Prem Kumar v. Board of Trustees, University of Massachusetts, Prem Kumar v. Board of Trustees, University of Massachusetts , 774 F.2d 1 ( 1985 )

WYZANSKI, Senior District Judge.

This is primarily an appeal by the Board of Trustees of the University of Massachusetts (“the University”) from a judgment based on the district court’s finding that the University, in denying professorial tenure to Prem Kumar, discriminated against him because of his race and national origin and on that court’s conclusion that in so discriminating the university violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Kumar v. Board of Trustees of University of Massachusetts, 566 F.Supp. 1299 (D.Mass.1983).

We need not fully recite the terms of the relief awarded by the court nor repeat either all of the University’s objections thereto or the plaintiff’s objection which has led to his cross-appeal, for, in our opinion, there is, as a matter of law, no evidence to support the court’s finding of discrimination.

The following summary of our opinion seeks to point a path through a complicated record.

The University's denial of tenure for the plaintiff is embodied exclusively in the May 14, 1976 negative decision of the chancellor.

There is no evidence that the chancellor had made with respect to the plaintiff or any other person at any time any statement indicating racial bias, a term we use in this opinion to embrace bias on account of national origin as well as bias on account of race. Nor is there any evidence that the chancellor ever has been accused of racial bias in any case other than this plaintiff's. Nor is there any evidence that racist statements about Kumar were known to the chancellor before he decided not to recommend tenure for Kumar. Nor were such statements referred to in any part of Ku-mar's file as reviewed by the chancellor in 1976.

The district court's ultimate finding of racial discrimination is based on what seem to us illogical and unsound inferences.

We now turn from the summary of our opinion to a more elaborate recital of the facts. Except when we note otherwise, we rely upon the findings of the district court.

On February 23, 1970 the University appointed for one year Prem Kumar, who had been born in 1943 in Rawalpindi, India-now Pakistan-to the non-tenured position of Assistant Professor of General Business and Finance in the School of Business Administration of the University of Massachusetts at Amherst.

In 1975-76 Kumar came up for a tenure decision. The University's regulations governing tenure were set forth in a brochure entitled "Academic Personnel Policy", of which there were editions in 1975 and 1976, not different in any respect material to this case. The texts are set forth in the district court's opinion. One relevant section provides that "Consideration of a candidate for tenure shall be based on ... [c]onvincing evidence of excellence in at least two, and strength in the third, of the areas of teaching; of research, creative or professional activity; and of service . . ." The regulations provide that evaluation of the candidate is made successively by the candidate's own department, the department chairman, the faculty personnel committee of the school, the dean of the school, the provost of the campus, and the chancellor of the campus. In those successive reviews each reviewing authority has before it a file with respect to the candidate. That file should (1) contain the annual evaluations made of the candidate which summarize student opinion as well as faculty opinion of the candidate's teaching ability, (2) set forth what scholarly work the candidate has published and is engaged in, (3) report on his service activities, and on his publications, (4) include the letters commenting on the candidate and (5) transmit the judgments expressed by those who have already reviewed the file. In general, each review is an appellate, not a de novo proceeding. Emphatically this is so at the "campus level" of review-the only one we need consider in depth. The following provisions, of which paragraph 3 deserves special note, govern:

At the campus level, there shall be a review of the college or school recommendation that is based on all the evidence in the basic personnel file. The following considerations shall apply to the campus review, recommendation, and, where appropriate, decision:

1) Prior to a recommendation or decision that may be contrary to the recommendation from the next lower level, the Provost and Chancellor shall invite the officer at that level to provide additional information for the basic file or clarification of the recommendation.

2) Review of the recommendation shall take into consideration the qualifications of the individual, and, for ... the award of tenure, the justification of the recommendation within the context of campus long-range plans.

3) When the Provost and Chancellor make a recommendation or decision contrary to the recommendation from the next lower level, it shall be only for compelling reasons, written in detail, which shall specifically address the content of the recommendations and the established criteria.

