## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 26 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EMIL A. TONKOVICH, Plaintiff-Appellee,

v. KANSAS BOARD OF REGENTS, ROBERT C. CALDWELL, TOM E. HAMMOND, JOHN B. HIEBERT, KAREN KREPPS, JOHN G. MONTGOMERY, PHYLLIS NOLAN, FRANK C. SABATINI, SIDNEY WARNER, GENE A. BUDIG, DELBERT M. SHANKEL, P. DELBERT BRINKMAN, DAVID E. SHULENBURGER, ROBERT H. JERRY, II, SIDNEY A. SHAPIRO, REGINALD L. ROBINSON, A. KIMBERLY DAYTON, ELINOR P. SCHROEDER, ELLEN E. SWARD, SANDRA C. McKENZIE, ANN VICTORIA THOMAS, ROSE A. MARINO, H. RUTHERFORD TURNBULL, III, NANCY ANN DAHL, E. P. JOHNSEN, JOHN MICHEL, DELORES RINGER, and ROBERT HEMENWAY, individually and in their official capacities, Defendants-Appellants. Nos. 96-3402, 96-3403, 96- 3404, 96-3405, 96-3406, 96- 3407, 96-34082

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 95-CV-2199)
Timothy Mustaine (James M. Armstrong and Mary Kathl een Babcock with him on the brief), Foulston & Siefkin, L.L.P., Wichita, Kansas, for DefendantAppellant in Case No. 96-3402. William Scott Hesse, Assistant Attorney General (Carla J. Stovall, Attorney General, Kevin D. Case, Assistant Attorney General on the brief), Topeka, Kansas, for Defendants-Appellants in Case No. 96-34 03. Andrew F. Sears (Robert F. Bennett and David C. Wet zler with him on the brief), Bennett Lytle Wetzler Martin & Pishny, L.C., Prairi e Village, Kansas, for Defendants-Appellants in Case No. 96-3404. John I. O’Connor, The Advocates Group, Pittsburg, K ansas, for DefendantAppellant in Case No. 96-3405. Thomas A. Hamill (Kathryn Gardner with him on the b rief), Martin, Pringle, Oliver, Wallace & Swartz, Overland Park, Kansas, fo r Defendants-Appellants in Case No. 96-3406. Michael Evan Jaffe (James H. Hulme, Eric B. Bruce, Arent Fox Kintner Plotkin & Kahn, Washington D.C., and Bruce D. Mayfield, Ove rland Park, Kansas, with him on the brief), Arent Fox Kintner Plotkin & Kahn , Washington, D.C., for Defendants-Appellants in Case No. 96-3407. Jeffrey A. Chanay (J. Phillip Gragson and Gail D. E dson with him on the brief), Entz & Chanay, P.A., Topeka, Kansas, for Defendants -Appellants in Case No. 96-3408. Richard P. Hutchison, Landmark Legal Foundation, Kansas City, Missouri, for Plaintiff-Appellee.

Before HENRY , McWILLIAMS , and LUCERO , Circuit Judges.3

HENRY , Circuit Judge.

This is a consolidation of seven separate appeals s pawned by one district court case. Professor Emil Tonkovich, a law profes sor at the University of Kansas School of Law (“the Law School”), filed a co mplaint challenging his dismissal, alleging under 42 U.S.C. § 1983 that the University violated his First Amendment speech rights, and his Fourteenth Amendme nt due process and equal protection rights. He also alleged several state c laims, which are not before us. Although the district court granted the defendants’ motions to dismiss based on qualified immunity with respect to the First Amendm ent claim, it denied the motions to dismiss the Fourteenth Amendment claims. The defendants appeal this partial denial of their motions to dismiss, as serting their entitlement to qualified and absolute immunity. Because we resolv e these appeals on qualified immunity grounds, we need not reach the issue of ab solute immunity. Even taking Professor Tonkovich’s allegations as true, they are insufficient to show that the defendants subjected him, or caused him to be subjected, to the violation of a clearly established right of constitutional di mension. Thus, we reverse the district court’s denial of qualified immunity on Pr ofessor Tonkovich’s procedural due process, substantive due process, and equal pro tection claims.

I. STATEMENT OF THE CASE1 As the district court noted, “[Professor Tonkovich’ s] 101-page amended

complaint is the antithesis of the ‘short and conci se’ pleading requirement of Fed. R. Civ. P. 8(a).” Aplts’ App. vol. IV, doc. 18 at 1313. Indeed, it reads like an amalgamation of a complaint and a response to a mot ion for summary judgment. 4 A. Legal Standard On appeal from a motion to dismiss, we must accept all of the well-pleaded allegations in the complaint as true. Albright v. Oliver , 510 U.S. 266, 268 (1994). However, we need not accept conclusory allegations. Swanson v. Bixler , 750 F.2d 810, 813 (10th Cir. 1984). We must libe rally construe the pleadings and draw all reasonable inferences in favor of the plaintiff. Id. Accordingly, the facts recited herein are gleaned f rom Professor Tonkovich’s first amended complaint. 1 As we analyze the issues presented by the doctr ine of qualified immunity, which we shall discuss below in greater detail, we are guided by the Supreme Court’s statement of our task: An appellate court reviewing the denial of the defe ndant’s claim of immunity need not consider the correctness of the p laintiff’s version of the facts, nor even determine whether the plaint iff’s allegations actually state a claim. All it need determine is aquestion of law: whether the legal norms allegedly violated by the d efendant were clearly established at the time of the challenged a ctions . . . . Mitchell v. Forsyth , 472 U.S. 511, 527-28 (1985).
B. Overview Professor Tonkovich was employed as a faculty membe r at the Law School beginning in August 1981. In 1986, he became a ten ured faculty member. In5

1991, a graduating law student (“the Law Student”) complained that, during her first year of law school, Professor Tonkovich had e ngaged in a sexual act with her after discussing her grades. Officials in the Chancellor’s office conducted an investigation, enlisting the assistance of various Law School faculty members and the Dean of the Law School. During the investigation, the Chancellor’s office i ssued written findings and recommendations regarding the appropriate disci plinary action to be taken in Professor Tonkovich’s case. A period of settlementnegotiations ensued. Eventually, the Chancellor filed official written c harges against Professor Tonkovich. An evidentiary hearing was conducted be fore a standing University Hearing Committee, which issued its decision and re commendation to the Chancellor, who dismissed Professor Tonkovich from the faculty in 1993. Professor Tonkovich then took an appeal to the Boar d of Regents. What follows are the details of the events surrounding ProfessorTonkovich’s dismissal, which form the basis of his claims.
C. Facts In May 1991, just after her graduation from the Law School, the Law Student went to Robert Jerry, Dean of the Law Schoo l, and complained that Professor Tonkovich had made a pass at her in the f all of 1988. Dean Jerry informed Professor Tonkovich that a female student had complained about his6

conduct. However, he did not name the student, nordid he provide any details about the nature of the allegation. Professor Tonk ovich denied misconduct and asked to confront his accuser. During July and Aug ust 1991, Professor Tonkovich repeatedly requested that Dean Jerry disc lose the name of his accuser and the nature of the allegation, but the Dean refu sed to do so. In August 1991, the Law Student filed a formal written statement with Vice Chancellor P. Delbert Brinkman, alleging that in July 1988, when she was a first-year law student, she had engaged in a sexual act with Professor Tonkovich, who was her professor at the time, and that the actwas preceded by a discussion of law school grades. That same day, a local telev ision news crew came to the Law School. The station later aired a segment abou t allegations of sexual misconduct against various law professors, who were not named. Later that day, Professor Tonkovich learned the name of his accuser . Shortly after the Law Student filed her written statement, Law Professor Elinor Schroeder told Vice Chancellor Brinkman that some faculty members thoug ht the Law Student was unstable and that the accusations were part of a co nspiracy against Professor Tonkovich. The University established September 6, 1991 as the deadline for submitting complaints against Professor Tonkovich. Professor Tonkovich’s response, filed on September 9th, denied the Law Student’s allegation and denied2As discussed below, and as alleged in Professor Ton kovich’s complaint,

the committee that ultimately presided over the adm inistrative hearing did not (continued...) 7 sexually harassing any student. Two days later, he submitted an affidavit of Jean Younger, one of the Law Student’s classmates. Ms. Younger had hosted the party that preceded the alleged sexual activity. M s. Younger stated (and later testified at the hearing) that at the party, the Law Student was flirting with Professor Tonkovich. The following is Professor Tonkovich’s version of the events that took place on the evening of the party. The Law Studentfollowed him around the party for approximately five hours. She flirted wi th him, but he did not return her flirtations. When Professor Tonkovich left the party, she followed him out. She asked him for a ride home, claiming she was too drunk to drive. However, she did not appear too drunk to drive. He agreed t o drive her home, but he was concerned that she had romantic intentions. He sug gested that they go for a drive. He drove her to the campus police departmen t parking lot where they got out and took a walk. During their walk, she attemp ted to kiss him. When they returned to the car, she attempted to sit in the dr iver’s seat with him. When Professor Tonkovich said they should go, she became upset. He then drove her back to her car, dropped her off, and left. He did not have sex with her, nor did he discuss grades with her. 22 (...continued)

adopt this version of the facts. 8 During the course of the investigation, in Septembe r 1991, Dean Jerry issued a memorandum to the Law School faculty, stat ing that the guidelines of the Association of American Law Schools apply to th e faculty. In particular, Dean Jerry pointed out the guideline concerning the inappropriateness of a professor engaging in sexual conduct with a studentenrolled in his or her class. Dean Jerry’s memo stated that the guidelines were r elevant to the ethics provision of the University’s Faculty Code of Conduct (“Facul ty Code”). The Faculty Code in effect at the time the Law Student filed he r statement, and at the time of the alleged incident, did not expressly prohibit se xual relations between a professor and a student enrolled in his or her clas s. The Faculty Code did, however, prohibit a professor from exploiting a stu dent for the professor’s private advantage. During Professor Tonkovich’s te nure, six members of the Law School faculty had dated students. Several days after Dean Jerry issued this memo, Pro fessor Tonkovich received Vice Chancellor Brinkman’s written finding s. Based on the Law Student’s allegation, Vice Chancellor Brinkman foun d that Professor Tonkovich had violated the Faculty Code’s ethics provision. Vice Chancellor Brinkman recommended a one-year paid teaching suspension forthis violation. When9

