BREYER, Circuit Judge.
Plaintiff, Robert E. Beitzell, an assistant professor at the University of Maine at Orono (UMO), a state university, was denied an appointment at the university with tenure. He brought this civil rights action under 42 U.S.C. § 1983 against UMO officials in the United States District Court for the District of Maine. He claimed that, in denying him tenure, the university deprived him of "liberty" and "property" without "due process of law". After a hearing the district court found there had been no such denial of Fourteenth Amendment rights and entered judgment for defendants. We affirm.
The facts of this case are set forth clearly and in detail in the opinion of the district court. In summary form they are as follows: After teaching as an instructor at the University of Massachusetts, Beitzell accepted a one-year appointment as an assistant professor of history at UMO in 1967. He was reappointed as an assistant professor in 1968, and again in 1970. He was first considered for a permanent "tenured" appointment by the history department's "Policy Advisory Committee" (PAC) in November, 1971.
The PAC consisted of several tenured members of the history department, including its chairman, William Jeffrey. In the normal course of events, the PAC would recommend to the department chairman whether or not a faculty member should be
Beitzell's tenure case in 1971 was controversial. There is evidence that Jeffrey, the department chairman, felt that Beitzell was unstable and that Jeffrey repeated to various faculty members rumors that Beitzell drank too much. The district court found, however, that Jeffrey made a fair presentation to the PAC of Beitzell's professional qualifications for tenure. When the subject of Beitzell's drinking arose at the meeting, Jeffrey ruled it out of order and prevented further comment. At the end of a "free-wheeling" discussion, the PAC members voted unanimously against a tenure recommendation. Jeffrey, in his role as department head, accepted the negative recommendation and informed Beitzell of his decision. On an official personnel form (which was delayed in transmission to Beitzell for a year) Jeffrey wrote that Beitzell "had not lived up to his promise as a scholar", was "a less than adequate teacher", and "as advisor, he has been totally inadequate".
Beitzell was again considered for tenure in the Fall of 1972. By that time, Beitzell's book had been accepted for publication by a prestigious publisher. Galleys were made available to the PAC, as were summaries of interviews with students, largely favorable to Beitzell. Jeffrey invited Beitzell to a meeting of the PAC to make his own case, but Beitzell declined. Instead, Jeffrey made the presentation on his behalf — a presentation described as "bland", but without offensive remarks. The district court found that all "relevant information supportive of plaintiff's application for tenure was accumulated in advance of the meeting and was available for inspection by members of the committee". The PAC again recommended that the chairman deny Beitzell tenure, this time by a vote of 7 to 6, with Jeffrey abstaining.
Beitzell then hired a lawyer. He sought review of the history department's decision by a Faculty Professional Relations Committee (FPRC) — empowered to hear faculty grievances, to conciliate, and to make recommendations. The FPRC met with Beitzell, then with Jeffrey and others. After discussing the PAC decision in detail, Jeffrey made available to the FPRC a two and one-half page document he had prepared as a basis for his appearance before it. That document was very critical of Beitzell, it detailed behavior which it described as "irresponsible", it cast doubt on whether Beitzell's improved performance would continue,
Beitzell next invoked a new, more formal, grievance procedure, which UMO had just created. Acting under this procedure, the UMO president created a special ad hoc board to hear Beitzell's grievance and make a recommendation. The Grievance Board held a hearing, with lawyers present, during which both Beitzell and representatives of the University were allowed to present testimony and documentary evidence and to cross-examine witnesses. Jeffrey testified and, after he made some references to the document he had used before the FPRC, Beitzell's counsel asked that it be placed in the record. Despite efforts to keep the proceedings confidential, word of Jeffrey's criticisms spread on the campus. The Grievance Committee eventually recommended that the PAC give Beitzell further consideration, particularly in respect to the quality of his book and his teaching. And, the Committee criticized Jeffrey, claiming that his FPRC testimony and the document he prepared were professionally speaking "unethical".
The UMO president then asked the PAC whether it felt it should reopen Beitzell's case. The PAC responded that its hearing had been fair and that it was up to the president to decide whether to reopen. Jeffrey evidently told the president the PAC opposed reopening, and the president wrote Beitzell, denied his request for reopening and affirmed that Beitzell's probationary appointment expired in the summer of 1973. Then, after learning that the PAC actually had not decided whether to reopen, the president gave Beitzell an extension of his appointment through the Fall and told the PAC to decide whether to reopen the case. The PAC voted 12 to 2 not to reopen; the decision was affirmed by a new UMO president; Beitzell exhausted all his internal appeals, and he then filed this lawsuit.