When Kumar’s file reached the campus level and was delivered to Associate Provost Bischoff, it contained a 5-2 favorable vote by the plaintiff’s department, a favorable recommendation by the departmental chairman, Sidney Sufrin, a 6-0 favorable recommendation by the School of Business Administration Personnel Committee, a favorable recommendation by that school’s dean, George S. Odiorne, the six salmon-colored annual reviews of Kumar’s performance from October 1, 1970 through August 31, 1975, copies of the three full-length scholarly articles and various shorter reviews published by the plaintiff, letters by Associate Dean Wolf, and a recommending letter from the chairman of the Department of Economics at Princeton University — a former colleague of the plaintiff and an attendant at some of his lectures.

In Dean Odiorne’s December 17, 1975 memorandum of recommendation there are included these paragraphs:

There is a note of concern about his teaching, which was communicated to the Dean and Associate Dean, as noted in Dr. Wolf’s letter. Kumar is foreign born, and his modes of communication are not that of the native born American. He is perfectly lucid in his language, but combined with one of the most technical and difficult courses tends to produce lower ratings among non-majors in core courses. He is concerned about it and works at improving this dimension. The content of his courses is impeccable, his rigour [sic] unmatched, and the best students praise him highly. In technical sessions for his peers he is articulate and they have no problem.

When the chairman of the economic [sic] department at Princeton states a firm recommendation and indication from other persons of equal competence and prestige suggests that he would merit tenure at any institution, I would suggest that it would be a serious error to let him get away from us. The peronnsel [sic] committee deliberated upon his teaching and concluded that rigor and competance [sic], specially [sic] at the advanced level would merit a unanimous recommendation. The possibilities that he may gravitate toward graduate courses where he is more successful and less in the basic introductory courses where the non-majors and less quant [sic] competent students find him less pleasing is a possible solution. I concur with his chairman, his personnel committee, the school’s personnel committee, and recommend approval of tenure and promotion.

With that background, Associate Provost Bischoff, in an April 9, 1976 memorandum, informed Dean Odiorne that the Kumar file “exhibits strength, possibly excellence, in research/scholarship, but I cannot find convincing evidence for strength in either teaching or service.” [Ex. 88]. Bischoff requested Odiorne’s reaction to Bischoff’s “firm belief that Professor Kumar’s teaching has been and still is well below average for the department and the School. Unless this perception can be altered, I will have to recommend that he be denied tenure.”

On April 23, 1976 Dean Odiorne replied with a memorandum, well over a thousand words long, which concluded that he, the departmental faculty, and the school personnel committee all recommended that Kumar be given tenure. However, the text is filled with negative data including the following passage which the district court’s findings omit. (See 566 F.Supp. at p. 1310):

In addition to the departmental committee, the Dean’s Office has studied Ku-mar’s case further and the following information [was] generated.

1. Dean Wolf at my request with students of the Graduate Business Association, in conference on levels of teaching in the School found discontent among them about Master’s level course teaching. Wolf suggested a written evaluation instrument for all MBA students, unlike the regular questionnaire asking MBA’s rated the five highest and five lowest teachers. Kumar appeared among the lowest more than a dozen times, and was listed among the top five only once. (See the Wolf report attached)

2. The reasons for this rating are given, and personal interviews with members of the Student Cabinet and MBA association indicated that he is seen by these students as excessively theoretical, difficult to follow, and requires more math and quantitative assignments than any other course. He does not deal with current events. [Emphasis in original]

3. In a recent attempt to respond to peer and student advice, Kumar followed a suggestion of students that he start each class dealing with current events from financial papers such as the Wall Street Journal and New York Times. He reluctantly attempted to do this and the result was even more vehement denunciation. A group of MBA candidates visited the Dean demanding his firing. The Dean concludes from this that Ku-mar is not a good teacher from popular current events. The students are not being unduly deprived, however for Louis Ruyhaper [sic] on ETY is available on Channel 2.

