Amendment rights of free speech. Paragraphs 51, 76,

and 80, Complaint.

In Paragraphs 118, 121, Petitioner asserted that

Petitioning the properly constituted authorities is a First

20

Amendment right and that the nonreappointment decision

and the inordinate delay were acts of retaliation for the

exercise of these first amendment rights. He also made the

necessary connection to 42 U.S.C., Section 1983 in stating

these claims.

Petitioner also asserted an Equal Protectien Claim

under the Fourteenth Amendment stating that the second

review created a discriminatory class to which he was

assigned. The facts about the second review concerning the

February 15,1992 date created a class that was in violation of

the Equal Protection Clause of the Fourteenth Amendment.

Paragraphs 56, 57, 58, and 128. Complaint.

In paragraph 58, petitioner stated that “[t]he nghts to

lawful proceedings and to the enjoyment of the benefits of his

contract are secured to him by Section 42, U.S.C., Section

1981.” And named several defendants. He also stated the

defendants discriminated against him on the basis of his alien

status. Plaintiff is an alien and a citizen of India, Paragraphs

1 through 3 and 16, Complaint. The Complaint asserted

21

jurisdiction for this claim under 28 U.S.C. Sections 1331,

1343(a)(3, 4).

Petitioner also made several statements about the

connection between this case and the related case of

Viswanathan v. Scotland County Board of Education et al.,

Case No. 96-5555, Supreme Court, pending before this court.

He suggested conspiracy. Paragraphs 62 through 97. There

was no discovery that involved the Respondents in this case.

State regulations do not provide for one.

Petitioner also stated a claim based on delay in

paragraphs 59, 60, 61, 82, 121, 122, 98, 100,

REASONS FOR GRANTING THE PETITION

The Petitioner presents the following:

FIRST AMENDMENT CLAIM UNDER SECTION 1983

In Meyer V. State of Nebraska, 262 U.S. 390, 399, 43

S.Ct.625, 627 (1922), the Supreme Court of the United

States stated:

22

The American People have always regarded education

and acquisition of knowledge as matters of supreme

importance which should be diligently promoted. The

ordinance of 1787 declares:

“Religion, morality, and knowledge, being necessary

to good government and the happiness of mankind,

schools and the means of education shall forever be

encouraged.”

The Meyer Court stated further as follows (43 S.Ct. 627):

Practically, education of the young is only possible in

schools conducted by especially qualified persons

who devote themselves thereto. The calling always

has been regarded as useful and honorable, essential,

ind to the public welfare.

(Emphasis added.)

In the instant case, Petitioner was an Associate

Professor on tenure track at Fayetteville State University.

Academic freedom is a vested legal right guaranteed by law

and regulation as a condition essential to a faculty member’s

discharge of his duties at Fayetteville State University.

Moreover, protection is guaranteed as a matter of North

Carolina law, when the matter pertains to sontennic freedom

and academic freedom is exercised “in the lawful pursuit of

[one’s] respective area of scholarly and professional interest

23

and responsibility.” FSU Tenure Policies and Regulations,

Section 1, recites as follows (Appendix B at A-54):

Fayetteville State University is dedicated to the

transmission and advancement of knowledge and

understanding. Academic freedom is essential to the

achievement of these purposes. This institution,

therefore, supports and encourages freedom of inquiry

for faculty members and students, to the end that they

may responsibly pursue these goals through teaching,

learning, research, discussion, and publication, free

from internal or external restraints that would

unreasonably restrict their academic endeavors.

Fayetteville State University shall protect

faculty and students in their responsible exercise of

the freedom to teach, to learn, and otherwise to seek

and speak the truth.

(Emphasis added)

Section 2., entitled, “Academic Freedom and

Resporsibility of Faculty, Tenure Policies and

Regulations of Fayetteville State University (Appendix D

at A-55) provides further guarantees

Research and publication are included explicitly as

important components of academic freedom essential for

“transmission and advancement of knowledge and

understanding.” North Carolina law only echoes the

24

“supreme importance” of the “acquisition of knowledge” and

the need to promote it as set out by the Meyer Court, supra.

Please see also The Code of The UNC at Appendix E at A-

77, A-78, and A-81.

To hold that research in a constituent institution of the

University of North Carolina is not a matter of public

importance is to hold that academic freedom is not a matter

of public importance or that North Carolina law that

guarantees such academic freedom is not of public

importance. Such a holding is contrary to the fundamental

aspirations of the American People set out in Keyishian v.

Board of Regents, 385 U.S. 589, 603 (ome-year term

contract), cited in Board of Regents of State Colleges et al.

v. Roth, 408 U.S. 564 at 582:

Our nation is deeply committed to safeguarding

academic freedom, which is of transcendent value to

all of us and not merely to the teachers concerned.

That freedom is therefore a special concern of the

First Amendment, which does not tolerate laws that

cast a pall of orthodoxy over the classroom.

The importance of research and the constitutional theory

behind it are stated by Mr. Justice Frankfurter in Sweezy v.

25

New Hampshire, 354 U.S. 234, 261-262 (concurring in

result), cited in Board of Regents of State Colleges et al. v.

Roth, 408 U.S. 564 at 581:

For society’s good --- if understanding be an essential

need of society --- inquiries into these problems,

speculations about them, stimulation in others of

reflection upon them, must be left as unfettered as

possible.”

