PUBLISH
UNITED STATES COURT OF APPEALS Filed 9/10/96 TENTH CIRCUIT

R.C. BUNGER, and K.V. PRADHAN,

Plaintiffs - Appellants,

v. UNIVERSITY OF OKLAHOMA BOARD OF REGENTS; CAMERON UNIVERSITY; DON DAVIS, President; JACQUETTA MCCLUNG,Dean; TERRIL MCKELLIPS, VicePresident for Academic Affairs; WANDA STEVENS, Chairman, Department of Administrative Sciences, School of Business; BOB SHEETS, Chairman, Department of Accounting and Finance, School of Business, Defendants - Appellees. No. 95-6191

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D. Ct. No. Civ-92-915-L)
Donald A. Herring (Joseph W. Strealy, with him on the brief), Schnetzler/Strealy, Oklahoma City, Oklahoma, appearing for Appellants. Harry F. Tepker, Jr., University of Oklahoma Law Ce nter, Norman, Oklahoma (Fred Gipson and Lisa Millington, University of Okl ahoma, Office of Legal Counsel, Norman, Oklahoma, with him on the brief), appearing for the Appellees.- 2 -

Before ANDERSON, TACHA, and BALDOCK, Circuit Judges

. TACHA, Circuit Judge.

Plaintiffs R.C. Bunger and K.V. Pradhan sued their former employer, Cameron University, the University of Oklahoma Boar d of Regents, and various administrators associated with Cameron University u nder 42 U.S.C. § 1983 for deprivation of their due process and free speech ri ghts. The district court granted summary judgment in favor of the defendants on bothclaims, and Bunger and Pradhan now appeal. We exercise jurisdiction pursu ant to 28 U.S.C. § 1291 and affirm.

I. Background Bunger and Pradhan were untenured assistant profess ors in tenure-track faculty positions in the Cameron University School of Business. In December 1990, the two professors, along with two other facu lty members, signed a “Complaint Relating to Election Procedures for Grad uate Council Membership from the School of Business.” The complaint was a memorandum to Dean Jacquetta J. McClung of the School of Business and to the chairpersons of the two departments at the school, and criticized the dean’ s announced election procedures for becoming a member of the Cameron Uni versity Graduate Council.- 3 -

The Graduate Council played a role in shaping admis sions policies to graduate programs, graduate curriculum content, and qualific ations for graduate degrees. The professors complained that the election procedu res restricted Graduate Council membership to tenured faculty and that excl usion of untenured faculty from the Council violated the university’s Faculty Handbook. Prior to the professors’ complaint, Bunger had received six of n ine votes cast as a write-in candidate for the Council. Accordingly, in additio n to demanding that untenured faculty be eligible for Council membership, the complaint requested “that the election of R.C. Bunger be honored.” In April 1991, defendant Terril McKellips, Vice-Pre sident for Academic Affairs, officially notified Bunger and Pradhan that they had not been recommended for reappointment and that their curren t appointments would be terminated at the end of the 1991-1992 academic yea r. Both professors filed grievances with the Faculty Grievance Committee, co mplaining that the university failed to follow Faculty Handbook guidelines in mak ing its reappointment decision. In particular, the professors complainedthat the university violated rules regarding the selection of a reviewing person nel committee, notification procedures, the scheduling of meetings, the develop ment of evaluation plans, and the provision of an opportunity for the faculty mem ber under scrutiny to address the personnel committee. The committee recommended that both professors be- 4 -

reappointed because the university had failed to fo llow its procedural guidelines in evaluating their performance. However, the univ ersity declined to follow the committee’s recommendations and refused to reappoint Bunger and Pradhan for the 1992-1993 academic year. In May 1992, the plaintiffs initiated this action a gainst Cameron University, the Board of Regents, and various individual defend ants. They allege that the defendants deprived them of procedural due process by failing to reappoint them to the faculty of Cameron University in violation o f procedures contained in the university’s Faculty Handbook. In addition, the pl aintiffs alleged that the defendants violated their First Amendment right to free speech by declining to reappoint them, in retaliation for their participat ion in the grievance regarding the composition of the university’s Graduate Council. In April 1995, the district court entered an order granting summary judgment to the defendants and dismissing all claims against the defendants.

