mr watkins whenever you're ready well actually i'm sorry but we will just nd till they sit down please the court your honors qualified immunity borscht doctor with his due process claim against these individual defendants because at the time they reviewed his tenure application and made their recommendations in their decision that university officials formulating tenure decisions in the future would likely benefit from qualified immunity from these exact type of claims in the law didn't change in the interim that's it but the district were sites are published harrington versus harris case yesterday which which which specifically says there plaintiff may have a property interest in the rational application of the university merit based policy ignorant of the defendants in the harrington case didn't challenge the contention that there was a property interest in that policy but the court assumed it and they won so it's more than dicta right it's essential to the holding but the court specifically said we need not consider that issue there's no law in the case analyzing whether or not that merit based pay policy actually gave them a property interest and it was also not a thing or policy or on of the court's been clear that discretionary tenure policies put forth by public universities or a different creature they affect the rights of university employees in a different way and the six circuit line of  this is this is a substantive due process kline what those cases say is that a plaintiff may have a minimal property interest for procedural purposes in a fair administration of their tenure process but the six circuit goes on to define that  as just the right to have an impartial impartial person review their change or packet which in all that much different than what you would have under the tenure policy in place here your argument is the record is clear there was an enormous amount of process given to ms here it's just there was a lot of divisiveness in the process but the did different people along the way did certainly disagree about about the merits of dr  several times you never came up on the interlocutory appeals that because other claims are out there your honor there were eight or nine different claims in this case and they were all pending before the district court until i think the jury instruction conference on the th day  alleged that he had that's what his pleading say he had he said that he had five continuous years of positive evaluations by his department chairs and that gave him a property right in ten year that the university deprived him of unconstitutional when it d has is not an interesting tenure but an interest in the fair administration of his tenure process but that overlooks the fact that substantive due process of certain government elections without regard to the fairness of the procedures that were employed there were employment they were used to implement them there are reports out you requested that the instruction that say literally irrational that that was that was a request that you so the jury was supposed to decide work was he treated irrationally  you know when you read the record and he has the two department chairs that for five of his six years are telling him looks good looks good you're going to get it and then the fact of the vote that he gets and then the two university wide committees you know the record that the jury hears about says this was really unfortunate this was a problem one group i mean the individuals were using the textbooks as looking for scholarship and teaching it it's hard to say that a wigginton changed its position it looks like it's just at the very end the new chair changed his position and that was indorsed all the way up that there's a level of regrettable irrationality even if you end up right that there's no property interest you're innocent the rational bit that this is due process rational basis review the question is did these individual defendants who were sued in their individual capacity for damages act in a manner that was without professional judgment it was their action literally irrational and the record is clear and undisputed that at the time they reviewed these to your applications each of these defendants created a detailed contemporaneous writing that explained what their reasons were and the court's not concerned with whether the reasons were good reasons or bad reasons or reasons that are consistent with what somebody else believed gets were their reasons dr wigginton put those documents in the record he never argued that those weren't the reasons that they gave him he never or argued that those weren't those individuals university wide appeals committee said what happened is that the horse was switched mid stream if you're on it they did point to the fact that he received those five positive anal evaluations but those effects were the exact same as the fact vs university of mississippi case where the geology professors department chair told him don't worry about scholarly writings which you need to do is focus on cresent ing it professional conferences to bolster the reputation of this department ultimately he had a new department chair come in at the end of his tenure process who looked at his record and said you haven't done the requisite amount of scholarly work under the policies that apply dr winton knew from the st morning of his employment as a tenure track professor that his department chairs were not going to make the tenure decision he knew from the st day of his employment that there were three different change your policies and that he had to satisfy the requirements of each of those policies he knew that his current department chairs might not even be the department chair at the time he was up for you the levels of policies are there they're not inconsistent with one another either texturally or as applied i don't think it's inconsistent your honor to say that you have to comply with all three of the policies now d was given instructions by the department chairs that said ignore the requirements of one policy that's above ours we're saying you don't need to publish scholarly works then that just puts us back in the stately position dr winton knew that his department chairs were going to be the ones responsible for looking at the application of the school level policy or the university level policy that's what a dean does when he reviews it that's what a provost in a chancellor did they look at the all of the policies put together and consider all of those things  when there are mutually explicit understanding's or in this context there have to be substantive limits on official discretion so you looked in the contract and there weren't assuming that the tin your policies were incorporated into dr wint was allowed to dr winter was allowed to submit an appeal to the i child board all of those things happened there's no substantive right and finish the story and then the appeal board said listen he clearly has been mis advise for years and years so why not give him another year to now do the scholarship that he