Robert J. Mayberry, Appellee, v. William Dees, Chairman, Board of Governors, University Ofnorth Carolina, Individually and in His Official Capacity,william Friday, President,university of North Carolina,individually and in His Official Capacity; Robertmorgan,chairman,board of Trustees, East Carolina University,individually and in His Officialcapacity; Leo W. Jenkins,chancellor, East Carolina University, Individuallyand in Hisofficial Capacity; Robert L. Holt, Vice-chancellor, Eastcarolinauniversity,individually and in His Officialcapacity; Robert W. Williams, Provost, Eastcarolinauniversity, Individually and in His Official Capacity;richardcapwell, Dean Arts and Sciences East Carolinauniversity, Individually and Inhis Official Capacity;josephfernandez, Chairman of Romance Languages, East Carolinauniversity,individually and in His Official Capacity, Appellants.national Education Association, Amicus Curiae.robert J. Mayberry, Appellant, v. William Dees, Chairman, Board of Governors, University Ofnorth Carolina, Individually and in His Official Capacity;william Friday, President,university of North Carolina,individually and in His Official Capacity; Robertmorgan,chairman,board of Trustees, East Carolina University,individually and in His Officialcapacity; Leo W. Jenkins,chancellor, East Carolina University, Individuallyand in Hisofficial Capacity; Robert L. Holt, Vice-chancellor, Eastcarolinauniversity,individually and in His Officialcapacity; Robert W. Williams, Provost, Eastcarolinauniversity, Individually and in His Official Capacity;richardcapwell, Dean, Arts and Sciences, East Carolinauniversity, Individually and Inhis Officialcapacity; Josephfernandez, Chairman of Romance Languages, Eastcarolinauniversity, Individually and in His Officialcapacity, Appellees.national Education Association, Amicus Curiae, 663 F.2d 502 (4th Cir. 1981)

The Factual Setting

A. The parties and prior developments.

East Carolina University (the University) is a constituent institution of the University of North Carolina, and, as such, is a state agency. MacDonald v. University of North Carolina at Chapel Hill, 299 N.C. 457, 263 S.E.2d 578 (1980). The University employed Robert J. Mayberry, the holder of a Ph.D. degree,¹  as an assistant professor of romance languages²  commencing in the fall of 1967. His was a probationary status, the initial appointment being for a period of one year,³  with successive automatic renewals for one year in the absence of notice of termination given no less than one full academic year prior to the commencement of any school year.⁴ 

As was the customary approach in the case of full time academic faculty members at the University, it was expected that, during the fifth year in probationary status, i. e., during 1971-72, Mayberry would be considered for tenure. If tenure were granted, Mayberry would achieve essentially permanent status, to last until retirement unless interrupted by his death, incapacity or resignation. If tenure should not be conferred following consideration in the fifth year, upon expiration of the sixth year, allowed in compliance with the one-year notice provision, his employment by the University would be without possibility of renewal or extension and would inevitably terminate.⁵ 

During the fifth year, tenure was not granted to Mayberry.⁶  On September 13, 1973, he sued, pursuant to 42 U.S.C. § 1983, claiming that the denial of tenure was retaliatory, to punish him for exercise of protected rights of free expression guaranteed to him by the First Amendment.⁷  The defendants included an academic, administrators and governors or trustees.

We have held in a prior opinion, Mayberry v. Dees, 638 F.2d 690 (4th Cir. 1981),⁸  reheard, and now reconsidered, by a reconstituted panel, that no defendant, save Dr. Joseph F. Fernandez, was liable, officially or individually, because of Eleventh Amendment immunity, on the one hand, and because of the defense of good faith immunity, on the other.⁹  For the additional considerations which we here elaborate, we approve those holdings of non-liability.¹⁰  Moreover, we have decided that the judgment in favor of Mayberry, against Fernandez, should be reversed, the claim of retaliation as punishment for First Amendment exercise not having been established. The reasons applicable to the case of Fernandez apply a fortiori to all other defendants. In view of those conclusions, there is no basis for granting reinstatement. The district court had denied relief of that nature, and we now affirm that aspect of the decision.