Professor Tonkovich received the written findings, he was warned that repeating such behavior in the future would be cause for his dismissal from the University. Several days later, Executive Vice Chancellor Delbe rt Shankel formally adopted Vice Chancellor Brinkman’s written findings . Executive Vice Chancellor Shankel informed Professor Tonkovich that if past misconduct were brought to the University’s attention, it might be cause for further disciplinary action. The next day, Chancellor Gene Budig adopte d Executive Vice Chancellor Shankel’s decision. On October 4th, Professor Tonk ovich formally requested a hearing before the Committee on Tenure and Related Problems (“the Hearing Committee”). Shortly after Professor Tonkovich requested a heari ng, General Counsel to the Board of Regents called the Hearing Committee’s chairman, Professor William Lawrence. During their conversation, they discussed recusals from the committee. After this conversation, Professor Lawr ence and two other members of the standing committee recused themselves. Thre e other professors were substituted. The conversation, the recusals, and t he substitutions occurred without Professor Tonkovich’s knowledge. ProfessorH. Rutherford Turnbull, III, a substituted member, became the new chairman. Other members of the Hearing Committee were Professors Nancy Ann Dahl, E .P. Johnsen, John Michel, and Delores Ringer. None of the Hearing Committee members were members of10

the Law School faculty. Mr. Turnbull and one of th e other substituted members of the Hearing Committee, Professor Dahl, eventuall y voted with the 3-2 majority in favor of Professor Tonkovich’s dismissal. In October 1991, a few weeks after Professor Tonkov ich requested a hearing, the University’s newspaper, the University Daily Kansan , reported that a University employee (not a party to this appeal) ha d referred to Professor Tonkovich as a “faggot” in his conversations with r eporters. As a result of this and the publicity generated when the local televisi on station had aired its news segment, Professor Tonkovich requested an investigation into how the information was leaked to the press. The University denied his request. On October 31, 1991, Law School faculty members Sid ney Shapiro, A. Kimberly Dayton, Reginald Robinson, Ellen Sward, El inor Schroeder, and Sandra McKenzie signed a letter (“the Letter”) asking thatstudents report any misconduct or sexual harassment by faculty members. Professor Shapiro drafted the Letter at the request of a University administr ator. The Letter did not mention Professor Tonkovich by name. After Dean Je rry approved the Letter, it was distributed to students. Professor Tonkovich d id not know of the Letter or that the University was soliciting additional compl aints against him. Throughout the solicitation process, various people, including Professors Shapiro and Schroeder, told others that the Law Student’s alleg ations against Professor3 We do not consider the Law School faculty members’ argument that

digital penetration constitutes rape under the law of Kansas, because that allegation is not contained within Professor Tonkov ich’s complaint. 11 Tonkovich included an allegation of rape. 3 In December 1991, Professors Shapiro, Robinson, Dayton, and Sward met with Chancellor Budig, Executive Vice Chancellor Sh ankel, and Ann Victoria Thomas, University General Counsel, to discuss the case against Professor Tonkovich. During December 1991 and January 1992, some of these law professors accompanied students (“the complainants” ) to the University’s Office of Academic Affairs, where the complainants present ed allegations regarding Professor Tonkovich to University officials. Assoc iate Vice Chancellor David Shulenburger interviewed these complainants, and, a fter completing the interviews, he recommended Professor Tonkovich’s di smissal, which is the sanction Professor Tonkovich ultimately faced when the charging documents were filed. Professor Tonkovich requested copies of the complai nants’ written statements. Executive Vice Chancellor Shankel toldProfessor Tonkovich that the complainants had not provided written statement s. University Associate General Counsel Rose A. Marino denied having any kn owledge of written statements submitted by complainants. As the investigation progressed, in December 1991, Executive Vice12

Chancellor Shankel and Vice Chancellor Brinkman tol d Professor Tonkovich that if he did not “resign quietly,” he would be suspend ed from teaching, and a letter would be placed in his file to the effect that he p osed a risk of substantial harm to students. Professor Tonkovich, who had continued t eaching pending his administrative hearing, refused to resign. The Uni versity placed him on teaching leave. Shortly thereafter, Executive Vice Chancell or Shankel and Vice Chancellor Brinkman communicated with Professor Ton kovich’s attorney, stating that there were no terms acceptable to the Universi ty that would allow Professor Tonkovich to continue as a faculty member. Several weeks later, in March 1992, Vice Chancellor Brinkman and Dean Jerry sent Profes sor Tonkovich a letter, reminding him that Board of Regents regulations didnot allow payment of salary when a faculty member was dismissed for moral turpi tude. This letter also informed Professor Tonkovich that Vice Chancellor B rinkman and Dean Jerry were recommending that he be charged with moral turpitude, which carried a sanction of dismissal. The following day, Executiv e Vice Chancellor Shankel concurred in Vice Chancellor Brinkman’s and Dean Je rry’s recommendation. In March 1992, Professor Tonkovich filed a complain t against various University administrators. He requested a stay in the investigation, recusal of the administrators, and appointment of independent inve stigators. The University denied his requests.13

On April 17, 1992, Chancellor Budig filed the Unive rsity’s formal written complaint against Professor Tonkovich. The complai nt set forth charges of ethics violations, sexual harassment, and moral turpitude. The complaint contained a proposed sanction of dismissal. One we ek after the University filed the complaint, the University newspaper ran an arti cle about the Law Student’s allegation against Professor Tonkovich. The articl e named Professor Tonkovich but did not name the Law Student. Certain charges in the complaint were based upon al legations made by the additional student complainants. Several of the fe male students who were named in the allegations submitted affidavits that the al legations were false and that Professor Tonkovich had done nothing improper. The se same students also submitted a letter requesting that the allegations involving them be dismissed. Nevertheless, the University prosecuted these charg es. After receiving the formal complaint, Professor Ton kovich made repeated discovery requests, including requests for written statements from the complainants, which the University initially denied . However, on July 24, 1992, the Hearing Committee ordered discovery. Although the written complainants’ statements that Professor Tonkovich had requested w ere not disclosed at this time, Professor Tonkovich was given summaries of th em. The University did not produce an alleged tape-recorded interview between University officials and the14

Law Student that served as the basis of the article printed by the University newspaper shortly after the University filed its co mplaint against Professor Tonkovich. In addition, many of the University’s w itnesses, including the Law Student, declined to be interviewed by Professor To nkovich’s attorney prior to testifying. On August 27, 1992, the administrative hearing conc erning the University’s complaint against Professor Tonkovich began. Ms. Marino prosecuted the case on behalf of the University, pr esenting witnesses in support of the allegations in the complaint. Professor Ton kovich was present and represented by an attorney, who cross-examined the University’s witnesses and presented witnesses on Professor Tonkovich’s behalf. The Hearing Committee presided. The hearing was conducted in public at P rofessor Tonkovich’s request. The hearing lasted until May 12, 1993, with session s held once a week during the school year. At the hearing, during his cross-examination of one of the University’s witnesses, Professor Tonkovich learned that at leas t one of the complainants had, indeed, provided a written statement. At ProfessorTonkovich’s request, the Hearing Committee sent a letter to the Law School f aculty seeking any written statements. None were forthcoming. When ProfessorTonkovich called Professor Dayton as a witness, she testified that s he had received a written15

statement from a complainant but that she had discarded it. Professor Robinson also testified that he received approximately five written statements from complainants. He further testified that he receive d the statements in sealed envelopes, that he never opened them, and that he l ater threw them away. A week after she testified, Professor Dayton sent aletter to the Hearing Committee stating that she possessed the written st atements of four complainants. She proceeded to turn these statements over to the Hearing Committee. Among them was a statement addressed to Professor Robinso n. The Hearing Committee denied Professor Tonkovich’s request to recall Prof essor Dayton as a witness. At Professor Tonkovich’s request, the Hearing Commi ttee sent certified letters to all of the complainants who had previous ly testified, asking them to produce their written statements. Two of the compl ainants, whose allegations the Hearing Committee ultimately found to constitute Fa culty Code violations, did not respond to the request, nor did they return to testify. The Hearing Committee did not compel these witnesses to return to testify , nor did it strike the earlier testimony of these complainants. Professor McKenzie, who had openly dated a law stud ent, declined Professor Tonkovich’s request to testify at his hearing. The Hearing Committee did not compel her to testify. However, according to Professor Tonkovich, three law professors who had signed the Letter testified as “expert” witnesses on behalf16

of the University: Professor Schroeder testified about sexual harassment; Professor Sward testified about faculty ethics; andProfessor Shapiro testified about due process. On the day before the Law Student was scheduled to testify, Ms. Marino proposed an evidentiary rule prohibiting counsel fr om inquiring about witnesses’ prior sexual conduct. The Hearing Committee adopte d this rule. It also adopted a sequestration rule to prevent witnesses who were scheduled to testify from hearing other witnesses’ testimony. When cross-examining Ms. Younger, Professor Tonkovich’s first witness, Ms. Marino ask ed if she had ever been sexually intimate with a professor. Ms. Marino als o read a transcript of the Law Student’s testimony to another University witness w ho was scheduled to testify. During the 1992-93 academic year, the year in which the hearing took place, Dean Jerry gave Professor Tonkovich a negati ve annual evaluation and the lowest merit salary increase on the entire Law Scho ol faculty. According to Professor Tonkovich, in the previous ten years, he had received excellent evaluations and average or above average salary inc reases. On May 19, 1993, one week after the hearing conclud ed, Andrew Ramirez, an attorney representing a University witness, senta letter to the parties. The letter stated that his client had spoken with Mr. T urnbull several weeks after she testified at the hearing. At the conclusion of the ir conversation, Mr. Turnbull17

stated to her, “I admire your courage in coming forward.” On July 30, 1993, the Hearing Committee issued its opinion. By a 3-2 vote, the Hearing Committee recommended that Profes sor Tonkovich be dismissed. As to the Law Student’s allegation, the Committee found that she and Professor Tonkovich had engaged in a sexual act that was preceded by a discussion of grades. The Committee further found that Professor Tonkovich did not intend to intimidate the Law Student by discuss ing grades but that she was, nonetheless, intimidated because of the inherent po wer differential between a student and a professor. The committee concluded t hat this constituted unethical conduct in violation of the Faculty Code. The Comm ittee also concluded that Professor Tonkovich’s behavior constituted sexual h arassment in violation of Title VII and Title IX and, as unlawful conduct, co nstituted moral turpitude under the Faculty Code. The Hearing Committee also found that Professor Ton kovich had violated the ethical provisions of the Faculty Code with ano ther student. This occurred when Professor Tonkovich held a female student’s hand while asking her who her favorite professor was. The Committee conclude d that although this conduct was unethical, it did not constitute sexual harassm ent. The Committee further found that Professor Tonkovich’s social behavior wi th respect to various other law students was negligent and constituted unethica l conduct under the Faculty18

Code. On August 3, 1993, Chancellor Budig accepted the He aring Committee’s recommendation and dismissed Professor Tonkovich. The following day, Professor Tonkovich appealed his dismissal to the K ansas Board of Regents (“the Regents”). At this time, the Regents consisted of Robert Caldwell, Tom Hammond, John Hiebert, Karen Krepps, John Montgomery, Phyllis Nolan, Frank Sabatini, and Sidney Warner. On September 15, 1994 , the Regents upheld Professor Tonkovich’s dismissal.

