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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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