wasn't ever told they had to do right wasn't that the final committee's recommendation give them another year because we're sort of responsible for the mess that was not the final working on it that wasn't the final word but it was the final university wide appeals committee assessing how he'd been treated well it's important to look at your honor what the appeals committee was charged to do the appeals committee was not charged to review the merits of a ten year application they express noting in about whether or not he should or should not have been entitled to tenure the appeals committee looks to see whether the procedures have been followed whether the people below who are supposed to make decisions were looking at the evidence when they made those decisions the person actually said that had happened they said we acknowledge that dr lambert the department chair and all these other people in the recommending chain actually looked at his record and that's what they base their decisions on but we also think that it's unfortunate that he had this from his department chairs and maybe he should be given another year so that goes up as a recommendation to the chancellor the chancellor is charged to review the merits of the tenure implication the chancellor does have to make that final recommendation that he has the appeals committee's report for him it's undisputed that he reviewed it in his tenure and though he specifically explained why he was declining to follow those recommendations but he had it before him when he made the final merits decision as an and that recommendation goes up to the chancellor in the chancellor looks at it and says gosh that's concerning to me that a department chair again might have personal malice toward an applicant but i'm still charged to look at the merits of the application and decide whether or not that person is entitled to tenure and he might not be qualified for tenure regardless of what the department chair thinks of him so if the chancellor actually took that information and looked at it in with viewed it and again the pr undisputed that he did it's not a substantive right to the outcome of his decision that there was a lower body that was considering whether there was a rational basis and change coming up topple the sure of the standards even higher in this case both because this is a purely academic decision that the courts are wary of wading into and because it's a qualified immunity case there is simply no plea deal established law out there that either establishes the property right that case that i mentioned a minute ago under a case involved a an alleged policy of automatic tenure the professor in that case said if i serve seven years i get tenure well that's not applicable here to a discretionary tenure policy b e an automatic thing a policy would place substantive limits on officials of discretion it would mandate outcome of certain predicates were actually met the spewer case the district court was correct that it set forth the elements of a provided road rational basis for their decision in that case it's that there were financial reasons they couldn't continue paying for a graduate program and tenure this professor for life and held that they were entitled qualified immunity before going on to say that in the future similar academic decisions are going to be subject to qualified immunity from these claims so none of those cases provide fair warning or you know a clear and unambiguous warning to the defendants that you can't make a negative recommendation year after you review this applicant's tinga dossier that they say exactly the contrary and that's particularly true when you look at the specific laundry list of things that dr whittington claims are arbitrary in this case there's no clearly established law for example that holds that a university president main must were tenure when a department chair or sears or chairs is positive or these the staley case says exactly the opposite of that there is no clearly establish law that says that a dean or a department head must agree with the recommendations of an outside reviewer or may not you know critique their qualifications there's no law that says that a scot and that  scholar and an academic who's reviewing academic works can't look at a citation index like google scholar or one of the others that dr lambert looked at to determine whether or not the applicant has ever had his academic work cited by any other scholar which had not in fact happen in this case and there's no dispute about the fact that that didn't happen there's no dispute about the number of peer reviewed journal articles dr whittington that actually published there's no dispute about the type of research he did what the nature of the grants were that he said he applied for all the facts that dr lambert and the other administrators a lot on were not in dispute dr whittington just disagreed with the way they applied their judgments he thought they should have given more weight to his textbook chapters he thought they should give him more weight to the border patrol project that he did they didn't it was within their discretion to do that and not in the university's policy constrain that discretion in any way at any point along the chain thank you counsel you have time for a bot thank you my pleasure to be here thank you mate i appreciate the opportunity to speak to everybody let's remember that in fact there was a five day trial here with nine witnesses thousands of pages of administrators that rule on whether or not tenure is to be given i have to unfortunately vehemently disagree with the position that at the end of the case we changed our position we never felt the ten was guaranteed or a property right it's not in mississippi there's no question about that as a matter of fact there were four motions to dismiss or to dismissed a complaint by the school a motion for summary judgment after discovery further motions at the trial all based on the same misconception that we argued and the judge in it judge biggers himself noted very well that also helped out on that because it seems to me that the decision to give ten year is is subjective at its root and there's no guarantee of it the case would be easy if there were a checklist or a list of items with boxes that a professor or an employee could go and accomplish so we don't have that here help me out on what it what it is that that decision making process what about it gives makes it actionable we don't say that when tin was entitled to tenure because he had no property rights or contract right to tenure to further employment shortcomings were there that makes this actionable if tenure is not something that's a contractual guarantee or an entitlement what about the process makes its violation actionable the process that the school had was fine and precious had lots of protections in it if they were implemented with out in capricious actions by the administrators that eventually ruled on it and if in fact in culture fair day was given and if in fact the actions of these administrators was not