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October 28, 1985

ALAN McCONNELL, Plaintiff,

The opinion of the court was delivered by: OBERDORFER


 OBERDORFER, District Judge.


 Plaintiff was dismissed for "cause" from a tenured professorship at Howard University by its Board of Trustees ("Board") on the ground that he had neglected his professional responsibilities when he refused to continue teaching a mathematics course to which he was assigned. *fn1" It is undisputed that plaintiff refused to teach the class. Rather, plaintiff contends that his refusal was justified by complications growing out of an altercation between plaintiff and a student. *fn2" Having exhausted administrative remedies prescribed by the Faculty Handbook of the University, *fn3" plaintiff filed this suit against the University claiming that his dismissal constituted a breach of his employment contract because the University lacked "adequate cause" to dismiss him. In addition, plaintiff charged defamation. He sought reinstatement and compensatory and punitive damages. Defendant moved for summary judgment on August 9, 1985. Plaintiff filed his opposition to that motion on September 6, 1985, and defendant filed a reply memorandum on September 24, 1985.

 This matter is appropriate for disposition by summary judgment because the facts developed in documents and extensive depositions and summarized in defendant's statement of material facts are not disputed in any material way. In addition, as contemplated by the contract between plaintiff and the University, the dispute has been addressed in a structured, on-the-record grievance proceeding reviewed by a committee of the defendant's Board of Trustees and acted on finally by that Board pursuant to the University's established process for dealing with the dismissal of tenured faculty.

 Upon consideration of the parties' memoranda and the extensive exhibits and affidavits filed in support thereof, the Court by order entered October 4, 1984, granted defendant's motion for summary judgment for reasons to be stated in a memorandum to be filed. This is that memorandum.


 The parties' pleadings establish the following undisputed facts. Plaintiff is white. He received a Ph.D in mathematics from Cornell University in 1965 and in 1971 was appointed as an associate professor of mathematics at Howard University. In 1975 plaintiff was awarded tenure.

 Early in the fall semester of the 1983-1984 term, plaintiff advised the students (all of whom were black) in his Elementary Function I course that because Howard students historically performed poorly in mathematics they should reduce their course hours. At a later session of the class, plaintiff renewed this suggestion and pursued the matter further with a story about a monkey that caught its hand in a food jar and lacked the sense to drop the food in order to escape. Later in that class, one of the students, apparently in reaction to these remarks, called plaintiff a "condescending patronizing racist." After class the student refused plaintiff's request to meet with him privately. At the next meeting of the class, the student refused plaintiff's request to explain herself and told him to "go on and teach the course." Plaintiff then asked her to leave the class. Upon her refusal to do so, plaintiff called for University security to remove her from the class, whereupon she was taken to the Office of the Dean for Special Student Services.

 In the days that followed these initial events, both plaintiff and the student remained adamant. She refused to apologize for calling him a racist. He refused to resume teaching the class until she either apologized or left the class of her own accord, or the University sustained and enforced his demand that she leave the class. The University apparently made no effort to transfer the student to another section of the course, or otherwise mediate the dispute. It responded to plaintiff's formal complaint *fn4" with a letter indicating that the Office of Special Student Services had "concluded that there exists insufficient evidence of a violation of the code of conduct to warrant the institution of a Judiciary Board hearing." *fn5"

 After several informal and formal requests that plaintiff return to teaching the class, a University official initiated a formal proceeding against plaintiff before a Grievance Committee pursuant to Section VI of the Handbook. *fn6" The Grievance Committee was comprised of senior tenured professors from University departments other than mathematics. The letter providing notice of the grievance proceeding charged plaintiff with neglect of professional responsibilities and indicated that the proceeding was convened "to formally conduct an inquiry as to your fitness to remain as a member of the faculty of the College of Liberal Arts . . . ." *fn7"

 After formal hearings conducted October 22 and 24, 1983, that Grievance Committee found that plaintiff had refused to teach his class but found that he was not guilty of neglecting his professional responsibilities because, among other things, the University had not attempted to mediate. See December 21, 1983 Report of the College of Liberal Arts Grievance Committee at 6-7 (Defendant's Exhibit 16). In addition, a majority of the Grievance Committee pointed to the necessity of "professorial authority inherent in the teacher-student relationship." Id. at 7.

