Tonkovich v. Kansas Board of Regents , 159 F.3d 504 ( 1998 )


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  •                                                                 F I L E D
    United States Court of Appeals
    Tenth Circuit
    PUBLISH
    OCT 26 1998
    UNITED STATES COURT OF APPEALS
    PATRICK FISHER
    TENTH CIRCUIT                           Clerk
    EMIL A. TONKOVICH,
    Plaintiff-Appellee,
    v.
    Nos. 96-3402, 96-3403, 96-
    KANSAS BOARD OF REGENTS,                   3404, 96-3405, 96-3406, 96-
    ROBERT C. CALDWELL, TOM E.                 3407, 96-3408
    HAMMOND, JOHN B. HIEBERT,
    KAREN KREPPS, JOHN G.
    MONTGOMERY, PHYLLIS NOLAN,
    FRANK C. SABATINI, SIDNEY
    WARNER, GENE A. BUDIG,
    DELBERT M. SHANKEL, P.
    DELBERT BRINKMAN, DAVID E.
    SHULENBURGER, ROBERT H.
    JERRY, II, SIDNEY A. SHAPIRO,
    REGINALD L. ROBINSON, A.
    KIMBERLY DAYTON, ELINOR P.
    SCHROEDER, ELLEN E. SWARD,
    SANDRA C. McKENZIE, ANN
    VICTORIA THOMAS, ROSE A.
    MARINO, H. RUTHERFORD
    TURNBULL, III, NANCY ANN
    DAHL, E. P. JOHNSEN, JOHN
    MICHEL, DELORES RINGER, and
    ROBERT HEMENWAY, individually
    and in their official capacities,
    Defendants-Appellants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF KANSAS
    (D.C. No. 95-CV-2199)
    Timothy Mustaine (James M. Armstrong and Mary Kathleen Babcock with him
    on the brief), Foulston & Siefkin, L.L.P., Wichita, Kansas, for Defendant-
    Appellant in Case No. 96-3402.
    William Scott Hesse, Assistant Attorney General (Carla J. Stovall, Attorney
    General, Kevin D. Case, Assistant Attorney General on the brief), Topeka,
    Kansas, for Defendants-Appellants in Case No. 96-3403.
    Andrew F. Sears (Robert F. Bennett and David C. Wetzler with him on the brief),
    Bennett Lytle Wetzler Martin & Pishny, L.C., Prairie Village, Kansas, for
    Defendants-Appellants in Case No. 96-3404.
    John I. O’Connor, The Advocates Group, Pittsburg, Kansas, for Defendant-
    Appellant in Case No. 96-3405.
    Thomas A. Hamill (Kathryn Gardner with him on the brief), Martin, Pringle,
    Oliver, Wallace & Swartz, Overland Park, Kansas, for Defendants-Appellants in
    Case No. 96-3406.
    Michael Evan Jaffe (James H. Hulme, Eric B. Bruce, Arent Fox Kintner Plotkin
    & Kahn, Washington D.C., and Bruce D. Mayfield, Overland Park, Kansas, with
    him on the brief), Arent Fox Kintner Plotkin & Kahn, Washington, D.C., for
    Defendants-Appellants in Case No. 96-3407.
    Jeffrey A. Chanay (J. Phillip Gragson and Gail D. Edson with him on the brief),
    Entz & Chanay, P.A., Topeka, Kansas, for Defendants-Appellants in Case No.
    96-3408.
    Richard P. Hutchison, Landmark Legal Foundation, Kansas City, Missouri, for
    Plaintiff-Appellee.
    Before HENRY , McWILLIAMS , and LUCERO , Circuit Judges.
    2
    HENRY , Circuit Judge.
    This is a consolidation of seven separate appeals spawned by one district
    court case. Professor Emil Tonkovich, a law professor at the University of
    Kansas School of Law (“the Law School”), filed a complaint challenging his
    dismissal, alleging under 
    42 U.S.C. § 1983
     that the University violated his First
    Amendment speech rights, and his Fourteenth Amendment due process and equal
    protection rights. He also alleged several state claims, which are not before us.
    Although the district court granted the defendants’ motions to dismiss based on
    qualified immunity with respect to the First Amendment claim, it denied the
    motions to dismiss the Fourteenth Amendment claims. The defendants appeal
    this partial denial of their motions to dismiss, asserting their entitlement to
    qualified and absolute immunity. Because we resolve these appeals on qualified
    immunity grounds, we need not reach the issue of absolute immunity. Even
    taking Professor Tonkovich’s allegations as true, they are insufficient to show
    that the defendants subjected him, or caused him to be subjected, to the violation
    of a clearly established right of constitutional dimension. Thus, we reverse the
    district court’s denial of qualified immunity on Professor Tonkovich’s procedural
    due process, substantive due process, and equal protection claims.
    I. STATEMENT OF THE CASE
    3
    A. Legal Standard
    On appeal from a motion to dismiss, we must accept all of the well-pleaded
    allegations in the complaint as true.    Albright v. Oliver , 
    510 U.S. 266
    , 268
    (1994). However, we need not accept conclusory allegations.           Swanson v.
    Bixler , 
    750 F.2d 810
    , 813 (10th Cir. 1984). We must liberally construe the
    pleadings and draw all reasonable inferences in favor of the plaintiff.     
    Id.
    Accordingly, the facts recited herein are gleaned from Professor Tonkovich’s
    first amended complaint.    1
    As we analyze the issues presented by the doctrine of
    qualified immunity, which we shall discuss below in greater detail, we are guided
    by the Supreme Court’s statement of our task:
    An appellate court reviewing the denial of the defendant’s claim of
    immunity need not consider the correctness of the plaintiff’s version
    of the facts, nor even determine whether the plaintiff’s allegations
    actually state a claim. All it need determine is a question of law:
    whether the legal norms allegedly violated by the defendant were
    clearly established at the time of the challenged actions . . . .
    Mitchell v. Forsyth , 
    472 U.S. 511
    , 527-28 (1985).
    B. Overview
    Professor Tonkovich was employed as a faculty member at the Law School
    beginning in August 1981. In 1986, he became a tenured faculty member. In
    As the district court noted, “[Professor Tonkovich’s] 101-page amended
    1
    complaint is the antithesis of the ‘short and concise’ pleading requirement of Fed.
    R. Civ. P. 8(a).” Aplts’ App. vol. IV, doc. 18 at 1313. Indeed, it reads like an
    amalgamation of a complaint and a response to a motion for summary judgment.
    4
    1991, a graduating law student (“the Law Student”) complained that, during her
    first year of law school, Professor Tonkovich had engaged in a sexual act with
    her after discussing her grades. Officials in the Chancellor’s office conducted an
    investigation, enlisting the assistance of various Law School faculty members and
    the Dean of the Law School.
    During the investigation, the Chancellor’s office issued written findings
    and recommendations regarding the appropriate disciplinary action to be taken in
    Professor Tonkovich’s case. A period of settlement negotiations ensued.
    Eventually, the Chancellor filed official written charges against Professor
    Tonkovich. An evidentiary hearing was conducted before a standing University
    Hearing Committee, which issued its decision and recommendation to the
    Chancellor, who dismissed Professor Tonkovich from the faculty in 1993.
    Professor Tonkovich then took an appeal to the Board of Regents. What follows
    are the details of the events surrounding Professor Tonkovich’s dismissal, which
    form the basis of his claims.
    C. Facts
    In May 1991, just after her graduation from the Law School, the Law
    Student went to Robert Jerry, Dean of the Law School, and complained that
    Professor Tonkovich had made a pass at her in the fall of 1988. Dean Jerry
    informed Professor Tonkovich that a female student had complained about his
    5
    conduct. However, he did not name the student, nor did he provide any details
    about the nature of the allegation. Professor Tonkovich denied misconduct and
    asked to confront his accuser. During July and August 1991, Professor
    Tonkovich repeatedly requested that Dean Jerry disclose the name of his accuser
    and the nature of the allegation, but the Dean refused to do so.
    In August 1991, the Law Student filed a formal written statement with
    Vice Chancellor P. Delbert Brinkman, alleging that in July 1988, when she was a
    first-year law student, she had engaged in a sexual act with Professor Tonkovich,
    who was her professor at the time, and that the act was preceded by a discussion
    of law school grades. That same day, a local television news crew came to the
    Law School. The station later aired a segment about allegations of sexual
    misconduct against various law professors, who were not named. Later that day,
    Professor Tonkovich learned the name of his accuser. Shortly after the Law
    Student filed her written statement, Law Professor Elinor Schroeder told Vice
    Chancellor Brinkman that some faculty members thought the Law Student was
    unstable and that the accusations were part of a conspiracy against Professor
    Tonkovich.
    The University established September 6, 1991 as the deadline for
    submitting complaints against Professor Tonkovich. Professor Tonkovich’s
    response, filed on September 9th, denied the Law Student’s allegation and denied
    6
    sexually harassing any student. Two days later, he submitted an affidavit of Jean
    Younger, one of the Law Student’s classmates. Ms. Younger had hosted the
    party that preceded the alleged sexual activity. Ms. Younger stated (and later
    testified at the hearing) that at the party, the Law Student was flirting with
    Professor Tonkovich.
    The following is Professor Tonkovich’s version of the events that took
    place on the evening of the party. The Law Student followed him around the
    party for approximately five hours. She flirted with him, but he did not return
    her flirtations. When Professor Tonkovich left the party, she followed him out.
    She asked him for a ride home, claiming she was too drunk to drive. However,
    she did not appear too drunk to drive. He agreed to drive her home, but he was
    concerned that she had romantic intentions. He suggested that they go for a
    drive. He drove her to the campus police department parking lot where they got
    out and took a walk. During their walk, she attempted to kiss him. When they
    returned to the car, she attempted to sit in the driver’s seat with him. When
    Professor Tonkovich said they should go, she became upset. He then drove her
    back to her car, dropped her off, and left. He did not have sex with her, nor did
    he discuss grades with her.   2
    2
    As discussed below, and as alleged in Professor Tonkovich’s complaint,
    the committee that ultimately presided over the administrative hearing did not
    (continued...)
    7
    During the course of the investigation, in September 1991, Dean Jerry
    issued a memorandum to the Law School faculty, stating that the guidelines of
    the Association of American Law Schools apply to the faculty. In particular,
    Dean Jerry pointed out the guideline concerning the inappropriateness of a
    professor engaging in sexual conduct with a student enrolled in his or her class.
    Dean Jerry’s memo stated that the guidelines were relevant to the ethics provision
    of the University’s Faculty Code of Conduct (“Faculty Code”). The Faculty
    Code in effect at the time the Law Student filed her statement, and at the time of
    the alleged incident, did not expressly prohibit sexual relations between a
    professor and a student enrolled in his or her class. The Faculty Code did,
    however, prohibit a professor from exploiting a student for the professor’s
    private advantage. During Professor Tonkovich’s tenure, six members of the
    Law School faculty had dated students.
    Several days after Dean Jerry issued this memo, Professor Tonkovich
    received Vice Chancellor Brinkman’s written findings. Based on the Law
    Student’s allegation, Vice Chancellor Brinkman found that Professor Tonkovich
    had violated the Faculty Code’s ethics provision. Vice Chancellor Brinkman
    recommended a one-year paid teaching suspension for this violation. When
    2
    (...continued)
    adopt this version of the facts.
    8
    Professor Tonkovich received the written findings, he was warned that repeating
    such behavior in the future would be cause for his dismissal from the University.
    Several days later, Executive Vice Chancellor Delbert Shankel formally
    adopted Vice Chancellor Brinkman’s written findings. Executive Vice
    Chancellor Shankel informed Professor Tonkovich that if past misconduct were
    brought to the University’s attention, it might be cause for further disciplinary
    action. The next day, Chancellor Gene Budig adopted Executive Vice Chancellor
    Shankel’s decision. On October 4th, Professor Tonkovich formally requested a
    hearing before the Committee on Tenure and Related Problems (“the Hearing
    Committee”).
    Shortly after Professor Tonkovich requested a hearing, General Counsel to
    the Board of Regents called the Hearing Committee’s chairman, Professor
    William Lawrence. During their conversation, they discussed recusals from the
    committee. After this conversation, Professor Lawrence and two other members
    of the standing committee recused themselves. Three other professors were
    substituted. The conversation, the recusals, and the substitutions occurred
    without Professor Tonkovich’s knowledge. Professor H. Rutherford Turnbull,
    III, a substituted member, became the new chairman. Other members of the
    Hearing Committee were Professors Nancy Ann Dahl, E.P. Johnsen, John Michel,
    and Delores Ringer. None of the Hearing Committee members were members of
    9
    the Law School faculty. Mr. Turnbull and one of the other substituted members
    of the Hearing Committee, Professor Dahl, eventually voted with the 3-2 majority
    in favor of Professor Tonkovich’s dismissal.
    In October 1991, a few weeks after Professor Tonkovich requested a
    hearing, the University’s newspaper, the   University Daily Kansan , reported that a
    University employee (not a party to this appeal) had referred to Professor
    Tonkovich as a “faggot” in his conversations with reporters. As a result of this
    and the publicity generated when the local television station had aired its news
    segment, Professor Tonkovich requested an investigation into how the
    information was leaked to the press. The University denied his request.
    On October 31, 1991, Law School faculty members Sidney Shapiro, A.
    Kimberly Dayton, Reginald Robinson, Ellen Sward, Elinor Schroeder, and Sandra
    McKenzie signed a letter (“the Letter”) asking that students report any
    misconduct or sexual harassment by faculty members. Professor Shapiro drafted
    the Letter at the request of a University administrator. The Letter did not
    mention Professor Tonkovich by name. After Dean Jerry approved the Letter, it
    was distributed to students. Professor Tonkovich did not know of the Letter or
    that the University was soliciting additional complaints against him. Throughout
    the solicitation process, various people, including Professors Shapiro and
    Schroeder, told others that the Law Student’s allegations against Professor
    10
    Tonkovich included an allegation of rape.    3
    In December 1991, Professors Shapiro, Robinson, Dayton, and Sward met
    with Chancellor Budig, Executive Vice Chancellor Shankel, and Ann Victoria
    Thomas, University General Counsel, to discuss the case against Professor
    Tonkovich. During December 1991 and January 1992, some of these law
    professors accompanied students (“the complainants”) to the University’s Office
    of Academic Affairs, where the complainants presented allegations regarding
    Professor Tonkovich to University officials. Associate Vice Chancellor David
    Shulenburger interviewed these complainants, and, after completing the
    interviews, he recommended Professor Tonkovich’s dismissal, which is the
    sanction Professor Tonkovich ultimately faced when the charging documents
    were filed.
    Professor Tonkovich requested copies of the complainants’ written
    statements. Executive Vice Chancellor Shankel told Professor Tonkovich that
    the complainants had not provided written statements. University Associate
    General Counsel Rose A. Marino denied having any knowledge of written
    statements submitted by complainants.
    As the investigation progressed, in December 1991, Executive Vice
    3
    We do not consider the Law School faculty members’ argument that
    digital penetration constitutes rape under the law of Kansas, because that
    allegation is not contained within Professor Tonkovich’s complaint.
    11
    Chancellor Shankel and Vice Chancellor Brinkman told Professor Tonkovich that
    if he did not “resign quietly,” he would be suspended from teaching, and a letter
    would be placed in his file to the effect that he posed a risk of substantial harm to
    students. Professor Tonkovich, who had continued teaching pending his
    administrative hearing, refused to resign. The University placed him on teaching
    leave. Shortly thereafter, Executive Vice Chancellor Shankel and Vice
