The opinion of the court was delivered by: MUIR
Plaintiff In-Cho Chung brought this civil rights action under 42 U.S.C. § 1983 alleging that the Defendant college officials terminated his employment at Mansfield State College in violation of his constitutional rights. Professor Chung claims that he possessed a contractual right to continuous employment under the College's Tenure Policy which was violated when his employment was terminated without an adequate hearing and that thus, Chung was denied "due process of law" under the 14th Amendment to the federal Constitution. Chung also claimed a deprivation of liberty without due process based upon an asserted restriction on his right to free speech. The free speech claim was eliminated as an issue in this Court's opinion on Defendants' motion to dismiss on September 18, 1973. A three-day trial followed on the sole issue of Plaintiff's right to a due process hearing, leaving for later determination the question of the sufficiency of the due process hearing afforded Plaintiff.
After hearing all the evidence and argument of counsel at trial, and upon consideration of all the files, records and briefs, the Court makes the following findings and conclusions.
1. Mansfield State College is an educational institution funded and operated by the Commonwealth of Pennsylvania. (Pa. Public School Code, 1970, Feb. 17, P.L., No. 13, 24 P.S. § 20-2001 et seq.).
2. Under college regulations and practice, the departmental chairman, the divisional dean, and the academic vice-president recommended to the President and the Board of Trustees grant or denial of tenure and this procedure was known to Plaintiff during his employment at the college. (Tr. Vol. 1, p. 127; Vol. 2, p. 150; Vol. 3, pp. 17, 114, 117, 131; R-1).
3. The President did not uniformly follow the tenure recommendations of the departmental chairman. (Tr. Vol. 3, pp. 175-178).
4. The responsibility for determining the method of teacher evaluation for tenure purposes was left to the departmental chairman and varied from department to department. (Tr. Vol. 3, pp. 118-119; Vol. 2, p. 75).
5. When Plaintiff was hired, he received a copy of the Faculty Manual, containing the College procedure for deciding tenure questions. (Tr. Vol. 1, p. 103).
6. Plaintiff is an adult citizen of the Commonwealth of Pennsylvania, residing in Mansfield, Pennsylvania. (Tr. Vol. 1, p. 97).
7. Defendant Lawrence Park is President of Mansfield State College. (Vol. 3, p. 116).
8. Park is a resident of the Commonwealth of Pennsylvania residing in Mansfield, Pennsylvania. (Tr. Vol. 3, p. 116).
9. Defendant Edward Gassner was at all times pertinent to this case, Chairman of the Biology Department of the Mansfield State College and resided in Wellsboro, Pennsylvania. (Tr. Vol. 3, p. 17).
11. Defendant Sylvester Schmitz was Vice President for Academic Affairs of Mansfield State College after 1968 and is a resident of the Commonwealth of Pennsylvania residing in Mansfield, Pennsylvania. (Tr. Vol. 3, pp. 58, 88).
12. Charles Holmes was at all times pertinent to this case, Dean of the Division of Arts and Sciences of Mansfield State College, and resides in Havre, Montana. (Complaint, P 5(c); Answer P 2).
13. On or about January, 1967, Dr. Newelle Schappelle, Chairman of the Biology Department of Mansfield State College until the academic year starting in the fall of 1970, was instructed by the President of Mansfield State College to obtain the services of an instructor of Biology with professorial status; that is, a Doctorate of Biology and at least seven years teaching experience. (Tr. Vol. 2, pp. 45, 46; Vol. 3, p. 16).
14. On or about February, 1967, Plaintiff applied for employment at Mansfield State College, Mansfield, Pennsylvania. At that time Plaintiff held a Doctorate in Plant Biology from the University of Michigan and had eleven years of teaching experience in that subject. (Tr. Vol. 2, pp. 98-102).
15. After travelling to Mansfield State College for numerous interviews, Plaintiff was orally offered a position as Professor of Biology at Mansfield State College by Defendant Sylvester Schmitz, then serving as Dean of the College, and Dr. Newelle Schappelle, Chairman of the Biology Department. (Tr. Vol. 1, pp. 105-107).
16. On April 5, 1967, Plaintiff received written confirmation of this offer from Fred E. Bryn, then President of Mansfield State College. (Complaint, Exhibit #2).
17. On September 1, 1967, after having orally accepted the offer of employment, Plaintiff entered into his duties as a Professor of Biology at Mansfield State College. (Complaint, P 13; Answer P 9).
18. Plaintiff was employed for three academic years between 1967 and 1970 on a year-to-year, probationary status, and he understood his status to be probationary during that period of time. (R-1; R-23, exhibits "A", "B", and "C" of the Complaint, Tr. Vol. 1, pp. 103, 114-116; 133-134).
19. At the time Plaintiff was hired, Defendants indicated that Plaintiff could expect his employment to continue as long as his performance remained satisfactory. (Tr. Vol. 1, pp. 105-108).
20. In the course of his duties as Departmental Chairman, Dr. Schappelle received student complaints about Plaintiff's grading practices and his diction which rendered his lectures incomprehensible. (Tr. Vol. 2, pp. 48-49).
21. Prior to Plaintiff's fourth year of probationary employment, Dr. Schappelle discussed student complaints with Plaintiff (Tr. Vol. 2, pp. 78-82).
22. Prior to Plaintiff's fourth year of probationary employment, Dr. Schappelle informed Plaintiff that if he could not draw students he might not be needed by the college. (Tr. Vol. 2, p. 79).
23. On May 14, 1970, Dr. Schappelle recommended to President Park that Plaintiff's probationary status be extended for two academic years and that formal student evaluations of Plaintiff's teaching effectiveness be obtained. (Tr. Vol. 2, pp. 67, 78, 83; R-9).
24. Prior to Plaintiff Chung's fourth year of probationary employment, Dr. Schmitz discussed with Plaintiff student complaints about his grading practices and classroom presentation and informed him that there was a chance he could secure tenure if he made the necessary improvements. (Tr. Vol. 3, pp. 96-97, 101, 112-114; cf. pp. 107-111).
26. Defendant Park expressed the so-called "concerns" to Plaintiff by the letter dated January 12, 1970 in the following language:
"(1) There are reports by some students that they have difficulty understanding your presentation through language barriers.
"(2) There are disappointing enrollments in upper level elective courses you teach. The feeling is that this fact ...