B. The operative facts.

1. Mayberry's tenure prospects before exercise by him of the protected speech.

The actual course of Mayberry's career at the University, insofar as the record discloses, progressed, if not altogether without incident, still essentially quietly until sometime in the fall or winter of the 1971-72 academic year (the fifth year of employment, and, consequently, the year in which Mayberry was to be considered for tenure).

Nevertheless, the record compiled by Mayberry anterior to the asserted violation of his First Amendment rights did not justify a conclusion that, with a large measure of probability (let alone certainty), he would, during the critical fifth year, be recommended for tenure.¹¹  It was during that fifth year, 1971-72, that the utterances for which Mayberry has claimed First Amendment protection against retaliation were made.

As early as July 16, 1970, well before there existed any basis for claiming retaliation as punishment for free speech exercise, Fernandez, the chairman of the romance languages department, in the Annual Evaluation for Mayberry, prepared as part of the regular practice,¹²  expressed "doubts about tenure", pointing out that he "(c)ontinues to conduct classes in English" "and refuses to follow" "my views concerning use of the language (Spanish) in class," being "so opposed to my objectives for the Department." He further observed that Mayberry was "given to complaining" and "not willing to compromise." There was evidence, independent of the Annual Evaluations, that Mayberry insisted that it should be done Mayberry's way, not the Department's way, insofar as instruction through the medium of English rather than Spanish was concerned.¹³ 

Another faculty member's 1970 Annual Evaluation stated:I suspect that if there is a conflict between departmental program and personal desires, however, he will opt for personal desires. He is adolescent in his insistence on "my personal freedom...." He is, however, lazy.

That academic evaluator concluded that he would recommend tenure only as a means of keeping the services of Mrs. Mayberry for the department.

The November 1971 Annual Evaluations are mixed.¹⁴  One stated:

(D)oes not give impression that he works very enthusiastically or derives great satisfaction from teaching.... Potential probably limited, especially until he gains greater conviction concerning teaching profession.... He lacks a kind of strength that would make me recommend him for tenure with confidence that I was getting the best man possible for the position.

There were also evaluations in November, 1971, that recommended tenure for Mayberry.

Fernandez, in a May 26, 1971 Evaluation, unquestionably before the fall and winter 1971 utterances for which First Amendment protection is claimed, noted that Mayberry "now says he agrees with my objectives," and concluded: "If reduction in staff is forced upon us, would hesitate to give him tenure. Otherwise, would not object."

Under the administrative procedures of the University, Fernandez, as chairman of the department of romance languages, was delegated the responsibility, after such consultation with other faculty members of the department, and the dean, as he deemed appropriate or possible, of forming, and forwarding, through the dean, to the University provost, a recommendation as to whether tenure should, or should not be granted.¹⁵  Responsibility for the final decision reposed in the chancellor, but, as a practical matter, it was unlikely that tenure would be granted in the face of a negative recommendation from the department chairman. Cf. Clark v. Whiting, 607 F.2d 634, 637 (4th Cir. 1979).

2. Circumstances leading up to Mayberry's exercise of free speech and free press.

In the fall of 1971, the University was looking ahead to an upcoming decennial reaccreditation, a matter of considerable importance to an educational institution. Loss of accreditation would call into question the capability of the University to perform creditably its educational mission. Lacking accreditation, it would find its ability to attract competent teachers and qualified students substantially diminished.

The University established a Self Study Steering Committee to consider the necessary steps to put it in the best posture for insuring successful reaccreditation. The Committee functioned university-wide, and the department of romance languages also set up, to study aspects of the reaccreditation of particular relevance and importance to the department itself, an Organization and Administration Committee. Fernandez, as department chairman, had the responsibility for the formation and the composition of the Organization and Administration Committee. It consisted of four members, one being Fernandez, himself, as chairman. Another member was Mrs. Fernandez, who also was a tenured member of the department.

