Jones v. Louisiana Board of Supervisors of University of Louisiana Systems , 809 F.3d 231 ( 2015 )


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  •      Case: 14-31255      Document: 00513301198         Page: 1    Date Filed: 12/09/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-31255                       United States Court of Appeals
    Fifth Circuit
    FILED
    ROBERT C. JONES, III,                                                    December 9, 2015
    Lyle W. Cayce
    Plaintiff - Appellant                                             Clerk
    v.
    LOUISIANA BOARD OF SUPERVISORS OF UNIVERSITY OF LOUISIANA
    SYSTEMS; STATE OF LOUISIANA; LISA ABNEY; RANDALL WEBB;
    ROBERT CREW; CARL JONES; MARCUS JONES; JERRY PIERCE;
    DARLENE WILLIAMS,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC 1:11-CV-1359
    Before STEWART, Chief Judge, and JONES and GRAVES, Circuit Judges.
    PER CURIAM:*
    Plaintiff Robert C. Jones III (“Jones”) was a tenured economics professor
    at Northwestern State University (“NSU”), a division of the University of
    Louisiana System (“ULS”). Beginning around 2008, the Louisiana legislature
    enacted heavy budget cuts that seriously impacted the state’s public
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
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    No. 14-31255
    universities. In 2010, NSU administrators tasked with reducing the
    university’s budget eliminated the “economics concentration” at NSU and
    terminated Jones’s tenure. He subsequently brought this 42 U.S.C. § 1983 suit
    against the State of Louisiana, the ULS Board of Supervisors, NSU President
    Randall Webb (“Webb”), and NSU Provost and Vice President for Academic
    Affairs Lisa Abney (“Abney”) (collectively, “Defendants”). Jones alleged that
    Defendants violated his procedural and substantive due process rights, as well
    as the Contracts Clause of the U.S. Constitution. 1 The district court granted
    summary judgement to all Defendants. We AFFIRM.
    I. BACKGROUND
    Viewing the facts in the light most favorable to Jones, NSU hired him in
    1994 as an instructor to teach in the College of Business. In 2000, Jones was
    promoted to associate professor in the College of Business and granted tenure.
    During his time at NSU, Jones primarily taught basic micro- and macro-
    economics courses, but he sporadically taught a variety of finance courses as
    well.
    ULS bylaws state that tenure “shall be granted and held only within an
    academic discipline that is offered at the institution and assures renewed
    appointments only within that discipline.” The official documents that Jones
    contends vested him with tenure do not reference the discipline in which he
    was tenured. The bylaws also state that “[t]enure assures the faculty member
    that employment in the academic discipline at the institution will be renewed
    annually until the faculty member resigns, retires, or is terminated for cause
    or financial exigency.” The term “cause” is defined to include “conduct seriously
    prejudicial to the college or university system” as well as financial exigency. A
    Jones brought other claims and originally sued other defendants, but he has
    1
    abandoned these other claims on appeal and voluntarily dismissed the other defendants.
    2
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    catchall clause follows: “The foregoing enumeration of cause shall not be
    deemed exclusive. However, action to discharge, terminate, or demote shall not
    be arbitrary or capricious, nor shall it infringe upon academic freedom.”
    Beginning around 2008, NSU faced deep budget cuts that required
    university administrators to begin reducing expenditures by consolidating
    colleges and schools, discontinuing academic programs, and terminating
    employees. Budget documents from June 2010 indicated that NSU’s state
    appropriations were trending downward rapidly, from about $49 million in FY
    2008, to a projected $41 million in FY 2010 and a projected $31 million in FY
    2011. 2 In the summer of 2009, Provost Abney began to hold meetings with the
    Program Review Committee, a group composed of representatives from NSU’s
    colleges and faculty senate. The committee was charged with selecting
    programs for discontinuance, employing criteria outlined in a ULS policy
    memorandum. That memorandum dictated certain rights due to tenured
    faculty terminated because of the discontinuation of their program: (1) “every
    reasonable effort” would be made to find them a “suitable position . . . within
    the university” and (2) non-tenured faculty members would be “considered for
    termination” before those with tenure, absent a “compelling academic reason
    to do otherwise.”
    Between 2009 and 2010, the committee suggested the elimination of
    certain programs. The committee’s final proposed list did not include the
    economics concentration. Recognizing that the list was insufficient to address
    the depth of the budget reduction, Abney consulted with a wide variety of ULS
    and NSU officials, including college deans and legal counsel, to find other areas
    2   The final state appropriation amounts were ultimately altered somewhat due to
    factors like mid-year budget reductions and federal stimulus money. Despite these budget
    shortfalls, Defendants do not appear to rely on financial exigency—a term of art—to justify
    Jones’s termination.
    3
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    to cut. In June 2010, Abney began a discussion with the College of Business
    dean about the economics concentration because, according to her affidavit, “it
    had a high cost,” and “had graduated few students in past years.”
    At the time of Jones’s hiring at NSU, the university offered an economics
    minor degree; in 2006, however, that minor was discontinued and replaced by
    the economics concentration. NSU records indicate that although three