“The Wolf report” (just referred to at the end of paragraph 1, supra,) was not fully described in the district court’s findings. It was not a report from Wolf himself, but was an April 23, 1976 memorandum from Odiorne to Bischoff on the subject called “Report of Associate Dean Wolf Into Reported Master’s Student Dissatisfaction With Professor Kumar’s Teaching”. [Ex.23]. That memorandum does not, as the district court’s findings wrongly imply, contain any racist remarks. That a teacher has difficulty in communicating because of a foreign accent is, if true, a relevant fact, not necessarily a racist slur. That memorandum included Odiorne’s version of what Wolf told him that an undetermined number of Kumar’s students in an advanced course had written on their questionnaires. This double hearsay included the following:

Seventeen specific comments were taken from the questionnaires returned to date, that make mention of the BA 606 course. They are: too theoretical, fire Kumar, can’t communicate, Kumar terrible, Ku-mar teaches quantitative methods of valuing stock which is questionable Godawful, etc.

The district court failed to observe that there is no evidence that any of the particular students whose votes and statements Wolf passed on to Odiorne had ever disclosed a racially biased attitude.

There were in the file as it reached Assistant Provost Bischoff and university officials before May 14, 1976 no racist remarks such as “the little gook” and “that black bastard”, on which the plaintiff largely pitched his case.

In sum, the district court’s specific findings with respect to the Wolf report fail to recognize that that report has no racial aspect and furnishes no basis for a finding of racial discrimination.

On April 27, 1976 Acting Provost Bis-choff by memorandum informed Dean Od-iorne as follows:

Thank you for your memorandum of April 23 in response to my memorandum dated April 9 asking for additional clarification in the Kumar ease.

As you well know, Section 4.10(a) of the Academic Personnel Policy indicates that tenure consideration will be based on: “Convincing evidence of excellence in at least two, and strength in the third, of the areas of teaching; of research, creative or professional activity; and of service, such as to demonstrate the possession of qualities appropriate to a member of the faculty occupying a permanent position.”

While I may be willing to grant that Dr. Kumar has achieved excellence in research, I am not convinced from data available to me (i.e., the Wolf report, etc.) that Dr. Kumar is even an average teacher in spite of what you cite as peer judgment about the content of his courses. This along with your assessment that his service is adequate places Dr. Kumar well below the standards envisaged by the University. My assessment of Dr. Kumar’s service is that it has been far less than should be expected of a faculty member within the Professional Schools.

In that Dr. Kumar clearly does not meet the stated criteria for tenure, I must inform you that I am recommending that he not be reappointed beyond 8/31/77.

Bischoff’s adverse recommendation led to post-May 14, 1976 protests promoting reconsideration at the provost level. The precise steps are retraced in the district court’s opinion. 566 F.Supp. at pp. 1311-14. For our purposes it suffices to note that Bischoff in a February 2, 1977 memorandum addressed to Provost Paul Puryear reversed his vote and concluded:

At this point, in the face of the support of the School of Business Administration for Dr. Kumar at all levels, coupled with the persuasive responses provided to all of my questions and concerns, I feel that I have no other choice than to recommend that Dr. Kumar be granted tenure and am forwarding his file to you for your review and consideration. [Emphasis in the original]

On May 13, 1977 Provost Puryear reversed the February 2, 1977 favorable recommendation by Bischoff. The district court summarized that reversal as follows:

By memorandum dated May ll[sic], 1977, Plaintiff’s Ex. 42, addressed to Bis-choff with copies to Chancellor Bromery, Associate Provost Chappell, Dean Od-ióme, and Professor Kumar, Provost Puryear indicated that he had conducted his review pursuant to Bischoff’s February 2, 1977 memorandum, and expressed his conclusion, based on his thorough study of the original tenure file and the material added since that time, that the original decision of April 1976 was correct and there was no basis for reversing the recommendation to deny tenure. Puryear stated that “[i]t is clear that teaching is the crucial factor in the judgment that Kumar ought not to be awarded tenure,” and while noting that the file contained “a great deal of evidence intended to establish strength ... which no doubt points in that direction,” nonetheless observed that:

[T]here is also a significant amount of contrary evidence. Indeed, I have rarely seen a tenure file with negative assessments of teaching approaching the volume, variety, and credibility that one finds in Kumar’s case; and the negative evidence, in my judgment, clearly outweighs the positive. It is not of course, a matter of proportion of positive to negative comments. One has to judge in the appropriate context, and to compare this file with the general run of tenure files as a whole. In this light, the negative material on Kumar’s teaching becomes decisive.