D. Procedural History Pursuant to the Act for Judicial Review and Civil E nforcement of Agency Actions, Kan. Stat. Ann. §§ 77-601 et seq., Profess or Tonkovich had the opportunity to file an action in Kansas state distr ict court for judicial review of the University’s decision. See id. at § 77-609. However, he decided to forego this route, and on April 27, 1995, he filed suit in federal court against the University of Kansas, the University Board of Regen ts, and approximately thirtyfour other defendants in their individual and offic ial capacities, alleging violations of § 1983 and various state laws. In hi s first amended complaint, Professor Tonkovich averred three § 1983 counts (fo r violations of his due process, free speech, and equal protection rights), and four state law counts (for4Although the district court found that Professor To nkovich had stated a

substantive due process claim, it did not address t he issue of qualified immunity as it relates specifically to that claim. We shall discuss that below. 19 breach of employment contract, breach of implied du ty of good faith and fair dealing, tortious interference with business relati onship, and intentional infliction of emotional distress). All defendants filed motio ns to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), asserting various defenses such as Eleventh Amendment immunity, absolute immunity, and qualifie d immunity. The district court granted in part and denied in part the defend ants’ motions to dismiss. We shall relate only the district court’s rulings with respect to qualified immunity. On the issue of qualified immunity, the district co urt treated the issues of procedural due process, free speech, and equal protection. 4 The court found that all of the individual defendants are entitled to qu alified immunity on Professor Tonkovich’s First Amendment free speech claim. How ever, the court ruled that the individual defendants are not entitled to quali fied immunity on Professor Tonkovich’s procedural due process and equal protec tion claims.

E. Jurisdiction Many of the defendants have attempted to appeal notonly the district court’s denial of their qualified immunity motions but also the district court’s denial of their motions to dismiss for failure to s tate a claim under Fed. R. Civ. P.5 Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541 (1949). 20 12(b)(6). We believe that these defendants have mi sunderstood this court’s limited jurisdiction at this stage of the litigatio n. Thus, at this juncture, we embark on a brief discussion of our jurisdiction to hear this appeal. “The courts of appeals . . . shall have jurisdictio n of appeals from all final decisions of the district courts of the United Stat es . . . .” 28 U.S.C. § 1291. “A denial of a motion to dismiss ordinarily may not be appealed because it is not a final decision.” Eastwood v. Department of Corrections , 846 F.2d 627, 629 (10th Cir. 1988). However, the denial of a motion to dis miss based on qualified or absolute immunity is immediately appealable under the Cohen 5 collateral order doctrine. See Mitchell , 472 U.S. at 530 (qualified immunity); Nixon v. Fitzgerald , 457 U.S. 731, 742 (1982) (absolute immunity). In holding the issue of immunity to be appealable under the collateral o rder doctrine, “the Court has recognized that a question of immunity is separate from the merits of the underlying action for purposes of the Cohen test even though a reviewing court must consider the plaintiff’s factual allegations i n resolving the immunity issue.” Johnson v. Fankell , ____ U.S. ____, 117 S. Ct. 1800, 1804 n.5 (1997). Although to a certain extent a qualified immunity analysis o verlaps with a 12(b)(6) analysis, we do not have jurisdiction to review the merits of Professor Tonkovich’s lawsuit at this time. We turn, then, t o a review of the district21

court’s rulings with respect to qualified immunity.

II. QUALIFIED IMMUNITY We review de novo the denial of a motion based on q ualified immunity. Walter v. Morton , 33 F.3d 1240, 1242 (10th Cir. 1994); Eastwood , 846 F.2d at 629. “Under the doctrine of qualified immunity, ‘g overnment officials performing discretionary functions generally are sh ielded from liability for civil damages insofar as their conduct does not violate c learly established statutory or constitutional rights of which a reasonable person would have known.” Ramirez v. Oklahoma Dep’t of Mental Health , 41 F.3d 584, 592 (10th Cir. 1994) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)); cf. Harris v. Board of Educ. of the City of Atlanta , 105 F.3d 591, 595 (11th Cir. 1997) (“In all but the most exceptional cases, qualified immunity protects gove rnment officials performing discretionary functions from the burdens of civil trials and from liability for damages.”). The key to the qualified immunity inqu iry is the “objective reasonableness of the official’s conduct in light o f the legal rules that were clearly established at the time the action was taken.” Melton v. City of Oklahoma City , 879 F.2d 706, 727 (10th Cir. 1989) (quotations om itted), modified on other grounds , 928 F.2d 920 (10th Cir. 1991). Hearkening back to its pronouncement in Siegert v. Gilley , the Supreme6 On the other hand, if the plaintiff has not suffici ently alleged the

violation of a constitutional right, then we need n ot proceed to the second inquiry (whether the right is clearly established). See GJR Inves., Inc. v. County of Escambia , 132 F.3d 1359, 1367 (11th Cir. 1998) (“If a plain tiff has not sufficiently alleged a violation of any constitutional right, it is axiomatic that the (continued...) 22 Court has recently stated that the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constituti onal right at all. Normally, it is only then that a court should ask w hether the right allegedly implicated was clearly established at the time of the events in question. County of Sacramento v. Lewis , ____ U.S. ____, 118 S. Ct. 1708, 1714 n. 5 (1998) (citing Siegert v. Gilley , 500 U.S. 226, 232 (1991) (“A necessary concomitant to the determination of whether the con stitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserteda violation of a constitutional right at all.”)). Thus, we use a two-part framework to analyze the issue of qualified immunity. Latta v. Keryte , 118 F.3d 693, 697-98 (10th Cir. 1997). First, we determine whether the plaintiff has suffi ciently alleged that the defendant violated a statutory or constitutional right. Id. at 698. If the answer is yes, then we determine whether the right was clearl y established such that a reasonable person in the defendant’s position would have known that his or her conduct violated that right. Id. 66 (...continued)

plaintiff likewise has failed to alleged the violat ion of a ‘clearly established right.’”) (emphasis in original); Taylor v. Meacham , 82 F.3d 1556, 1564 (10th Cir.) (“Having concluded that no constitutional rig ht was violated, . . . we proceed no further on the qualified immunity issue.”), cert. denied , 117 S. Ct. 186 (1996). In some cases, “the threshold ‘constitutional violation’ analysis may run together with the ‘clearly established’ analysis,” Derda v. City of Brighton, Col. , 53 F.3d 1162, 1164 (10th Cir. 1995). In those cases, the two-part Siegart inquiry is difficult to apply. See id. 23 Ordinarily, in order for a plaintiff to demonstrate that a law is clearly established, “there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority fromother courts must have found the law to be as the plaintiff maintains.” Medina v. City and County of Denver , 960 F.2d 1493, 1498 (10th Cir. 1992); see also Anderson v. Creighton , 483 U.S. 635, 640 (1987) (a right is clearly established if the contours of the right are “sufficiently clear [so] that a reasonable official would understand that what he is doing violates that right.”) A plaintiff “must do more than identify in the abstract a clearly established right and allege that the defendant has violated it.” Pueblo Neighborhood Health Centers v. Losavio , 847 F.2d 642, 645 (10th Cir. 1988). A plaintiff “must articulate the clearly established constitutional r ight and the defendant’s conduct which violated the right with specificity.” Albright v. Rodriguez , 51 F.3d 1531, 1535 (10th Cir. 1995) (quotation omitted); see also Walter , 33 F.3d at 1242 (“the24

plaintiff . . . has the burden to show with particu larity facts and law establishing the inference that the defendants violated a consti tutional right.”). “If the district court denies the defendant qualified immunity, the court should identify on the record the defendant’s conduct that violated clearly established law.” Mick v.
Brewer , 76 F.3d 1127, 1134 (10th Cir. 1996) (citing Albright , 51 F.3d at 1535). Although of necessity we must consider Professor To nkovich’s factual allegations in resolving the immunity issues, we re iterate that this appeal comes to us on a partial denial of the defendants’ motions to dismiss , as opposed to motions for summary judgment. The district court d id not, nor shall we, consider whether there is a genuine issue of material fact. Thus, we do not face the appellate jurisdictional problem that may be entang led with a qualified immunity analysis on summary judgment. Cf. Johnson v. Jones , 515 U.S. 304, 319-20 (1995) (holding that “a defendant, entitled to invo ke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial recordsets forth a ‘genuine’ issue of fact for trial”) (emphasis added). Instead, as stated above, we must accept the plaintiff’s version of the facts as true. With thi s in mind, we proceed to analyze the issue of qualified immunity with respect to eac h separate cause of action under § 1983, i.e., alleged violations of procedura l due process, substantive due process, and equal protection rights.25

A. Are the Defendants Entitled to Qualified Immuni ty on Professor Tonkovich’s Procedural Due Process Claim? Because Professor Tonkovich was a tenured professor , he possessed a property interest deserving of procedural due process protections. Brenna v. Southern Colo. State College , 589 F.2d 475, 476 (10th Cir. 1978); see also Board of Regents v. Roth , 408 U.S. 564, 576-77 (1972). In Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 535 (1985), the Supreme Court exami ned the issue of “what pretermination process must be accorded a pub lic employee who can be discharged only for cause.” In deciding this issue , the Court balanced the competing interests at stake: “the private interes t in retaining employment, the governmental interest in the expeditious removal of unsatisfactory employees and the avoidance of administrative burdens, and the ri sk of an erroneous termination.” Id. at 542-43 (citing Mathews v. Eldridge , 424 U.S. 319, 335 (1976)). The Court concluded that prior to termination, something less than a full evidentiary hearing is sufficient. Id. at 545. Thus, the Court held that a “tenured public employee is entitled to oral or wri tten notice of the charges against him, an explanation of the employer’s evide nce, and an opportunity to present his side of the story.” Id. at 546. The holding in Loudermill rested partially on the availability of a full pos ttermination hearing under applicable state law. Id. ; see also Langley v. Adams County, Colo. , 987 F.2d 1473, 1480 (10th Cir. 1993) (“Under Loudermill , the26

adequacy of pre-termination procedures must be exam ined in light of available post-termination procedures.”); Calhoun v. Gaines , 982 F.2d 1470, 1476 (10th Cir. 1992) (holding that “ Loudermill established that some form of pretermination hearing, plus a full-blown adversari al post-termination hearing” are required when a property interest in continued employment is at stake). “A ‘full post-termination hearing’ is understood to in clude the right to representation by an attorney and the right to cross-examine adverse witnesses.” Workman v. Jordan , 32 F.3d 475, 480 (10th Cir. 1994). A fundamental principle of procedural due process i s a hearing before an impartial tribunal. See Withrow v. Larkin , 421 U.S. 35, 46-47 (1975). “A tribunal is not impartial if it is biased with resp ect to the factual issues to be decided at the hearing.” Patrick v. Miller , 953 F.2d 1240, 1245 (10th Cir. 1992) (quotation omitted). However, “a substantial showi ng of personal bias is required to disqualify a hearing officer or tribuna l in order to obtain a ruling that a hearing is unfair.” Corstvet v. Boger , 757 F.2d 223, 229 (10th Cir. 1985). Moreover, “[b]ecause honesty and integrity are pres umed on the part of a tribunal, there must be some substantial countervai ling reason to conclude that a decisionmaker is actually biased with respect to fa ctual issues being adjudicated.” Mangels v. Pena , 789 F.2d 836, 838 (10th Cir. 1986) (citation omitted). It is worth noting briefly that, in addition to bei ng governed by27

constitutional law, Professor Tonkovich’s claims ar e also governed by 42 U.S.C. § 1983 itself. Thus, Professor Tonkovich must sati sfy the elements of that statute, which states, in part, Every person who . . . subjects, or causes to be subjected , any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . shall be liable to the party injured . . . . 42 U.S.C. § 1983 (emphasis added). The plain wordi ng of the statute contains an element of causation. In other words, a defendant may not be held liable under § 1983 unless he or she subjected a citizen to the de privation, or caused a citizen to be subjected to the deprivation. See 1A Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Claims and Defenses § 6.3 (3d ed. 1997). Professor Tonkovich argues that the University’s po licies require the following procedural safeguards: 1) notice; 2) dis covery; 3) presentation of evidence; 4) confrontation and cross-examination; and 5) an impartial hearing committee. He argues that in denying him these saf eguards, the defendants violated his clearly established procedural due pro cess rights. At this juncture, we shall discuss each defendant’s (or defendant gro up’s) arguments with respect to qualified immunity on Professor Tonkovich’s proc edural due process claim.