The right inquiry is a finding if Petitioner’s remarks on

research and publication fall within the purview of academic

freedom and if so they were made “in the lawful pursuit of

[petitioner’s] area of scholarly and professional interest and

responsibility.” The complaint is not the place that should

provide this finding. It is properly a matter that should be

proved by expert witnesses and/or by the record. Moreover,

this is a matter that calls for the expertise of academic

personnel including the faculty. The District Court cannot

decide at this early stage of the case that the matter is not one

of academic freedom. Moreover, plaintiff has asked for a

jury trial, and it is for the jury to decide if the matter falls

within the ambit of academic freedom, exercised “in the

26

lawful pursuit of [petitioner’s] area of scholarly and

professional interest and responsibility.” Such an inquiry is

outside the scope of a Rule 12(b) motion to dismiss.

PRIOR ADMINISTRATIVE HEARINGS

The findings of a prior administrative hearing are

“appropriate to the nature of the case.” Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). In

Petitioner’s case, there was not one, but two such hearings by

The Board of Governors of the University of North Carolina,

and again two such hearings by the FSU faculty Committee.

Appendix B at A-27, and A-44Their findings are relevant:

Please see also Sindermann v. Perry, 430 F.2d 939, 944, 945

(CA 5),

The findings by the Board and the FSU Hearing and

Reconsideration Committee raise a presumption that the

critical remarks of Petitioner fall within the purview of

“academic freedom” and hence protected as a matter of the

cited university regulation in Appendix D at A-54, and A-55

27

Such a presumption raises a genuine issue and so properly

states a cognizable claim under the First Amendment.

DUE PROCESS

In Armstrong v. Manzo, 380 U.S. 545, 552 (1965),

the Supreme Court stated that the hearing required by the

Due Process Clause must take place “at a meaningful time

and in a meaningful manner.” Please see Grannis v Ordean

234 U.S. 385, 394 (1914). The instant case is unlike Board

of Regents v. Roth, 408 U.S., 564, 567, 92 S.Ct. 2701, 2703

where “[s]tate law thus clearly [left] the decision whether to

rehire a nontenured teacher for another year to the unfettered

discretion of university officials.” In the instant case, the

decision is fettered by the operation of three impermissible

reasons. Under Logan, Petitioner had protected property

interests in the administrative hearing under Section 5 of the

FSU Tenure Policies and Regulations. Please see Appendix

D at A-66.

Like the Illinois Fair Employment Practice Act

(FEPA) in Logan v. Zimmerman Brush Co., 455 U.S., 422,

28

424, the Code of the University of North Carolina and the

Tenure Policies and Regulations of Fayetteville State

University bar employment discrimination on the basis of

race, national origin, sex, religion, and age. Like the FEPA,

the regulations also establish a comprehensive scheme for

adjudicating contentions of discrimination. There are also

two other impermissible reasons. Appendix D at A-66, A-67.

Viswanathan had a property right to these adjudicatory

proceedings under Logan, 455 U.S. at 428, 429, 430 and

en OAs Ac nail

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306

(1950). All the process that is due to Viswanathan is

provided in Section 5 of the FSU Tenure Policies and

Regulations (Appendix at A-66) The hearing that was

| provided was not under Section 5 and so is not meaningful

under the Due Process Clause.

DELAY CONSTITUTES A CLAIM

“At some point, a delay in the post-termination

hearing would become a constitutional violation.” Barry v.

Barchi, 443 U.S. 55, 66 (1979), cited in Loudermill, 470

29

U.S. at 547, 105 S.Ct. at 1496. See also Mathews v.

Eldridge, 424 U.S. 319, 340, 342, 96 S.Ct., 893, 905, 906, 47

L.Ed.2d 18 (1976); Fusari v. Steinberg, 419 U.S.379, 95

S.Ct. 533, 42 L.Ed.2d 521 (1975). Both Mathews and Fusari

discuss constitutional dimensions of delay between first and

second stage hearings. “Too much postponement for too

long will be a violation regardless of the adequacy of the first

stage hearing. The Supreme Court said as much in

Loudermill.” D’Acquisto v. Washington, 640 F.Supp. 594,

618 (N.D. Ill.). Viswanathan was never provided due process

inasmuch as his first hearing was nullified by the reversal of

the 1990 nonreappointment decision of FSU. The process

that was his due after the 1992 nonreappointment decision

did not take piace in 1992. The February 1993 order of the

Superior Court of New Hanover County (Appendix B at A-

38) gave him hope that finally he would be given the process

that was his due. That also did not happen since the crucial

Section 5.G. was not completed and after the hearing, the

original decision of Jon Young was abandoned and a new

30

decision by Respondent Hackley took its place without

Petitioner being aware that the process was being tampered.

In Mathews, the Court said that one must consider the actual

procedures used and ‘the risk of an erroneous deprivation of

[the private] interest through the procedures used.” Identified

as the second Eldridge heading, it called for an examination

of the risk of deprivation through the use of wrong

procedures. In Petitioner’s case the process that was his due

never took place.

CONCLUSION

Based on the foregoing considerations, the petition for

a writ of certiorari should be granted.

Respectfully submitted this the 2 nd day of

TY: Vbwenhen,

December, 1996.

Tenkasi M. Viswanathan, Pro-Se

7405 Alcoa Way

Wilmington NC 28405

Tel: 910-686-5395