Key Points

  • The Tenth Circuit held that tenured Emporia State professors plausibly alleged a state-law property interest in continued employment, even though university policy allowed firing for financial exigency or program discontinuance.
  • The court held that the Kansas Board of Regents' January 2021 tenure-suspension amendment did not itself deprive the professors of that interest; the deprivation came through the board's approval of ESU's framework followed by the terminations.
  • The court held that the framework approval was plausibly executive rather than legislative action, so the professors stated a clearly established procedural due process violation, and it found the officials had waived the legislative-act argument in district court.
  • The court reversed the denial of qualified immunity on the substantive due process claims as to all defendants and on the equal protection, freedom of association, liberty-interest and related conspiracy claims as to the regents, Thomas, Lovett and Johnson.
  • Judge Eid dissented on the property-interest claims, arguing that no particularized precedent put officials on notice and that the framework approval could reasonably be viewed as legislative.

A federal appeals court ruled Monday that nine tenured professors fired by Emporia State University can pursue claims that Kansas officials took their job protections without due process. The court held that the professors plausibly alleged their tenure survived a statewide policy change and was lost only when the state's regents approved the university's own plan for cutting faculty and the university fired them.

A divided panel of the U.S. Court of Appeals for the Tenth Circuit affirmed in part and reversed in part a Kansas federal court's refusal to grant the officials qualified immunity, which shields government officials unless they violated clearly established law. Circuit Judge Ebel wrote for the court. Circuit Judge Eid concurred in part and dissented in part, arguing that no earlier case had warned the officials that the firings were unconstitutional.

The Kansas Board of Regents' 2021 amendment suspending tenure protections did not by itself take anything from the professors, the court held. The deprivation came when the board approved Emporia State's framework and the university fired the professors the same day. Because that approval was plausibly an executive act aimed at a small group, rather than legislation, the professors were owed notice and a hearing first.

The panel also ordered dismissal of the professors' substantive due process claims against all defendants, and of their remaining constitutional claims against every defendant except the university's interim president.

The board, whose members are appointed by the governor, voted on Jan. 20, 2021, to amend its Workforce Management Plan, citing financial pressures caused by COVID-19. The amendment provided that "notwithstanding any other Board or institutional policy, any state university employee, including a tenured faculty member, may be suspended, dismissed, or terminated from employment by their respective university." Before using the new policy, however, a university had to win the board's approval of a framework for carrying it out.

Emporia State's interim president, Ken Hush, and its provost, Brent Thomas, presented the university's framework on Sept. 14 and 15, 2022, suggesting that 7% of the faculty could be affected. The board approved it on Sept. 15. The same day, the university fired the nine plaintiffs, effective May 16, 2023, in letters citing "extreme financial pressures accelerated by COVID-19 pandemic" and declining enrollment. The professors alleged that the university faced no financial emergency and that they were really fired for supporting unionization and holding liberal political beliefs.

All nine appealed to the state Office of Administrative Hearings, where, they alleged, they could not call witnesses, cross-examine university officials or learn why each of them had been chosen. The office reversed six of the firings and upheld three.

The officials argued that the professors never had a protected property interest because policy also allowed tenured faculty to be fired for financial exigency or program discontinuance. The panel disagreed. "We conclude both that Plaintiffs sufficiently alleged a legitimate tenured property interest in continued employment created under state law," Judge Ebel wrote, and that the professors sufficiently alleged they were denied adequate process. A bona fide financial exigency or program discontinuance would end that interest, he wrote, but the existence of those exceptions "does not totally eliminate their property interest; it just shapes its contours."

The majority held that the regents' 2021 vote was not the moment of loss. "This law merely authorized ESU and other educational institutions to take steps to modify its contractual rights with its professors," Judge Ebel wrote. "It did not by itself accomplish such a modification." He compared the case to Londoner v. City and County of Denver, a 1908 Supreme Court tax case in which the deprivation came only at the final step.

The officials argued that approving the framework was also a legislative act requiring no hearing. The panel held the argument waived because it was not raised in the district court, and rejected it anyway at this early stage. "The relatively small number of exceptionally affected individuals both makes notice and hearings practicable and makes political action in response against the Defendants impractical," the court wrote.

The majority also rejected the dissent's view that a reasonable official could have believed the professors lost tenure in 2021, noting that the university officials had themselves drafted the framework the policy required. The hearings that followed were deficient as alleged, the court added, because "constitutional termination hearings are premised on the fact that the employee is aware of and able to respond to the reason for termination."

Judge Eid wrote that the majority found a violation of clearly established law "without citing a factually analogous case." She called Londoner, which involved a municipal tax, "a case not similar at all." Because procedural safeguards are what define tenure, she wrote, removing them arguably ends it. She added that the framework reached every tenured professor at the university, not only the 11 who were fired, so "the defendants could reasonably believe that KBOR’s authorization of the Framework, which affected all ESU employees, was legislative."

On the remaining claims, the panel found no allegation that the regents or Thomas helped choose which professors to fire. The university's two lawyers, general counsel Kevin Johnson and associate general counsel Steven Lovett, allegedly helped draft the termination letters but not choose whom to fire. Only Hush signed the letters, and the panel held it was not clearly established that unsigned drafters could be liable for reputational harm. The officials did not appeal the ruling keeping those claims alive against Hush.

Dwight R. Carswell, a deputy solicitor general in the Kansas attorney general's office, represented the officials. J. Phillip Gragson of Henson, Hutton, Mudrick, Gragson & Vogelsberg LLP represented the professors.

The panel sent the case back to the U.S. District Court for the District of Kansas with instructions to dismiss the claims it rejected. The procedural due process claims and the related conspiracy claims will proceed against all defendants. The panel said the district court is better suited to address on remand, after further discovery and briefing, whether the administrative hearings could count as name-clearing hearings, the remedy for reputational injury.