 Pursuant to the procedure prescribed by Section VI of the Faculty Handbook, the Grievance Committee report was transmitted to the University President, who then presented the case to the University Board of Trustees. The Board, in turn, referred the case to a three person Special Committee. That committee requested, received, and reviewed, inter alia,8 a report from the Grievance Committee which summarized its findings and recommendations. *fn9" The Special Committee concluded, after "a thorough and exhaustive review of the record of the case," that plaintiff was guilty of neglect of his professional responsibility and recommended that he be dismissed. *fn10" The Board approved the recommendation apparently without discussion, and plaintiff was so notified by a letter dated June 8, 1984. *fn11" That letter informed plaintiff that:


the Board of Trustees of Howard University, at a duly constituted meeting held on June 2, 1984, pursuant to a review of the record of your grievance hearing, found you to be guilty of having neglected your professional responsibilities. The Board voted therefore, by virtue of its authority, that you be terminated from service at the University as of June 2, 1984.


 The contract allegedly breached by defendant is embodied in the Howard University Faculty Handbook. The parties agree that it provides for dismissal of a tenured professor for cause and includes as one cause, "Neglect of professional responsibilities." Constituting the contract on which plaintiff relies, the Handbook also establishes a formal administrative process (including a hearing) for dismissals of faculty members. Section VI-E. of the Handbook provides that after a hearing by a Grievance Committee:




The Dean shall transmit the full report of the Grievance Committee and its recommendation to the President for presentation to the Board of Trustees or its Executive Committee. If the Board of Trustees or its Executive Committee chooses to review the case, its review shall be based on the record of the hearing. The decision of the Board of Trustees shall be final.

 Plaintiff contends that the court should treat this as a breach of contract case and that "neglect of professional responsibilities" is an ambiguous, undefined term. Plaintiff thus contends that the Court should give no weight to the University's administrative process prescribed by the Handbook/contract and should conduct a trial de novo to resolve whether plaintiff did neglect his professional responsibilities or, as the Grievance Committee apparently viewed the matter, professionally defended professorial authority.

 Defendant, by contrast, emphasized the University's well-developed grievance process in which the Grievance Committee holds hearings, makes a record and renders decisions, which decisions are subject to (1) review on the administrative record and (2) the ultimate decision of the Board of Trustees. *fn12" See Faculty Handbook Section VI (attached as an Appendix to this memorandum). Defendant suggests that the Court should treat the Board as it would treat an administrative agency and defer to the University's decision unless it was arbitrary and capricious, pointing out that courts have often adopted such a deferential attitude toward similar college or university decisions. *fn13"

 There are obviously two (or more) sides to the controversy between the plaintiff, the student, and the University. There is nothing ambiguous, however, about the obligation of a professor to teach assigned classes and plaintiff's failure to teach his class is undisputed. Defendant cites persuasive authority (albeit from other jurisdictions) for the proposition that a refusal to perform a prescribed duty, such as teaching a class, is a valid ground for the dismissal of a tenured professor. See Smith v. Kent State University, 696 F.2d 476 (6th Cir. 1983); Stastny v. Board of Trustees of Central Washington University, 32 Wash. App. 239, 647 P.2d 496, 502, 506-07 (1982), cert. denied, 460 U.S. 1071, 103 S. Ct. 1528, 75 L. Ed. 2d 950 (1983).

 Plaintiff does not dispute that his contract put him at risk of termination for cause which included neglect of professional responsibilities. Nor does he proffer material evidence that he was deprived of procedural rights guaranteed by the contract. Cf. Greene v. Howard University, 134 U.S. App. D.C. 81, 412 F.2d 1128 (D.C. Cir. 1969). Plaintiff also does not dispute that he refused to teach the class as directed by his superiors. It seems incontrovertible that the refusal to teach a class (flouting direct administration orders in the process) must constitute a failure to meet a professional responsibility. Plaintiff argues, in effect, however, as the Grievance Committee essentially found, that he should have been excused for his failure to meet one professional responsibility (teaching the class assigned to him) because he was attempting to meet another professional responsibility (preserving professorial authority).