    professors were teaching economics courses, only three students had
    apparently ever signed up for the economics concentration. However, the basic
    macro- and micro-economics courses were and continue to be prerequisites for
    degrees in business administration. NSU projected savings of $145,061 by
    eliminating the economics concentration, due entirely to the removal of the
    three faculty members, two of whom were tenured, including Jones. Viewing
    the facts in the light most favorable to Jones, all of the economics courses that
    he once taught continue to be taught, though by non-tenured faculty; the
    courses are also now housed in the social science college instead of the business
    college.
    On June 16, 2010, NSU President Webb wrote to the President of the
    ULS that nine degree programs, five concentrations (including the economics
    concentration), and 12 minors should be discontinued. The ULS Board of
    Supervisors subsequently ratified Webb’s plan. On June 17, Abney wrote to
    the three economics faculty to invite them to President Webb’s office the
    following day “for an appointment to discuss the Economics concentration.”
    The meeting, which Jones attended, was approximately 20 minutes long. The
    parties agree that there was a discussion about the elimination of the
    economics concentration, but Jones disputes that he understood this to signify
    that his tenure, too, would be terminated.
    Jones’s tenure was formally terminated by a letter drafted by Abney on
    July 22, 2010. In the letter, Abney wrote that the “ULS Board approved the
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    discontinuance of the concentration in which you currently teach.” The letter
    stated that a review of Jones’s credentials demonstrated that there was “either
    not a position to which you can be moved in another department, or your
    credentials prevent you from being relocated to another position outside your
    original discipline.” (NSU had a general policy to only credential faculty if they
    had graduate degrees in the relevant discipline, or at least 18 graduate hours
    in that discipline, based on guidelines promulgated by the Southern
    Association of Colleges and Schools.) Jones’s tenure, the letter continued,
    would last through July 31, 2011. He was offered—and subsequently
    accepted—a position as an “instructor” for a salary of $35,000, about half of
    what he had been making before.
    Jones appealed to a committee comprising seven faculty members,
    including one faculty member from the College of Business. Jones drafted a
    seven-page letter to the committee outlining substantially the same arguments
    that he made to the district court and in this appeal. He did not appear before
    the committee and was not represented by counsel. 3 On November 5, 2010, the
    committee unanimously rejected Jones’s appeal.
    Jones subsequently brought this suit in the district court on July 22,
    2011, seeking reinstatement and damages. The district court determined that
    sovereign immunity insulated the State of Louisiana and the ULS Board of
    Supervisors from liability, and that qualified immunity applied to the claims
    3 Jones now alleges that the committee “permitted an appeal only of the program
    discontinuance and not of tenure.” Committee minutes reveal, however, that the committee
    was instructed by legal counsel that it was “not reviewing the program, but reviewing the
    individual.” The committee chairman in deposition testimony also indicated that there was
    individualized consideration of the claims in Jones’s appeal letter. That said, Defendants’
    response to Jones’s statement of material facts states that the “Committee determined
    whether or not the program had sufficient numbers in support to be continued or should
    remain eliminated due to the budgetary constraints.” Viewing the facts in the light most
    favorable to Jones, this statement is better aligned to his understanding of the committee’s
    responsibilities.
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    against Webb and Abney in their individual capacities because the decision
    was objectively reasonable in light of NSU’s severe budget crisis. 4 The district
    court concluded that only “the barest procedural protections of notice and an
    opportunity to be heard” are applicable in the context of a tenure termination
    following a program-elimination decision. Reciting the extensive internal
    review of the decision to eliminate the economics concentration and Jones’s
    lack of credentials outside of economics, the district court concluded that “NSU
    provided Jones with at least the Constitutionally-required minimum process
    of notice and an opportunity to be heard. In fact, the evidence in the record
    suggests he was afforded more than that.” Finally, the district court stated that
    its due process analysis foreclosed Jones’s Contracts Clause claim and other
    claims not relevant in this appeal. Consequently, the district court granted
    Defendants’ motion for summary judgment, denied Jones’s motion for partial
    summary judgment, and dismissed the suit with prejudice.
    Jones timely appealed, raising both procedural and substantive due
    process claims and a violation of the Contracts Clause of the U.S. Constitution.
    Jones primarily argues, relying on Texas Faculty Association v. University of
    Texas at Dallas, 
    946 F.2d 379
    (5th Cir. 1991), that he was entitled to a hearing
    on his individual termination before President Webb, the ultimate decision-
    maker. 5 He also contends that his firing was arbitrary and capricious.
    Defendants rely heavily on the budgetary problems faced by NSU and vacillate
    4 Jones did not brief sovereign immunity on appeal and has therefore waived any
    argument that the ULS Board of Supervisors or the State of Louisiana can be held liable in
    this suit. See Walker Int’l Holdings Ltd. v. Republic of Congo, 
    395 F.3d 229
