an Ad Hoc Tenure Review Committee to evaluate plaintiff's performance and qualifications and make a recommendation with respect to tenure. While ordinarily the recommendation to the Dean on tenure comes from the department in which the professor teaches, plaintiff was a member of the Department of Labor Studies, a new department at the University concerned with a relatively new academic discipline. The Department of Labor Studies lacked the necessary tenured senior faculty members to provide a properly constituted tenure review committee. Thus, as was the established practice at Penn State in such cases, Dean Paulson appointed an ad hoc interdisciplinary tenure review committee, selecting its members on the basis of their academic and leadership experience and their professional backgrounds, and without regard for their political beliefs or philosophical predilections. Professor Golatz, plaintiff's department chairman, did not object to the appointment of the ad hoc committee in May 1971. Dean Paulson submitted to the ad hoc committee all the information concerning plaintiff which the University had, including all the material submitted by Professor Golatz. Professor Golatz recommended tenure for plaintiff but conceded in the recommendation that plaintiff is generally "impatient and imprudent." Professor Golatz had previously declined to recommend plaintiff for promotion from assistant to associate professor status even though 80% of the Penn State faculty members have achieved associate professor status before being awarded tenure and even though the average time for receiving the promotion to associate professor in the College of Arts and Sciences is four and one-half years. Plaintiff had been an assistant professor for approximately six years.
The ad hoc committee reached its decision without interference by Dean Paulson, to whom its recommendation was to be made and who, as was his custom, was prepared to accept the recommendation of such a committee. At no time did Dean Paulson discuss with the ad hoc committee plaintiff's political or other extramural activities or his support of organizations or groups. Nor did Dean Paulson or any other member of the University suggest to the committee in any manner what decision they should reach. Indeed, the existence and actual membership of the committee was known only to the five committee members, who agreed the membership of the committee would be confidential, and to Dean Paulson and President Oswald. The committee was free to seek any additional information it desired.
The ad hoc committee was an interdisciplinary group of five senior tenured professors who were chosen on the bases of their acknowledged scholarship in departments in the social sciences with which the interdisciplinary Labor Studies program is related and their experience in evaluating faculty members for tenure and academic advancement. The committee consisted of: Robert K. Murray, Professor of American History; Grant Farr, Professor of Economics; Robert Friedman, Professor of Political Science; Gordon DeJong, Professor of Sociology; and Carroll C. Arnold, Professor of Speech Communication. This committee based their evaluation of plaintiff on the usual academic criteria of teaching performance, research and publication, continuing education activities, service to the University, and scholarship and professional growth. After carefully evaluating plaintiff's performance and accomplishments in each of these categories, the committee unanimously concluded as follows: "It is therefore the committee's collective opinion, after careful examination, discussion, and deliberation, that the overall performance of Dr. Wells Keddie has been below the minimum it deems necessary for retention as a tenured staff member." While the committee's assessment of plaintiff's work in continuing education was favorable, their evaluation of teaching effectiveness was partially favorable and partially unfavorable, their evaluation of publications and research, of scholarship and professional growth were unfavorable, and service to the University was considered minimal.
In short, faculty tenure is conferred at Penn State as an award for excellence, and the ad hoc committee found that plaintiff's performance was not outstanding. A professor's work and qualifications must exceed mere competence to justify an award of tenure and hence permanent employment at Penn State.
Plaintiff asserts that the ad hoc committee in reaching its decision impermissibly penalized him for his political and other extramural activities. Plaintiff was an active participant in political and student causes. He was a vocal critic of some policies of the United States Government, particularly its involvement in Vietnam and its social policies with respect to blacks, the poor, and other disadvantaged groups. Plaintiff believed that the Penn State administration was insensitive to the needs and demands of students and blacks, and he was a strong advocate of giving students a greater role in the governance of the University. He helped to organize and participated in protest activities directed at the University administration as well as the United States Government. He served as faculty adviser to Students for a Democratic Society and to the Ad Hoc Committee for Student Rights. He served as counsel for students charged with violating University rules before the Judiciary Board. He was an active participant in the Vietnam teach-in, Mayday anti-war rally, moratorium days, and other Vietnam protest activities. He was a member of such organizations as Coalition for Peace, Citizens Against Capital Punishment, Union for Radical Economics, Union for Radical Political Economy, and the Executive Council of the New University Conference. Plaintiff participated in the activities on the Penn State campus directed at ending the war in Southeast Asia, ending alleged racism in the United States, and in numerous campus movements directed at changing the situation of students at Penn State. He acted as counsel to students, spoke at student meetings and rallies, acted as a mediator in campus disputes, and raised bail money for students in jail. He was openly critical of the Penn State administration for many of its policies and for the failure of the University to become actively involved in social and political causes he deemed just. Plaintiff was a controversial figure on campus as a result of these activities. Plaintiff, however, has not proven that these activities affected in any manner the tenure denial decision reached by Penn State.