Puryear closed the memorandum by indicating that since there was no basis for reversing Bischoff’s original recommendation, the “current situation” .remained unaltered, and Kumar’s termination date remained August 31, 1977.

Meanwhile, on May 14, 1976 Chancellor Bromery, and Acting Provost Alfange had sent to Dean Odiorne the following memorandum [Ex. 29]:

After reviewing carefully the materials in the tenure file relating to Professor Prem Kumar of the Department of General Business and Finance, including the additional material presented at the meeting which we held with you and Professors Sufrin, Burak, and Rivers on May 11, it is our decision to support the recommendation of Associate Provost Bischoff that Professor Kumar not be granted tenure. Therefore, he should now be given a one-year terminal appointment for 1976-77 if he does not already hold an appointment through that academic year, and the necessary Personnel Action forms to provide for the expiration of his appointment, effective August 31, 1977, should also be promptly processed.

Our decision in this case (which, at Professor Kumar’s request, was made without considering the report on his teaching prepared by Associate Dean Wolf and submitted to the Provost’s Office with your memorandum of April 23, • 1976) is based on our conclusion that Professor Kumar has failed to achieve excellence, within the meaning of the Academic Personnel Policy, in any of the three areas of evaluation — teaching, research, or service.

With regard to teaching, while we have taken note of the fact that the evaluations of Professor Kumar’s classes have improved dramatically in the past year, and that there is now a modest amount of vigorous student support for the award to him of tenure, the fact remains that all the available evidence of his teaching prior to this year indicates that its quality has been well below average. On the basis of this, and even allowing for the sharp improvement in quality in the past year, it is impossible for us to conclude that Professor Kumar can in any way be described as having achieved excellence in teaching.

With regard to research, we note the brevity of his list of scholarly publications. In six years, he appears to have only three full-fledged articles (as opposed to research notes or book reviews) in refereed journals. While the journals in which this work has appeared are unquestionably of top quality, the limited amount of actual publication makes it impossible to characterize his scholarly achievement as excellent, particularly in light of the serious deficiencies that have been noted in his teaching record.

With regard to service, Professor Kumar has engaged in a modest amount of such activity within the School of Business Administration and off-campus. However, his involvement in service seems to have been at about the level we would routinely expect of all faculty members, and there is no evidence that it can be said to have risen to the level of excellence in any respect.

Since we conclude that Professor Kumar has achieved excellence in none of the three areas of evaluation, and since Section 4.10(a) of the Academic Personnel Policy requires that there be “[cjonvinc-ing evidence of excellence in at least two” of these areas, we are unable to recommend him to the President for the award of tenure.

Following the chancellor’s May 14, 1976 decision, Kumar on June 17, 1977 initiated a grievance procedure. We need not follow all the details. Suffice it to say that, pursuant to June 7, 1979 directions from the president of the University, the chancellor reconsidered the case.

By letter dated July 31, 1979 [Ex. 48] the chancellor wrote to the president of the University as follows:

Pursuant to your memorandum of June 7, 1979, I have now reviewed the complete tenure file and grievance materials of Professor Prem Kumar according to the conditions set forth in the memorandum dated May 18, 1979, from you to the Trustee Committee on Faculty and Educational Policy:

(a) The file was made complete by restoring the materials on teaching and service found missing on May 14, 1976 and July 11,1977, before I made my review.

(b) In making my review, I considered Associate Provost Bischoff’s February 2, 1977 memorandum as the relevant Provost’s level recommendation.

(c) Excluded from consideration during my review were the so-called “Wolf Report” and the letter from Professor Hartzler of February 9, 1977.

