(dissenting).
The decision relied upon by the majority, Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), was decided after the District Judge had entered his opinion and judgment in this case. As I read the Bishop case, it materially changed preceding law in this field. Bishop makes determination of whether an employee has a property interest in his job which is pro*18tectable under federal due process a matter to be determined entirely by state law. There now appears to be no federal remedy, even if the state clearly is seeking to evade enforcement of a federal constitutional prohibition which is applicable to the states.
At the time of the District Court decision in this case, I feel that the lawyers, the District Judge, and the profession generally had believed under prior precedents that the federal court in dealing with a federal constitutional claim was required to make an independent examination of the state law issue.1 The Supreme Court has now negated this belief. Bishop v. Wood, supra.
Although the District Judge in this case did cite a Kentucky statute which gave broad powers over teacher tenure policy to the governing board of the state’s universities, those powers are not in dispute at this appeal. Rather, the plaintiffs’ claim is that their university board itself by continuing them in employment beyond the term set in the university’s own tenure policy, granted them tenure by the reasonable implication of the board’s own acts.
With all respect to my colleagues, I believe that the parties should have the right to brief and argue the property right question and have the District Judge decide it, as the Supreme Court has now mandated, under Kentucky law rather than federal law.
The fact that the District Court may, on remand, reach the same result which the majority reaches by its own analysis of Kentucky law does not in my view justify depriving the litigants of the opportunity properly to brief the Kentucky law on implied contracts which the Bishop case has made controlling.
I would vacate the judgment and remand for reconsideration in the light of Bishop v. Wood, supra.
. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); see also Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).