1. Appeal of Dean Jerry (Case No. 96-3402) Professor Tonkovich takes issue with the following actions of Dean Jerry:28

1) his initial handling of the Law Student’s compla int; 2) his attempt to pass a rule, after the fact, prohibiting student/faculty s exual relations; 3) his denial of a request for a leak investigation; 4) his role in th e settlement process; and 5) his negative annual evaluation of Professor Tonkovich. Dean Jerry argues that he is entitled to qualified immunity on Professor Tonkovi ch’s procedural due process claim because he is not responsible for any alleged defects in the process afforded Professor Tonkovich. In other words, he argues that nothing he did violated any of Professor Tonkovich’s clearly estab lished procedural due process rights. We agree. As for Dean Jerry’s handling of the Law Student’s i nitial complaint, Professor Tonkovich appears to argue that he did no t receive proper notice of the charges against him because Dean Jerry would not im mediately disclose the name of the accuser and the details of the allegation. However, Professor Tonkovich does not allege that it was Dean Jerry’s duty to no tify him of the charges. Moreover, Chancellor Budig did give Professor Tonko vich notice in plenty of time to prepare his defense in response to the char ges. Professor Tonkovich next argues that his procedural due process rights were violated because the dean never disclosed the “blatantly false” statements that the Law Student allegedly made to a judge for whom she worked. Aple’s Brief at 60. According to Professor Tonkovich, the Law Student told the judge29

who was her employer the following: 1) she had non consensual sex with her professor; 2) she told Dean Jerry about it; and 3) the Dean was not responsive. Professor Tonkovich argues that the statement the L aw Student made to her employer was false because she had only told Dean J erry that a professor had made a pass at her. We fail to see how Dean Jerry’ s failure to relate this conversation to Professor Tonkovich violated Profes sor Tonkovich’s procedural due process rights. As we have discussed, Professo r Tonkovich received sufficient notice of the charges against him, and, in addition, he had the opportunity to cross-examine the Law Student at his hearing. As for the remaining allegations involving Dean Jer ry, Professor Tonkovich has failed to explain how any of them mig ht constitute a denial of his procedural due process rights. That is, he has fai led to demonstrate how attempting to pass a new faculty code rule, denying a request for a leak investigation, taking part in settlement negotiatio ns, and rendering an unfavorable annual evaluation had anything to do wi th whether Professor Tonkovich received the process that he was due–noti ce, an explanation of the charges against him, and an opportunity to respond. Nor has Professor Tonkovich pointed to any clearly established law th at stands for the proposition that the sorts of actions taken by Dean Jerry mightform the basis of a procedural due process claim. For these reasons, we conclude that the district court erred in7 Case No. 96-3403, the appeal filed by the Board of Regents, and Case No.

96-3404, the appeal filed by the Hearing Committee, were consolidated for briefing purposes; therefore, in the ensuing discus sions, we shall treat those two cases as one separate appeal. 30 denying Dean Jerry’s motion to dismiss Professor To nkovich’s procedural due process claim on qualified immunity grounds.

2. Appeal of Regents (Case No. 96-3403) and Hearing Committee (Case No. 96-3404) 7 The Regents and the Hearing Committee members argue that because Professor Tonkovich failed to exercise his right to judicial review he should not now be heard to complain of the violation of his pr ocedural due process rights. In other words, they argue that because Professor T onkovich was entitled to seek judicial review of the University’s decision under Kansas law, Kan. Stat. Ann. § 77-601 et seq., the state provided even more proces s than an administrative hearing and an appeal to the Board of Regents. Thu s, they argue, his procedural due process claim must fail. We reject the argument that Professor Tonkovich’s f ailure to seek judicial review in state court precludes his procedural due process claim. It is beyond dispute that a plaintiff need not exhaust state adm inistrative remedies before filing suit in federal court under § 1983. Patsy v. Board of Regents , 457 U.S. 496, 516 (1982). However, as we shall discuss belo w, the availability of an31

action for judicial review is relevant to the quest ion of what process the state afforded Professor Tonkovich. Professor Tonkovich argues that the Regents and the Hearing Committee members denied him his procedural due process rightto an impartial tribunal. He also takes issue with the Hearing Committee members ’ failure to: 1) order discovery; 2) compel witnesses to appear and testif y; and 3) mention evidence favorable to him in their findings. We shall addre ss each contention in turn. Professor Tonkovich first argues that he was denied the right to an impartial tribunal because the Hearing Committee me mbers were not professional hearing officers, they were employed by the Univers ity, and they were subordinates of the Chancellor. Furthermore, he ar gues that the fact that various members of the standing committee recused themselve s, and that other members were substituted, demonstrates that the resulting H earing Committee was biased. In support of this claim, he points to Mr. Turnbull ’s statement to a witness to the effect that he admired her courage in coming forwar d to testify. First of all, while the Due Process Clause certainl y requires a hearing before an impartial tribunal, Professor Tonkovich h as pointed to no law, clearly established or otherwise, that procedural due proce ss includes a right to professional hearing officers or hearing officers n ot employed by the governmental body or agency taking the adverse acti on. As to the recusals, one32

of the substituted Hearing Committee members, Mr. M ichel, actually voted against Professor Tonkovich’s dismissal. This alon e takes the wind out of the sails of Professor Tonkovich’s recusal argument. F urthermore, even assuming Mr. Turnbull stated to a witness, “I admire your co urage in coming forward,” that does not establish the required “substantial showing of personal bias.” Corstvet , 757 F.2d at 229. The Hearing Committee members argue that there is n othing indicating that they had a personal or financial stake in the decis ion, which might create a conflict of interest, nor are there sufficient alle gations to support charges of personal animosity on the part of its members. See Hortonville Joint Sch. Dist. Number 1 v. Hortonville Educ. Ass’n , 426 U.S. 482, 491-92, 496 (1976) (basing, in part, its holding that school board dismissing s triking teachers did not violate Due Process Clause on fact that these indicia of bi as were lacking). In short, they argue that Professor Tonkovich’s complaint con tains only conclusory allegations of bias, without alleging factual suppo rt. We agree. We simply do not think that Professor Tonkovich has sufficientlyalleged personal bias requiring disqualification of the Hearing Committee members under the Due Process Clause. As to the Regents, Professor Tonkovich similarly le vels accusations of bias against them. He argues that the Regents’ bias vio lated his procedural due33

process rights. In support of this argument, he st ates that the Regents made erroneous and prejudicial decisions and that they d eferred to the findings of the Hearing Committee. As with the Hearing Committee, these conclusory assertions are insufficient to allege bias constituting a vio lation of Professor Tonkovich’s procedural due process rights. Professor Tonkovich next takes issue with what he c laims is the Hearing Committee’s failure to order discovery. He claims that this led to a denial of his right to cross-examine the witnesses against him. In particular, he argues that he never was able to discover a tape-recording of an a lleged interview between the Law Student and University administrators. This, h e argues, amounted to a denial of his right to cross-examine the Law Studen t. Furthermore, Professor Tonkovich argues that he was unable to discover all of the statements that various complainants hadsubmitted during the investigation. As he points out, the Hearing Commi ttee specifically requested, through certified return-receipt mailings, that the complainants produce their statements and return to testify. However, two of the complainants neither produced their statements nor returned to testify. Thus, he argues, he was denied the right to cross-examine these two complainants. Professor Tonkovich also complains that all of the complainants, including the Law Student, refused to allow Professor Tonkovich’s attorney to interview them prior to the hearing.34

First of all, we note that the Hearing Committee ul timately did order discovery prior to Professor Tonkovich’s administrative hearing. The fact that Professor Tonkovich was unable to discover every pi ece of evidence is of no consequence as a matter of procedural due process. The Due Process Clause does not guarantee that parties to an adversarial procee ding may discover every piece of evidence they desire. Indeed, civil litigants i n federal court do not have a claim for a violation of their Fourteenth Amendmentrights every time a federal district judge or a federal magistrate rules agains t them in a discovery dispute. Furthermore, Professor Tonkovich has not adequatelyalleged that he was denied the right to cross-examine adverse witnesses . As we have discussed, he had notice of the charges, and of his accusers, wel l before the hearing. He was able to cross-examine each of them, albeit not in e xactly the way he would have liked. On these facts, we cannot say that the cros s-examinations violated Professor Tonkovich’s procedural due process rights simply because he did not have access to several of the witnesses’ prior stat ements. As his complaint admits, the University did provide him with summari es of the complainants’ statements. Importantly, Professor Tonkovich has a lso cited no clearly established legal authority for the proposition that the Due Process Clause requires that he be allowed to interview adverse wi tnesses prior to a hearing. Professor Tonkovich next argues that the Hearing Co mmittee members35

violated his procedural due process rights by faili ng to compel the return of various witnesses who had previously testified. Th e Hearing Committee members argue that they did not have the authority to compel the attendance of witnesses. They did, however, attempt to assist Pr ofessor Tonkovich with the reappearance of witnesses by sending certified return -receipt mail, as Professor Tonkovich himself acknowledges in his complaint. P rofessor Tonkovich has cited no law, clearly established or otherwise, whi ch states that an administrative tribunal runs afoul of the Due Process Clause for i ts failure to compel the attendance of witnesses when it lacks subpoena power. See Workman , 32 F.3d at 480 (stating that, under the facts of that case, “[ t]he lack of subpoena power available to the plaintiff or the unavailability of some witnesses does not . . . create unconstitutional process.”). Even if the He aring Committee did have subpoena power, a reasonable person in the place of a Hearing Committee member would not know that he or she was violating someone’s procedural due process rights for failing to compel the appearance of witnesses under these circumstances. Professor Tonkovich next argues that the Hearing Co mmittee should have mentioned in its findings various pieces of evidenc e favorable to his side of the case. For example, Professor Tonkovich takes issue with the Hearing Committee’s failure to mention the discrepancy betw een what the Law Student36

told the judge who employed her and what she told D ean Jerry. Professor Tonkovich claims that the Committee’s failure to me ntion such evidence violated his procedural due process rights. We disagree. T he Hearing Committee handed down extensive findings and conclusions after a hearing spanning approximately nine months. Under the circumstances, the fact that the Committee did not mention every possible fact in its resolution of th e case does not implicate due
process. Professor Tonkovich also claims that the Hearing Co mmittee itself admitted that the proceedings against him were unfa ir because it recommended additional procedures for future disciplinary proce edings. Taking into consideration the procedures afforded Professor Ton kovich, the fact that the Hearing Committee members made recommendations conc erning future disciplinary proceedings does not convince us that they violated his procedural due process rights. In sum, the Regents and the Hearing Committee membe rs argue that under Loudermill , Professor Tonkovich was entitled only to notice o f the charges, an explanation of the evidence against him, and an opp ortunity to respond. They argue that the allegations in Professor Tonkovich’s own complaint establish that he received this and much more. We agree. Therefo re, the district court erred in denying the motion to dismiss Professor Tonkovich’s procedural due process37

claim against the Regents and the Hearing Committee members on the basis of qualified immunity.

