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A public tenured professorship is not a fundamental property interest and therefore not entitled to substantive due process protection, a federal appeals court has ruled. The decision by the 3rd U.S. Circuit Court of Appeals upheld a ruling by the U.S. District Court for the Middle District of Pennsylvania and denied an appeal of a former tenured professor and medical doctor at the Pennsylvania State University. The issue was one of first impression in the circuit, and the unanimous panel, led by Judge Samuel A. Alito, said its reasoning follows the majority of appellate courts that have ruled on the issue. “[W. Channing] Nicholas’s tenured public employment is a wholly state-created contract right; it bears little resemblance to other rights and property interests that have been deemed fundamental under the Constitution,” Alito wrote in Nicholas v. Pennsylvania State University. Nicholas was an associate professor of physiology at the university’s Noll Human Performance Laboratory. He was fired from his job after a “series of run-ins” with a new supervisor, Dr. William Evans. When Evans was hired in 1993 as the new director of the Noll Lab, he asked Nicholas to provide the supervisor with research plans, curriculum vitae and a written schedule for work at the lab. Nicholas did not readily provide the information. Evans gave Nicholas several written warnings, and on June 17, 1994, Evans terminated Nicholas. Nicholas said he was fired because he had contacted the State Board of Medicine to complain about Evans’s research methods involving non-medical personnel performing muscle biopsies without any medical supervision. The professor appealed his termination, and after the school’s tenure committee held a hearing, it ruled that three out of five charges against the teacher were adequate causes for termination. Nicholas filed a suit alleging, among other things, breach of contract, violation of procedural and substantive due process and retaliatory firing in violation of the First Amendment. The district court ruled that the university breached Nicholas’s tenure contract but ruled in favor of Penn State on the other counts. Nicholas appealed the decision, raising several issues, the first being that Penn State violated the substantive component of the Fourteenth Amendment’s due process clause “by firing him for an arbitrary, irrational or improper reason.” The Fourteenth Amendment says that no state shall “deprive any person of life, liberty, or property, without due process of law.” The court said that in order for a plaintiff to prevail in a non-legislative substantive due process claim, he or she must establish a “protected property interest to which the Fourteenth Amendment’s due process protection applies.” The court said for a claim to survive, the plaintiff must show that he or she has been deprived of a “particular quality of property interest.” The court noted that the case law on the subject provides “little guidance.” “Nevertheless, we believe that a careful review of the case law does reveal one guiding principle: whether a certain property interest embodies this ‘particular quality’ is not determined by reference to state law, but rather depends on whether that interest is ‘fundamental’ under the United States Constitution,” Alito wrote. The court said it has thus far limited non-legislative substantive due process review to cases involving real property ownership and has been reluctant to “extend substantive due process protection to other, less fundamental property interests.” The court then ruled that Nicholas’s tenured public employment was not a fundamental property interest and therefore not entitled to substantive due process protection. “Accordingly, we view public employment as more closely analogous to those state-created property interests that this court has previous deemed unworthy of substantive due process than to the venerable common law rights of real property ownership …,” Alito wrote. The ruling affirmed the district court’s decision awarding judgment to Penn State on the substantive due process claim. The appeals court also denied the rest of Nicholas’s issues raised on appeal.

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