My review, made under the conditions described above, leads me to the conclusion that I cannot recommend Dr. Prem Kumar for tenure at this time. The file as amended does not contain “convincing evidence of excellence in at least two, and strength in the third, of the areas of teaching; of research; creative or professional activities; and of service, such as to demonstrate the possession of qualities appropriate to a member of the faculty occupying a permanent position.” Specifically, my assessment leads to the conclusion that there is evidence only of strength in (a) research and professional activity, (b) possible strength in service, but (c) no strength in teaching.

By letter dated August 17, 1979 the president informed Kumar of the chancellor’s decision and stated that “the Chancellor’s decision ... exhausts the appeal process.” [Ex. 47].

Meanwhile, on May 18, 1977 or shortly afterwards the University awarded tenure in the School of Business Administration to Professor William B. Whiston.

On June 28, 1976 Kumar filed with the Equal Employment Opportunity Commission (“EEOC”) a charge that the University in denying him tenure had violated 42 U.S.C. § 2000e-5. On March 7, 1978 the Department of Justice sent to Kumar an undated right-to-sue notice which had been issued by the EEOC.

In light of its subsidiary findings — digested above — the district court promulgated its evaluative findings and conclusions of law. In so doing, it followed the framework which we approved in Banerjee v. Board of Trustees of Smith College, 648 F.2d 61 (1st Cir.1981).

The court concluded that the plaintiff had established a prima facie case inasmuch as he had proved (1) that as an East Indian the plaintiff was a member of a racial or national origin minority; (2) that the plaintiff was a candidate for tenure and was qualified under the University of Massachusetts standards, practices or customs; (3) that despite his qualifications plaintiff was rejected; and (4) that tenure positions in the School of Business Administration were open at the time that the plaintiff was denied tenure.

The court, continuing to apply the analytical framework approved by us in Ban-erjee, found that “Defendant’s articulated reason for the denial of tenure to Kumar is that Kumar failed to satisfy the demanding criteria of the University of excellence in two, and strength in a third of the areas of research, service, and teaching.” 566 F.Supp. at p. 1323. However, the court added that “The Court views this articulated reason as essentially directed to the decision-making of Bromery after President Knapp had remanded the case to him for review.” Id.

Next, the court, still adhering to the Banerjee framework, considered whether the articulated reason was a pretext. And it found that “the reason articulated by defendant is pretextual.” That ultimate finding the court made (see 566 F.Supp. at pp. 1323-26) on these stated grounds: (1) the chancellor had not given any substantive weight to Bischoff’s favorable recommendation dated February 2, 1977, (2) the chancellor’s statements regarding Kumar’s research and service lacked credibility and undercut the chancellor’s credibility on the issue of teaching, (3) the chancellor’s disparagement of Kumar’s teaching was (a) in conflict with the “peer assessment of Ku-mar’s teaching” and (b) based upon statistical compilations of anonymous student course evaluations undertaken pursuant to University procedures and compiled on University forms, (4) while “the heavy emphasis placed upon plaintiff’s teaching in the review of his tenure case [suggests that it] was in and of itself a pretext for denying tenure ... The Court does not find that the emphasis placed on teaching was necessarily pretextual,” [Emphasis added] (5) “the articulated reason of ‘no strength in teaching’ is not credible ... The careful assessment made by Kumar’s peers, the evaluations of his advanced courses, letters of support from students, and the assessment made by a fellow faculty member who actually observed Kumar’s teaching first hand were all strongly supportive and indicated excellence, or at the very least, strength in teaching,” (6) “the statistical compilations were relied upon ... as a pre-textual means of denying tenure” (7) “the Wolf Report did provide a means for the discriminatory attitudes of some students to pervade the decision-making in plaintiff’s case,” and (8) the failure of University officials to expunge the document from Kumar’s file indicated racial bias against Kumar.