    Chancellor Brinkman communicated with Professor Tonkovich’s attorney, stating
    that there were no terms acceptable to the University that would allow Professor
    Tonkovich to continue as a faculty member. Several weeks later, in March 1992,
    Vice Chancellor Brinkman and Dean Jerry sent Professor Tonkovich a letter,
    reminding him that Board of Regents regulations did not allow payment of salary
    when a faculty member was dismissed for moral turpitude. This letter also
    informed Professor Tonkovich that Vice Chancellor Brinkman and Dean Jerry
    were recommending that he be charged with moral turpitude, which carried a
    sanction of dismissal. The following day, Executive Vice Chancellor Shankel
    concurred in Vice Chancellor Brinkman’s and Dean Jerry’s recommendation.
    In March 1992, Professor Tonkovich filed a complaint against various
    University administrators. He requested a stay in the investigation, recusal of the
    administrators, and appointment of independent investigators. The University
    denied his requests.
    12
    On April 17, 1992, Chancellor Budig filed the University’s formal written
    complaint against Professor Tonkovich. The complaint set forth charges of
    ethics violations, sexual harassment, and moral turpitude. The complaint
    contained a proposed sanction of dismissal. One week after the University filed
    the complaint, the University newspaper ran an article about the Law Student’s
    allegation against Professor Tonkovich. The article named Professor Tonkovich
    but did not name the Law Student.
    Certain charges in the complaint were based upon allegations made by the
    additional student complainants. Several of the female students who were named
    in the allegations submitted affidavits that the allegations were false and that
    Professor Tonkovich had done nothing improper. These same students also
    submitted a letter requesting that the allegations involving them be dismissed.
    Nevertheless, the University prosecuted these charges.
    After receiving the formal complaint, Professor Tonkovich made repeated
    discovery requests, including requests for written statements from the
    complainants, which the University initially denied. However, on July 24, 1992,
    the Hearing Committee ordered discovery. Although the written complainants’
    statements that Professor Tonkovich had requested were not disclosed at this
    time, Professor Tonkovich was given summaries of them. The University did not
    produce an alleged tape-recorded interview between University officials and the
    13
    Law Student that served as the basis of the article printed by the University
    newspaper shortly after the University filed its complaint against Professor
    Tonkovich. In addition, many of the University’s witnesses, including the Law
    Student, declined to be interviewed by Professor Tonkovich’s attorney prior to
    testifying.
    On August 27, 1992, the administrative hearing concerning the
    University’s complaint against Professor Tonkovich began. Ms. Marino
    prosecuted the case on behalf of the University, presenting witnesses in support
    of the allegations in the complaint. Professor Tonkovich was present and
    represented by an attorney, who cross-examined the University’s witnesses and
    presented witnesses on Professor Tonkovich’s behalf. The Hearing Committee
    presided. The hearing was conducted in public at Professor Tonkovich’s request.
    The hearing lasted until May 12, 1993, with sessions held once a week during the
    school year.
    At the hearing, during his cross-examination of one of the University’s
    witnesses, Professor Tonkovich learned that at least one of the complainants had,
    indeed, provided a written statement. At Professor Tonkovich’s request, the
    Hearing Committee sent a letter to the Law School faculty seeking any written
    statements. None were forthcoming. When Professor Tonkovich called
    Professor Dayton as a witness, she testified that she had received a written
    14
    statement from a complainant but that she had discarded it. Professor Robinson
    also testified that he received approximately five written statements from
    complainants. He further testified that he received the statements in sealed
    envelopes, that he never opened them, and that he later threw them away.
    A week after she testified, Professor Dayton sent a letter to the Hearing
    Committee stating that she possessed the written statements of four complainants.
    She proceeded to turn these statements over to the Hearing Committee. Among
    them was a statement addressed to Professor Robinson. The Hearing Committee
    denied Professor Tonkovich’s request to recall Professor Dayton as a witness.
    At Professor Tonkovich’s request, the Hearing Committee sent certified
    letters to all of the complainants who had previously testified, asking them to
    produce their written statements. Two of the complainants, whose allegations the
    Hearing Committee ultimately found to constitute Faculty Code violations, did
    not respond to the request, nor did they return to testify. The Hearing Committee
    did not compel these witnesses to return to testify, nor did it strike the earlier
    testimony of these complainants.
    Professor McKenzie, who had openly dated a law student, declined
    Professor Tonkovich’s request to testify at his hearing. The Hearing Committee
    did not compel her to testify. However, according to Professor Tonkovich, three
    law professors who had signed the Letter testified as “expert” witnesses on behalf
    15
    of the University: Professor Schroeder testified about sexual harassment;
    Professor Sward testified about faculty ethics; and Professor Shapiro testified
    about due process.
    On the day before the Law Student was scheduled to testify, Ms. Marino
    proposed an evidentiary rule prohibiting counsel from inquiring about witnesses’
    prior sexual conduct. The Hearing Committee adopted this rule. It also adopted
    a sequestration rule to prevent witnesses who were scheduled to testify from
    hearing other witnesses’ testimony. When cross-examining Ms. Younger,
    Professor Tonkovich’s first witness, Ms. Marino asked if she had ever been
    sexually intimate with a professor. Ms. Marino also read a transcript of the Law
    Student’s testimony to another University witness who was scheduled to testify.
    During the 1992-93 academic year, the year in which the hearing took
    place, Dean Jerry gave Professor Tonkovich a negative annual evaluation and the
    lowest merit salary increase on the entire Law School faculty. According to
    Professor Tonkovich, in the previous ten years, he had received excellent
    evaluations and average or above average salary increases.
    On May 19, 1993, one week after the hearing concluded, Andrew Ramirez,
    an attorney representing a University witness, sent a letter to the parties. The
    letter stated that his client had spoken with Mr. Turnbull several weeks after she
    testified at the hearing. At the conclusion of their conversation, Mr. Turnbull
    16
    stated to her, “I admire your courage in coming forward.”
    On July 30, 1993, the Hearing Committee issued its opinion. By a 3-2
    vote, the Hearing Committee recommended that Professor Tonkovich be
    dismissed. As to the Law Student’s allegation, the Committee found that she and
    Professor Tonkovich had engaged in a sexual act that was preceded by a
    discussion of grades. The Committee further found that Professor Tonkovich did
    not intend to intimidate the Law Student by discussing grades but that she was,
    nonetheless, intimidated because of the inherent power differential between a
    student and a professor. The committee concluded that this constituted unethical
    conduct in violation of the Faculty Code. The Committee also concluded that
    Professor Tonkovich’s behavior constituted sexual harassment in violation of
    Title VII and Title IX and, as unlawful conduct, constituted moral turpitude
    under the Faculty Code.
    The Hearing Committee also found that Professor Tonkovich had violated
    the ethical provisions of the Faculty Code with another student. This occurred
    when Professor Tonkovich held a female student’s hand while asking her who
    her favorite professor was. The Committee concluded that although this conduct
    was unethical, it did not constitute sexual harassment. The Committee further
    found that Professor Tonkovich’s social behavior with respect to various other
    law students was negligent and constituted unethical conduct under the Faculty
    17
    Code.
    On August 3, 1993, Chancellor Budig accepted the Hearing Committee’s
    recommendation and dismissed Professor Tonkovich. The following day,
    Professor Tonkovich appealed his dismissal to the Kansas Board of Regents (“the
    Regents”). At this time, the Regents consisted of Robert Caldwell, Tom
    Hammond, John Hiebert, Karen Krepps, John Montgomery, Phyllis Nolan, Frank
    Sabatini, and Sidney Warner. On September 15, 1994, the Regents upheld
    Professor Tonkovich’s dismissal.
    D. Procedural History
    Pursuant to the Act for Judicial Review and Civil Enforcement of Agency
    Actions, 
    Kan. Stat. Ann. §§ 77-601
     et seq., Professor Tonkovich had the
    opportunity to file an action in Kansas state district court for judicial review of
    the University’s decision.   See 
    id.
     at § 77-609. However, he decided to forego
    this route, and on April 27, 1995, he filed suit in federal court against the
    University of Kansas, the University Board of Regents, and approximately thirty-
    four other defendants in their individual and official capacities, alleging
    violations of § 1983 and various state laws. In his first amended complaint,
    Professor Tonkovich averred three § 1983 counts (for violations of his due
    process, free speech, and equal protection rights), and four state law counts (for
    18
    breach of employment contract, breach of implied duty of good faith and fair
    dealing, tortious interference with business relationship, and intentional infliction
    of emotional distress). All defendants filed motions to dismiss pursuant to Fed.
    R. Civ. P. 12(b)(1) and 12(b)(6), asserting various defenses such as Eleventh
    Amendment immunity, absolute immunity, and qualified immunity. The district
    court granted in part and denied in part the defendants’ motions to dismiss. We
    shall relate only the district court’s rulings with respect to qualified immunity.
    On the issue of qualified immunity, the district court treated the issues of
    procedural due process, free speech, and equal protection.   4
    The court found that
    all of the individual defendants are entitled to qualified immunity on Professor
    Tonkovich’s First Amendment free speech claim. However, the court ruled that
    the individual defendants are not entitled to qualified immunity on Professor
    Tonkovich’s procedural due process and equal protection claims.
    E. Jurisdiction
    Many of the defendants have attempted to appeal not only the district
    court’s denial of their qualified immunity motions but also the district court’s
    denial of their motions to dismiss for failure to state a claim under Fed. R. Civ. P.
    4
    Although the district court found that Professor Tonkovich had stated a
    substantive due process claim, it did not address the issue of qualified immunity
    as it relates specifically to that claim. We shall discuss that below.
    19
    12(b)(6). We believe that these defendants have misunderstood this court’s
    limited jurisdiction at this stage of the litigation. Thus, at this juncture, we
    embark on a brief discussion of our jurisdiction to hear this appeal.
    “The courts of appeals . . . shall have jurisdiction of appeals from all final
    decisions of the district courts of the United States . . . .” 
    28 U.S.C. § 1291
    . “A
    denial of a motion to dismiss ordinarily may not be appealed because it is not a
    final decision.”    Eastwood v. Department of Corrections   , 
    846 F.2d 627
    , 629 (10th
    Cir. 1988). However, the denial of a motion to dismiss based on qualified or
    absolute immunity is immediately appealable under the       Cohen 5 collateral order
    doctrine. See Mitchell , 
    472 U.S. at 530
     (qualified immunity);     Nixon v.
    Fitzgerald , 
    457 U.S. 731
    , 742 (1982) (absolute immunity). In holding the issue
    of immunity to be appealable under the collateral order doctrine, “the Court has
    recognized that a question of immunity is separate from the merits of the
    underlying action for purposes of the     Cohen test even though a reviewing court
    must consider the plaintiff’s factual allegations in resolving the immunity issue.”
    Johnson v. Fankell , ____ U.S. ____, 
    117 S. Ct. 1800
    , 1804 n.5 (1997). Although
    to a certain extent a qualified immunity analysis overlaps with a 12(b)(6)
    analysis, we do not have jurisdiction to review the merits of Professor
    Tonkovich’s lawsuit at this time. We turn, then, to a review of the district
    5
    Cohen v. Beneficial Indus. Loan Corp.   , 
    337 U.S. 541
     (1949).
    20
    court’s rulings with respect to qualified immunity.
    II. QUALIFIED IMMUNITY
    We review de novo the denial of a motion based on qualified immunity.
    Walter v. Morton , 
    33 F.3d 1240
    , 1242 (10th Cir. 1994);          Eastwood , 
    846 F.2d at 629
    . “Under the doctrine of qualified immunity, ‘government officials
    performing discretionary functions generally are shielded from liability for civil
    damages insofar as their conduct does not violate clearly established statutory or
    constitutional rights of which a reasonable person would have known.”             Ramirez
    v. Oklahoma Dep’t of Mental Health       , 
    41 F.3d 584
    , 592 (10th Cir. 1994) (quoting
    Harlow v. Fitzgerald , 
    457 U.S. 800
    , 818 (1982));         cf. Harris v. Board of Educ. of
    the City of Atlanta , 
    105 F.3d 591
    , 595 (11th Cir. 1997) (“In all but the most
    exceptional cases, qualified immunity protects government officials performing
    discretionary functions from the burdens of civil trials and from liability for
    damages.”). The key to the qualified immunity inquiry is the “objective
    reasonableness of the official’s conduct in light of the legal rules that were
    clearly established at the time the action was taken.”        Melton v. City of
    Oklahoma City , 
    879 F.2d 706
    , 727 (10th Cir. 1989) (quotations omitted),
    modified on other grounds , 
    928 F.2d 920
     (10th Cir. 1991).
    Hearkening back to its pronouncement in           Siegert v. Gilley , the Supreme
    21
    Court has recently stated that
    the better approach to resolving cases in which the defense of
    qualified immunity is raised is to determine first whether the
    plaintiff has alleged a deprivation of a constitutional right at all.
    Normally, it is only then that a court should ask whether the right
    allegedly implicated was clearly established at the time of the events
    in question.
    County of Sacramento v. Lewis , ____ U.S. ____, 
    118 S. Ct. 1708
    , 1714 n. 5
    (1998) (citing Siegert v. Gilley , 
    500 U.S. 226
    , 232 (1991) (“A necessary
    concomitant to the determination of whether the constitutional right asserted by a
    plaintiff is ‘clearly established’ at the time the defendant acted is the
    determination of whether the plaintiff has asserted a violation of a constitutional
    right at all.”)). Thus, we use a two-part framework to analyze the issue of
    qualified immunity.    Latta v. Keryte , 
    118 F.3d 693
    , 697-98 (10th Cir. 1997).
    First, we determine whether the plaintiff has sufficiently alleged that the
    defendant violated a statutory or constitutional right.   
    Id. at 698
    . If the answer is
    yes, then we determine whether the right was clearly established such that a
    reasonable person in the defendant’s position would have known that his or her
    conduct violated that right.    
    Id.
     6
    6
    On the other hand, if the plaintiff has not sufficiently alleged the
    violation of a constitutional right, then we need not proceed to the second inquiry
    (whether the right is clearly established).    See GJR Inves., Inc. v. County of
    Escambia , 
    132 F.3d 1359
    , 1367 (11th Cir. 1998) (“If a plaintiff has not
    sufficiently alleged a violation of    any constitutional right, it is axiomatic that the
    (continued...)
    22
    Ordinarily, in order for a plaintiff to demonstrate that a law is clearly
    established, “there must be a Supreme Court or Tenth Circuit decision on point,
    or the clearly established weight of authority from other courts must have found
    the law to be as the plaintiff maintains.”      Medina v. City and County of Denver     ,
    