 Plaintiff points to no provision of the contract giving him any legal right to be excused from performance of his teaching duty. He points to nothing in his contract and proffers no evidence of any University practice requiring the University to attempt to mediate a dispute between a professor and a student before beginning dismissal proceedings.

 Moreover, the single contract between plaintiff and the University evidences acquiescence by the plaintiff in both the definition of cause for dismissal and the University's procedure for effecting a dismissal. That Handbook/contract (1) provided for dismissal for cause, (2) defined cause to include neglect of professional responsibility, (3) established a hearing and review process for dismissal cases, and (4) made the dismissal decision of the Board of Trustees "final." The plaintiff having agreed to accept employment on those terms, this Court should uphold the Board's decision and grant defendant's motion for summary judgment, unless the Board's decision was arbitrary, or plaintiff has proffered evidence of improper motivation or irrational action. Given the undisputed facts and the case law, the Board did not behave in an arbitrary fashion when, after a Grievance Committee hearing had produced an administrative record, the Board determined that plaintiff's refusal to resume teaching his class (in contravention of direct orders) constituted a neglect of plaintiff's professional responsibilities which it chose not to excuse. As in Williams v. Howard University, 174 U.S. App. D.C. 85, 528 F.2d 658, 660-61 (D.C. Cir. 1976), cert. denied, 429 U.S. 850, 50 L. Ed. 2d 123, 97 S. Ct. 138 (1976), plaintiff here has failed to "present any facts to show improper motivation or irrational action on the part of Howard [and that failure] vitiates any claim of gross arbitrariness for which courts may grant relief in a private setting." See Williams, supra, 528 F.2d at 660-61; see also Giles v. Howard University, 428 F. Supp. 603, 605 (D.D.C. 1977).


 In view of the foregoing, it is unnecessary to belabor plaintiff's defamation claim. Plaintiff points to what he suggests was undue haste with which charges were pressed against him after he refused to teach his section of Elementary Functions I unless the offending student apologized or was removed from his class. He does not, however, point to any false statement of fact,14 as distinguished from opinion. Statements made by University personnel to the effect that actions undisputedly taken by plaintiff constituted a neglect of his professional duties were in essence "evaluative opinions" that in these circumstances will not support an action for defamation. See Prosser and Keeton on Torts ยง 113A at 814 (W. Keeton 5th ed. 1984): *fn15"


The evaluation opinion only is published when the publisher makes a value judgment about another or another's conduct-- e.g. that it was discreditable, dishonorable, or corrupt-- on the basis of true informational background either supplied to, assumed to be known by, or available to those receiving the communication. . . . The evaluation opinion has often been regarded as false if either the defendant did not entertain the opinion expressed and was misstating his own state of mind or if a reasonable and fair-minded person could not have entertained the derogatory opinion on the basis of the information upon which he relied.

 As implied by the discussion in the preceding section, the evaluative opinions expressed by University personnel were not susceptible to the characterization stated in the last sentence of the above quoted paragraph.

 Even if plaintiff were able to point to false, allegedly defamatory statements made by defendant's agents, he does not effectively dispute defendant's claim that its statements, actions and decisions with respect to this dispute were at least qualifiedly privileged. See Greenya v. George Washington University, 167 U.S. App. D.C. 379, 512 F.2d 556, 563 (D.C. Cir. 1975), cert. denied, 423 U.S. 995, 46 L. Ed. 2d 369, 96 S. Ct. 422 (1975). Plaintiff proffers no evidence which would support a prima facie case of malice that would overcome those privileges. *fn16" Accordingly, the defamation claim must also fall to defendant's motion for summary judgment.

 For all these reasons, the October 4, 1985 Order granted defendant's motion for summary judgment.


 HOWARD UNIVERSITY Faculty HANDBOOK Revised February 1, 1969


 Howard University evolved from a meeting of some thirty members of the First Congregational Society in late November, 1866, at the Columbia College on judiciary Square. These forerunners of the University's Founders planned first, a "Howard Theological Seminary," and second, "The Howard Normal and Theological Institute." The evolution within a few months from these limited goals is an inspiring development in higher education in the United States. By Act of Congress, March 2, 1867, Howard was established as a "University for the education of youth in the liberal arts and sciences."