The district court also concluded (pp. 1326-27) that its:

findings with respect to the prima facie case and rebuttal of defendant’s articulated reasons portend and subsume to a greater or lesser extent the Court’s findings concerning violations of the University Policy in the review of Kumar’s case ... The Court finds that violations of both the letter and the spirit of the University Policy repeatedly occurred in the consideration of Kumar’s case resulting in the exclusion of supportive data from his file and the inclusion in his file of improper materials adverse to his case.

The court then stated at p. 1328:

The Court finds from the evidence presented and the inferences drawn therefrom that the denial of tenure to plaintiff was the result of intentional discrimination against him because of his race and national origin, and concludes that the defendant Board of Trustees of the University of Massachusetts is liable to plaintiff for such discrimination.

Upon those findings and conclusions the court entered a judgment ordering, inter alia, the University to accord professorial tenure to Kumar. This appeal and cross-appeal followed.

We face a preliminary procedural point. We must determine which particular denial of tenure the plaintiff was entitled to have reviewed by the district court.

When the complaint in this action was filed on June 5, 1978 it was based on the chancellor’s May 14, 1976 denial of tenure. It obviously could not be based on his subsequent July 31, 1979 memorandum. Hence the district court erred in its premise that it was reviewing the July 31, 1979 decision by the chancellor. This error vitiates all its evaluative and ultimate findings and conclusions.

Next we face the problem whether the chancellor’s May 14, 1976 decision was a final decision of the University and if so whether it was set aside by the president of the University in either his May 18, 1979 memorandum to the Committee on Faculty and Educational Policy [Ex. B] or his June 7, 1979 direction to the chancellor referred in the chancellor’s July 31, 1979 letter [Ex. 48] so that the controversy alleged in the complaint has become moot.

When on May 14, 1976 the chancellor stated that he was “unable to recommend him [Kumar] to the President for the award of tenure.” [Ex. 29], that decision was a final decision or order of the University. As the chancellor testified, his “negative tenure decisions weren’t normally sent forward to the President’s Office” [A. 740]. The May 14, 1976 decision was no exception.

Afterwards, on June 17, 1976 the plaintiff initiated a grievance procedure. It was not technically a “petition for rehearing” nor an “appeal.” It was a new case: a “collateral attack” on a “final decision”. That collateral attack plus this civil action brought by plaintiff in the district court on June 5, 1978 led the president on May 18, 1979 to recommend [Ex. B] and apparently on June 7, 1979 to direct [Ex. 48] the chancellor to reconsider, but not to vacate, his earlier decision. On July 31,1979 the chancellor wrote the president that “My review ... leads me to the conclusion that I cannot recommend Dr. Prem Kumar for tenure at this time.” [Ex. 48]. That communication marked the failure of the collateral attack. However, that collateral attack had not for one moment suspended, as a petition for rehearing or an appeal would have suspended [see Zimmern v. United States, 298 U.S. 167, 56 S.Ct. 706, 80 L.Ed. 1118 (1936)] the original 1976 decision by the chancellor.

It follows that no action or conduct which occurred during or after the collateral proceedings can be the basis of liability in the present action. Of course, post-May 14, 1976 behavior may throw a retrospective light on the chancellor’s May 14, 1976 decision, but such post-1976 behavior is not in itself conduct to which the complaint in this action is addressed or upon which the district court could properly directly base a finding or conclusion of liability. At all times this suit remains an action limited to charging the University with having violated the Civil Rights Act of 1964 by the chancellor’s May 14, 1976 decision refusing professorial tenure to Kumar.

We now turn to consider whether the relevant evidence before the district court sustains its ultimate finding that the University racially discriminated against the plaintiff when on May 14, 1976 it denied him tenure.

We approach this question mindful that pursuant to Fed.R.Civ.P. 52(a) we are not to set aside a finding of fact, even a Title VII case finding involving mixed questions of law and fact, unless it was “clearly erroneous.” Sweeney v. Board of Trustees of Keene State College, 604 F.2d 106, 109, n. 2 (1st Cir.1979) But, as we said in Sweeney, “We shall look carefully, however, to detect infection from legal error, and of course the clearly erroneous standard does not shield findings that are unsupported or arbitrary.” Id.