    , 232 (5th Cir.
    2004).
    5 Defendants contended at oral argument that, in fact, the ULS Board of Supervisors—
    rather than President Webb—was the final decision-maker. They conceded, however, in
    response to Jones’s statement of material facts supporting his partial summary judgment
    motion, that Webb was the ultimate decision-maker. We assume for purposes of deciding this
    case that Webb was the ultimate decision-maker.
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    between arguing that Jones was not even entitled to a hearing and contending
    that the requisite process was provided.
    II. Standard of Review
    Appellate review of a district court’s grant of summary judgment is de
    novo. Am. Family Life Assurance Co. of Columbus v. Biles, 
    714 F.3d 887
    , 895
    (5th Cir. 2013). Summary judgment is proper “if the movant shows that there
    is no genuine dispute as to any material fact and the movant is entitled to
    judgment as a matter of law.” Fed. R. Civ. P. 56(a).
    III. Procedural Due Process
    The Fourteenth Amendment provides that no state shall “deprive any
    person of life, liberty, or property, without due process of law.” U.S. Const.
    amend. XIV, § 1. Where a tenured public university faculty member is
    terminated, due process requires both notice and an opportunity to be heard.
    See Tex. 
    Faculty, 946 F.2d at 384
    ; Russell v. Harrison, 
    736 F.2d 283
    , 289 (5th
    Cir. 1984). In this case, it is effectively conceded by Defendants that Jones had
    a protected property interest in his continued government employment. See
    Perry v. Sindermann, 
    408 U.S. 593
    , 597–98 (1972). It is likewise conceded by
    Jones that he was provided constitutionally adequate notice. Thus, the only
    remaining question with respect to procedural due process is whether Jones
    was provided an adequate hearing.
    The type of hearing necessary—the process due—is a function of the
    context of the individual case. Due process “is not a technical conception with
    a fixed content unrelated to time, place and circumstances.” Mathews v.
    Eldridge, 
    424 U.S. 319
    , 334 (1976) (internal quotation marks and citation
    omitted). Instead, “due process is flexible and calls for such procedural
    protections as the particular situation demands.” Morrissey v. Brewer, 
    408 U.S. 471
    , 481 (1972); see also Sys. Contractors Corp. v. Orleans Par. Sch. Bd., 
    148 F.3d 571
    , 575 (5th Cir. 1998). To determine the requisite process, a court must
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    analyze the “interests at stake in a given case.” Babin v. Breaux, 587 F. App’x
    105, 110 (5th Cir. 2014) (per curiam) (citing 
    Mathews, 424 U.S. at 334
    –35).
    Mathews provides the three distinct interests to consider:
    First, the private interest that will be affected by the official action;
    second, the risk of an erroneous deprivation of such interest
    through the procedures used, and the probable value, if any, of
    additional or substitute procedural safeguards; and finally, the
    Government’s interest, including the function involved and the
    fiscal and administrative burdens that the additional or substitute
    procedural requirement would 
    entail. 424 U.S. at 335
    .
    Jones principally argues—relying on Texas 
    Faculty, 946 F.2d at 387
    –89,
    and 
    Russell, 736 F.2d at 289
    —that he was entitled to a face-to-face hearing
    before NSU President Webb, the ultimate decision-maker. Defendants argue
    that no hearing was necessary, and alternatively that adequate procedures
    were employed because NSU adhered to the program discontinuance policy
    and provided Jones an appeal before a faculty committee. They also argue that
    the court must defer to NSU’s interest in addressing its fiscal emergency.
    Jones’s private interest in retaining his government employment was
    significant. See Cleveland Bd. of Educ. v. Loudermill, 
    470 U.S. 532
    , 543 (1985)
    (“[T]he significance of the private interest in retaining employment cannot be
    gainsaid.”); Tex. 
    Faculty, 946 F.2d at 384
    . It takes on perhaps added
    significance because Jones had been a tenured teacher at NSU for a decade
    and had a reasonable expectation of ongoing employment.
    The risk that a particular faculty member will be terminated erroneously
    under     the   challenged    post-deprivation     proceedings,    however,    is   not
    substantial. With respect to the unchallenged, but related, decision to
    eliminate programs like the economics concentration, there were multiple tiers
    of review, as the district court noted. The Program Review Committee selected
    most programs that were discontinued. Webb and his cabinet met regularly to
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    discuss the budget crisis and address the committee’s recommendations. And
    Webb’s recommendations were reviewed by the ULS Board of Supervisors. The
    post-deprivation proceedings addressed to Jones’s specific tenure termination
    were thinner, and posed a slightly greater threat of erroneous deprivation. The
    central procedural safeguard was the appeal hearing before the committee of
    seven faculty members. Jones had the opportunity to present an extended
    explanation     via    letter   to   the   committee,      which     included     attached
    documentation and a supporting affidavit from a retired College of Business
    administrator and professor. Jones does not contend that the committee
    members were biased or unqualified. 6
    The central additional process to which Jones claims he was entitled is
    a “face to face meeting with the ultimate decision maker,” President Webb.
    This additional procedural safeguard seems unlikely to provide much further
    protection from an erroneous decision. Though both cases involved pre-
    deprivation due process issues, a brief comparison between Goldberg v. Kelly,
    