3. Free speech and free press exercise by Mayberry in the fall and winter of 1971-72.

Mayberry perceived Fernandez' self-appointment as stifling. In the fall of 1971, he went door-to-door to his colleagues in the department of romance languages and complained about the composition of the Organization and Administration Committee, asserting that it would preclude their feeling free to speak out about departmental problems perceived by them. He suggested that Fernandez should be disqualified to serve as a member of the departmental Organization and Administration Committee.¹⁶ 

The word of mouth complaints of Mayberry against Fernandez were committed to writing in an anonymous letter to the University-wide Self Study Steering Committee. The letter was written by Mayberry's wife. Mayberry assisted in its preparation. Mayberry explained, and the jury was entitled to credit the explanation, that the letter was anonymous because of an understanding on his part, and on the part of Mrs. Mayberry, that it should be unsigned. The fact of anonymity, nevertheless, served substantially to reduce the possibility that, before April 13, 1972,¹⁷  Fernandez had learned the identity of the source of the complaint against him.

Mayberry, in January or February, 1972, had completed, and filed with the Self Study Steering Committee, an unsigned questionnaire highly critical of Fernandez. Fernandez flatly denied that he knew that Mayberry had submitted the questionnaire, let alone that it was critical of him, until after April 13, 1972. Nothing in the evidence went to establish the contrary.

4. Extent of Fernandez' awareness, prior to April 13, 1972, that Mayberry had been critical of him.

Those were the facts as to (a) Mayberry's prospects for achieving tenure, assuming no interjection of retaliation for free speech exercise, and as to (b) the free speech on Mayberry's part which he claims led to retaliation. An obvious essential ingredient for the making out of his case is proof that Fernandez, before April 13, 1972, knew both that he was being criticized and that the criticisms emanated from Mayberry. "As a nontenured employee, he (a university professor) had the burden of proof." Megill v. Board of Regents of the State of Florida, 541 F.2d 1073, 1078 (5th Cir. 1976); Johnson v. Cain, 430 F. Supp. 518, 520 (N.D. Ala. 1977) ("However, the burden of proof rests with the plaintiff to show that his dismissal was due to statements or other conduct protected by first or fourteenth amendment freedoms.").

The most that Mayberry, as plaintiff with the burden of proof, could produce as evidence as to any knowledge by Fernandez on or before April 13, 1972 of Mayberry's criticisms directed at him was:

1. Shortly before the tenure decision, in the Spring of 1972, Dr. Thomas Andrew Williams, a professor of French, recommended Mayberry for tenure. Fernandez responded that it was out of the question because Mayberry was a troublemaker. The statement was not elaborated or explained. There was no showing that it referred to speech or other form of protected expression-in particular, no showing that it related to Mayberry's criticisms.¹⁸ 

2. Mrs. Mayberry testified that, in a departmental meeting, Fernandez stated that he had been told that there was some unrest in the department concerning how the Operations and Administration Committee had been set up. There was no testimony, however, that Fernandez knew who was restive.

3. The Court asked Fernandez whether any information that Mayberry had been critical of him came to his attention before his decision concerning Mayberry's tenure. The answer was "Possibly yes," followed with the explanation:

I did not know when the Judge questioned me as to whether I had possibly heard anything about criticism before-I was referring to the fact that-I mean when you hear comments-how would I know if I did not hear any before April 15th. Maybe I did, but what I heard was just something that Mayberry was not very happy with my performance, but neither was Nancy Mayberry. She could have been more critical-neither was Lucy Wright-neither was John Costa. I do not think there is a Department in the world where everybody is happy with their Chairman. I never heard anything about this Self-Study about which there has been so much ado until after the tenure decision.