3. Appeal of Professor McKenzie (Case No. 96-3405) The only allegations against Professor McKenzie in particular were that she signed the Letter, she refused to testify, and she dated a student. None of these allegations, she argues, are sufficient to es tablish that she violated a constitutional right. We agree. As we shall discuss at length below, when the Law S chool faculty members signed the Letter, they did not thereby violate Pro fessor Tonkovich’s procedural due process rights. As to the remaining allegation s against Professor McKenzie–that she refused to testify on Professor T onkovich’s behalf and that she dated a student–we fail to see how these might form the basis of a procedural due process claim. Professor McKenzie neither subj ected Professor Tonkovich, nor caused Professor Tonkovich to be subjected, to the deprivation of his procedural due process rights. Thus, the district court erred in denying her motion to dismiss the procedural due process claim on qualified immunity grounds.

4. Appeal of the University General Counsel (Case No. 96-3406)38

The specific allegations against General Counsel Th omas are that she gave an opinion as to the applicability of the University’s statute of limitations, and she attended two meetings to discuss Professor Tonk ovich’s case. Essentially, he seems to be complaining that she did her job. Ms. Thomas argues that neither of these actions can be said to have violated Professo r Tonkovich’s procedural due process rights. We agree. The allegations against Associate General Counsel M arino, who prosecuted the case on behalf of the University, are that she denied the existence of the complainants’ statements and that she violated two of the Hearing Committee’s evidentiary rulings. Specifically, she asked a witness about her sexual involvement with law professors, and she read a portion of the Law Student’s testimony to another witness who was scheduled to t estify. Associate General Counsel Marino argues that even if some of these ac tions constituted infractions of a University policy or rule, this is not enough to rise to the level of a deprivation of a federal constitutional right. We note that a university’s failure to follow its e stablished guidelines in overseeing a grievance “does not in and of itself i mplicate constitutional due process concerns.” Purisch v. Tennessee Tech. Univ. , 76 F.3d 1414, 1423 (6th Cir. 1996); cf. Jones v. City and County of Denver , 854 F.2d 1206, 1209 (10th Cir. 1988) (a violation of state law, by itself, do es not rise to the level of a39

federal constitutional deprivation, and, thus, is n ot cognizable under § 1983). The federal courts, and not the University of Kansa s, are responsible for establishing the contours of the Due Process Clause of the Fourteenth Amendment. Thus, even taking Professor Tonkovich’s allegations against Ms. Marino as true, as we must, we do not think they ar e sufficient to establish the violation of his procedural due process rights. Wh ile Ms. Marino’s failure to adhere to certain evidentiary rules was perhaps nota model of prosecutorial conduct, nothing that she did changes the fact thatProfessor Tonkovich received notice, an opportunity to be heard by an impartial tribunal, and various posttermination remedies. Accordingly, we conclude that the district court erred in denying Ms. Thomas’s and Ms. Marino’s motion to dis miss the procedural due process claim on qualified immunity grounds.

5. Appeal of Law School Faculty Members (Case No. 96-3407) The Law School faculty members argue that they were not even in a position from which they could afford or deny proce dural protections to Professor Tonkovich. Thus, they argue, they cannotbe said to have violated his due process rights. We disagree with the notion th at a faculty member, by virtue of his or her position within a university, may nev er effect a procedural due process violation. However, in this case, nothing the Law School faculty40

members did caused a deprivation of Professor Tonko vich’s procedural due process rights. The specific allegations against the Law School fac ulty members are as follows: 1) they signed the Letter soliciting addi tional complaints; 2) they met with University administrators to discuss the case; 3) they accompanied students who submitted complaints to administrators; 4) two of them stated they heard that the Law Student’s complaint contained an allegation of rape; 5) some of them refused to disclose, and one of them intentionally destroyed, complainant statements; and 6) they testified as witnesses at P rofessor Tonkovich’s hearing. The faculty members argue that Professor Tonkovich has failed to point to any clearly established law that stands for the proposi tion that any of these actions might form the basis of a procedural due process cl aim. We shall first address the Law School faculty membe rs’ role in authoring, signing, and distributing the Letter, which Profess or Tonkovich continually refers to as the “secret” solicitation process. See, e.g. , Aple’s Brief at 7, 31, 43. Professor Tonkovich cites no clearly established Te nth Circuit or Supreme Court precedent standing for the proposition that when a university is investigating a complaint of sexual misconduct against a professor, the university must disclose, during the investigatory process, every complaint i t solicits and the means it uses to solicit those complaints. In fact, there is pre cedent in this circuit that arguably41

supports a contrary proposition. In Derstein v. Kansas , 915 F.2d 1410 (10th Cir. 1990), the plaintiff, a tenured court employee who could be terminated onlyfor just cause, was fired after an investigation revealed that he had sexuall y harassed various fellow employees. The plaintiff was told neither that an investigation was underway nor that complaints against him were being solicited. A court personnel officer conducted the investigation by tape-recording interviews with various court employees and then transcribing the tapes. After the investigation was complete the plaintiff was told that he would have ten days to resign or be terminated. Id. at 1412. He was also advised that he could appeal the decision and that a hearing wou ld be afforded at that time. At the end of the ten-day period, the plaintiff rec eived a termination letter, which specified the nature of the charges against him and his right to appeal. The plaintiff filed an administrative appeal, which was denied as frivolous. At no time during the administrative proceedings did the employer provide the plaintiff with transcripts of the tape-recorded interviews. Id. The plaintiff then filed a § 1983 action. After a bench trial, the district court held that the pretermination proceedings depr ived the plaintiff of a property interest without due process of law. Id. at 1411. We reversed, holding that the pretermination procedures comported with Loudermill ’s requirements. Id. at42

1413. We stated that the fact that the plaintiff “ may not have known in advance about [the personnel officer’s] internal investigat ion [and that he] did not receive more facts or a copy of the transcript at the prete rmination hearing is not significant.” Id. at 1413. Likewise, in the case at bar, the fact that University administrators conducted an investigation without P rofessor Tonkovich’s knowledge does not implicate procedural due process because he ultimately received notice of the charges and a meaningful opp ortunity to respond in the hearing that took place over a period of nine month s. We noted that the plaintiff in Derstein never contested the factual basis for the sexual harassment charges, i.e., he did not den y that the conduct occurred. Under those circumstances, we held that the appeal to an appeals board constituted a sufficient post-termination procedure , even though the appeals board did not grant the plaintiff a full evidentiary hearing. We found that this post-termination proceeding, in combination with th e pretermination procedures, afforded the plaintiff all of the process he was du e. In Professor Tonkovich’s case, he obviously did contest the factual basis fo r the charges against him; however, he also received a full-blown evidentiary hearing. The fact that University officials and faculty members did not ke ep Professor Tonkovich apprised every step along the way of the investigat ion does not amount to a violation of his procedural due process rights.8 We shall discuss the allegation of rape with respec t to Professor

Tonkovich’s liberty interest below. 43 Professor Tonkovich next complains that when the Law School faculty members met with University administrators to discu ss his case, and when they accompanied the complainants to meet with administr ators, they violated his procedural due process rights. We fail to see how either of these actions might form the basis of a procedural due process claim in the absence of allegations that these actions interfered with Professor Tonkov ich’s receiving notice of the charges or with his ability to respond to those charges. Professor Tonkovich has not cited any law, clearly established or otherwise , that would support the proposition that in taking part in the investigatio n as the Law School faculty members here did, their actions ran afoul of the Du e Process Clause. Next, Professor Tonkovich argues that two of the Law School faculty members violated his procedural due process rights when they repeated information they had heard, namely, that the allegations against Professor Tonkovich included an allegation of rape. Assuming , as we must, that the allegation is false, it still does not implicate procedural due process. 8 While the statements may be actionable under state tort law, they do not rise to the level of depriving Professor Tonkovich of federal procedural due process rights. There is no allegation that the statements made by the profe ssors had anything to do with44

whether Professor Tonkovich received notice of the charges against him or had a meaningful opportunity to respond, which is what pr ocedural due process requires. Finally, Professor Tonkovich takes issue with the L aw School faculty members’ role in testifying at his hearing and in d iscarding or denying the existence of the written complainant statements. O nce again, he cites no clearly established law that stands for the proposition that taking such actions implicates procedural due process. As we have discussed, Prof essor Tonkovich received summaries of the statements, and he was able to cro ss-examine the complainants; therefore, the fact that several professors were no t forthcoming with written statements does not amount to a violation of Profes sor Tonkovich’s procedural due process rights. Although such conduct on the p art of the professors is not to be lauded, it simply does not rise to a level suffi cient to implicate procedural due process concerns. Furthermore, we fail to see how the professors’ acts in testifying at Professor Tonkovich’s hearing–and the reby being subjected to crossexamination–violated his procedural due process rig hts. For all of these reasons, the district court should have granted the Law Scho ol faculty members’ motion to dismiss the procedural due process claim on qualifi ed immunity grounds.