    960 F.2d 1493
    , 1498 (10th Cir. 1992);         see also Anderson v. Creighton , 
    483 U.S. 635
    , 640 (1987) (a right is clearly established if the contours of the right are
    “sufficiently clear [so] that a reasonable official would understand that what he is
    doing violates that right.”)
    A plaintiff “must do more than identify in the abstract a clearly established
    right and allege that the defendant has violated it.”       Pueblo Neighborhood Health
    Centers v. Losavio , 
    847 F.2d 642
    , 645 (10th Cir. 1988). A plaintiff “must
    articulate the clearly established constitutional right and the defendant’s conduct
    which violated the right with specificity.”         Albright v. Rodriguez , 
    51 F.3d 1531
    ,
    1535 (10th Cir. 1995) (quotation omitted);          see also Walter , 
    33 F.3d at 1242
     (“the
    6
    (...continued)
    plaintiff likewise has failed to alleged the violation of a ‘clearly established
    right.’”) (emphasis in original); Taylor v. Meacham , 
    82 F.3d 1556
    , 1564 (10th
    Cir.) (“Having concluded that no constitutional right was violated, . . . we
    proceed no further on the qualified immunity issue.”),     cert. denied , 
    117 S. Ct. 186
     (1996).
    In some cases, “the threshold ‘constitutional violation’ analysis may
    run together with the ‘clearly established’ analysis,”   Derda v. City of Brighton,
    Col. , 
    53 F.3d 1162
    , 1164 (10th Cir. 1995). In those cases, the two-part      Siegart
    inquiry is difficult to apply. See 
    id.
    23
    plaintiff . . . has the burden to show with particularity facts and law establishing
    the inference that the defendants violated a constitutional right.”). “If the district
    court denies the defendant qualified immunity, the court should identify on the
    record the defendant’s conduct that violated clearly established law.”      Mick v.
    Brewer , 
    76 F.3d 1127
    , 1134 (10th Cir. 1996) (citing      Albright , 
    51 F.3d at 1535
    ).
    Although of necessity we must consider Professor Tonkovich’s factual
    allegations in resolving the immunity issues, we reiterate that this appeal comes
    to us on a partial denial of the defendants’ motions to    dismiss , as opposed to
    motions for summary judgment. The district court did not, nor shall we, consider
    whether there is a genuine issue of material fact. Thus, we do not face the
    appellate jurisdictional problem that may be entangled with a qualified immunity
    analysis on summary judgment.       Cf. Johnson v. Jones , 
    515 U.S. 304
    , 319-20
    (1995) (holding that “a defendant, entitled to invoke a qualified immunity
    defense, may not appeal a district court’s    summary judgment order insofar as that
    order determines whether or not the pretrial record sets forth a ‘genuine’ issue of
    fact for trial”) (emphasis added). Instead, as stated above, we must accept the
    plaintiff’s version of the facts as true. With this in mind, we proceed to analyze
    the issue of qualified immunity with respect to each separate cause of action
    under § 1983, i.e., alleged violations of procedural due process, substantive due
    process, and equal protection rights.
    24
    A. Are the Defendants Entitled to Qualified Immunity on Professor
    Tonkovich’s Procedural Due Process Claim?
    Because Professor Tonkovich was a tenured professor, he possessed a
    property interest deserving of procedural due process protections.        Brenna v.
    Southern Colo. State College      , 
    589 F.2d 475
    , 476 (10th Cir. 1978);   see also Board
    of Regents v. Roth , 
    408 U.S. 564
    , 576-77 (1972). In        Cleveland Bd. of Educ. v.
    Loudermill , 
    470 U.S. 532
    , 535 (1985), the Supreme Court examined the issue of
    “what pretermination process must be accorded a public employee who can be
    discharged only for cause.” In deciding this issue, the Court balanced the
    competing interests at stake: “the private interest in retaining employment, the
    governmental interest in the expeditious removal of unsatisfactory employees and
    the avoidance of administrative burdens, and the risk of an erroneous
    termination.”    
    Id.
     at 542-43 (citing Mathews v. Eldridge , 
    424 U.S. 319
    , 335
    (1976)). The Court concluded that prior to termination, something less than a
    full evidentiary hearing is sufficient.    Id. at 545. Thus, the Court held that a
    “tenured public employee is entitled to oral or written notice of the charges
    against him, an explanation of the employer’s evidence, and an opportunity to
    present his side of the story.”    Id. at 546.
    The holding in Loudermill rested partially on the availability of a full post-
    termination hearing under applicable state law.       Id. ; see also Langley v. Adams
    County, Colo. , 
    987 F.2d 1473
    , 1480 (10th Cir. 1993) (“Under          Loudermill , the
    25
    adequacy of pre-termination procedures must be examined in light of available
    post-termination procedures.”);     Calhoun v. Gaines , 
    982 F.2d 1470
    , 1476 (10th
    Cir. 1992) (holding that “ Loudermill established that some form of
    pretermination hearing, plus a full-blown adversarial post-termination hearing”
    are required when a property interest in continued employment is at stake). “A
    ‘full post-termination hearing’ is understood to include the right to representation
    by an attorney and the right to cross-examine adverse witnesses.”      Workman v.
    Jordan , 
    32 F.3d 475
    , 480 (10th Cir. 1994).
    A fundamental principle of procedural due process is a hearing before an
    impartial tribunal.     See Withrow v. Larkin , 
    421 U.S. 35
    , 46-47 (1975). “A
    tribunal is not impartial if it is biased with respect to the factual issues to be
    decided at the hearing.”     Patrick v. Miller , 
    953 F.2d 1240
    , 1245 (10th Cir. 1992)
    (quotation omitted). However, “a substantial showing of personal bias is
    required to disqualify a hearing officer or tribunal in order to obtain a ruling that
    a hearing is unfair.”    Corstvet v. Boger , 
    757 F.2d 223
    , 229 (10th Cir. 1985).
    Moreover, “[b]ecause honesty and integrity are presumed on the part of a
    tribunal, there must be some substantial countervailing reason to conclude that a
    decisionmaker is actually biased with respect to factual issues being adjudicated.”
    Mangels v. Pena , 
    789 F.2d 836
    , 838 (10th Cir. 1986) (citation omitted).
    It is worth noting briefly that, in addition to being governed by
    26
    constitutional law, Professor Tonkovich’s claims are also governed by 
    42 U.S.C. § 1983
     itself. Thus, Professor Tonkovich must satisfy the elements of that
    statute, which states, in part,
    Every person who . . . subjects, or causes to be subjected , any citizen
    . . . to the deprivation of any rights, privileges, or immunities
    secured by the Constitution and laws . . . shall be liable to the party
    injured . . . .
    
