Tonkovich v. Kansas Board of Regents

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...)

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 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.

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 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.

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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

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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.

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 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.

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