6. Appeal of the Chancellor’s Office (Case No. 96- 3408)45

The Chancellor’s office staff members argue that th ey are entitled to qualified immunity on Professor Tonkovich’s procedu ral due process claim because Professor Tonkovich received all of the pro cess he was due. Furthermore, they argue that Professor Tonkovich fa iled to show that any of their actions constituted violations of a clearly establi shed right. The specific allegations against staff members of the Chancellor’s office are as follows: 1) they extended the investigation after having set a deadline for filing complaints against Professor Tonkovich; 2) V ice Chancellor Brinkman and Executive Vice Chancellor Shankel at first recommen ded a one-year paid suspension, but as the investigation progressed, th ey increased the proposed sanction to dismissal; 3) Associate Vice ChancellorShulenberger interviewed the complainants; 4) Executive Vice Chancellor Shankel denied that the complainants had submitted written statements; 5) d uring settlement negotiations, Vice Chancellor Brinkman and Executive Vice Chancel lor Shankel recommended that Professor Tonkovich resign quietly, and they s tated that there were no terms acceptable to the University for Professor Tonkovic h to continue as a faculty member; and 6) Chancellor Budig prosecuted charges even after several students stated that the charges were groundless. Professor Tonkovich’s argument that extending the i nvestigation and increasing the proposed sanction violated his proce dural due process rights must46

fail. Neither the length of the investigation nor the decision to increase the proposed sanction deprived Professor Tonkovich of h is rights to notice and an opportunity to respond. It is not as if the sancti on he faced was changed during the course of or after his hearing. Well before hi s hearing began, he understood that he faced dismissal from the Law School faculty . Additionally, the fact that Professor Tonkovich initially responded in writing to the Law Student’s charges, when he faced only suspension, is not significant b ecause that was not his only opportunity to respond. Ultimately, after the inve stigation was complete, he was informed of all of the charges against him and give n ample opportunity to respond to all of them. Professor Tonkovich next argues that Associate Vice Chancellor Shulenberger violated his procedural due process ri ghts when he interviewed the complainants. Professor Tonkovich wholly fails to allege how these interviews deprived him of his rights to notice or an opportun ity to respond. Furthermore, he cites no clearly established law standing for th e proposition that during the course of an investigation of a university professo r, a university administrator violates the professor’s procedural due process rig hts by interviewing students with complaints. Next Professor Tonkovich complains of Executive Vic e Chancellor Shankel’s denial of the existence of written compla inant statements. We have47

already discussed the failure to reveal the complai nants’ statements in the context of the Hearing Committee, Ms. Marino, and the Law S chool faculty members. For similar reasons, the fact that Executive Vice C hancellor Shankel denied that the complainants had submitted written statements d oes not implicate Professor Tonkovich’s procedural due process rights. Althoug h such conduct on the part of any university employee is not to be commended, it does not rise to the level of a constitutional violation. As previously discussed, the University provided summaries of the statements prior to his hearing, and Professor Tonkovich had the opportunity to cross-examine each of the compla inants. Professor Tonkovich next argues that Vice Chancello r Brinkman and Executive Vice Chancellor Shankel violated his proc edural due process rights when they took part in settlement negotiations. Sp ecifically he points to their actions in recommending that he resign quietly and in stating that there were no terms acceptable to the University for Professor To nkovich to continue as a faculty member. Professor Tonkovich fails to alleg e, however, how these actions caused the deprivation of his procedural due proces s rights. He does not allege, for example, that in pressuring him to resign quiet ly or in stating that there were no acceptable terms to the University, Vice Chancel lor Brinkman and Executive Vice Chancellor Shankel somehow prevented him from receiving notice of the charges against him or an opportunity to respond.48

Finally, Professor Tonkovich argues that ChancellorBudig violated his procedural due process rights by including in the f ormal complaint allegations that several law students thought were groundless. We fail to see how this implicates Professor Tonkovich’s procedural due pro cess rights in the absence of an allegation that he was not given notice of these charges or an opportunity to respond to them. It is hardly the role of a law student to decide which allegations to include in a charging document against a faculty member. Professor Tonkovich was free to call these students as witnes ses in his defense, and his complaint indicates that these students did submit affidavits stating their positions. For all of these reasons, the district court erred in denying the motion to dismiss the procedural due process claim againstthe staff members of the Chancellor’s office on qualified immunity grounds.

After considering the arguments of the parties, we turn our attention briefly to the district court’s disposition of the qualifie d immunity issue as it relates to Professor Tonkovich’s procedural due process claim. The district court concluded that Professor Tonkovich’s hearing was a combined pre- and posttermination hearing. Aplts’ App. vol. IV, doc. 18 at 1345-46. However, Professor Tonkovich was not dismissed until after the hearing was complete and the Hearing Committee handed down its findings and conclusions. During the49

course of his hearing, although he was on teaching leave, his employment with the University had not been terminated. Thus, we think the district court was technically incorrect on this point. The evidentiary hearing was, in actuality, a pretermination hearing that afforded Professor Tonk ovich more process than he was due prior to being terminated. In addition, th e district court failed to consider that Professor Tonkovich had the opportuni ty to appeal to the Board of Regents and then, finally, to file an action for ju dicial review in state district

court. A state court proceeding for judicial review of the University’s action would have afforded Professor Tonkovich the opportu nity to present evidence as to the alleged “unlawfulness of [the] procedure or of [the] decision-making process.” See Kan. Stat. Ann. § 77-619(a)(2). Furthermore, on j udicial review, the state district court would have had the power t o order the University to take a specific action, enjoin the University from enforci ng an action, or render appropriate declaratory relief. See id. at § 77-622(b). Although, as we have stated, exhaustion is not a prerequisite to bringin g a § 1983 claim, the fact that Professor Tonkovich did have the opportunity for an additional post-termination hearing, regardless of whether he exercised this ri ght, is germane to our inquiry into what process the state afforded him. The district court further concluded that the indiv idual defendants were not50

entitled to qualified immunity in part because Prof essor Tonkovich received inadequate notice of the charges against him due to the fact that the University increased the stakes as the investigation progresse d. We think this conclusion is incorrect for at least two reasons. First of all, the fact remains that approximately four months before the hearing, the University file d a written complaint against Professor Tonkovich. Thus, well in advance, the C hancellor informed Professor Tonkovich in writing as to the charges and the pena lty he faced. Second, the district court failed to consider which of the indi vidual defendants was responsible for giving Professor Tonkovich notice o f the charges. Surely, for example, the Law School faculty members cannot be s aid to have violated Professor Tonkovich’s procedural due process rights by failing to give him notice of the charges, because they had no duty to give hi m notice; moreover, none of their actions deprived him of notice. As we have stated, under Loudermill , before he was terminated, Professor Tonkovich was entitled to notice, an explanation of the charges against him, and an opportunity to respond. Professor Tonkovich’s o wn complaint reflects that, prior to his termination, he received these protect ions and much more. A fullblown evidentiary hearing clearly meets the dictates of Loudermill . Taking into consideration Professor Tonkovich’s pretermination hearing, in combination with the various post-termination proceedings afforded b y the state, we conclude that9 We express no opinion as to whether the professors’ statements did,

indeed, infringe Professor Tonkovich’s liberty inte rest. As we have already (continued...) 51 Professor Tonkovich was afforded all of the process that he was due, and perhaps more than what Loudermill requires. Because we have found that Professor Tonkovich rece ived all of the process that he was due, we must reject his claim f or deprivation of a liberty interest, as well. In order to demonstrate the inf ringement of a liberty interest in one’s good name, one must show that: 1) the defend ant made a statement impugning his or her good name, reputation, honor, or integrity; 2) the statement was false; 3) the defendant made the statement in the course of termination proceedings or the statement foreclosed future empl oyment opportunities; and 4) the statement was published. Workman , 32 F.3d at 481 (internal citations omitted). In such a case, the Due Process Clause r equires an adequate nameclearing hearing. Id. at 480. We acknowledge that Professor Tonkovich d id, indeed, have a liberty interest in his reputation, deserving of due process protection. However, even if the University infrin ged that interest, when, for example, two of the faculty members stated that the y heard that the Law Student accused Professor Tonkovich of rape, we conclude th at the University provided him with an adequate name-clearing hearing. Thus, there is perhaps a tort claim, but there is no constitutional violation. 99 (...continued)

noted, in order to infringe one’s liberty interest, the defendant must, among other things, make a false statement impugning the plaintiff’s reputation. See Workman , 32 F.3d at 481. At this stage, we are constraine d to accept Professor Tonkovich’s version of the facts. 52 After carefully considering Professor Tonkovich’s a llegations, the defendants’ arguments, and the relevant law, we hol d that the individual defendants are entitled to qualified immunity on Pr ofessor Tonkovich’s procedural due process claim. We do not necessarilycondone each of the procedures that the University followed in the cour se of Professor Tonkovich’s disciplinary proceedings. Nevertheless, as we have discussed, every alleged procedural error does not necessarily implicate due process. Although Professor Tonkovich may or may not have valid claims based on violations of state law, he has failed to meet his burden on qualified immunityas it relates to his federal procedural due process claim. We turn now to a dis cussion of Professor Tonkovich’s substantive due process claim.

B. Are the Defendants Entitled to Qualified Immuni ty on Professor Tonkovich’s Substantive Due Process Claim? At the outset, we must address the district court’s supposed failure to consider the defendants’ entitlement to qualified i mmunity on Professor Tonkovich’s substantive due process claim. The dis trict court stated that after an53

extensive review of the record, it could not “locat e the individual defendants’ argument that they are entitled to qualified immuni ty on plaintiff’s substantive due process claim.” Aplts’ App. vol. IV, doc. 18 at 1350. Therefore, the court stated that it was declining to address the issue. Id. Although all of the defendants filed motions to dis miss Professor Tonkovich’s due process claim based on qualified im munity, they did not separately address substantive due process. Howeve r, they all argued, in more or less general terms, that they are entitled to quali fied immunity because Professor Tonkovich failed to allege specific facts showing that they had violated any clearly established constitutional right of which areasonable person would have known. See, e.g. , Aplts’ App. vol. I, doc. 3 at 172 (plaintiff’s fa ilure to allege that Hearing Committee members violated clearly est ablished right entitles them to qualified immunity); id. , doc. 4 at 216-17 (plaintiff’s failure to identifyclearly established right entitles Board of Regents to qualified immunity); id. , doc. 5 at 248 (doctrine of qualified immunity bars suit again st Law School faculty members because their conduct had no effect on plai ntiff’s constitutional rights); id. vol. II, doc. 7 at 679 (Dean Jerry entitled to qua lified immunity because his actions did not violate clearly established constitutional rights); see also id. vol. III, doc. 9 at 996 (plaintiff’s failure to allege that Chancellor’s office staff members violated clearly established due process ri ghts entitled them to qualified54

immunity). Our review of count one of Professor Tonkovich’s fi rst amended complaint indicates that Professor Tonkovich himself did not delineate his due process claim as containing both a procedural and a substan tive component. On the contrary, count one is entitled “42 U.S.C. Section 1983 (Fourteenth Amendment Due Process).” Id. vol. I, doc. 1 at 79. Nowhere in his complaint do es Professor Tonkovich argue that the defendants violated his su bstantive due process rights. He simply refers to “due process,” which, under the circumstances, the defendants could reasonably interpret in various ways. Professor Tonkovich has the burden to identify the rights that he alleges the defendants violated. See Walter , 33 F.3d at 1242. Thus, the defendants should notbe required to guess whether Professor Tonkovich pled a substantive due process claim, a procedural due process claim, or both. At this stage of the litigation, Professor Tonkovic h argues that his substantive due process claim is based on the alleg ation that he did not have fair warning of prohibited conduct and is further based “on the defendants’ other arbitrary and wrongful actions.” Aple’s Brief at 3 6. However, Professor Tonkovich did not articulate his “no fair warning” argument before the district court in his response to the defendants’ motions to dismiss. Instead, he argued that his substantive due process claim was based on the fact that the defendants55

had deprived him of liberty and property. Aplts’ App. vol. III, doc. 10 at 1102- 03. Such an argument applies equally in the proced ural due process arena as it does in the substantive, for there can be no violat ion of one’s procedural due process rights without a deprivation of life, liberty, or property. See U.S. Const. amend. XIV, § 1. Moreover, in the portion of his r esponse addressing substantive due process, Professor Tonkovich referr ed to the defendants denying him an impartial tribunal, arguably a procedural du e process topic, rather than a substantive one. Aplts’ App. vol. III, doc. 10 at 1103. Our point here is that Professor Tonkovich’s substantive due process claim lacked crisp contours during the district court pro ceedings. And even now, as mentioned above, Professor Tonkovich argues that hi s substantive due process claim is based, in part, on a host of allegedly arb itrary and wrongful actions of the defendants, some of which implicate procedural due process concerns. Because of the overlap inherent in the way Professo r Tonkovich pled his due process claim, we think that the district court rea d the defendants’ motions to dismiss too narrowly. In other words, we think that the defendants’ motions to dismiss on the basis of qualified immunity were suf ficient to put the district court on notice that they were asserting the affirmative defense of qualified immunity with respect to Professor Tonkovich’s entire § 1983 due process claim. Furthermore, because the substantive due process cl aim is based, in part, on56

allegedly arbitrary actions that may be fairly char acterized as implicating procedural due process rights, we think the distric t court’s treatment of the due process claim with respect to qualified immunity is of sufficient breadth to allow us to review the issue of qualified immunity as it relates specifically to substantive due process. We turn now to that porti on of our task.