    42 U.S.C. § 1983
     (emphasis added). The plain wording of the statute contains an
    element of causation. In other words, a defendant may not be held liable under §
    1983 unless he or she subjected a citizen to the deprivation, or caused a citizen to
    be subjected to the deprivation.   See 1A Martin A. Schwartz & John E. Kirklin,
    Section 1983 Litigation: Claims and Defenses     § 6.3 (3d ed. 1997).
    Professor Tonkovich argues that the University’s policies require the
    following procedural safeguards: 1) notice; 2) discovery; 3) presentation of
    evidence; 4) confrontation and cross-examination; and 5) an impartial hearing
    committee. He argues that in denying him these safeguards, the defendants
    violated his clearly established procedural due process rights. At this juncture,
    we shall discuss each defendant’s (or defendant group’s) arguments with respect
    to qualified immunity on Professor Tonkovich’s procedural due process claim.
    1. Appeal of Dean Jerry (Case No. 96-3402)
    Professor Tonkovich takes issue with the following actions of Dean Jerry:
    27
    1) his initial handling of the Law Student’s complaint; 2) his attempt to pass a
    rule, after the fact, prohibiting student/faculty sexual relations; 3) his denial of a
    request for a leak investigation; 4) his role in the settlement process; and 5) his
    negative annual evaluation of Professor Tonkovich. Dean Jerry argues that he is
    entitled to qualified immunity on Professor Tonkovich’s procedural due process
    claim because he is not responsible for any alleged defects in the process
    afforded Professor Tonkovich. In other words, he argues that nothing he did
    violated any of Professor Tonkovich’s clearly established procedural due process
    rights. We agree.
    As for Dean Jerry’s handling of the Law Student’s initial complaint,
    Professor Tonkovich appears to argue that he did not receive proper notice of the
    charges against him because Dean Jerry would not immediately disclose the name
    of the accuser and the details of the allegation. However, Professor Tonkovich
    does not allege that it was Dean Jerry’s duty to notify him of the charges.
    Moreover, Chancellor Budig did give Professor Tonkovich notice in plenty of
    time to prepare his defense in response to the charges.
    Professor Tonkovich next argues that his procedural due process rights
    were violated because the dean never disclosed the “blatantly false” statements
    that the Law Student allegedly made to a judge for whom she worked. Aple’s
    Brief at 60. According to Professor Tonkovich, the Law Student told the judge
    28
    who was her employer the following: 1) she had nonconsensual sex with her
    professor; 2) she told Dean Jerry about it; and 3) the Dean was not responsive.
    Professor Tonkovich argues that the statement the Law Student made to her
    employer was false because she had only told Dean Jerry that a professor had
    made a pass at her. We fail to see how Dean Jerry’s failure to relate this
    conversation to Professor Tonkovich violated Professor Tonkovich’s procedural
    due process rights. As we have discussed, Professor Tonkovich received
    sufficient notice of the charges against him, and, in addition, he had the
    opportunity to cross-examine the Law Student at his hearing.
    As for the remaining allegations involving Dean Jerry, Professor
    Tonkovich has failed to explain how any of them might constitute a denial of his
    procedural due process rights. That is, he has failed to demonstrate how
    attempting to pass a new faculty code rule, denying a request for a leak
    investigation, taking part in settlement negotiations, and rendering an
    unfavorable annual evaluation had anything to do with whether Professor
    Tonkovich received the process that he was due–notice, an explanation of the
    charges against him, and an opportunity to respond. Nor has Professor
    Tonkovich pointed to any clearly established law that stands for the proposition
    that the sorts of actions taken by Dean Jerry might form the basis of a procedural
    due process claim. For these reasons, we conclude that the district court erred in
    29
    denying Dean Jerry’s motion to dismiss Professor Tonkovich’s procedural due
    process claim on qualified immunity grounds.
    2. Appeal of Regents (Case No. 96-3403) and Hearing
    Committee (Case No. 96-3404) 7
    The Regents and the Hearing Committee members argue that because
    Professor Tonkovich failed to exercise his right to judicial review he should not
    now be heard to complain of the violation of his procedural due process rights.
    In other words, they argue that because Professor Tonkovich was entitled to seek
    judicial review of the University’s decision under Kansas law, 
    Kan. Stat. Ann. § 77-601
     et seq., the state provided even more process than an administrative
    hearing and an appeal to the Board of Regents. Thus, they argue, his procedural
    due process claim must fail.
    We reject the argument that Professor Tonkovich’s failure to seek judicial
    review in state court precludes his procedural due process claim. It is beyond
    dispute that a plaintiff need not exhaust state administrative remedies before
    filing suit in federal court under § 1983.    Patsy v. Board of Regents , 
    457 U.S. 496
    , 516 (1982). However, as we shall discuss below, the availability of an
    Case No. 96-3403, the appeal filed by the Board of Regents, and Case No.
    7
    96-3404, the appeal filed by the Hearing Committee, were consolidated for
    briefing purposes; therefore, in the ensuing discussions, we shall treat those two
    cases as one separate appeal.
    30
    action for judicial review is relevant to the question of what process the state
    afforded Professor Tonkovich.
    Professor Tonkovich argues that the Regents and the Hearing Committee
    members denied him his procedural due process right to an impartial tribunal. He
    also takes issue with the Hearing Committee members’ failure to: 1) order
    discovery; 2) compel witnesses to appear and testify; and 3) mention evidence
    favorable to him in their findings. We shall address each contention in turn.
    Professor Tonkovich first argues that he was denied the right to an
    impartial tribunal because the Hearing Committee members were not professional
    hearing officers, they were employed by the University, and they were
    subordinates of the Chancellor. Furthermore, he argues that the fact that various
    members of the standing committee recused themselves, and that other members
    were substituted, demonstrates that the resulting Hearing Committee was biased.
    In support of this claim, he points to Mr. Turnbull’s statement to a witness to the
    effect that he admired her courage in coming forward to testify.
    First of all, while the Due Process Clause certainly requires a hearing
    before an impartial tribunal, Professor Tonkovich has pointed to no law, clearly
    established or otherwise, that procedural due process includes a right to
    professional hearing officers or hearing officers not employed by the
    governmental body or agency taking the adverse action. As to the recusals, one
    31
    of the substituted Hearing Committee members, Mr. Michel, actually voted
    against Professor Tonkovich’s dismissal. This alone takes the wind out of the
    sails of Professor Tonkovich’s recusal argument. Furthermore, even assuming
    Mr. Turnbull stated to a witness, “I admire your courage in coming forward,” that
    does not establish the required “substantial showing of personal bias.”    Corstvet ,
    