II. The Due Process Claims We review a district court’s grant of summary judgm ent de novo, applying the same legal standard employed by the district co urt. Wolf v. Prudential Ins. Co. of Am. , 50 F.3d 793, 796 (10th Cir. 1995). Bunger and Pr adhan first contend that the university’s decision not to reappoint the m constitutes a deprivation of- 5 -

their procedural due process. The requirements of procedural due process apply only where a person is deprived of “life, liberty o r property.” U.S. Const. amend. XIV, § 1; see Board of Regents of State Colleges v. Roth , 408 U.S. 564, 569 (1972). In this case, the plaintiffs assert that t hey possess a constitutionallyprotected property interest in their reappointment as untenured faculty members. The property interests safeguarded by due process are not created by the Constitution, Roth , 408 U.S. at 577, nor limited to “actual ownership of real estate, chattels, or money.” id. at 571-72. “Rather they are created and their dimensions are defined by existing rules or underst andings that stem from an independent source such as state law . . . .” Id. at 577. Under Oklahoma state law, public employees are empl oyed at will unless they have specific contractual arrangements entitli ng them to continued employment, such as tenure agreements. See Carnes v. Parker , 922 F.2d 1506, 1510 (10th Cir. 1991). Tenured professors in Oklah oma possess a property interest in their continued employment that is prot ected by the Due Process Clause. Short v. Kiamichi Area Vocational-Technica l Sch. Dist. No. 7 , 761 P.2d 472, 475-76 (Okla. 1988). However, untenured profe ssors in Oklahoma do not possess this “legitimate claim of entitlement” to t heir reappointment absent a specific contractual guarantee to that effect. See Roth , 408 U.S. at 2709. Consequently, Bunger and Pradhan can assert no cons titutionally-cognizable- 6 -

property interest in their reappointment. Bunger and Pradhan also contend that the procedural guidelines in the Faculty Handbook effectively created a property int erest in reappointment, of which they could be divested only according to the terms of the specified procedures. This tautological argument fails becau se it attempts to construct a property interest out of procedural timber, an unde rtaking which the Supreme Court warned against in Cleveland Board of Educatio n v. Loudermill , 470 U.S. 532 (1985). “The categories of substance and proce dure are distinct. . . . ‘Property’ cannot be defined by the procedures prov ided for its deprivation any more than can life or liberty.” Id. at 541. The university’s promise that it would follow certain procedural steps in considering the professors’ reappointment did not beget a property interest in reappointment. See Colburn v. Trustees of Indiana Univ. , 973 F.2d 581, 589-90 (7th Cir. 1992) (holding that statements in handbooks and appointment contracts that untenured university faculty would be judged according to certain criteria and procedures did not create a property interest in reappointment). Only a formal guarante e of continuing employment under color of state law--of which academic tenure is a classic example--would have created a property interest. In sum, because Bunger and Pradhan do not possess a property interest in their reappointment, they may not avail themselves of the constitutional protections of the Due Proces s Clause.- 7 -

The plaintiffs in this case also assert that the de fendants deprived them of a constitutionally-cognizable libertyinterest by refusing to reappointment them. Bunger alleges that another university withdrew an offer of employment after it learned of his pending litigation with Cameron Univ ersity. Bunger and Pradhan therefore argue that Cameron University’s decision to not reappoint them restricted their liberty to take advantage of otheremployment opportunities, in violation of the requirements of due process. Alth ough the liberty guaranteed by the Fourteenth Amendment extends beyond freedom fro m bodily restraint, Roth , 408 U.S. at 572, it does not extend as far as the p laintiffs in this case contend. “Mere proof . . . that [the plaintiff’s] record of nonretention in one job, taken alone, might make him somewhat less attractive to s ome other employers would hardly establish the kind of foreclosure of opportu nities amounting to a deprivation of ‘liberty.’” Id. at 574, n.13. Here, as in Roth , “[t]he State, in declining to rehire [the plaintiff], did not make a ny charge against him that might seriously damage his standing and associations in h is community. It did not base the nonrenewal of his contract on a charge, for exa mple, that he had been guilty of dishonesty, or immorality.” Id. at 573. Nor does the record contain evidence that the state took measures to bar the plaintiffs from obtaining employment at other universities. Although any dismissal or deni al of reappointment, for whatever reason, may reflect negatively upon a prof essor, this stigma alone is not- 8 -