Because Professor Tonkovich was a tenured professor , the law in this Circuit is that he possessed “a property interest d eserving of . . . substantive protections of the Fourteenth Amendment.” Brenna , 589 F.2d at 476. Substantive due process requires that the terminati on of a tenured professor’s property interest not be “arbitrary, capricious, or without a rational basis.” Id. at 477. The Supreme Court has “emphasized time and ag ain that [t]he touchstone of due process is protection of the individual agai nst arbitrary action of government . . . .” Lewis , 118 S. Ct. at 1716 (quotation omitted). In Uhlrig v. Harder , 64 F.3d 567 (10th Cir. 1995), we stated that “the standard for judging a substantive due process clai m is whether the challenged government action would ‘shock the conscience of federal judges.’” Id. at 573 (quoting Collins v. City of Harker Heights , 503 U.S. 115, 126 (1992)) (quotation omitted). To satisfy this standard, “a plaintiff m ust do more than show that the government actor intentionally or recklessly causedinjury to the plaintiff by57

abusing or misusing government power.” Uhlrig , 64 F.3d at 574. Instead, a plaintiff “must demonstrate a degree of outrageousn ess and a magnitude of potential or actual harm that is truly conscience shocking.” Id. We acknowledged that “[t]he level of conduct required to satisfy this additional requirement cannot precisely be defined, but must n ecessarily evolve over time from judgments as to the constitutionality of specific government conduct.” Id. Recently, the Supreme Court reaffirmed the “shocks the conscience” test in Lewis , 118 S. Ct. 1708, which involved a substantive due process claim brought under § 1983 against a municipality after a high-sp eed police chase killed a sixteen-year-old boy. The Court noted that “[w]hil e due process protection in the substantive sense limits what the government may do in both its legislative and its executive capacities, criteria to identify whatis fatally arbitrary differ depending on whether it is legislation or a specifi c act of a governmental officer that is at issue.” Id. at 1716 (citations omitted). The Court went on to state that “for half a century now we have spoken of the cogni zable level of executive abuse of power as that which shocks the conscience.” Id. at 1717. Accordingly, when a plaintiff brings a substantive due process c hallenge to executive action, “the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be sai d to shock the contemporary conscience.” Id. at 1717 n.8.58

Professor Tonkovich argues that the “shocks the con science” standard does not apply to this case because the defendants’ cond uct was intentional. He argues that the defendants’ actions should be measu red instead against a generic standard of arbitrariness. However, in the alternative, he argues that the defendants’ conduct was, indeed, shocking to the co nscience. There is some indication that the “shocks the consc ience” standard and the “arbitrariness” standard are used interchangeably. See, e.g. Collins , 503 U.S. at 128 (stating that the Court is not persuaded that the defendants’ actions “can properly be characterized as arbitrary, or conscien ce shocking, in a constitutional sense”). Justice Scalia’s reading of the majority opinion in Lewis is that the shocks-the-conscience test “is the measure of arbitrariness when what is at issue is executive rather than legislative action.” Lewis , 118 S. Ct. at 1724 (Scalia, J., concurring) (emphasis in original). In any event, we express no opinion on whether the “shocks the conscience” standard applie s to this case because regardless of whether we use that standard or we si mply inquire whether the defendants’ actions were arbitrary or lacking a rat ional basis, the defendants are entitled to qualified immunity on Professor Tonkovi ch’s substantive due process claim. As we shall discuss in greater detail below , the defendants’ actions were not arbitrary, did not lack a rational basis, and w ere not shocking to the conscience.59

As we have discussed, Professor Tonkovich claims th at the defendants violated his substantive due process rights by thei r failure to warn him of prohibited conduct and by their other arbitrary andwrongful actions. At this juncture, we shall discuss each defendant’s (or def endant group’s) arguments with respect to qualified immunity on Professor Ton kovich’s substantive due process claim.

1. Appeal of Dean Jerry (Case No. 96-3402) Professor Tonkovich argues that Dean Jerry violated his substantive due process rights because the memorandum he issued to faculty falsely asserted that student/faculty sex was unethical under the FacultyCode. Furthermore, Professor Tonkovich argues, Dean Jerry violated his substantive due process rights by proposing a rule, with retroactive applic ation, prohibiting sexual relations between professors and students enrolled in their courses. Since the Law School faculty did not approve Dean Jerry’s pro posed rule, the argument goes, Professor Tonkovich was arbitrarily charged w ith violating a nonexistent rule. In response, Dean Jerry argues that Professo r Tonkovich did indeed have fair warning that his conduct was prohibited becaus e at the time he allegedly engaged in a sexual act with one if his students af ter discussing law school grades with her, it was clearly unethical, under ex isting University policy, for a60

professor to exploit a student for his own private advantage. We acknowledge that the allegations against Profess or Tonkovich required Dean Jerry and other University officials to confro nt a difficult question: when does sexual contact between participants in an uneq ual power relationship become exploitative? However, the fact that reason able minds might not agree with the way in which the majority of the Hearing C ommittee, the Chancellor, and the Regents resolved that question is insuffici ent to support a substantive due process claim. In this regard, we note that the Seventh Circuit ha s rejected a claim similar to Professor Tonkovich’s claim that he did not have fair warning that his conduct was prohibited. In Korf v. Ball State Univ. , 726 F.2d 1222 (7th Cir. 1984), a tenured professor who allegedly sexually harassed v arious students filed a § 1983 suit after he was discharged from the faculty. He alleged that his substantive due process rights were violated because he did not hav e adequate notice that consensual sexual relations between faculty members and students were prohibited. Id. at 1226. The court noted that, after an investigation and a hearing, a committee found that the plaintiff had e ngaged in unethical behavior by exploiting students for his private advantage. Thus, consensual sexual relations were not at issue. The court stated that“[c]ommon sense, reason and good judgment should have made [the plaintiff] cogn izant of the fact that his61

conduct could and would be cause for termination.” Id. at 1227. Likewise, in the case at bar, if common sense, reason, and good judgment were not adequate to notify Professor Tonkovich, certainly the Faculty Code’s prohibition against exploiting students concretely notified him that he could be terminated for having sex with one of his students after discussing her g rades. Next, Professor Tonkovich argues that Dean Jerry vi olated his substantive due process rights by initially withholding the nam e of Professor Tonkovich’s accuser and the nature of the accusation. However, Professor Tonkovich has cited no law, and certainly no clearly established law, supporting his argument that he had a substantive due process right to know the name of his accuser on the day she lodged her complaint. Furthermore, as we have discussed, Professor Tonkovich knew the name of his accuser and the natu re of her allegation well before he had the opportunity to cross-examine her. Finally, Professor Tonkovich argues that Dean Jerryviolated his substantive due process rights by giving him an une arned negative annual evaluation and the lowest merit salary increase on the entire law school faculty. In light of the fact that Professor Tonkovich was e mbroiled in a scandal involving sexual misconduct with one of his student s, we cannot say that Dean Jerry’s action in this respect was completely arbitrary or irrational. Professor Tonkovich certainly has not cited any clearly estab lished law that would lead us62

to such a conclusion. For these reasons, the distr ict court erred in denying Dean Jerry’s motion to dismiss the substantive due proce ss claim on qualified immunity grounds.

2. Appeal of Regents (Case No. 96-3403) and Hearing Committee (Case No. 96-3404) Professor Tonkovich argues that the Regents and the Hearing Committee members violated his substantive due process rights by making erroneous findings that he engaged in unethical conduct. Furthermore, he argues, they violated his substantive due process rights by voti ng for his dismissal, a sanction that he claims lacks a rational basis. The Regents and the Hearing Committee members argue that the fact that they did not agree with Professor Tonkovich on every issue and did not ultimately find in his favor cannot form the basis of a substantive due process claim against them. They argue that even assuming, for purposes of argument, their decisions in finding that he committed the ch arged conduct and voting for his dismissal were wrong, these actions do not rise to the level of a substantive due process violation. We agree. Indeed, “[t]he D ue Process Clause is not a guarantee against incorrect or ill-advised personnel decisions.” Collins , 503 U.S. at 129 (quotation omitted). For these reasons, the district court erred in denying63

the Regents’ and the Hearing Committee members’ mot ions to dismiss the substantive due process claim on qualified immunitygrounds.

3. Appeal of Professor McKenzie (Case No. 96-3405) Professor McKenzie is entitled to qualified immunity on Professor Tonkovich’s substantive due process claim for the s ame reasons that she is entitled to qualified immunity on his procedural du e process claim. That is, in merely signing the Letter, refusing to testify, anddating a student, Professor McKenzie neither subjected Professor Tonkovich, norcaused Professor Tonkovich to be subjected, to a deprivation of his substantive due process rights. Furthermore, Professor Tonkovich has cited no clear ly established law standing for the proposition that taking any of these action s violates one’s substantive due process rights.

4. Appeal of the University General Counsel (Case No. 96-3406) We have already discussed the specific allegations against Ms. Thomas and Ms. Marino. Professor Tonkovich has failed to cite any clearly established law that would lead us to believe that any of the actio ns they took or failed to take caused the deprivation of his substantive due proce ss rights. For this reason, Ms. Thomas and Ms. Marino are entitled to qualified imm unity on Professor64

Tonkovich’s substantive due process claim.

5. Appeal of Law School Faculty Members (Case No. 96-3407) Professors Shapiro, Robinson, Dayton, Schroeder, an d Sward argue that they are entitled to qualified immunity on Professo r Tonkovich’s substantive due process claim because the allegations against them do not show a violation of a constitutional right at all, much less a clearly es tablished right. We have already discussed the specific allegations against the Law School faculty members, and we will not repeat them here. We agree that Profes sor Tonkovich has pointed to no Supreme Court or Tenth Circuit precedent establi shing that any of their actions could constitute a violation of one’s subst antive due process rights. We shall, however, address two specific allegations. Professor Tonkovich claims that two of the Law Scho ol faculty members violated his substantive due process rights by stat ing that the Law Student had accused him of rape. However, “[a] substantive due process violation must be something more than an ordinary tort to be actionable under § 1983.” Abeyta v. Chama Valley Indep. Sch. Dist. No. 19 , 77 F.3d 1253, 1257 (10th Cir. 1996). Professor Tonkovich may have a cause of action agai nst these professors or against the University under state law, but he has failed to meet his burden on qualified immunity as to a federal constitutional c laim.65

As to Professor Tonkovich’s substantive due process claim based on a lack of fair warning of prohibited conduct, the Law Scho ol faculty members argue that this claim contains no allegations addressed s pecifically to them. That is, they argue that Professor Tonkovich did not allege that they had a duty to warn him of what kind of conduct the Faculty Code prohib ited. Additionally, they argue, Professor Tonkovich was put on notice that exploiting a student for his own benefit was a violation of the Faculty Code. W e agree. For these additional reasons, the Law School faculty members are entitle d to qualified immunity on Professor Tonkovich’s substantive due process claim

.