 By word and by deed, the Founders made clear that "youth" meant Negro and white, men and women. It was a result of the vision of the Founders also that the Act of Incorporation, or Charter, provided for more than "the liberal arts and sciences." It stated that "the University shall consist of the following departments, and such others, as the Board of Trustees may establish--first, normal; second, collegiate; third, theological; fourth, law; fifth, medicine; sixth, agriculture." This last department was never formally organized. In time the University developed the following: College of Liberal Arts (1868), College of Pharmacy (1868), College of Medicine (1868), College of Dentistry (1881), and College of Fine Arts (1961)-- formerly the School of Music (1913), the School of Religion (1868), the School of Law (1869), the School of Engineering and Architecture (1910), the Graduate School (1934), the School of Social Work (1945), and the School of Nursing (1968).


 Under its Charter, the final authority over the control and operation of Howard University is vested in the Board of Trustees. The President is the principal educational leader and the chief administrative officer of the University. The President is assisted by a staff of general administrative officers as well as officers with specialized functions. The officers of the University who are responsible directly to the President for the general direction of major administrative areas of the University area the Academic Vice President, the Treasurer-Chief Business and Financial Officer, the Secretary of the University, the Director of Public Relations, the Deal of Students, and the Deal of the Chapel.

 Each of the eleven schools and colleges is administered by its own dean and faculty. The administration welcomes the opinions and experiences. . . . . . . . . .


 A. Expiration of Definite Period Appointments.

 All appointments for a definite period of service (one semester, one two, or tree years), expire automatically with the completion of such period of service.

 B. Termination of Probationary Appointments.

 1. Notice of Non-Renewal of Probationary Appointment: Written notice that a probationary appointment is not to be renewed will be given to regular full-time faculty members in advance of the expiration of their appointments, according to the following minimum periods of notice:

 a. Not later than March 1 of the first academic year of service if the appointment expires at the end of that year; if a one-year appointment terminates during an academic year, at least three months in advance of its termination.

 b. Not later than December 15, of the second year of academic service, if the appointment expires at the end of that year; or if an initial two-year appointment terminates during an academic year, at least six months in advance of its termination.

 c. At least six months before the expiration of a appointment after two or more years in the institution.

 2. If a faculty member on probationary appointment alleges that a decision not to reappoint him is caused by consideration violative of academic freedom, his allegation shall be given preliminary consideration by the Grievance Committee. The faculty member will be responsible for establishing the grounds on which he bases his allegations and the burden of proof will rest on him. If then the committee concludes that there is probably cause for the faculty member's allegations, the matter shall be heard in the manner set forth in Section VI of this Handbook.

 3. If a member of the faculty desires to terminate an existing appointment at the end of the academic year, or to decline a renewal in the absence of notice or non-renewal, he shall give notice in writing at the earliest opportunity but not later than April 15; but he may properly request a waiver of this requirement in case of hardship or in a situation where he would otherwise be denied substantial professional advancement.

 4. Late Notices of Non-Renewal of Probationary Appointments. if notice of non-renewal of a probationary appointment is given after the dates specified for such notice, the faculty member concerned may request from the appropriate dean a written statement of reasons for non-renewal.


 Until retirement of a faculty member in accordance with other provisions of his Handbook, and subject to provisions in Section VI, an appointment with indefinite tenure is terminable by the University only for cause or an account of extraordinary financial emergencies.

 1. Cause:

 a. Professional incompetence.

 b. Neglect of professional responsibilities.

 c. Personal misconduct that destroys or impairs academic usefulness.

 d. Violations of limitations referred to in the Academic Freedom Section of this Handbook.

 e. Violation of University regulations.

 f. Medical disability: Termination of an appointment for medical cause will occur only after the matter has been evaluated by a medical board. This board shall be appointed by the Dean of the Medical School from appropriate specialists and shall be comprised of three to five members who will review the medical evidence and submit an opinion to the school or college concerned. (A faculty member shall submit to an examination by the Medical Board if requested to do so. Failure to appear will subject him to indefinite suspension without pay by the dean of the school or college.)