After trial, the district court found that Beitzell had not been deprived of "liberty" or "property" without "due process of law", within the terms of the Fourteenth Amendment. The court found that Beitzell had no protected "liberty" interest: any injury to his reputation was not caused by "University officials in connection with the non-renewal of his contract". While the court found that Beitzell had a "property" interest, it held that he had received all the "process" that was "due", for he received notice, an opportunity to submit to the PAC any information he considered appropriate, the right to present his case to the PAC personally, the right to be evaluated under the history department criteria, and a statement of reasons for denial of tenure.
Beitzell, on appeal, contends that the University, in making public "false and stigmatizing" charges against him without a proper hearing, deprived him of "liberty" without "due process of law". He also claims that procedural protections UMO accorded him were constitutionally inadequate to protect his "property interest" in tenure.
We first take up the question of whether Beitzell had a constitutionally protected "property" interest in tenure.
The broadening of the term "property" to include this "new property",
See also, Perry v. Sindermann, supra, 408 U.S. at 601, 92 S.Ct. at 2699; Bishop v. Wood, supra, 426 U.S. at 344-47, 96 S.Ct. at 2077-2078; Needleman v. Bohlen, 602 F.2d 1, 4 (1st Cir. 1979). While these decisions provide no perfect touchstone for identifying "property", they suggest that the more circumscribed is the government's discretion (under substantive state or federal law) to withhold a benefit, the more likely that benefit constitutes "property", cf. Medina v. Rudman, 545 F.2d 244, 251 (1st Cir. 1976), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 177 (1977), for the more reasonable is reliance upon its continued availability and the more likely it is that a hearing will illuminate the appropriateness of withholding it in an individual case.
Thus, in the area of government employment, a person who holds a job from which he can be removed only "for cause", has a protected property interest, while one who can be removed "at will" does not. Bishop v. Wood, supra, 426 U.S. at 344-47, 96 S.Ct. at 2077-2078. In the former case, the government's power to remove is seriously circumscribed; the person is likely to rely reasonably on remaining employed; and a hearing is likely to help determine whether cause exists. In the latter type of case, the opposite tends to be true. It is not surprising that in Sindermann, the Court held that when a university, without a formal tenure system, led a teacher reasonably to believe that he was a permanent employee, he held a protected property interest. But, in Roth, the Court held that a university teacher hired as a probationary employee without tenure held no protected property interest.
In addition to the history department criteria, Beitzell advanced two other grounds in his complaint to support his claim that UMO's tenure procedure created a property right. First, he contended that UMO automatically granted tenure after seven years of service; and, he stated that he had such service because his previous service at the University of Massachusetts should have been counted as part of the seven years under Section 3.3521
In the absence of unusual circumstances, where a formal tenure system exists, that system confers no "property" interest on probationary employees. Haimowitz v. University of Nevada, supra, 579 F.2d at 528; see also Needleman v. Bohlen, supra, 602 F.2d at 4; Willens v. University of Massachusetts, 570 F.2d 403, 405 (1st Cir. 1978). It would take highly unusual circumstances to show that plaintiff had been granted de facto tenure. No such circumstance is present here. Thus, Beitzell had no protected "property" interest. We need not then consider whether he received the process that was "due". Burns v. Sullivan, 619 F.2d 99, 104-05 (1st Cir. 1980).
We believe that the district court was correct in holding that Beitzell failed to show he was deprived of any constitutionally protected "liberty". The definition of the term "liberty", provided procedural protection by the Fourteenth Amendment, has expanded well beyond its common law core, "the power of locomotion ... without imprisonment or restraint", W. Blackstone, Commentaries on the Law of England: Of the Rights of Persons *134, and includes other fundamental freedoms. In certain circumstances, the list of fundamental liberties accorded procedural protection includes an interest in reputation — at least where the injury to reputation is likely to be sufficiently severe to interfere with the exercise of other fundamental freedoms such as those described in Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), as the right "to engage in any of the common occupations of life," or "to marry, to establish a home and bring up children". Thus, in Roth, the Court, after referring to Meyer, suggested that the Fourteenth Amendment offers protection against a severely defamatory charge, such as a claim of "dishonesty or immorality" that might "seriously damage" one's "standing and associations in his community" or impose a "stigma" that significantly interfered with his ability to "take advantage of other employment opportunities".
In Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976), the Supreme Court, making clear that the Fourteenth Amendment "liberty" does not include all interests protected by state tort law, held that it does not grant procedural protection to reputation alone, "apart from some more tangible interests such as employment". Rather, the injury to reputation must be accompanied by a change in the injured person's status or rights (under substantive state or federal law),
Under these standards, Beitzell has not made out a claim of injury to a constitutionally protected interest. Beitzell cannot claim injury to a constitutionally protected interest in reputation prior to the time he invoked the University's grievance procedure. The fact that the PAC recommended that he not be retained does not injure his reputation sufficiently. Board of Regents v. Roth, supra, 408 U.S. at 573-75, 92 S.Ct. at 2707-2708. In the words of Roth, "It stretches the concept too far to suggest that a person is deprived of `liberty' when he simply is not rehired in one job but remains as free as before to seek another". 408 U.S. at 575, 92 S.Ct. at 2708. Nor does the discussion of Beitzell's tenure credentials — whether he is an adequate teacher, scholar, member of the university community — threaten his reputation insofar as it is constitutionally protected. Such discussions accompany many, if not all, decisions to hire, or to promote, as well as to discharge, an employee, and they threaten no special injury. Willens v. University of Massachusetts, supra, 570 F.2d at 406; Ventetoulo v. Burke, 596 F.2d 476 (1st Cir. 1979). Beitzell claims that, during this time, Jeffrey circulated rumors about his drinking habits. But in the district court's view, Beitzell failed to show that these rumors became public, that they were made available to other employers or that they interfered with his ability to obtain other employment.
Beitzell also claims that the charges contained in Jeffrey's memo, such as excessive drinking, were defamatory and that their circulation on campus after the meeting of the Grievance Committee infringed a protected "liberty" interest. Whether or not the Grievance Committee meeting is sufficiently related to employment termination to satisfy Paul,
In any event, even were there a protected "liberty" interest at stake — and we believe there is not — we would also uphold the district court's decision that Beitzell received the process that was his due. The cases make clear that, when a constitutionally protected interest in reputation is at stake, the Fourteenth Amendment requires a proceeding at which plaintiff has an opportunity to clear his name. Board of Regents v. Roth, supra, 408 U.S. at 573 n.12, 92 S.Ct. at 2707 n.12; Paul v. Davis, supra, 424 U.S. at 709, 96 S.Ct. at 1164; Owen v. City of Independence, supra, 445 U.S. at 633 n.13, 100 S.Ct. at 1406 n.13. Beitzell was given just such an opportunity by the Grievance Committee. He had his lawyer present and was offered the opportunity to present, and to cross-examine, witnesses. He thus could have rebutted Jeffrey's statements, correcting misstatements, had he wished to do so.
In sum, in failing to provide Beitzell with tenure, UMO did not deprive him of "property" within the meaning of the Fourteenth
Depending on their needs, universities and colleges may give different weight to any of the criteria. Thus, for one school, publications and scholarship may be of prime importance, Cussler v. University of Maryland, supra, 430 F.Supp. at 604, 606; for another, teaching may be particularly essential, Peters v. Middlebury College, supra, 409 F.Supp. at 858, 867.
It should be noted that the object of the regulation is not necessarily to grant "automatic" tenure, but rather to make certain a tenure decision is made in time to allow the teacher, if necessary, to find employment elsewhere.
It was reasonable for the district judge to find that it was manifestly not the intent of the drafters of the UMO regulations to incorporate the proposed AAUP regulations by reference, nor was it their intention that those recommendations prevail over the clear meaning of the language of the actual UMO regulations with respect to tenure. As the court observed, "testimony at trial established that the practice at the University was to provide no credit for prior full-time teaching service unless the terms of such credit were agreed upon in writing at the commencement of employment". Beitzell conceded that, at the time of his initial employment at UMO, he did not believe that he was getting any credit for his service at the University of Massachusetts.