    397 U.S. 254
    (1970), which required a face-to-face hearing, and 
    Mathews, 424 U.S. at 343
    –46, which did not, is illustrative. 7 The Goldberg Court determined
    that an individual whose welfare benefits are terminated is entitled to a face-
    to-face, pre-termination hearing. 
    See 397 U.S. at 268
    –69. This decision was in
    6  Jones argues that the committee could not address his individual termination, but
    only the elimination of the economics concentration. The record reveals, however, that the
    committee did evaluate Jones’s particular circumstances and qualifications. Even if the
    committee had no power to correct his termination (outside of reinstating the program),
    Provost Abney and at least one other NSU official communicated with Jones about his
    qualifications and whether NSU could find an adequate position for him. Due process does
    not require exclusively formal opportunities to challenge a deprivation of property. See Tex.
    
    Faculty, 946 F.2d at 389
    (“In most faculty-termination cases, the aggrieved instructor was
    afforded a relatively formal procedure as a matter of state law or institutional policy. We
    believe that the due process clause, of its force, requires little formality.”).
    7 The Mathews test derived from the Goldberg decision, see 
    Mathews, 424 U.S. at 335
    ,
    and is applicable both to pre- and post-deprivation hearings. See Tex. 
    Faculty, 946 F.2d at 384
    –86 (applying Mathews in post-deprivation context).
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    part based on the likely “educational attainment” of welfare recipients and the
    “credibility and veracity” issues inherent in the welfare decision-making
    context. 
    Id. at 269.
    In Mathews, which held that no face-to-face, pre-
    deprivation hearing was compulsory in the context of disability benefits
    termination, the Court noted that most disability cases will turn on “routine,
    standard, and unbiased medical reports by physician 
    specialists.” 424 U.S. at 344
    (internal quotation marks and citation omitted).
    The termination decision here resembles more closely the disability
    benefits determinations in Mathews than the welfare benefits determinations
    in Goldberg. Decision-makers in the tenure termination context look to
    accreditation, academic transcripts, tenure documents, bylaws, and university
    policies, much like the documents relied upon in the disability context. See
    