literally irrational as the jury found but good but isn't we do have to find he had a protected property what's your best legal authority for that proposition that put them on notice and also quote for me from his employment contract or even these guidelines where it gave him just that right it seems intuitive someone will be treated fairly good faith will be exercised by the administrators in making the determination not that the determination will go in we're going to favor but they are good faith will be exercised good faith fairness he had a right to he had to comply with the says schools system as you said the process which we did they did in built into the system it and it's just not intuitive that it was supposed to be fair look at the process along the way there was a before you get to the other part of my question what is the case because the cases relied on that the district court don't seem to stand for the proposition that someone in tenure track has a property interest in good faith case that under mississippi law and non tenured employees contract rights to constitute enforceable property interest that's this court course in two thousand but isn't that subsequent to the incident here isn't case i'm relying on the on the klingler case and my point and all these were both before i would cling were in the end the point of lost correct but no case ever went to trial all of these where the coup this court has accepted and mississippi lawyer establishes a contract right if you have external documents like the employee manuals with these three different university policies they would have to really i mean it is it could be very unfortunate to be given inconsistent advice but if it's contracted read if you are nominated for the crow board or whatever it is he got the nomination for you will get it that constrains discretion it seems like under on or a and others at that point he's got a minimal property interest but here what it said was you know there are these three competency categories and it's discretionary all the way through out and chancellor can say no matter how good you are the interest the university but that's it but that's not really the issue  the issue is not that they have a lot of discretion they have all discretion but they can't just like in other types of law you can't discriminate on base which is not the case here but you know you have all discretion to do what you want you can't discriminate point being they didn't create all of the senate then he acknowledged it too for that council to stay they can do whatever they want which is what the judge once asked and they we can do whatever they want that is not how this system the school itself understands they can't this is why they have different committees along the way advising different administrators along the way to find administrators along the way that ruled on this before it went up to the boy there were two committees the to tenure and promotion appeals committee and then the tenure and promotion committee which you also described as having found it to be arbitrary and capricious i thought and he stated this orally the nd committee specifically said it wasn't in one sense in that the individual determinants found had reason to deny it but then they said in another sense it was a problem because he had been given miss advice a game it's not so much the miss advice and i don't want the case to be flown to fall on the grounds that all he had good reviews and therefore he was entitled to tenure or that the administrators were obligated to find ten you know not at home that is not my position whatever he got below and the judge called them glowing reviews and we put it into evidence fine it is not by itself anything other than possibly a indication that what's really going on here is that they're willing the administrators ah betraying capricious and literally irrational because dean of the school burton he made it clear and the testimony is there he wanted to get rid of practitioner thing practitioners as the light that this school he wanted academics he wanted to get with and he was the st guy within him was the  person up for tenure under this new rule burton lambert came in under burton as the chair lambert wrote this on her own position totally opposite of  other chair and dean in this department and school ruled on fine they can do what they want but they have to not use their newfound standards or the selective determinations as a cover for what they really wanted which was to change the practice get rid of practitioners well the jury accepted that and understudies or defend its vigils in this case i tried to read very closely the record cites you gave for those assertions particularly guess mr burton and you did cite your cross of him yet to the notion that he wanted to get rid of police officers yes when i read that cross in the pages you get it it didn't seem like you elicited that well judy show in other words you said you're saying you don't like cops cops are stupid they can't read and dr burton never ever said that the burden did say sir that the cops are not as smart no he said cops should be able to read the rules in what context that it was up to the cop to understand not to follow what his chairs had told them as to what the standards for scholarship were but they him to determine whether or not the really need an exact record cite can you give me one now you must remember because you had him on trial would it be your cross of mr burton is that the closest you've got it's in the court of course of course that's wrong he said i'll move on but if i may just of course doesn't like to just make this one was it seemed to me the more true mr flicker you're correct i intended to get rid of them now but when you put it all together throughout the entire cross and we going to end the testimony i had two chairs prying chairs in the court room you know to testify should say  witnesses in the end direct and in their cross they said he wanted eleven of the witnesses actually said yeah he said to his secretaries and i over heard it many times he wanted to get rid of these practitioners does that picture that they did whatever they could i don't want to make it a you know the super conspiracy of the ages but it's pretty quite the case and so this is you we have the record and yes you saw a stumble it or at least i stumble what's the best mississippi and these defendants that it's clearly established that someone seeking tenure has a protected property interest in being treated fairly as you describe the record the the guidelines for tenure and promotion by the school remember it's a mandatory process the guy that is themselves a good faith will be exercised by the administrators in this determination it doesn't say fair play it doesn't say it does say a determination that is what we said at the st here at the st level and in the nd level they pointed to what they pointed to text books how about the external reviewers as an example and i'm finally getting around to address you the  external reviewers remember they put these schools