of a constitutional magnitude. Haimowitz v. Univer sity of Nevada , 579 F.2d 526, 529 (9th Cir. 1978). Thus, the decision not to reappoint Bunger and Pradhan does not amount to a constitutionally-cognizable deprivation of their liberty to pursue their chosen career.

III. The Free Speech Claim Bunger and Pradhan claim that their participation i n the complaint regarding the exclusion of untenured faculty from the Cameron Uni versity Graduate Council precipitated the university’s decisions not to reap point them. They assert that the university’s decisions were in retaliation for thei r expressed opposition to university policies and that the university thereby violated their First Amendment rights to free speech. A public employee may not invoke the prot ection of the First Amendment for every statement that he makes while on the state payroll. Instead, constitutional protection extends only to speech on matters of “public concern,” Connick v. Meyers , 461 U.S. 138, 143-43 (1983), which are issues of “p olitical, social, or other concern to the community.” Id. at 146. “Whether an employee’s speech addresses a matter of public concern must be determined by the content, f orm, and context of a given statement, as revealed by the whole record.” Id. at 147-48. We review the question whether speech by a public employee involves a matt er of public concern de novo. See Wren v. Spurlock , 798 F.2d 1313, 1317 (10th Cir. 1986). The decisions of the Supreme Court provide several examples of subjects that are- 9 -

matters of public concern: public criticism of a bo ard of education regarding the allocation of funds between athletics and education , Pickering v. Board of Educ. , 391 U.S. 563, 571-72 (1968); testimony before a state legislature on whether a c ollege should be elevated to four-year status, Perry v. Si ndermann , 408 U.S. 593, 594- 95, 598 (1972); disclosure to a radio station of th e substance of a school principal’s memorandum concerning teacher dress cod es in the context of a campaign to raise public support for bond issues, M ount Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 282-84 (1977); and private communic ations with an employer regarding racially discriminatory policies, Connick , 461 U.S. at 146 (citing Givhan v. Western Line Consolidated Sch. Dist. , 439 U.S. 410 (1979)). In contrast, the distribution of a questi onnaire within a district attorney’s office regarding office transfer policies, office m orale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressure to work in political campaigns does not am ount to expression on matters of public concern. Connick , 461 U.S. at 141-43. Bunger and Pradhan’s grievance does not involve a m atter of public concern. The question of whether an administrative council in a university is limited to tenured faculty or opened to untenured f aculty is a matter of internal structure and governance. The organization of suchinternal governing bodies is not an issue of social importance or heightened pub lic interest. Although many- 10 -

an academic donnybrook has been fought over such ad ministrative rules, the issues at stake rarely transcend the internal worki ngs of the university to affect the political or social life of the community. The First Amendment does not require public univers ities to subject internal structural arrangements and administrative procedures to public scrutiny and debate. The definition of what constitutes a m atter of public concern must be constrained by “the common-sense realization that g overnment offices could not function if every employment decision became a cons titutional matter.” Id. at 143. The grievance brought by Bunger and Pradhan i s internal in scope and personal in nature, in that it calls specifically f or the membership of Bunger on the Graduate Council. It does not “directly affectthe community at large,” Colburn , 973 F.2d at 586, and consequently is not a matterof public concern. In conclusion, we hold that the expression of Bunge r and Pradhan does not regard a matter of public concern, and thus their n onreappointment is not subject to First Amendment scrutiny. In addition, they pos sessed no Fourteenth Amendment property or liberty interest in their reappointment and thus their due process claims must also be rejected. Accordingly, the judgment of the district court is AFFIRMED.