    Mathews, 424 U.S. at 344
    –45. It is difficult to see exactly where veracity or
    credibility would come into play in a faculty termination decision unrelated to
    the teacher’s actions, and certainly the “educational attainment” dilemma in
    Goldberg that bolstered the justification for the in-person hearing is
    inapplicable to Jones, who has a Ph.D., and other educated university faculty.
    Finally, looking to the government’s interest and the burden imposed by
    any suggested additional procedural safeguards, there can be little doubt that
    Defendants have a robust interest in maintaining the fiscal integrity of the
    public university system. See Williams v. Tex. Tech. Univ. Health Scis. Ctr., 
    6 F.3d 290
    , 293 (5th Cir. 1993) (citations omitted) (“A state university has a
    significant interest in having reasonable discretion to administer its
    educational programs.”). “The strength of that interest gives schools leeway in
    making broad budget decisions that may affect only a few employees.” Id.; see
    also Tex. 
    Faculty, 946 F.2d at 387
    –89; Wilson v. Louisiana, No. 11–1388, 
    2014 WL 1788283
    , at *8 (W.D. La. May 5, 2014), aff’d, 597 F. App’x 796 (5th Cir.
    2015) (“The government has an equally important interest in ensuring the
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    continuation of its institutions by making difficult decisions regarding program
    cuts.”). Further, “federal courts . . . have been reluctant to impose due process
    requirements on public colleges and universities when doing so might
    compromise the state’s ability to administer them effectively.” Tex. 
    Faculty, 946 F.2d at 385
    ; see also Bd. of Curators v. Horowitz, 
    435 U.S. 78
    , 91 (1978);
    Levitt v. Bd. of Trs., 
    376 F. Supp. 945
    , 950 (D. Neb. 1974).
    As to the “fiscal and administrative burdens that the additional or
    substitute procedural requirement would entail,” 
    Mathews, 424 U.S. at 335
    , it
    seems certain enough that providing every employee of a university an
    opportunity to meet with the ultimate decision-maker when their termination
    is the result of a budget crisis would produce a serious administrative, if not
    fiscal, burden. See Babin, 587 F. App’x at 111 (“Requiring that, in a layoff
    situation, each laid off employee be afforded an opportunity to meet with the
    final decision maker and dispute his selection for the layoff, the policies
    underlying the layoff, and the evidence and research underlying those policies,
    would be burdensome in the extreme, and it is difficult to see here what
    additional value such a meeting would bring.”); cf. Sys. 
    Contractors, 148 F.3d at 576
    (holding that a public entity’s failure to provide a transcript of hearing
    proceedings “would not lessen the probability of an erroneous deprivation”
    because the “bulk of the evidence in this case is documentary evidence”).
    The process provided to Jones met the constitutionally mandated
    minimum requirements for due process. Jones’s interest in retaining his
    tenure was substantial. See 
    Loudermill, 470 U.S. at 543
    . Defendants, however,
    had a considerable interest in cutting staff in order to preserve the fiscal
    integrity of the ULS system and NSU in particular. See 
    Williams, 6 F.3d at 293
    . Although NSU apparently did not declare a financial exigency, the
    system-wide budget cuts were considerable, and required immediate,
    significant changes to the structure of public universities in the state. The
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    district court properly showed deference to that weighty interest. Jones had an
    opportunity to make his case on appeal to an impartial panel of his peers
    (including one professor from the College of Business), and directly to officials
    including Provost Abney. Buttressing our conclusion is the probable futility
    of—and administrative burden associated with—the additional procedural
    safeguard Jones proposes: a hearing before NSU’s president. See Babin, 587 F.
    App’x at 111 (noting that such an opportunity to meet with a “final decision
    maker” for all employees in a layoff situation “would be burdensome in the
    extreme”).
    Finally, the process afforded Jones comports with established rules for
    handling tenure termination. See Tex. 
    Faculty, 946 F.2d at 388
    (“Initially, the
    administration probably need only consider, in good faith, a written
    submission from each affected faculty member setting out why he or she
    deserves to be retained.”); Levitt v. Univ. of Tex. at El Paso, 
    759 F.2d 1224
    ,
    1228 (5th Cir. 1985) (requiring “a hearing before a tribunal that possesses some
    academic expertise and an apparent impartiality toward the charges”); cf.
    William A. Kaplin & Barbara A. Lee, The Law of Higher Education § 6.7.2.4
    (5th ed. 2013) (same).
    Jones’s reliance on Texas Faculty and Russell—for the proposition that
    he was entitled to meet with President Webb—is misplaced. In Texas Faculty,
    the court repeatedly emphasized that the additional procedural safeguard
    mandated—a right to meet with the ultimate decision-maker if the terminated
    professor could make a “colorable showing” that he deserved to be retained in
    another academic 
    program, 946 F.2d at 388
    —was dependent on the particular
    system of tenure at the university at issue. There, faculty were “tenured to
    their particular component institution rather than to a particular school or
    program within that institution.” 
    Id. at 386.
    By contrast, Jones’s tenure was,
    according to ULS bylaws, “only within an academic discipline that is offered at
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    the institution and assures renewed appointments only within that discipline.”
    To be sure, the ULS policy memorandum addressed to program discontinuance
    states that, upon the elimination of a tenured professor’s program, “every
    reasonable effort will be made to find another suitable position for the faculty
    member within the university.” But the “every reasonable effort” language falls
    far short of the commitment made by the university in Texas Faculty. Texas
    Faculty’s supplementary procedural protection—dependent as it was on a far
    more generous tenure scheme—is inapplicable here.
    Russell, too, is inapposite. In that case, while the court explained that
    terminated faculty have “the right to respond in writing to the charges made
    and to respond orally before the official charged with the responsibility of
    making the termination 
    decision,” 736 F.2d at 289
    , the court reversed a grant
    of summary judgment because there was a genuine issue of material fact “as
    to whether plaintiffs were given the opportunity to rebut the reasons given for
    their termination at a hearing or otherwise.” 
    Id. at 290
    (emphasis added). In
    other words, the reversal was because it was not clear whether there had been
    any opportunity for a hearing, not because there had been no opportunity to
    address the final decision-maker. This is the only reading that reconciles
    Russell with Texas Faculty, which provided that certain conditions be met
    before a hearing with the final decision-maker becomes compulsory. 
    See 946 F.2d at 388
    . Consequently, Jones has not shown a deprivation of his procedural
    due process rights, and the district court properly granted summary judgment
    on this claim.
    IV. Substantive Due Process
    Although Jones does not explicitly brief substantive due process, some of
    his claims sound there rather than in procedural due process. “Public officials
    violate substantive due process rights if they act arbitrarily or capriciously.”
    Finch v. Fort Bend Indep. Sch. Dist., 
    333 F.3d 555
    , 562–63 (5th Cir. 2003). To
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    prove a substantive due process violation in this context, an employee must
    show that a public employer’s decision “so lacked a basis in fact” that it could
    be said to have been made “without professional judgment.” Texas v. Walker,
    