    757 F.2d at 229
    .
    The Hearing Committee members argue that there is nothing indicating that
    they had a personal or financial stake in the decision, which might create a
    conflict of interest, nor are there sufficient allegations to support charges of
    personal animosity on the part of its members.     See Hortonville Joint Sch. Dist.
    Number 1 v. Hortonville Educ. Ass’n     , 
    426 U.S. 482
    , 491-92, 496 (1976) (basing,
    in part, its holding that school board dismissing striking teachers did not violate
    Due Process Clause on fact that these indicia of bias were lacking). In short,
    they argue that Professor Tonkovich’s complaint contains only conclusory
    allegations of bias, without alleging factual support. We agree. We simply do
    not think that Professor Tonkovich has sufficiently alleged personal bias
    requiring disqualification of the Hearing Committee members under the Due
    Process Clause.
    As to the Regents, Professor Tonkovich similarly levels accusations of bias
    against them. He argues that the Regents’ bias violated his procedural due
    32
    process rights. In support of this argument, he states that the Regents made
    erroneous and prejudicial decisions and that they deferred to the findings of the
    Hearing Committee. As with the Hearing Committee, these conclusory assertions
    are insufficient to allege bias constituting a violation of Professor Tonkovich’s
    procedural due process rights.
    Professor Tonkovich next takes issue with what he claims is the Hearing
    Committee’s failure to order discovery. He claims that this led to a denial of his
    right to cross-examine the witnesses against him. In particular, he argues that he
    never was able to discover a tape-recording of an alleged interview between the
    Law Student and University administrators. This, he argues, amounted to a
    denial of his right to cross-examine the Law Student.
    Furthermore, Professor Tonkovich argues that he was unable to discover
    all of the statements that various complainants had submitted during the
    investigation. As he points out, the Hearing Committee specifically requested,
    through certified return-receipt mailings, that the complainants produce their
    statements and return to testify. However, two of the complainants neither
    produced their statements nor returned to testify. Thus, he argues, he was denied
    the right to cross-examine these two complainants. Professor Tonkovich also
    complains that all of the complainants, including the Law Student, refused to
    allow Professor Tonkovich’s attorney to interview them prior to the hearing.
    33
    First of all, we note that the Hearing Committee ultimately did order
    discovery prior to Professor Tonkovich’s administrative hearing. The fact that
    Professor Tonkovich was unable to discover every piece of evidence is of no
    consequence as a matter of procedural due process. The Due Process Clause does
    not guarantee that parties to an adversarial proceeding may discover every piece
    of evidence they desire. Indeed, civil litigants in federal court do not have a
    claim for a violation of their Fourteenth Amendment rights every time a federal
    district judge or a federal magistrate rules against them in a discovery dispute.
    Furthermore, Professor Tonkovich has not adequately alleged that he was
    denied the right to cross-examine adverse witnesses. As we have discussed, he
    had notice of the charges, and of his accusers, well before the hearing. He was
    able to cross-examine each of them, albeit not in exactly the way he would have
    liked. On these facts, we cannot say that the cross-examinations violated
    Professor Tonkovich’s procedural due process rights simply because he did not
    have access to several of the witnesses’ prior statements. As his complaint
    admits, the University did provide him with summaries of the complainants’
    statements. Importantly, Professor Tonkovich has also cited no clearly
    established legal authority for the proposition that the Due Process Clause
    requires that he be allowed to interview adverse witnesses prior to a hearing.
    Professor Tonkovich next argues that the Hearing Committee members
    34
    violated his procedural due process rights by failing to compel the return of
    various witnesses who had previously testified. The Hearing Committee
    members argue that they did not have the authority to compel the attendance of
    witnesses. They did, however, attempt to assist Professor Tonkovich with the re-
    appearance of witnesses by sending certified return-receipt mail, as Professor
    Tonkovich himself acknowledges in his complaint. Professor Tonkovich has
    cited no law, clearly established or otherwise, which states that an administrative
    tribunal runs afoul of the Due Process Clause for its failure to compel the
    attendance of witnesses when it lacks subpoena power.      See Workman , 
    32 F.3d at 480
     (stating that, under the facts of that case, “[t]he lack of subpoena power
    available to the plaintiff or the unavailability of some witnesses does not . . .
    create unconstitutional process.”). Even if the Hearing Committee did have
    subpoena power, a reasonable person in the place of a Hearing Committee
    member would not know that he or she was violating someone’s procedural due
    process rights for failing to compel the appearance of witnesses under these
    circumstances.
    Professor Tonkovich next argues that the Hearing Committee should have
    mentioned in its findings various pieces of evidence favorable to his side of the
    case. For example, Professor Tonkovich takes issue with the Hearing
    Committee’s failure to mention the discrepancy between what the Law Student
    35
    told the judge who employed her and what she told Dean Jerry. Professor
    Tonkovich claims that the Committee’s failure to mention such evidence violated
    his procedural due process rights. We disagree. The Hearing Committee handed
    down extensive findings and conclusions after a hearing spanning approximately
    nine months. Under the circumstances, the fact that the Committee did not
    mention every possible fact in its resolution of the case does not implicate due
    process.
    Professor Tonkovich also claims that the Hearing Committee itself
    admitted that the proceedings against him were unfair because it recommended
    additional procedures for future disciplinary proceedings. Taking into
    consideration the procedures afforded Professor Tonkovich, the fact that the
    Hearing Committee members made recommendations concerning future
    disciplinary proceedings does not convince us that they violated his procedural
    due process rights.
    In sum, the Regents and the Hearing Committee members argue that under
    Loudermill , Professor Tonkovich was entitled only to notice of the charges, an
    explanation of the evidence against him, and an opportunity to respond. They
    argue that the allegations in Professor Tonkovich’s own complaint establish that
    he received this and much more. We agree. Therefore, the district court erred in
    denying the motion to dismiss Professor Tonkovich’s procedural due process
    36
    claim against the Regents and the Hearing Committee members on the basis of
    qualified immunity.
    3. Appeal of Professor McKenzie (Case No. 96-3405)
    The only allegations against Professor McKenzie in particular were that
    she signed the Letter, she refused to testify, and she dated a student. None of
    these allegations, she argues, are sufficient to establish that she violated a
    constitutional right. We agree.
    As we shall discuss at length below, when the Law School faculty members
    signed the Letter, they did not thereby violate Professor Tonkovich’s procedural
    due process rights. As to the remaining allegations against Professor
    McKenzie–that she refused to testify on Professor Tonkovich’s behalf and that
    she dated a student–we fail to see how these might form the basis of a procedural
    due process claim. Professor McKenzie neither subjected Professor Tonkovich,
    nor caused Professor Tonkovich to be subjected, to the deprivation of his
    procedural due process rights. Thus, the district court erred in denying her
    motion to dismiss the procedural due process claim on qualified immunity
    grounds.
    4. Appeal of the University General Counsel (Case No. 96-3406)
    37
    The specific allegations against General Counsel Thomas are that she gave
    an opinion as to the applicability of the University’s statute of limitations, and
    she attended two meetings to discuss Professor Tonkovich’s case. Essentially, he
    seems to be complaining that she did her job. Ms. Thomas argues that neither of
    these actions can be said to have violated Professor Tonkovich’s procedural due
    process rights. We agree.
    The allegations against Associate General Counsel Marino, who prosecuted
    the case on behalf of the University, are that she denied the existence of the
    complainants’ statements and that she violated two of the Hearing Committee’s
    evidentiary rulings. Specifically, she asked a witness about her sexual
    involvement with law professors, and she read a portion of the Law Student’s
    testimony to another witness who was scheduled to testify. Associate General
    Counsel Marino argues that even if some of these actions constituted infractions
    of a University policy or rule, this is not enough to rise to the level of a
    deprivation of a federal constitutional right.
    We note that a university’s failure to follow its established guidelines in
    overseeing a grievance “does not in and of itself implicate constitutional due
    process concerns.”   Purisch v. Tennessee Tech. Univ.    , 
    76 F.3d 1414
    , 1423 (6th
    Cir. 1996); cf. Jones v. City and County of Denver    , 
    854 F.2d 1206
    , 1209 (10th
    Cir. 1988) (a violation of state law, by itself, does not rise to the level of a
    38
    federal constitutional deprivation, and, thus, is not cognizable under § 1983).
    The federal courts, and not the University of Kansas, are responsible for
    establishing the contours of the Due Process Clause of the Fourteenth
    Amendment. Thus, even taking Professor Tonkovich’s allegations against Ms.
    Marino as true, as we must, we do not think they are sufficient to establish the
    violation of his procedural due process rights. While Ms. Marino’s failure to
    adhere to certain evidentiary rules was perhaps not a model of prosecutorial
    conduct, nothing that she did changes the fact that Professor Tonkovich received
    notice, an opportunity to be heard by an impartial tribunal, and various post-
    termination remedies. Accordingly, we conclude that the district court erred in
    denying Ms. Thomas’s and Ms. Marino’s motion to dismiss the procedural due
    process claim on qualified immunity grounds.
    5. Appeal of Law School Faculty Members (Case No. 96-3407)
    The Law School faculty members argue that they were not even in a
    position from which they could afford or deny procedural protections to
    Professor Tonkovich. Thus, they argue, they cannot be said to have violated his
    due process rights. We disagree with the notion that a faculty member, by virtue
    of his or her position within a university, may never effect a procedural due
    process violation. However, in this case, nothing the Law School faculty
    39
    members did caused a deprivation of Professor Tonkovich’s procedural due
    process rights.
    The specific allegations against the Law School faculty members are as
    follows: 1) they signed the Letter soliciting additional complaints; 2) they met
    with University administrators to discuss the case; 3) they accompanied students
    who submitted complaints to administrators; 4) two of them stated they heard that
    the Law Student’s complaint contained an allegation of rape; 5) some of them
    refused to disclose, and one of them intentionally destroyed, complainant
    statements; and 6) they testified as witnesses at Professor Tonkovich’s hearing.
    The faculty members argue that Professor Tonkovich has failed to point to any
    clearly established law that stands for the proposition that any of these actions
    might form the basis of a procedural due process claim.
    We shall first address the Law School faculty members’ role in authoring,
    signing, and distributing the Letter, which Professor Tonkovich continually refers
    to as the “secret” solicitation process.   See, e.g. , Aple’s Brief at 7, 31, 43.
    Professor Tonkovich cites no clearly established Tenth Circuit or Supreme Court
    precedent standing for the proposition that when a university is investigating a
    complaint of sexual misconduct against a professor, the university must disclose,
    during the investigatory process, every complaint it solicits and the means it uses
    to solicit those complaints. In fact, there is precedent in this circuit that arguably
    40
    supports a contrary proposition.
    In Derstein v. Kansas , 
    915 F.2d 1410
     (10th Cir. 1990), the plaintiff, a
    tenured court employee who could be terminated only for just cause, was fired
    after an investigation revealed that he had sexually harassed various fellow
    employees. The plaintiff was told neither that an investigation was underway nor
    that complaints against him were being solicited. A court personnel officer
    conducted the investigation by tape-recording interviews with various court
    employees and then transcribing the tapes.
    After the investigation was complete the plaintiff was told that he would
    have ten days to resign or be terminated.     
    Id. at 1412
    . He was also advised that
    he could appeal the decision and that a hearing would be afforded at that time.
    At the end of the ten-day period, the plaintiff received a termination letter, which
    specified the nature of the charges against him and his right to appeal. The
    plaintiff filed an administrative appeal, which was denied as frivolous. At no
    time during the administrative proceedings did the employer provide the plaintiff
    with transcripts of the tape-recorded interviews.      
    Id.
    The plaintiff then filed a § 1983 action. After a bench trial, the district
    court held that the pretermination proceedings deprived the plaintiff of a property
    interest without due process of law.    Id. at 1411. We reversed, holding that the
    pretermination procedures comported with         Loudermill ’s requirements.   Id. at
    41
    1413. We stated that the fact that the plaintiff “may not have known in advance
    about [the personnel officer’s] internal investigation [and that he] did not receive
    more facts or a copy of the transcript at the pretermination hearing is not
    significant.” Id. at 1413. Likewise, in the case at bar, the fact that University
    administrators conducted an investigation without Professor Tonkovich’s
    knowledge does not implicate procedural due process because he ultimately
    received notice of the charges and a meaningful opportunity to respond in the
    hearing that took place over a period of nine months.
    We noted that the plaintiff in   Derstein never contested the factual basis for
    the sexual harassment charges, i.e., he did not deny that the conduct occurred.
    Under those circumstances, we held that the appeal to an appeals board
    constituted a sufficient post-termination procedure, even though the appeals
    board did not grant the plaintiff a full evidentiary hearing. We found that this
    post-termination proceeding, in combination with the pretermination procedures,
    afforded the plaintiff all of the process he was due. In Professor Tonkovich’s
    case, he obviously did contest the factual basis for the charges against him;
    however, he also received a full-blown evidentiary hearing. The fact that
    University officials and faculty members did not keep Professor Tonkovich
    apprised every step along the way of the investigation does not amount to a
    violation of his procedural due process rights.
    42
    Professor Tonkovich next complains that when the Law School faculty
    members met with University administrators to discuss his case, and when they
    accompanied the complainants to meet with administrators, they violated his
    procedural due process rights. We fail to see how either of these actions might
    form the basis of a procedural due process claim in the absence of allegations
    that these actions interfered with Professor Tonkovich’s receiving notice of the
    charges or with his ability to respond to those charges. Professor Tonkovich has
    not cited any law, clearly established or otherwise, that would support the
    proposition that in taking part in the investigation as the Law School faculty
    members here did, their actions ran afoul of the Due Process Clause.
    Next, Professor Tonkovich argues that two of the Law School faculty
    members violated his procedural due process rights when they repeated
    information they had heard, namely, that the allegations against Professor
    Tonkovich included an allegation of rape. Assuming, as we must, that the
    allegation is false, it still does not implicate procedural due process.   8
    While the
    statements may be actionable under state tort law, they do not rise to the level of
    depriving Professor Tonkovich of federal procedural due process rights. There is
    no allegation that the statements made by the professors had anything to do with
    We shall discuss the allegation of rape with respect to Professor
    8
    Tonkovich’s liberty interest below.
    43
    whether Professor Tonkovich received notice of the charges against him or had a
    meaningful opportunity to respond, which is what procedural due process
    requires.
    Finally, Professor Tonkovich takes issue with the Law School faculty
    members’ role in testifying at his hearing and in discarding or denying the
    existence of the written complainant statements. Once again, he cites no clearly
    established law that stands for the proposition that taking such actions implicates
    procedural due process. As we have discussed, Professor Tonkovich received
    summaries of the statements, and he was able to cross-examine the complainants;
    therefore, the fact that several professors were not forthcoming with written
    statements does not amount to a violation of Professor Tonkovich’s procedural
    due process rights. Although such conduct on the part of the professors is not to
    be lauded, it simply does not rise to a level sufficient to implicate procedural due
    process concerns. Furthermore, we fail to see how the professors’ acts in
    testifying at Professor Tonkovich’s hearing–and thereby being subjected to cross-
    examination–violated his procedural due process rights. For all of these reasons,
    the district court should have granted the Law School faculty members’ motion to
    dismiss the procedural due process claim on qualified immunity grounds.
    6. Appeal of the Chancellor’s Office (Case No. 96-3408)
    44
    The Chancellor’s office staff members argue that they are entitled to
    qualified immunity on Professor Tonkovich’s procedural due process claim
    because Professor Tonkovich received all of the process he was due.
    Furthermore, they argue that Professor Tonkovich failed to show that any of their
    actions constituted violations of a clearly established right.
    The specific allegations against staff members of the Chancellor’s office
    are as follows: 1) they extended the investigation after having set a deadline for
    filing complaints against Professor Tonkovich; 2) Vice Chancellor Brinkman and
    Executive Vice Chancellor Shankel at first recommended a one-year paid
    suspension, but as the investigation progressed, they increased the proposed
    sanction to dismissal; 3) Associate Vice Chancellor Shulenberger interviewed the
    complainants; 4) Executive Vice Chancellor Shankel denied that the
    complainants had submitted written statements; 5) during settlement negotiations,
    Vice Chancellor Brinkman and Executive Vice Chancellor Shankel recommended
    that Professor Tonkovich resign quietly, and they stated that there were no terms
    acceptable to the University for Professor Tonkovich to continue as a faculty
    member; and 6) Chancellor Budig prosecuted charges even after several students
    stated that the charges were groundless.
    Professor Tonkovich’s argument that extending the investigation and
    increasing the proposed sanction violated his procedural due process rights must
    45
    fail. Neither the length of the investigation nor the decision to increase the
    proposed sanction deprived Professor Tonkovich of his rights to notice and an
    opportunity to respond. It is not as if the sanction he faced was changed during
    the course of or after his hearing. Well before his hearing began, he understood
    that he faced dismissal from the Law School faculty. Additionally, the fact that
    Professor Tonkovich initially responded in writing to the Law Student’s charges,
    when he faced only suspension, is not significant because that was not his only
    opportunity to respond. Ultimately, after the investigation was complete, he was
    informed of all of the charges against him and given ample opportunity to
    respond to all of them.
    Professor Tonkovich next argues that Associate Vice Chancellor
    Shulenberger violated his procedural due process rights when he interviewed the
    complainants. Professor Tonkovich wholly fails to allege how these interviews
    deprived him of his rights to notice or an opportunity to respond. Furthermore,
    he cites no clearly established law standing for the proposition that during the
    course of an investigation of a university professor, a university administrator
    violates the professor’s procedural due process rights by interviewing students
    with complaints.
    Next Professor Tonkovich complains of Executive Vice Chancellor
    Shankel’s denial of the existence of written complainant statements. We have
    46
    already discussed the failure to reveal the complainants’ statements in the context
    of the Hearing Committee, Ms. Marino, and the Law School faculty members.
    For similar reasons, the fact that Executive Vice Chancellor Shankel denied that
    the complainants had submitted written statements does not implicate Professor
    Tonkovich’s procedural due process rights. Although such conduct on the part of
    any university employee is not to be commended, it does not rise to the level of a
    constitutional violation. As previously discussed, the University provided
    summaries of the statements prior to his hearing, and Professor Tonkovich had
    the opportunity to cross-examine each of the complainants.
    Professor Tonkovich next argues that Vice Chancellor Brinkman and
    Executive Vice Chancellor Shankel violated his procedural due process rights
    when they took part in settlement negotiations. Specifically he points to their
    actions in recommending that he resign quietly and in stating that there were no
    terms acceptable to the University for Professor Tonkovich to continue as a
    faculty member. Professor Tonkovich fails to allege, however, how these actions
    caused the deprivation of his procedural due process rights. He does not allege,
    for example, that in pressuring him to resign quietly or in stating that there were
    no acceptable terms to the University, Vice Chancellor Brinkman and Executive
    Vice Chancellor Shankel somehow prevented him from receiving notice of the
    charges against him or an opportunity to respond.
    47
    Finally, Professor Tonkovich argues that Chancellor Budig violated his
    procedural due process rights by including in the formal complaint allegations
    that several law students thought were groundless. We fail to see how this
    implicates Professor Tonkovich’s procedural due process rights in the absence of
    an allegation that he was not given notice of these charges or an opportunity to
    respond to them. It is hardly the role of a law student to decide which allegations
    to include in a charging document against a faculty member. Professor
    Tonkovich was free to call these students as witnesses in his defense, and his
    complaint indicates that these students did submit affidavits stating their
    positions. For all of these reasons, the district court erred in denying the motion
    to dismiss the procedural due process claim against the staff members of the
    Chancellor’s office on qualified immunity grounds.
    After considering the arguments of the parties, we turn our attention briefly
    to the district court’s disposition of the qualified immunity issue as it relates to
    Professor Tonkovich’s procedural due process claim. The district court
    concluded that Professor Tonkovich’s hearing was a combined pre- and post-
    termination hearing. Aplts’ App. vol. IV, doc. 18 at 1345-46. However,
    Professor Tonkovich was not dismissed until     after the hearing was complete and
    the Hearing Committee handed down its findings and conclusions. During the
    48
    course of his hearing, although he was on teaching leave, his employment with
    the University had not been terminated. Thus, we think the district court was
    technically incorrect on this point. The evidentiary hearing was, in actuality, a
    pretermination hearing that afforded Professor Tonkovich more process than he
    was due prior to being terminated. In addition, the district court failed to
    consider that Professor Tonkovich had the opportunity to appeal to the Board of
    Regents and then, finally, to file an action for judicial review in state district
    court.
    A state court proceeding for judicial review of the University’s action
    would have afforded Professor Tonkovich the opportunity to present evidence as
    to the alleged “unlawfulness of [the] procedure or of [the] decision-making
    process.” See 
    Kan. Stat. Ann. § 77-619
    (a)(2). Furthermore, on judicial review,
    the state district court would have had the power to order the University to take a
    specific action, enjoin the University from enforcing an action, or render
    appropriate declaratory relief.   See 
    id.
     at § 77-622(b). Although, as we have
    stated, exhaustion is not a prerequisite to bringing a § 1983 claim, the fact that
    Professor Tonkovich did have the opportunity for an additional post-termination
    hearing, regardless of whether he exercised this right, is germane to our inquiry
    into what process the state afforded him.
    The district court further concluded that the individual defendants were not
    49
    entitled to qualified immunity in part because Professor Tonkovich received
    inadequate notice of the charges against him due to the fact that the University
    increased the stakes as the investigation progressed. We think this conclusion is
    incorrect for at least two reasons. First of all, the fact remains that approximately
    four months before the hearing, the University filed a written complaint against
    Professor Tonkovich. Thus, well in advance, the Chancellor informed Professor
    Tonkovich in writing as to the charges and the penalty he faced. Second, the
    district court failed to consider which of the individual defendants was
    responsible for giving Professor Tonkovich notice of the charges. Surely, for
    example, the Law School faculty members cannot be said to have violated
    Professor Tonkovich’s procedural due process rights by failing to give him notice
    of the charges, because they had no duty to give him notice; moreover, none of
    their actions deprived him of notice.
    As we have stated, under    Loudermill , before he was terminated, Professor
    Tonkovich was entitled to notice, an explanation of the charges against him, and
    an opportunity to respond. Professor Tonkovich’s own complaint reflects that,
    prior to his termination, he received these protections and much more. A full-
    blown evidentiary hearing clearly meets the dictates of   Loudermill . Taking into
    consideration Professor Tonkovich’s pretermination hearing, in combination with
    the various post-termination proceedings afforded by the state, we conclude that
    50
    Professor Tonkovich was afforded all of the process that he was due, and perhaps
    more than what Loudermill requires.
    Because we have found that Professor Tonkovich received all of the
    process that he was due, we must reject his claim for deprivation of a liberty
    interest, as well. In order to demonstrate the infringement of a liberty interest in
    one’s good name, one must show that: 1) the defendant made a statement
    impugning his or her good name, reputation, honor, or integrity; 2) the statement
    was false; 3) the defendant made the statement in the course of termination
    proceedings or the statement foreclosed future employment opportunities; and 4)
    the statement was published.      Workman , 
    32 F.3d at 481
     (internal citations
    omitted). In such a case, the Due Process Clause requires an adequate name-
    clearing hearing.   
    Id. at 480
    . We acknowledge that Professor Tonkovich did,
    indeed, have a liberty interest in his reputation, deserving of due process
    protection. However, even if the University infringed that interest, when, for
    example, two of the faculty members stated that they heard that the Law Student
    accused Professor Tonkovich of rape, we conclude that the University provided
    him with an adequate name-clearing hearing. Thus, there is perhaps a tort claim,
    but there is no constitutional violation.   9
    We express no opinion as to whether the professors’ statements did,
    9
    indeed, infringe Professor Tonkovich’s liberty interest. As we have already
    (continued...)
    51
    After carefully considering Professor Tonkovich’s allegations, the
    defendants’ arguments, and the relevant law, we hold that the individual
    defendants are entitled to qualified immunity on Professor Tonkovich’s
    procedural due process claim. We do not necessarily condone each of the
    procedures that the University followed in the course of Professor Tonkovich’s
    disciplinary proceedings. Nevertheless, as we have discussed, every alleged
    procedural error does not necessarily implicate due process. Although Professor
    Tonkovich may or may not have valid claims based on violations of state law, he
    has failed to meet his burden on qualified immunity as it relates to his federal
    procedural due process claim. We turn now to a discussion of Professor
    Tonkovich’s substantive due process claim.
    B. Are the Defendants Entitled to Qualified Immunity on Professor
    Tonkovich’s Substantive Due Process Claim?
    At the outset, we must address the district court’s supposed failure to
    consider the defendants’ entitlement to qualified immunity on Professor
    Tonkovich’s substantive due process claim. The district court stated that after an
    9
    (...continued)
    noted, in order to infringe one’s liberty interest, the defendant must, among other
    things, make a false statement impugning the plaintiff’s reputation.    See
    Workman , 
    32 F.3d at 481
    . At this stage, we are constrained to accept Professor
    Tonkovich’s version of the facts.
    52
    extensive review of the record, it could not “locate the individual defendants’
    argument that they are entitled to qualified immunity on plaintiff’s substantive
    due process claim.” Aplts’ App. vol. IV, doc. 18 at 1350. Therefore, the court
    stated that it was declining to address the issue.     
    Id.
    Although all of the defendants filed motions to dismiss Professor
    Tonkovich’s due process claim based on qualified immunity, they did not
    separately address substantive due process. However, they all argued, in more or
    less general terms, that they are entitled to qualified immunity because Professor
    Tonkovich failed to allege specific facts showing that they had violated         any
    clearly established constitutional right of which a reasonable person would have
    known. See, e.g. , Aplts’ App. vol. I, doc. 3 at 172 (plaintiff’s failure to allege
    that Hearing Committee members violated clearly established right entitles them
    to qualified immunity);    
    id.
     , doc. 4 at 216-17 (plaintiff’s failure to identify clearly
    established right entitles Board of Regents to qualified immunity);        
    id.
     , doc. 5 at
    248 (doctrine of qualified immunity bars suit against Law School faculty
    members because their conduct had no effect on plaintiff’s constitutional rights);
    