The district court proceeded quite properly when it analyzed the evidence within the framework which we approved in Banerjee v. Board of Trustees of Smith College, supra. Cf. White v. Vathally, 732 F.2d 1037 (1st Cir.1984). See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

The district court correctly found that the plaintiff was a member of a racial or national origin minority, was a candidate for tenure at the School of Business Administration, and had been rejected at a time when tenure positions in that school were open. But the first contested issue is whether Kumar was “qualified under [University of Massachusetts] standards.” Banerjee, p. 62.

The University of Massachusetts standards for tenure, indubitably are, as the court found:

The award of tenure can be made only by the President with the concurrence of the Board of Trustees. Consideration of a candidate for tenure shall be based on the following:

a) Convincing evidence of excellence in at least two, and strength in the third, of the areas of teaching; of research, creative or professional activity; and of service, such as to demonstrate the possession of qualities appropriate to a member of the faculty occupying a permanent position.

To be “qualified” by the University’s standards the candidate must be “excellent” in at least two of the three fields of teaching, scholarship, and service. The chancellor concluded that in none of those fields, except possibly scholarship, did Ku-mar deserve a rating of “excellent.”

In our opinion it was clearly erroneous for the district court to have found that the chancellor was wrong in concluding that both in service and in teaching Kumar was not “excellent”. So, even if we assume that Kumar was “excellent” in scholarship he was not “qualified”, and it was “clearly erroneous” for the district judge to have found otherwise.

Kumar’s service consisted almost exclusively of supervision of the candidates for a master’s degree. We may — though we are not clear that we should — assume that in refereeing articles for economics journals Kumar was also rendering the kind of service referred to in the University's regulations. But that is the total service in seven years. Kumar says he was never asked to do more than he did. To that the obvious reply is that it is only of the blind that it may justly be said that “They also serve who only stand and wait.” Manifestly, Ku-mar’s service was not “excellent.” So he was not “qualified” unless his teaching was “excellent”; and that the district court deliberately did not find to be the case.

As to Kumar’s teaching there is a barely plausible case for claiming that for students in advanced courses, and for those students in introductory courses who were the brightest or the most interested, Ku-mar was an excellent teacher. But the unanimous, or virtually unanimous academic view — of administrators, teachers, and students — was that for average students in introductory courses Kumar was either below average or average.

Moreover, when the court found that Ku-mar’s teaching was, if not excellent, at least strong, he was undertaking to estimate Kumar’s capacity to teach by how advanced and particularly good students viewed him. That was an impermissible approach. The University of Massachusetts and its chancellor had a right to regard as indispensable a candidate’s capacity to teach excellently or at least with strength those who are average students in whatever courses the university reasonably and in good faith assigned to the teacher. Understandably, for introductory courses an administrator may prefer a Williston-type of teacher to a Frankfurter-type of teacher. Such preference, if bona fide, may not be used as a basis for an inference of racial bias. Nor may a candidate be heard to complain on the ground that the university ought to assign him to teach exclusively graduate students or other types congenial to him. It is for the administrators of the university, acting in good faith, not for the candidate, nor for the judge, to set the dimensions of the post for which the university offers employment. Here the University of Massachusetts had a post for a teacher of introductory and advanced courses in its School of Business Administration. It was not a position so subtly defined as to eliminate a truly qualified candidate toward whom the appointing official had a racial bias.

With regard to Kumar’s scholarship we may assume — since it does not matter if we do so indulge the plaintiff — that the district court correctly found that Kumar’s scholarship was excellent. But in so assuming we are not to be understood as disagreeing with the chancellor’s May 14, 1976 less favorable estimate of Kumar’s then response to the academic canon of “publish or perish”. It seems to us that it was erroneous for the district court to have found that the chancellor was not in good faith or, to adopt the district court’s Pick-wickian vocabulary, “incredible” in articulating his judgment that Kumar’s scholarship was not “excellent”.