    142 F.3d 813
    , 819 (5th Cir. 1998). The bar is high because “a federal court is
    generally not the appropriate forum in which to review the multitude of
    personnel decisions that are made daily by public agencies.” Honore v. Douglas,
    
    833 F.2d 565
    , 569 (5th Cir. 1987) (citation omitted); see also Bishop v. Wood,
    
    426 U.S. 341
    , 350 (1976) (“The Due Process Clause . . . is not a guarantee
    against incorrect or ill-advised personnel decisions.”). The standard may be
    even more demanding in the context of higher education personnel decisions
    because of repeated refusals by the Supreme Court, as well as this court, to
    “use the Fourteenth Amendment as an excuse to regulate the internal affairs
    of public universities.” Tex. 
    Faculty, 946 F.2d at 385
    .
    Jones’s substantive due process arguments can be distilled into four key
    contentions. First, he argues that he was in fact tenured to the business
    administration program rather than to the economics concentration that was
    eliminated. Second, he maintains that he taught finance classes in the past,
    could have continued to teach those courses as a tenured professor, and could
    also have been selected to be the director of the school of business. Third, he
    asserts that non-tenured faculty were retained to teach the same courses he
    had previously taught. Finally, Jones argues that his termination was
    arbitrary because another professor was permitted to keep her tenure in
    similar circumstances. 8
    8 Jones also argues that NSU lacked the authority to terminate him under its program
    discontinuance policy. This contention is undermined by the sizeable authority provided in
    the ULS bylaws. That “program discontinuance” was only added as an enumerated
    justification for tenure termination after Jones’s termination, is irrelevant: the policy in place
    at the time contemplated for-cause termination for financial reasons, and also provided that
    the list of possible justifications “shall not be deemed exclusive.” Some courts have even
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    Defendants argue that Jones was tenured to economics, and emphasize
    that once the economics concentration was eliminated there was no longer a
    position for him. They also maintain that he lacked credentials outside of
    economics. They emphasize the significant budget cuts that NSU faced and the
    faculty appeal committee’s unanimous rejection of Jones’s petition.
    First, there is no evidence in the record to suggest that Jones was
    tenured to the business administration program. ULS bylaws provide that
    Jones was only tenured in his “discipline,” which he admits was economics. He
    taught almost exclusively economics courses. And while it appears that the
    basic economics courses he taught continue to be taught by non-tenured
    faculty, it is equally clear that NSU administrators decided to deprioritize
    economics by offering fewer total economics courses and eliminating all
    economics programs. In the context of the serious budget crisis facing the
    university, we will not second-guess the good-faith decision-making that led to
    the elimination of the economics concentration or the complex reorganization
    of personnel and programs that followed. See 
    Honore, 833 F.2d at 569
    (“[A]
    federal court is generally not the appropriate forum in which to review the
    multitude of personnel decisions that are made daily by public agencies.”);
    Wilson, 
    2014 WL 1788283
    , at *9 (“This Court will not . . . function as a super
    personnel department as long as the minimum due process required was
    provided.”).
    Jones’s next argument is essentially that NSU failed to find him a
    “suitable position.” But the ULS policy for program discontinuance provides
    only that the university must make “every reasonable effort” to do so, and NSU
    did pass around Jones’s name to “provosts and presidents from the other ULS
    determined that there is an implied power to terminate tenured faculty for program
    discontinuance. See Jimenez v. Almodovar, 
    650 F.2d 363
    , 368 (1st Cir. 1981); Joseph G. Cook
    & John L. Sobieski Jr., Civil Rights Actions § 9.13[A] (2015).
    15
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    No. 14-31255
    universities.” The university’s adherence to its credentialing guidelines—
    which, in this context, required at least 18 hours of graduate courses in a
    discipline—was reasonable, and it was therefore not arbitrary to deny Jones
    (who indisputably lacked the requisite hours) a position teaching finance or
    any other non-economics business course. Jones’s assertion that he was well-
    suited for the open director position at the College of Business—in light of the
    requirement that the candidate have experience teaching “modern computer
    technology” and the preference for candidates with “[a]dministrative
    experience”—is also unsupported: the record lacks evidence that he has
    experience in either area.
    His third argument, that non-tenured faculty were retained in his place,
    falls short since the policy on which he relies requires only that non-tenured