    id.
     vol. II, doc. 7 at 679 (Dean Jerry entitled to qualified immunity because his
    actions did not violate clearly established constitutional rights);     see also 
    id.
     vol.
    III, doc. 9 at 996 (plaintiff’s failure to allege that Chancellor’s office staff
    members violated clearly established due process rights entitled them to qualified
    53
    immunity).
    Our review of count one of Professor Tonkovich’s first amended complaint
    indicates that Professor Tonkovich himself did not delineate his due process
    claim as containing both a procedural and a substantive component. On the
    contrary, count one is entitled “42 U.S.C. Section 1983 (Fourteenth Amendment
    Due Process).” 
    Id.
     vol. I, doc. 1 at 79. Nowhere in his complaint does Professor
    Tonkovich argue that the defendants violated his substantive due process rights.
    He simply refers to “due process,” which, under the circumstances, the
    defendants could reasonably interpret in various ways. Professor Tonkovich has
    the burden to identify the rights that he alleges the defendants violated.    See
    Walter , 
    33 F.3d at 1242
    . Thus, the defendants should not be required to guess
    whether Professor Tonkovich pled a substantive due process claim, a procedural
    due process claim, or both.
    At this stage of the litigation, Professor Tonkovich argues that his
    substantive due process claim is based on the allegation that he did not have fair
    warning of prohibited conduct and is further based “on the defendants’ other
    arbitrary and wrongful actions.” Aple’s Brief at 36. However, Professor
    Tonkovich did not articulate his “no fair warning” argument before the district
    court in his response to the defendants’ motions to dismiss. Instead, he argued
    that his substantive due process claim was based on the fact that the defendants
    54
    had deprived him of liberty and property. Aplts’ App. vol. III, doc. 10 at 1102-
    03. Such an argument applies equally in the procedural due process arena as it
    does in the substantive, for there can be no violation of one’s procedural due
    process rights without a deprivation of life, liberty, or property.   See U.S. Const.
    amend. XIV, § 1. Moreover, in the portion of his response addressing
    substantive due process, Professor Tonkovich referred to the defendants denying
    him an impartial tribunal, arguably a procedural due process topic, rather than a
    substantive one. Aplts’ App. vol. III, doc. 10 at 1103.
    Our point here is that Professor Tonkovich’s substantive due process claim
    lacked crisp contours during the district court proceedings. And even now, as
    mentioned above, Professor Tonkovich argues that his substantive due process
    claim is based, in part, on a host of allegedly arbitrary and wrongful actions of
    the defendants, some of which implicate procedural due process concerns.
    Because of the overlap inherent in the way Professor Tonkovich pled his due
    process claim, we think that the district court read the defendants’ motions to
    dismiss too narrowly. In other words, we think that the defendants’ motions to
    dismiss on the basis of qualified immunity were sufficient to put the district court
    on notice that they were asserting the affirmative defense of qualified immunity
    with respect to Professor Tonkovich’s entire § 1983 due process claim.
    Furthermore, because the substantive due process claim is based, in part, on
    55
    allegedly arbitrary actions that may be fairly characterized as implicating
    procedural due process rights, we think the district court’s treatment of the due
    process claim with respect to qualified immunity is of sufficient breadth to allow
    us to review the issue of qualified immunity as it relates specifically to
    substantive due process. We turn now to that portion of our task.
    Because Professor Tonkovich was a tenured professor, the law in this
    Circuit is that he possessed “a property interest deserving of . . . substantive
    protections of the Fourteenth Amendment.”          Brenna , 
    589 F.2d at 476
    .
    Substantive due process requires that the termination of a tenured professor’s
    property interest not be “arbitrary, capricious, or without a rational basis.”         
    Id. at 477
    . The Supreme Court has “emphasized time and again that [t]he touchstone
    of due process is protection of the individual against arbitrary action of
    government . . . .”   Lewis , 
    118 S. Ct. at 1716
     (quotation omitted).
    In Uhlrig v. Harder , 
    64 F.3d 567
     (10th Cir. 1995), we stated that “the
    standard for judging a substantive due process claim is whether the challenged
    government action would ‘shock the conscience of federal judges.’”               
    Id. at 573
    (quoting Collins v. City of Harker Heights      , 
    503 U.S. 115
    , 126 (1992)) (quotation
    omitted). To satisfy this standard, “a plaintiff must do more than show that the
    government actor intentionally or recklessly caused injury to the plaintiff by
    56
    abusing or misusing government power.”        Uhlrig , 
    64 F.3d at 574
    . Instead, a
    plaintiff “must demonstrate a degree of outrageousness and a magnitude of
    potential or actual harm that is truly conscience shocking.”        
    Id.
     We
    acknowledged that “[t]he level of conduct required to satisfy this additional
    requirement cannot precisely be defined, but must necessarily evolve over time
    from judgments as to the constitutionality of specific government conduct.”         
    Id.
    Recently, the Supreme Court reaffirmed the “shocks the conscience” test in
    Lewis , 
    118 S. Ct. 1708
    , which involved a substantive due process claim brought
    under § 1983 against a municipality after a high-speed police chase killed a
    sixteen-year-old boy. The Court noted that “[w]hile due process protection in the
    substantive sense limits what the government may do in both its legislative and
    its executive capacities, criteria to identify what is fatally arbitrary differ
    depending on whether it is legislation or a specific act of a governmental officer
    that is at issue.”   Id. at 1716 (citations omitted). The Court went on to state that
    “for half a century now we have spoken of the cognizable level of executive
    abuse of power as that which shocks the conscience.”           Id. at 1717. Accordingly,
    when a plaintiff brings a substantive due process challenge to executive action,
    “the threshold question is whether the behavior of the governmental officer is so
    egregious, so outrageous, that it may fairly be said to shock the contemporary
    conscience.” Id. at 1717 n.8.
    57
    Professor Tonkovich argues that the “shocks the conscience” standard does
    not apply to this case because the defendants’ conduct was intentional. He
    argues that the defendants’ actions should be measured instead against a generic
    standard of arbitrariness. However, in the alternative, he argues that the
    defendants’ conduct was, indeed, shocking to the conscience.
    There is some indication that the “shocks the conscience” standard and the
    “arbitrariness” standard are used interchangeably.          See, e.g. Collins , 
    503 U.S. at 128
     (stating that the Court is not persuaded that the defendants’ actions “can
    properly be characterized as arbitrary, or conscience shocking, in a constitutional
    sense”). Justice Scalia’s reading of the majority opinion in         Lewis is that the
    shocks-the-conscience test “is the     measure of arbitrariness when what is at issue
    is executive rather than legislative action.”        Lewis , 
    118 S. Ct. at 1724
     (Scalia, J.,
    concurring) (emphasis in original). In any event, we express no opinion on
    whether the “shocks the conscience” standard applies to this case because
    regardless of whether we use that standard or we simply inquire whether the
    defendants’ actions were arbitrary or lacking a rational basis, the defendants are
    entitled to qualified immunity on Professor Tonkovich’s substantive due process
    claim. As we shall discuss in greater detail below, the defendants’ actions were
    not arbitrary, did not lack a rational basis, and were not shocking to the
    conscience.
    58
    As we have discussed, Professor Tonkovich claims that the defendants
    violated his substantive due process rights by their failure to warn him of
    prohibited conduct and by their other arbitrary and wrongful actions. At this
    juncture, we shall discuss each defendant’s (or defendant group’s) arguments
    with respect to qualified immunity on Professor Tonkovich’s substantive due
    process claim.
    1. Appeal of Dean Jerry (Case No. 96-3402)
    Professor Tonkovich argues that Dean Jerry violated his substantive due
    process rights because the memorandum he issued to faculty falsely asserted that
    student/faculty sex was unethical under the Faculty Code. Furthermore,
    Professor Tonkovich argues, Dean Jerry violated his substantive due process
    rights by proposing a rule, with retroactive application, prohibiting sexual
    relations between professors and students enrolled in their courses. Since the
    Law School faculty did not approve Dean Jerry’s proposed rule, the argument
    goes, Professor Tonkovich was arbitrarily charged with violating a nonexistent
    rule. In response, Dean Jerry argues that Professor Tonkovich did indeed have
    fair warning that his conduct was prohibited because at the time he allegedly
    engaged in a sexual act with one if his students after discussing law school
    grades with her, it was clearly unethical, under existing University policy, for a
    59
    professor to exploit a student for his own private advantage.
    We acknowledge that the allegations against Professor Tonkovich required
    Dean Jerry and other University officials to confront a difficult question: when
    does sexual contact between participants in an unequal power relationship
    become exploitative? However, the fact that reasonable minds might not agree
    with the way in which the majority of the Hearing Committee, the Chancellor,
    and the Regents resolved that question is insufficient to support a substantive due
    process claim.
    In this regard, we note that the Seventh Circuit has rejected a claim similar
    to Professor Tonkovich’s claim that he did not have fair warning that his conduct
    was prohibited. In Korf v. Ball State Univ. , 
    726 F.2d 1222
     (7th Cir. 1984), a
    tenured professor who allegedly sexually harassed various students filed a § 1983
    suit after he was discharged from the faculty. He alleged that his substantive due
    process rights were violated because he did not have adequate notice that
    consensual sexual relations between faculty members and students were
    prohibited. Id. at 1226. The court noted that, after an investigation and a
    hearing, a committee found that the plaintiff had engaged in unethical behavior
    by exploiting students for his private advantage. Thus, consensual sexual
    relations were not at issue. The court stated that “[c]ommon sense, reason and
    good judgment should have made [the plaintiff] cognizant of the fact that his
    60
    conduct could and would be cause for termination.”    Id. at 1227. Likewise, in
    the case at bar, if common sense, reason, and good judgment were not adequate
    to notify Professor Tonkovich, certainly the Faculty Code’s prohibition against
    exploiting students concretely notified him that he could be terminated for having
    sex with one of his students after discussing her grades.
    Next, Professor Tonkovich argues that Dean Jerry violated his substantive
    due process rights by initially withholding the name of Professor Tonkovich’s
    accuser and the nature of the accusation. However, Professor Tonkovich has
    cited no law, and certainly no clearly established law, supporting his argument
    that he had a substantive due process right to know the name of his accuser on
    the day she lodged her complaint. Furthermore, as we have discussed, Professor
    Tonkovich knew the name of his accuser and the nature of her allegation well
    before he had the opportunity to cross-examine her.
    Finally, Professor Tonkovich argues that Dean Jerry violated his
    substantive due process rights by giving him an unearned negative annual
    evaluation and the lowest merit salary increase on the entire law school faculty.
    In light of the fact that Professor Tonkovich was embroiled in a scandal
    involving sexual misconduct with one of his students, we cannot say that Dean
    Jerry’s action in this respect was completely arbitrary or irrational. Professor
    Tonkovich certainly has not cited any clearly established law that would lead us
    61
    to such a conclusion. For these reasons, the district court erred in denying Dean
    Jerry’s motion to dismiss the substantive due process claim on qualified
    immunity grounds.
    2. Appeal of Regents (Case No. 96-3403) and Hearing
    Committee (Case No. 96-3404)
    Professor Tonkovich argues that the Regents and the Hearing Committee
    members violated his substantive due process rights by making erroneous
    findings that he engaged in unethical conduct. Furthermore, he argues, they
    violated his substantive due process rights by voting for his dismissal, a sanction
    that he claims lacks a rational basis.
    The Regents and the Hearing Committee members argue that the fact that
    they did not agree with Professor Tonkovich on every issue and did not
    ultimately find in his favor cannot form the basis of a substantive due process
    claim against them. They argue that even assuming, for purposes of argument,
    their decisions in finding that he committed the charged conduct and voting for
    his dismissal were wrong, these actions do not rise to the level of a substantive
    due process violation. We agree. Indeed, “[t]he Due Process Clause is not a
    guarantee against incorrect or ill-advised personnel decisions.”   Collins , 
    503 U.S. at 129
     (quotation omitted). For these reasons, the district court erred in denying
    62
    the Regents’ and the Hearing Committee members’ motions to dismiss the
    substantive due process claim on qualified immunity grounds.
    3. Appeal of Professor McKenzie (Case No. 96-3405)
    Professor McKenzie is entitled to qualified immunity on Professor
    Tonkovich’s substantive due process claim for the same reasons that she is
    entitled to qualified immunity on his procedural due process claim. That is, in
    merely signing the Letter, refusing to testify, and dating a student, Professor
    McKenzie neither subjected Professor Tonkovich, nor caused Professor
    Tonkovich to be subjected, to a deprivation of his substantive due process rights.
    Furthermore, Professor Tonkovich has cited no clearly established law standing
    for the proposition that taking any of these actions violates one’s substantive due
    process rights.
    4. Appeal of the University General Counsel (Case No. 96-3406)
    We have already discussed the specific allegations against Ms. Thomas and
    Ms. Marino. Professor Tonkovich has failed to cite any clearly established law
    that would lead us to believe that any of the actions they took or failed to take
    caused the deprivation of his substantive due process rights. For this reason, Ms.
    Thomas and Ms. Marino are entitled to qualified immunity on Professor
    63
    Tonkovich’s substantive due process claim.
    5. Appeal of Law School Faculty Members (Case No. 96-3407)
    Professors Shapiro, Robinson, Dayton, Schroeder, and Sward argue that
    they are entitled to qualified immunity on Professor Tonkovich’s substantive due
    process claim because the allegations against them do not show a violation of a
    constitutional right at all, much less a clearly established right. We have already
    discussed the specific allegations against the Law School faculty members, and
    we will not repeat them here. We agree that Professor Tonkovich has pointed to
    no Supreme Court or Tenth Circuit precedent establishing that any of their
    actions could constitute a violation of one’s substantive due process rights. We
    shall, however, address two specific allegations.
    Professor Tonkovich claims that two of the Law School faculty members
    violated his substantive due process rights by stating that the Law Student had
    accused him of rape. However, “[a] substantive due process violation must be
    something more than an ordinary tort to be actionable under § 1983.”    Abeyta v.
    Chama Valley Indep. Sch. Dist. No. 19    , 
    77 F.3d 1253
    , 1257 (10th Cir. 1996).
    Professor Tonkovich may have a cause of action against these professors or
    against the University under state law, but he has failed to meet his burden on
    qualified immunity as to a federal constitutional claim.
    64
    As to Professor Tonkovich’s substantive due process claim based on a lack
    of fair warning of prohibited conduct, the Law School faculty members argue
    that this claim contains no allegations addressed specifically to them. That is,
    they argue that Professor Tonkovich did not allege that they had a duty to warn
    him of what kind of conduct the Faculty Code prohibited. Additionally, they
    argue, Professor Tonkovich   was put on notice that exploiting a student for his
    own benefit was a violation of the Faculty Code. We agree. For these additional
    reasons, the Law School faculty members are entitled to qualified immunity on
    Professor Tonkovich’s substantive due process claim.
    6. Appeal of the Chancellor’s Office (Case No. 96-3408)
    Professor Tonkovich argues that the University violated his substantive
    due process rights by ignoring its six-month statute of limitations for sexual
    harassment charges. However, as counsel for the Board of Regents pointed out at
    oral argument, the charges against Professor Tonkovich were not solely based on
    sexual harassment. Professor Tonkovich was charged with violating an ethical
    provision of the Faculty Code. Even if a claim of sexual harassment was time-
    barred, the claim of an ethical violation was not. We cannot say that it was
    unconstitutionally arbitrary for the University to proceed with the prosecution,
    even though some of the charges involved sexual misconduct. Furthermore,
    65
    Professor Tonkovich has failed to cite clearly established law demonstrating that
    a reasonable University official in the Chancellor’s position would have known
    that going forward with the prosecution would have violated Professor
    Tonkovich’s substantive due process rights.
    Next Professor Tonkovich claims that the staff members of the
    Chancellor’s office violated his substantive due process rights by attempting to
    discourage him from exercising his right to a hearing. Specifically, he claims
    that after he requested a hearing, University administrators warned him that past
    conduct might be cause for future disciplinary action. In addition, the University
    increased the possible sanction from a one-year paid teaching suspension to
    dismissal. He claims that he was fired for asserting his innocence and demanding
    a hearing. We note that as the investigation progressed, the complaints against
    Professor Tonkovich mounted. There was nothing unconstitutionally arbitrary
    about extending the investigation or about changing the proposed disciplinary
    action.
    Professor Tonkovich next argues that Chancellor Budig violated his
    substantive due process rights because the charges against him and the
    recommended sanction lacked a rational basis. However, after the investigation
    was completed, the University had its side of the story, and Professor Tonkovich
    had his side of the story. Even taking Professor Tonkovich’s version of the facts
    66
    as true, as we must, we cannot say that the charges and the penalty he faced were
    unconstitutionally arbitrary. For these reasons, we conclude that the district court
    erred in denying the motion to dismiss the substantive due process claim against
    the staff members of the Chancellor’s office on qualified immunity grounds.
    After carefully considering Professor Tonkovich’s allegations and each of
    the defendants’ arguments, we conclude that the district court erred in denying
    the defendants’ motions to dismiss any “substantive due process” claim Professor
    Tonkovich may have asserted. Professor Tonkovich’s substantive due process
    argument on appeal takes up almost nineteen pages in his brief but contains very
    little legal authority. Pages and pages of facts are no substitute for citations to
    clearly established law. Nor can they meet Professor Tonkovich’s burden on
    qualified immunity. We hold that each of the individual defendants is entitled to
    qualified immunity on Professor Tonkovich’s § 1983 claim based on a violation
    of his substantive due process rights.
    C. Are the Defendants Entitled to Qualified Immunity on Professor
    Tonkovich’s Equal Protection Claim?
    According to the Equal Protection Clause of the Fourteenth Amendment,
    “No State shall . . . deny to any person within its jurisdiction the equal protection
    of the laws.” U.S. Const. amend. XIV, § 1. This Clause “embodies a general
    67
    rule that States must treat like cases alike but may treat unlike cases accordingly.”
    Vacco v. Quill , ____ U.S. ____, 
    117 S. Ct. 2293
    , 2297 (1997). Unless a
    legislative classification or distinction burdens a fundamental right or targets a
    suspect class, courts will uphold it if it is rationally related to a legitimate end.
    