The court finds that the preponderance of the evidence clearly shows that the ad hoc committee, as well as Dean Paulson, regarded plaintiff's personal activities in the political realm and his other extramural activities
as having no effect, either favorable or unfavorable, on their tenure evaluation of him and on his academic status at the University. As stated in the ad hoc committee's final report on tenure:
"From the beginning, the committee considered Dr. Keddie's personal political beliefs as irrelevant to its examination unless such beliefs could be shown to have a detrimental effect on his academic performance. The committee did not find any demonstrable definitive connection between the two. On the other hand, the committee did not regard personal beliefs as having a positive effect on performance. That is, the committee regarded Dr. Keddie's personal activities in the political realm as having no more or less valuable or invaluable effect on his academic status as activities by other faculty members on behalf of the Republican or Democratic parties, or on behalf of church denominations, etc. . . ." See plaintiff's exhibit No. 17.
The court finds that the committee in fact disregarded plaintiff's political and other extramural activities in the manner set forth above.
In short, the ad hoc committee did not base its decision to recommend denial of tenure in whole or in part on plaintiff's extramural activities. The court finds that after a thorough and impartial study of plaintiff's performance and qualifications, specifically his scholarship and professional growth, service to the University, continuing education activities, research and publications, and teaching performance, the committee unanimously decided that plaintiff's academic performance had been below the minimum necessary for retention as a tenured staff member. Dean Paulson's decision to deny tenure to plaintiff was based solely upon the ad hoc committee's recommendation and the reasons the committee set forth in support of that recommendation. See plaintiff's exhibit No. 17; defendants' exhibit No. 1. Thus, the court holds that plaintiff's discharge was not predicated even in part on his exercise of first amendment rights. The evidence shows that the tenure denial has a rational basis.
Having found that the defendants did not rely in whole or in part on constitutionally impermissible factors or criteria in reaching the tenure decision and that the decision has a rational basis, this court should not and will not undertake a de novo review of plaintiff's academic performance and qualifications. This court is powerless to substitute its judgment for that of the University as to whether plaintiff's academic credentials are such that tenure should have been awarded. The judiciary is not qualified to evaluate academic performance. The courts do not possess the expert knowledge or have the academic experience which should enlighten an academic committee's decision. The courts will not serve as a Super-Tenure Review Committee. See Chung v. Park, 3 Cir. 1975, 514 F.2d 382; Skehan v. Board of Trustees of Bloomsburg State College, 3 Cir. 1974, 501 F.2d 31, 40; Clark v. Holmes, 7 Cir. 1972, 474 F.2d 928; Johnson v. Branch, 4 Cir. 1966, 364 F.2d 177, 181; Simard v. Board of Education of Town of Groton, 2 Cir. 1973, 473 F.2d 988. Thus, plaintiff's contentions that the ad hoc committee did not "properly evaluate" his performance and that the committee members were not "qualified" to evaluate his academic performance simply are not cognizable in this action. The tenure decision has a rational basis and the ad hoc committee did not predicate its evaluation and decision on constitutionally impermissible factors. That is the extent of this court's power to review the substance of the tenure decision.
In view of the court's finding that the tenure denial was not based even in part on plaintiff's political and other extramural activities and utterances, the court need not decide which of plaintiff's activities and utterances were indeed protected by the first amendment. The court notes, however, that although academic freedom is a constitutionally protected right, Healy v. James, 1972, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266; Keyishian v. Board of Regents, 1967, 385 U.S. 589, 603, 87 S. Ct. 675, 683, 17 L. Ed. 2d 629, 640; see generally Van Alstyne, The Constitutional Rights of Teachers and Professors, 1970 Duke Law Journal 841, academic freedom is not a license for uncontrolled expression or activity at variance with established curricular content or job-related procedures and requirements, nor does academic freedom encompass activities which are internally destructive to the proper functioning of the university or disruptive of the educational process. See Pickering v. Board of Education, 1968, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811; Roseman v. Indiana Univ. of Pennsylvania, At Indiana, 3 Cir. 1975, 520 F.2d 1364; Clark v. Holmes, 7 Cir. 1972, 474 F.2d 928, 931. First amendment rights must be applied in light of the special characteristics of the environment in the particular case. See Roseman v. Indiana Univ. of Pennsylvania, At Indiana, supra. As stated by the Supreme Court in Pickering v. Board of Education, 391 U.S. at 568, 88 S. Ct. at 1734, 20 L. Ed. 2d at 817:
". . . At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."