    teachers be “considered for termination” before terminating teachers with
    tenure. Jones has failed to put forward any evidence that this did not take
    place. And in any case, retention of less senior employees is not inherently
    problematic. See 
    Russell, 736 F.2d at 289
    n.9 (“Testimony was introduced to
    establish that at the time plaintiffs were dismissed, employees with less
    seniority were retained. This alone, however, does not indicate that the plan
    allegedly employed by defendants was invalid.”); Bignall v. N. Idaho Coll., 
    538 F.2d 243
    , 250 (9th Cir. 1976).
    Jones’s final argument relates to the retention of another teacher,
    apparently with a degree in vocational education, to teach finance. Jones
    argues that NSU’s willingness to transfer that teacher from the College of
    Education to the College of Business without terminating her tenure—and its
    unwillingness to permit him to retain his own tenure—shows that NSU acted
    arbitrarily. The record is extremely underdeveloped on this issue, as is Jones’s
    argument. We are unwilling to say based on the evidence before us that the
    16
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    No. 14-31255
    retention of another professor to teach finance establishes the arbitrariness of
    NSU’s decision to terminate Jones’s tenure in economics.
    Just as the budget crisis factored into the preceding procedural due
    process analysis, it must also be accounted for in the substantive due process
    analysis. See Cty. of Sacramento v. Lewis, 
    523 U.S. 833
    , 850 (1998) (explaining
    that conduct which might trigger a substantive due process violation in one
    circumstance might, “in other circumstances, and in the light of other
    considerations, fall short” (internal quotation marks and citation omitted)).
    NSU had a profoundly legitimate interest in preserving its fiscal integrity.
    Taking that interest into account, we conclude that Jones’s substantive due
    process claims are without merit and that the district court appropriately
    granted summary judgment to Defendants on this issue.
    V. Contracts Clause
    Jones’s final claim is for a violation of the U.S. Constitution’s Contracts
    Clause, which precludes states from “pass[ing] any . . . law impairing the
    obligation of contracts.” U.S. Const. art. I, § 10, cl. 1. The district court did not
    address this claim other than to note that the court’s due process analysis
    foreclosed it. Jones’s challenge under the Contracts Clause appears to be a
    general challenge to the legislature’s decision to reduce funding for public
    universities in the state during the recession. 9
    Where a state can provide a justification for the impairment that serves
    “a significant and legitimate public purpose”—and where the challenged law
    9 Although Jones conceded at oral argument that he did not sign a contract, we assume
    without deciding that the tenure bylaws resulted in a contractual relationship between him
    and NSU. See Ind. ex rel. Anderson v. Brand, 
    303 U.S. 95
    , 100 (1938) (“[I]t is established that
    a legislative enactment may contain provisions which, when accepted as the basis of action
    by individuals, become contracts between them and the State or its subdivisions within the
    protection of article 1, § 10.” (citation omitted)). But see Kaplin & Lee, The Law of Higher
    Education § 6.2.2 (“[I]f there is no contract protecting the employees . . . the contracts clause
    is not at issue.”).
    17
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    was “reasonably necessary” to achieve an adequate purpose—the state does
    not violate the Contracts Clause. United Healthcare Ins. Co. v. Davis, 
    602 F.3d 618
    , 627 (5th Cir. 2010). Importantly, Jones’s argument on this issue does not
    relate to the circumstances of his particular termination; he traces his injury
    instead to the state of Louisiana’s legislative decision to reduce funds to the
    ULS system. That decision served the legitimate state interest of addressing
    the grave economic crisis triggered by the Great Recession. See Energy
    Reserves Grp., Inc. v. Kan. Power & Light Co., 
    459 U.S. 400
    , 411–12 (1983)
    (recognizing that “remedying . . . a broad and general social or economic
    problem” qualifies as a “significant and legitimate public purpose”). Jones
    provides no argument about how the budget reduction could have been more
    narrowly tailored to accomplish this legitimate purpose.
    Additionally, there is no indication that the budget cuts were designed
    to provide “a benefit to a narrow group or special interest,” which is why 
    Davis, 602 F.3d at 631
    , on which Jones relies, is wholly distinguishable.
    Consequently, the district court properly granted summary judgment to
    Defendants on this claim.
    VI. Conclusion
    We therefore AFFIRM the district court’s grant of summary judgment to
    Defendants in all respects. In light of our resolution, we do not reach
    Defendants’ prescription argument or the district court’s decision on qualified
    immunity.
    18
    