policies were we will pick the external reviewers so wigginton gave them a list of five from that lambert himself took three and then lambert himself appointed more these are extra reviews that say it's basically the equivalent of a reference letters on you know good character reference letters the school then challenge and denigrated and dismissed the value of the positive external reviews that whittington died because why they had no reason to they didn't sell us the school itself selected the reviewers and then they challenged it then they denied that when something that the nd committee in the appeals committee specifically noted that's a very important fact so it wasn't again i don't want to get lost if i may without repeating myself too much i don't want to get lost on well he had an expectation of t because he a good reviews absolutely not that's not our position that fact that he had actually review sort of fits into the points that you were asking me to identify including the external reviews including the  of fancy conventions he spoke at including the textbook changes including the fact that he was told to fall of the the department's plans and procedures all of these is the ten pieces of they jury judge the credibility of burton i appreciate you read the transcript i read the transcript it's the jury that heard every word whittington was on the stand for again a half he had a lot dissenting he wasn't understand happen to my questioning he was under the questioning of course of the school burton was on the stand for a couple bunch of hours the jury decided the credibility of the witnesses and is obviously no dispute i would imagine that it is the jury that decides the credibility they accepted as the judge as judge biggers himself said that the disingenuousness of the position of the school was clear to the jury yet does he have the us or any court and this law is convoluted and split which is how you described it to the district court how could that ever be fair notice for purposes of qualified immunity if only st of all if i may the and capriciously and irrationally and not exercise professional judgment in reaching in reaching their conclusion to deny tenure not that he had the right to tenure but it to make in the process he had that way once the school denies all abrogates its ability to terminate employees at will which they had until they issued eased the guidelines for tenure and promotion  of and there documenting their findings for a set on that point it was pretty clear that at the position we took with they were parroting it and the testimony from five days a trial was that they did parent as a matter of fact one of the i think it was a jones the chancellor then his testimony was a home business you know i looked at and i read it but that's the point of it too to take the position that because they completed reports if you look at the reports they are parroting all of the actions they took including the denial of the textbooks including the rejection of the external review and including the google scholar metric that never existed including their obligation to do more than whatever he was told including the rejection of of was i guess its core argument is that the very manuals in place took away discretion created a minimal property interest because they used the word good your honor on the on the same page that the words good faith  which says good faith is required in all facets of the process by all participants presumably the policy says it's based on a series of qualitative judgments about the scholars work and that even if they satisfy all of the criteria even if they me scholarship even if they meet teaching even the meets even if they meet service and want to be a good fit the finances might not be there you're not guaranteed tenure even if you're qualified for that that's the opposite of a constraint on discretion always or even if we don't like you correct your honor it says if you're not a good fit with the university i mean if the decision goes up to the president and the president looks back at the employment fall and finds that there's been an employee who's you know been in a fistfight with his department chair or something it doesn't matter if he's written a one hundred scholarly articles it's going to be a problem for his tenure application you're going to think twice about whether you want that person tenure for life to your university it doesn't rise to a cause of action if the president decides i want academics i don't want basis if that was part of his take a decision and there wasn't any proof that that was an affirmative consideration that he made but even if it was that would also be a rational basis the wix case that we cite in our briefing from the mississippi supreme court from mississippi valley state university says that the desire to upgrade the department in a take a decision is in fact a rational basis it is a reason it exists mr flicker doesn't dispute that any of those tenure memos are out there again he just doesn't like what they said there's not a single case your position is we don't even get to the process and the facts whether was arguing capricious because there's no case that put you on notice that he had a property interest at all that's correct and i think that and even if the court were to consider it the plaintiff in klingler said exactly what dr whidden said well i'm not arguing that i have an interest in tenure i have an interest in the process somehow i have an interest in being able to participate in the process or work to retain your and this court said no you don't even have that because if you're not entitled to tenure an opportunity to participate in the process leaves you no better place than you would have been to start with you don't you can't switch trains and seek a different property interest i do want to point out a thirty one tim closing argument page three thousand one hundred and twenty eight that was the argument until it was inconvenient because the law didn't support it that was the theory that he argued this case on  know the review committee i did want to point out to the actual report of the review committee is on page two thousand eight hundred and eighty six of the record the check boxes were not the report of the committee an individual who filled out the check box in question was not a witness at trial and did not explain what her check boxes meant the review committee as did the appeals committee later actually found that the reviewers in the chain up to that point were not arbitrary and capricious in their decision making and they had relied on the evidence in place at the time  make their decision that we talked about the practitioner issue the textbooks to your honest point that the guidelines switched on textbooks that's not exactly what happened if you look at dr jones's testimony in his tenure memo that textbooks can be evidence of scholarly work there can be academic textbooks but that he reviewed dr wigginton specific textbooks and found as do the other defendants that they summarized information for