 2. Extraordinary Financial Emergency:

 a. Termination of appointment of indefinite tenure status because of extraordinary financial emergency will be considered only as a last resort, after an effort has been made by the administration and Trustees to meet the need in other ways or to find for the faculty member other satisfactory assignments in the University.

 b. If an appointment with indefinite tenure is terminated because of an extraordinary financial emergency, the released faculty member's place will not be filled by a replacement, unless the faculty member has been offered and has declined reappointment.



 1. When the fitness of a faculty member is under question, appropriate administrative officers shall discuss the matter with him directly. If a mutually satisfactory resolution does not resolve, the matter shall be referred to the Grievance Committee of the school concerned. The Dean of the appropriate school or college designate shall prepare a statement setting forth the grounds proposed for dismissal and the charges of misconduct, such statement to be made known to the Grievance Committee for its information.

 2. This statement shall then be incorporated in a letter from the Dean to the faculty-elected Grievance Committee meeting at a specified time and place, sufficient time being allowed for the preparation of his defense, such period not to be less than 15 days. The faculty member shall be informed by reference to published regulations of the procedural rights that will be accorded to him, such as his right to counsel. In particular, the procedures specified in paragraph "C" below shall be made known to him. The faculty member shall reply in writing, not less than one week before the date set for the hearing to the charges contained in the Dean's letter.

 3. Grievance Committee: Each of the several schools and colleges shall elect at the usual time for committee elections a Grievance Committee whose function it shall be to fulfill the requirements as set out in Section VI of the Employment Policies dealing with dismissals. This committee shall be composed of five members of the faculty on indefinite tenure and shall be elected for one year. Members of the Grievance Committee should disqualify themselves: 1) if they belong to the same department as the aggrieved party, or 2) if there is any possibility of conflict of interest, or 3) if there arises a question of prejudice. These matters shall be decided by the Grievance Committee.


 Suspension of a faculty member pending a hearing with a statement of reasons recommended by the Dean and approved by the President's Office may be imposed only if unusual circumstances warrant it, and shall be with pay.


 1. The Grievance Committee shall proceed by considering the statement of grounds for dismissal and the charges of misconduct already stated in the Dean's letter, and the faculty member's response. The hearing shall be in private unless the faculty member requests otherwise and the hearing committee concurs in the request. If any facts are in dispute, the testimony of witnesses and other evidence concerning the charges shall be received.

 2. The Dean may attend the hearings and participate in the hearing. He may designate a representative to assist in developing the case; but the committee shall determine the order of proof, control the conduct of proceedings including the questioning of witnesses.

 3. The faculty member shall have the right of representation by counsel of his choice, whose functions are to be similar to those of the representative chosen by the Dean. The faculty member or his counsel and the representative designated by the Dean shall have the right, within reasonable limits, to question all witnesses who testify orally. In the case when a witness does not appear, the identity of the witness as well as his statement shall be disclosed, to the faculty member. Subject to these safeguards, statements may, when necessary, be taken outside the hearing and reported to it. All of the evidence shall be duly recorded. The record of the hearing shall be available to the faculty member. If a charge of professional incompetence is involved, testimony shall include that of teachers and other scholars in his discipline. The hearing procedures shall not necessarily adhere to formal rules of court procedure. In the event a faculty member fails to appear for a scheduled hearing, the Grievance Committee shall proceed with the hearing in his absence and shall reach its conclusions on the basis of the evidence presented.


 On the basis of the hearing, the Grievance Committee shall reach its decisions in conference after giving opportunity to the faculty member or his counsel and the Dean or his representative to summarize orally before it, and to submit written briefs, if the committee desires. The committee shall then arrive at explicit findings with respect to each of the grounds for dismissal and formulate its decision for or against removal of the faculty member. A transcript of the hearing may be used during this decision process, if needed. The Dean and the faculty member shall be notified in writing of the findings of fact and decision. Each shall receive, as promptly as possible, and at the same time, a copy of the record of the hearing. Notice of the findings of fact and decision shall be withheld until consideration has been given to the case by the Board of Trustees.


 The Dean shall transmit the full report of the Grievance Committee and its recommendation to the President for presentation to the Board of Trustees or its Executive Committee. If the Board of Trustees or its Executive Committee chooses to review the case, its review shall be based on the record of the hearing. The decision of the Board of Trustees shall be final.

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