Document Info

Docket Number: 14-31255

Citation Numbers: 809 F.3d 231, 40 I.E.R. Cas. (BNA) 1605, 2015 U.S. App. LEXIS 21471, 2015 WL 8593544

Judges: Stewart, Jones, Graves

Filed Date: 12/9/2015

Precedential Status: Non-Precedential

Modified Date: 11/5/2024

Authorities (20)

United Healthcare Insurance v. Davis , 602 F. Supp. 3d 618 ( 2010 )

patsy-finch-v-fort-bend-independent-school-district-don-hooper , 333 F.3d 555 ( 2003 )

Indiana Ex Rel. Anderson v. Brand , 58 S. Ct. 443 ( 1938 )

Perry v. Sindermann , 92 S. Ct. 2694 ( 1972 )

Goldberg v. Kelly , 90 S. Ct. 1011 ( 1970 )

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

Lillie Russell v. Dr. Robert Harrison, President of the ... , 736 F.2d 283 ( 1984 )

Raul Medina Jimenez v. Ismael Almodovar , 650 F.2d 363 ( 1981 )

Walker International Holdings Ltd. v. Republic of Congo , 395 F.3d 229 ( 2004 )

Bliss O. Bignall, Jr., Et Ux. v. North Idaho College , 538 F.2d 243 ( 1976 )

Systems Contractors Corporation v. Orleans Parish School ... , 148 F.3d 571 ( 1998 )

Mathews v. Eldridge , 96 S. Ct. 893 ( 1976 )

Cleveland Board of Education v. Loudermill , 105 S. Ct. 1487 ( 1985 )

Levitt v. Board of Trustees of Nebraska State Colleges , 376 F. Supp. 945 ( 1974 )

Stephan L. Honore v. James M. Douglas , 833 F.2d 565 ( 1987 )

texas-faculty-association-v-university-of-texas-at-dallas-a-public-body , 946 F.2d 379 ( 1991 )

Leonard Levitt v. The University of Texas at El Paso and ... , 759 F.2d 1224 ( 1985 )

Williams v. Texas Tech. University Health Sciences Center , 6 F.3d 290 ( 1993 )

Morrissey v. Brewer , 92 S. Ct. 2593 ( 1972 )

Board of Curators of the University of Missouri v. Horowitz , 98 S. Ct. 948 ( 1978 )

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