    Id.
     Professor Tonkovich does not allege that a fundamental right is at stake, nor
    does he allege that he is a member of a suspect class. Thus, in order to prevail on
    his equal protection claim, he must show that the University treated him
    differently than others “similarly situated . . . and that this different treatment
    lacked a rational basis.”   Landmark Land Co. of Oklahoma v. Buchanan         , 
    874 F.2d 717
    , 722 (10th Cir. 1989);   see also City of Cleburne v. Cleburne Living
    Ctr. , 
    473 U.S. 432
    , 439-40 (1985).
    Professor Tonkovich alleges that the defendants violated his equal
    protection rights because the University has not penalized other professors, much
    less dismissed them, for dating their students. He points out that not only did
    other law professors openly date students but that the Law School actually
    promoted social activities between professors and students.
    The district court concluded that “[a]llegations that these defendants
    disciplined plaintiff for a faculty-student relationship, without similar discipline
    for other professors who had relationships with students, establish a possible
    violation of plaintiff’s right to equal protection.” Aplts’ App. vol. IV, doc. 18 at
    68
    1356. There are at least two crucial problems with the district court’s
    conclusion. First, as many defendants have pointed out, Professor Tonkovich has
    failed to allege facts sufficient to establish that he is similarly situated to law
    professors who dated students. Professor Tonkovich was not charged with dating
    a student. He was charged with exploiting a student for his own private
    advantage by engaging one of his students in a discussion of grades and then
    having sexual relations with her. Although we must accept as true Professor
    Tonkovich’s claim that he did not engage in the charged behavior,       see Aplts’
    App. vol. I, doc. 1 at 60, we must also accept as true the fact that this is part of
    what the University prosecuted him for and found him guilty of,      see id. at 57-58.
    In any event, Professor Tonkovich does not allege that he was dating the Law
    Student, or any of his other students.
    Second, the district court’s conclusion is infirm because it lumps all of
    “these defendants” together despite the fact that each of the defendants had
    different powers and duties and took different actions with respect to Professor
    Tonkovich. Although the district court acknowledged that it must identify on the
    record defendants’ conduct that violated clearly established law,     see Aplts’ App.
    vol. IV, doc. 18 at 1342, it wholly failed to identify specific actions taken by
    particular defendants that could form the basis of an equal protection claim. For
    example, the district court did not point to any particular action taken by a Law
    69
    School faculty member that can be said to have caused a deprivation of Professor
    Tonkovich’s equal protection rights. In this way, the district court erred in
    failing to grant the Law School faculty members qualified immunity.
    It is not necessary for us, however, to consider the specific allegations
    against each defendant because at the heart of any equal protection claim must be
    an allegation of being treated differently than those similarly situated. Professor
    Tonkovich would have had to allege that other professors who had sex with a
    student, in a manner that exploited the student, were not treated the way he was
    treated by University officials. Therefore, we conclude that the district court
    erred when it ruled that the defendants are not entitled to qualified immunity on
    Professor Tonkovich’s equal protection claim. We hold that each of the
    individual defendants is entitled to qualified immunity as to Professor
    Tonkovich’s § 1983 claim based on a violation of his right to equal protection of
    the laws.
    III. CONCERTED ACTION
    Professor Tonkovich argues that the reasonable inference to be drawn from
    all of the allegations in his complaint is that the defendants engaged in concerted
    action with the common goal of terminating his employment with the University.
    Professor Tonkovich claims that the reason the University handled his case the
    70
    way it did and the reason he was ultimately dismissed is because of his outspoken
    political conservatism and because he supported an unpopular candidate during a
    divisive dean search at the Law School.      10
    By raising the specter of a conspiracy,
    he attempts to avoid a grant of qualified immunity to the individual defendants.
    It is true that on a motion to dismiss, we must draw all reasonable
    inferences in Professor Tonkovich’s favor.          Swanson , 750 F.2d at 813. However,
    we do not think that Professor Tonkovich has properly pled a claim that the
    individual defendants acted in concert to deprive him of his constitutional rights.
    Put differently, we do not think that such an inference is reasonable.
    At oral argument, counsel for the Law School faculty members and counsel
    for Ms. Thomas and Ms. Marino argued that Professor Tonkovich did not allege a
    civil rights conspiracy under 
    42 U.S.C. § 1985
     in his complaint. Counsel for
    Professor Tonkovich conceded that Professor Tonkovich did not plead a § 1985
    claim. However, he claims that he has met his burden of showing that the
    defendants violated clearly established rights under § 1983. For example, he
    argues, the fact that some of the Law School faculty members met with certain
    administrators during the investigatory process and then signed the Letter
    soliciting complaints from students is enough to show that the faculty members
    10
    As noted above, the district court ruled that the defendants were entitled
    to qualified immunity on Professor Tonkovich’s First Amendment claim based on
    these allegations.
    71
    were acting in concert with the administrators to deprive him of his constitutional
    rights.
    Allegations of conspiracy may, indeed, form the basis of a § 1983 claim.
    Hunt v. Bennett , 
    17 F.3d 1263
    , 1266 (10th Cir. 1994). However, a plaintiff must
    allege specific facts showing an agreement and concerted action amongst the
    defendants. 
    Id.
     “Conclusory allegations of conspiracy are insufficient to state a
    valid § 1983 claim.”     Id. (quotation omitted).
    Professor Tonkovich presents us with nothing more than conclusory
    allegations. We do not think it is reasonable to infer, for example, that because
    certain Law School faculty members met with certain administrators during the
    investigation, they were conspiring with one another and with the Hearing
    Committee who ultimately found against Professor Tonkovich. Furthermore,
    there is no indication that the Hearing Committee members or the Regents were
    even aware of the divisive dean search or of the candidate whom Professor
    Tonkovich supported. Professor Tonkovich has simply failed to carry his burden
    of alleging the facts necessary to support his claim of conspiracy on qualified
    immunity.
    IV. CONCLUSION
    Ironically, Professor Tonkovich has said both too much and too little. His
    72
    complaint certainly does not follow the dictates of the Federal Rules of Civil
    Procedure. See Fed. R. Civ. P. 8(a) (“A pleading which sets forth a claim for
    relief . . . shall contain . . . a short and plain statement of the claim . . . .). He
    pled facts extensively and repetitively in a 101-page complaint. However, as we
    have noted, facts by the truckload are simply not enough to meet a plaintiff’s
    burden on qualified immunity.
    At the same time, we are certainly less than sanguine about some of the
    alleged actions taken by various University officials. In addition, the allegations
    of various violations of University policy cause us some discomfort. We do not
    know if we would have reached the same result that the Hearing Committee
    reached, by a close 3-2 vote. However, as we stated earlier, “[t]he Due Process
    Clause is not a guarantee against incorrect or ill-advised personnel decisions.”
    Collins , 
    503 U.S. at 129
     (quotation omitted).
    As noted legal scholar Alexander Bickel observed, “[T]he highest morality
    almost always is the morality of process.” Alexander Bickel, The Morality of
    Consent 123 (1975). The process described in Professor Tonkovich’s complaint,
    a hearing spanning nine months in conjunction with two post-termination
    remedies, clearly comports with the process required by the law of our land. The
    Due Process Clause does not guarantee that the University of Kansas would reach
    a result with which Professor Tonkovich agreed.
    73
    In summary, we conclude that the district court erred when it denied the
    defendants’ motions to dismiss based on qualified immunity. We hold that each
    of the individual defendants is entitled to qualified immunity on Professor
    Tonkovich’s remaining § 1983 claims, i.e., violations of procedural due process,
    substantive due process, and equal protection rights. We REVERSE the district
    court’s ruling to the contrary and REMAND the case to the district court with
    instructions to dismiss the remaining § 1983 claims against the individual
    defendants on qualified immunity grounds and for further proceedings consistent
    with this opinion.   11
    11
    Finally, we deny Professor Tonkovich’s pending motion for leave to
    file a sur-reply.
    74
    