We deem it appropriate, in light of what we regard as the district court’s clearly erroneous and clearly potentially damaging finding that the chancellor lacked “credibility”, to add that it was also “clearly erroneous” for the district court to have found that the chancellor’s articulated reason for denying Kumar tenure was pretextual.

Fundamental to the district court’s error with respect to its pretextual as with respect to its other findings was the court’s confusion as to what was the denial complained of in this action. We repeat that this civil action covers only a denial which occurred before suit was brought.

Unhappily, the district court, instead of keeping this case within the boundaries relevant to an action to set aside a May 14, 1976 decision, treated the matter as though the court were reviewing the actions of the University and its officials at later dates. That error led the district court erroneously to premise its conclusions on such out-of-bounds documents as the February 2, 1977 Bischoff memorandum and the vagaries of Dean Odiorne’s post-May 14, 1976 activities.

Other errors were the district court’s misconstruction of the Wolf report. There was no basis for treating either the text or the sources of that report as racist.

The court’s pejorative comments on the statistics before the chancellor and on the omissions from and mistaken inclusions in the Kumar file might have had relevance to a challenge to the due process of the University’s procedure. But in themselves they were wholly irrelevant to a charge of racial discrimination, in the absence of any evidence that those who included improper material, or omitted material which should have been included, had a racist bias.

It seems to us that the district court, despite the contrary signal in Texas Department of Community Affairs v. Burdine, supra, at pp. 258-260, 101 S.Ct. at 1096-1097, treated Title VII of the Civil Rights Act of 1964 as though it were an affirmative action statute, and so proceeded on the theory that once a candidate was “qualified” under the standards of the university, it would be pretextual for the university’s administrator not to appoint him on the ground that he did not measure up to the administrator’s vision of the ideal teacher. But this overlooks the difference between the selection of a craftsman and of a professional. A bricklayer who can properly lay a specified number of bricks in a specified period is ordinarily as good as any other bricklayer likely to appear. But in the selection of a professor, judge, lawyer, doctor, or Indian chief, while there may be appropriate minimum standards, the selector has a right to seek distinction beyond the minimum indispensable qualities.

Here the chancellor in good faith was seeking not a merely qualified candidate for the professorship, but a teacher particularly well-suited to teaching undergraduates. This he articulated in his testimony [A. 746-47]:

The mission of the University is, as stated and articulated by the Board of Trustees has been that the most important role of the University is teaching. The faculty members, I think, have demonstrated their agreement with this primary responsibility of the University by each year doing this in depth, how to improve undergraduate teaching. I have heard it articulated many times in the faculty forum and at the Faculty Center by many faculty members, even though there are individual faculty members within my Department that believe that the research record of the Department makes it recognized nationally. The majority of the members of my faculty believe that the best product we put out that gets the best reputation for the University is not particularly a research project but the students that we send out to the graduate schools and the professional schools throughout the country and throughout the world.

So I would, assessing all, that my judgment is that I believe the vast majority of the faculty in my opinion of the campus at the University of Massachusetts of Amherst is that teaching is a number one priority of those three areas.

The chancellor or other appointing authority has the right — one might say the professional duty — to select in good faith among qualified candidates the ones who in his honest judgment best suit the university’s needs. That method of selection is the very badge of excellence in the selector, as we all have been taught by perhaps the greatest of academic selectors, Dr. Charles W. Eliot, once president of Harvard University. Disregarding the type of conventionally-qualified but undistinguished candidate who had been picked by his predecessors, Dr. Eliot, against the judgment of the majority of professionals, chose for the Harvard faculty potentially-gifted professors William James, Henry Adams, C.C. Lang-dell, Charles Eliot Norton, and others who like those just named were originally without much faculty support but who are now enshrined in the Dictionary of American Biography.

While a William James may not be available for appointment by any university, the chancellor, since he was in good faith and not biased on account of race, or other prohibited motives, was entitled to decline to pass on to the president and trustees the name of a particular “qualified” candidate on the sole ground that in the chancellor’s opinion the candidate was not as good a teacher as the chancellor expects to discover to teach the particular combination of courses for which a candidate is sought.

Reversed.