6. Appeal of the Chancellor’s Office (Case No. 96- 3408) Professor Tonkovich argues that the University viol ated his substantive due process rights by ignoring its six-month statut e of limitations for sexual harassment charges. However, as counsel for the Bo ard of Regents pointed out at oral argument, the charges against Professor Tonkov ich were not solely based on sexual harassment. Professor Tonkovich was charged with violating an ethical provision of the Faculty Code. Even if a claim of sexual harassment was timebarred, the claim of an ethical violation was not. We cannot say that it was unconstitutionally arbitrary for the University to proceed with the prosecution, even though some of the charges involved sexual mis conduct. Furthermore,66

Professor Tonkovich has failed to cite clearly established law demonstrating that a reasonable University official in the Chancellor’ s position would have known that going forward with the prosecution would have violated Professor Tonkovich’s substantive due process rights. Next Professor Tonkovich claims that the staff memb ers of the Chancellor’s office violated his substantive due pr ocess rights by attempting to discourage him from exercising his right to a heari ng. Specifically, he claims that after he requested a hearing, University admin istrators warned him that past conduct might be cause for future disciplinary acti on. In addition, the University increased the possible sanction from a one-year pai d teaching suspension to dismissal. He claims that he was fired for asserti ng his innocence and demanding a hearing. We note that as the investigation progr essed, the complaints against Professor Tonkovich mounted. There was nothing unc onstitutionally arbitrary about extending the investigation or about changing the proposed disciplinary action. Professor Tonkovich next argues that Chancellor Bud ig violated his substantive due process rights because the charges against him and the recommended sanction lacked a rational basis. Howe ver, after the investigation was completed, the University had its side of the s tory, and Professor Tonkovich had his side of the story. Even taking Professor T onkovich’s version of the facts67

as true, as we must, we cannot say that the charges and the penalty he faced were unconstitutionally arbitrary. For these reasons, w e conclude that the district court erred in denying the motion to dismiss the substant ive due process claim against the staff members of the Chancellor’s office on qua lified immunity grounds.

After carefully considering Professor Tonkovich’s a llegations and each of the defendants’ arguments, we conclude that the dis trict court erred in denying the defendants’ motions to dismiss any “substantive due process” claim Professor Tonkovich may have asserted. Professor Tonkovich’s substantive due process argument on appeal takes up almost nineteen pages i n his brief but contains very little legal authority. Pages and pages of facts are no substitute for citations to clearly established law. Nor can they meet Profess or Tonkovich’s burden on qualified immunity. We hold that each of the indiv idual defendants is entitled to qualified immunity on Professor Tonkovich’s § 1983 claim based on a violation of his substantive due process rights.

C. Are the Defendants Entitled to Qualified Immuni ty on Professor Tonkovich’s Equal Protection Claim? According to the Equal Protection Clause of the Fou rteenth Amendment, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. This C lause “embodies a general68

rule that States must treat like cases alike but may treat unlike cases accordingly.” Vacco v. Quill , ____ U.S. ____, 117 S. Ct. 2293, 2297 (1997). Un less a legislative classification or distinction burdens afundamental right or targets a suspect class, courts will uphold it if it is ratio nally related to a legitimate end. Id. Professor Tonkovich does not allege that a fundam ental right is at stake, nor does he allege that he is a member of a suspect cla ss. Thus, in order to prevail on his equal protection claim, he must show that the U niversity treated him differently than others “similarly situated . . . and that this different treatment lacked a rational basis.” Landmark Land Co. of Oklahoma v. Buchanan , 874 F.2d 717, 722 (10th Cir. 1989); see also City of Cleburne v. Cleburne Living
Ctr. , 473 U.S. 432, 439-40 (1985). Professor Tonkovich alleges that the defendants vio lated his equal protection rights because the University has not pe nalized other professors, much less dismissed them, for dating their students. He points out that not only did other law professors openly date students but that the Law School actually promoted social activities between professors and s tudents. The district court concluded that “[a]llegations th at these defendants disciplined plaintiff for a faculty-student relatio nship, without similar discipline for other professors who had relationships with stu dents, establish a possible violation of plaintiff’s right to equal protection. ” Aplts’ App. vol. IV, doc. 18 at69

1356. There are at least two crucial problems with the district court’s conclusion. First, as many defendants have pointed out, Professor Tonkovich has failed to allege facts sufficient to establish thathe is similarly situated to law professors who dated students. Professor Tonkovich was not charged with dating a student. He was charged with exploiting a studen t for his own private advantage by engaging one of his students in a disc ussion of grades and then having sexual relations with her. Although we mustaccept as true Professor Tonkovich’s claim that he did not engage in the charged behavior, see Aplts’ App. vol. I, doc. 1 at 60, we must also accept as true the fact that this is part of what the University prosecuted him for and found him guilty of, see id. at 57-58. In any event, Professor Tonkovich does not allege t hat he was dating the Law Student, or any of his other students. Second, the district court’s conclusion is infirm b ecause it lumps all of “these defendants” together despite the fact that e ach of the defendants had different powers and duties and took different acti ons with respect to Professor Tonkovich. Although the district court acknowledge d that it must identify on the record defendants’ conduct that violated clearly established law, see Aplts’ App. vol. IV, doc. 18 at 1342, it wholly failed to ident ify specific actions taken by particular defendants that could form the basis of an equal protection claim. For example, the district court did not point to any particular action taken by a Law70

School faculty member that can be said to have caus ed a deprivation of Professor Tonkovich’s equal protection rights. In this way, the district court erred in failing to grant the Law School faculty members qua lified immunity. It is not necessary for us, however, to consider th e specific allegations against each defendant because at the heart of any equal protection claim must be an allegation of being treated differently than tho se similarly situated. Professor Tonkovich would have had to allege that other profe ssors who had sex with a student, in a manner that exploited the student, we re not treated the way he was treated by University officials. Therefore, we con clude that the district court erred when it ruled that the defendants are not ent itled to qualified immunity on Professor Tonkovich’s equal protection claim. We h old that each of the individual defendants is entitled to qualified immu nity as to Professor Tonkovich’s § 1983 claim based on a violation of hi s right to equal protection of the laws.

III. CONCERTED ACTION Professor Tonkovich argues that the reasonable infe rence to be drawn from all of the allegations in his complaint is that the defendants engaged in concerted action with the common goal of terminating his empl oyment with the University. Professor Tonkovich claims that the reason the Univ ersity handled his case the10 As noted above, the district court ruled that the d efendants were entitled

to qualified immunity on Professor Tonkovich’s Firs t Amendment claim based on these allegations. 71 way it did and the reason he was ultimately dismiss ed is because of his outspoken political conservatism and because he supported an unpopular candidate during a divisive dean search at the Law School. 10 By raising the specter of a conspiracy, he attempts to avoid a grant of qualified immunity to the individual defendants. It is true that on a motion to dismiss, we must draw all reasonable inferences in Professor Tonkovich’s favor. Swanson , 750 F.2d at 813. However, we do not think that Professor Tonkovich has proper ly pled a claim that the individual defendants acted in concert to deprive h im of his constitutional rights. Put differently, we do not think that such an infer ence is reasonable. At oral argument, counsel for the Law School faculty members and counsel for Ms. Thomas and Ms. Marino argued that ProfessorTonkovich did not allege a civil rights conspiracy under 42 U.S.C. § 1985 in h is complaint. Counsel for Professor Tonkovich conceded that Professor Tonkovi ch did not plead a § 1985 claim. However, he claims that he has met his burd en of showing that the defendants violated clearly established rights unde r § 1983. For example, he argues, the fact that some of the Law School faculty members met with certain administrators during the investigatory process andthen signed the Letter soliciting complaints from students is enough to sh ow that the faculty members72

were acting in concert with the administrators to d eprive him of his constitutional rights. Allegations of conspiracy may, indeed, form the bas is of a § 1983 claim.
Hunt v. Bennett , 17 F.3d 1263, 1266 (10th Cir. 1994). However, a plaintiff must allege specific facts showing an agreement and conc erted action amongst the defendants. Id. “Conclusory allegations of conspiracy are insuffi cient to state a valid § 1983 claim.” Id. (quotation omitted). Professor Tonkovich presents us with nothing more than conclusory allegations. We do not think it is reasonable to i nfer, for example, that because certain Law School faculty members met with certain administrators during the investigation, they were conspiring with one anothe r and with the Hearing Committee who ultimately found against Professor To nkovich. Furthermore, there is no indication that the Hearing Committee m embers or the Regents were even aware of the divisive dean search or of the candidate whom Professor Tonkovich supported. Professor Tonkovich has simpl y failed to carry his burden of alleging the facts necessary to support his clai m of conspiracy on qualified immunity.

IV. CONCLUSION Ironically, Professor Tonkovich has said both too m uch and too little. His73

complaint certainly does not follow the dictates of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8(a) (“A pleading which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim . . . .). He pled facts extensively and repetitively in a 101-pa ge complaint. However, as we have noted, facts by the truckload are simply not e nough to meet a plaintiff’s burden on qualified immunity. At the same time, we are certainly less than sangui ne about some of the alleged actions taken by various University officia ls. In addition, the allegations of various violations of University policy cause us some discomfort. We do not know if we would have reached the same result that the Hearing Committee reached, by a close 3-2 vote. However, as we state d earlier, “[t]he Due Process Clause is not a guarantee against incorrect or ill- advised personnel decisions.” Collins , 503 U.S. at 129 (quotation omitted). As noted legal scholar Alexander Bickel observed, “ [T]he highest morality almost always is the morality of process.” Alexand er Bickel, The Morality of Consent 123 (1975). The process described in Profe ssor Tonkovich’s complaint, a hearing spanning nine months in conjunction with two post-termination remedies, clearly comports with the process require d by the law of our land. The Due Process Clause does not guarantee that the Univ ersity of Kansas would reach a result with which Professor Tonkovich agreed.11 Finally, we deny Professor Tonkovich’s pending moti on for leave to

file a sur-reply. 74 In summary, we conclude that the district court err ed when it denied the defendants’ motions to dismiss based on qualified i mmunity. We hold that each of the individual defendants is entitled to qualifi ed immunity on Professor Tonkovich’s remaining § 1983 claims, i.e., violatio ns of procedural due process, substantive due process, and equal protection right s. We REVERSE the district court’s ruling to the contrary and REMAND the case to the district court with instructions to dismiss the remaining § 1983 claims against the individual defendants on qualified immunity grounds and for fu rther proceedings consistent with this opinion. 11