Document Info

Docket Number: 96-3402, 96-3403, 96-3404, 96-3405, 96-3406, 96-3407, 96-3408

Citation Numbers: 159 F.3d 504

Judges: Henry, McWilliams, Lucero

Filed Date: 10/26/1998

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (42)

fred-l-patrick-and-cross-appellant-v-eugene-miller-individually-and-in , 953 F.2d 1240 ( 1992 )

Hortonville Joint School District No. 1 v. Hortonville ... , 96 S. Ct. 2308 ( 1976 )

Johnson v. Fankell , 117 S. Ct. 1800 ( 1997 )

raymon-j-melton-plaintiff-appelleecross-appellant-v-city-of-oklahoma , 879 F.2d 706 ( 1989 )

raymon-j-melton-plaintiff-appelleecross-appellant-v-city-of-oklahoma , 928 F.2d 920 ( 1991 )

marilyn-mick-crissy-cochran-lauren-ashley-mick-by-and-through-her-father , 76 F.3d 1127 ( 1996 )

michael-rhodes-hunt-v-thomas-a-bennett-robert-settje-david-g-manter , 17 F.3d 1263 ( 1994 )

mark-gordon-walter-v-bill-morton-individually-and-in-his-official , 33 F.3d 1240 ( 1994 )

leslie-r-derstein-cross-appellant-v-the-state-of-kansas-marjorie-van , 915 F.2d 1410 ( 1990 )

robert-latta-v-officer-james-a-keryte-officer-larry-montoya-sergeant , 118 F.3d 693 ( 1997 )

douglas-c-mangels-and-randal-k-mangels-donald-r-germano-v-federico , 789 F.2d 836 ( 1986 )

richard-e-corstvet-v-dr-lawrence-boger-president-oklahoma-state , 757 F.2d 223 ( 1985 )

landmark-land-company-of-oklahoma-inc-an-oklahoma-corporation-v-re , 874 F.2d 717 ( 1989 )

dr-rodrigo-ramirez-and-barbara-snow-v-oklahoma-department-of-mental , 41 F.3d 584 ( 1994 )

Medicare&medicaid Gu 37,414 Pueblo Neighborhood Health ... , 847 F.2d 642 ( 1988 )

Withrow v. Larkin , 95 S. Ct. 1456 ( 1975 )

Collins v. City of Harker Heights , 112 S. Ct. 1061 ( 1992 )

County of Sacramento v. Lewis , 118 S. Ct. 1708 ( 1998 )

No. 90-1166 , 960 F.2d 1493 ( 1992 )

gregg-d-uhlrig-of-the-estate-of-stephanie-uhlrig-deceased-gregg-d , 64 F.3d 567 ( 1995 )

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