Thus, certain legitimate state interests may limit the right of a public employee, specifically the right of a state university professor, to say and do what he pleases: for example (1) the need to maintain discipline or harmony among co-workers; (2) the need for confidentiality; (3) the need to curtail conduct which impedes the teacher's proper and competent performance of his daily duties; (4) the need to encourage a close and personal relationship between the employee and his superiors, when that relationship calls for loyalty and confidence; (5) the need to maintain a competition of different views in the classroom and to prevent the use of the classroom by a teacher deliberately to proselytize for a personal cause or knowingly to emphasize only that selection of data best conforming to his own personal biases; (6) the need to prevent activities disruptive of the educational process and to provide for the orderly functioning of the university. See Clark v. Holmes, 7 Cir. 1972, 474 F.2d 928, 931-932; Roseman v. Indiana Univ. of Pennsylvania, At Indiana, 3 Cir. 1975, 520 F.2d 1364; Simard v. Board of Education of Town of Groton, 2 Cir. 1973, 473 F.2d 988; Knarr v. Board of Trustees, N.D.Ind. 1970, 317 F. Supp. 832, aff'd 7 Cir. 1971, 452 F.2d 649; Robbins v. Board of Education, N.D.Ill. 1970, 313 F. Supp. 642, 645-647; Goldwasser v. Brown, 1969, 135 U.S.App.D.C. 222, 417 F.2d 1169; Hetrick v. Martin, 6 Cir. 1973, 480 F.2d 705; Johnson v. Branch, 4 Cir. 1966, 364 F.2d 177; cf. Arnett v. Kennedy, 1974, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15; see generally Van Alstyne, The Constitutional Rights of Teachers and Professors, 1970 Duke Law Journal 841; Developments In The Law-Academic Freedom, 81 Harvard Law Review 1045 (1968).
PROCEDURAL DUE PROCESS
Plaintiff contends that his denial of tenure and his discharge without a pretermination hearing is a violation of procedural due process. A pretermination hearing is not a hearing held prior to any decision to terminate, but rather a hearing held prior to the termination of benefits -- in this case prior to the actual termination of employment at the end of the final academic year. Chung v. Park, 3 Cir. 1975, 514 F.2d 382, 386 & n. 7. The function of the hearing procedure is to inform the professor of the grounds for his non-retention and to allow him to challenge their sufficiency. A post-decision hearing in which the professor has the burden of proof is adequate to satisfy due process. Perry v. Sindermann, 1972, 408 U.S. 593, 603, 92 S. Ct. 2694, 2700, 33 L. Ed. 2d 570, 580; Chung v. Park, 3 Cir. 1975, 514 F.2d 382, 387.
Whether plaintiff was entitled to a pretermination hearing is dependent upon whether he had the requisite property interest in continued employment. A professor claiming a constitutionally protectable property interest in continued employment must be able to point to some objective criteria by which the university administration has indicated a willingness to limit its discretion with respect to an otherwise at-will employment relationship. The Supreme Court has held that in the case of government employment a public college professor dismissed from a tenured position, Slochower v. Board of Education, 1956, 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692, discharged during the term of his contract, Wieman v. Updegraff, 1952, 344 U.S. 183, 73 S. Ct. 215, 97 L. Ed. 216, or terminated after receiving a clearly implied promise of continued employment, even though nontenured and without a formal contract, Connell v. Higginbotham, 1971, 403 U.S. 207, 208, 91 S. Ct. 1772, 1773, 29 L. Ed. 2d 418, 420, has an interest that is safeguarded by the due process clause. In Perry v. Sindermann, 1972, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570, the Court stated that a professor at a state college has a property interest protected by due process when he has a binding understanding fostered by the college administration -- i. e., when the state college has a de facto tenure program based on rules or established practices and that in effect the professor had de facto tenure under that program. However, in Board of Regents v. Roth, 1972, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548, the Court held that a public professor who had a mere expectancy of being retained -- i. e., a unilateral expectation of it -- did not have a property interest protected by the due process clause. Property interests are not created by the Constitution, and whether a state college professor has a right to continued employment is a question of state law. Morris v. Board of Education of Laurel School District, D.Del. 1975, 401 F. Supp. 188, 208-210. As stated by the Court in Roth, 408 U.S. at 577, 92 S. Ct. at 2709, 33 L. Ed. 2d at 561:
" Certain attributes of 'property' interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.