5. University requirement that staff reduction in the romance language department take place.

On the other hand, Fernandez explained in his letter of April 13, 1972 to the Provost, and orally to Mayberry the same afternoon, that he was not recommending tenure for Mayberry because of a need to reduce the number of faculty members proficient in Spanish, due to slackened demand in that area.¹⁹ 

The Legal Consequences

It is our conclusion that, resolving all doubts in plaintiff's favor, and fully accepting that his remarks were entitled to First Amendment protection,²⁰  nevertheless he did not present a sufficient case to justify his going to a jury. First and foremost, long before Mayberry uttered any of the criticisms on which he has based his case, the department head, Fernandez, had already concluded that he would not recommend tenure if the department had to undergo any staff reduction. Fernandez, in reviewing the five candidates eligible for tenure consideration in 1971-72, knew that one had to be denied tenure, i. e., that staff reduction was required.²¹ 

B. Weakness of proof of awareness by Fernandez that Mayberry was the source of the criticism

Second, the evidence was very weak that Fernandez, before April 13, 1972, knew Mayberry was the source of the criticisms. At most it comes down to the fact that Fernandez testified that he "possibly knew." Mayberry, however, as the plaintiff, had the burden of persuasion. A statement that one possibly knew implies that he possibly did not know, leaving things very close to an even balance. Chief Judge Sobeloff put it well when he observed that an issue can only be submitted to the jury when it is supported by "(e)vidence which shows a 'probability' and not a mere 'possibility.' " Ralston Purina Co. v. Edmunds, 241 F.2d 164, 168 (4th Cir. 1957), cert. denied, 353 U.S. 974, 77 S. Ct. 1059, 1 L. Ed. 2d 1136 (1957); accord Ford Motor Co. v. McDavid, 259 F.2d 261, 266 (4th Cir. 1958), cert. denied, 358 U.S. 908, 79 S. Ct. 234, 3 L. Ed. 2d 229 (1958); Bryan v. Merrill, Lynch, Pierce, Fenner and Smith, Inc., 565 F.2d 276, 281-82 (4th Cir. 1977), cert. denied, 435 U.S. 943, 98 S. Ct. 1524, 55 L. Ed. 2d 540 (1978).

C. Insufficiency of June, 1972 events to prove causality with respect to April, 1972 recommendation that tenure not be granted.

Plaintiff seeks to make much of the fact that, in early June, 1972, Dr. Mayberry and Mrs. Mayberry met separately with Fernandez. Each quoted him as accusing Mayberry of being a troublemaker in his critical observations about Fernandez to the Self Study Steering Committee, thereby stirring up trouble. He was quoted as adding that further adverse conduct by Mayberry would result in his immediate termination. Dr. Williams, the French Professor, quoted remarks to like effect made by Fernandez at the time in June, 1972 when Williams suggested reconsideration of the decision not to offer tenure to Mayberry. Fernandez stated to Williams that he would not have someone like that tenured in the department. Fernandez' demeanor at the June meetings was described as angry.

Mayberry would relate those occurrences back two months or more to the period prior to April 13, 1972 on a theory that Fernandez had been harboring hard feelings all that time. It is, however, simply too thin, considering the evidence as a whole. The June anger, in the circumstances, is much more probative of contemporary identification of the critic at a time well after the tenure decision had been reached.

D. Legal irrelevance of fact that two granted tenure did not have Ph.D. degrees.

There is another fact which should be mentioned in this connection. At the time Fernandez declined to recommend tenure for Mayberry, he gave favorable consideration to 4 other candidates, among them Mrs. Mayberry.²²  Of the 4 granted tenure, 2 (Mrs. Mayberry included) had earned the Ph.D.; 2 had not. Mayberry had since 1968 been a Ph.D., and the University normally required a Ph.D. for a grant of tenure, although waivers of that requirement had, with some frequency, previously occurred.

No great weight can, with respect to a First Amendment violation claim, be assigned to the fact that several candidates to whom tenure was granted in 1971-72 lacked the Ph.D. degree, while Mayberry had been a doctor of philosophy since 1968. The doctorate or lack thereof theoretically could make a difference "all other things being equal." But things, when teaching qualifications are being examined at the university level, are practically never equal. Human personalities come in myriad forms, capabilities and sizes, and, in determining whether or not to grant tenure, it is appropriate not to accord controlling weight to any single indicator. The doctoral degree is but one of a number of factors to be considered when the question of whether to grant tenure is addressed. Its presence by no means guarantees a grant of tenure. Its absence by no means prevents a grant.

There consequently must be something more than proof of Mayberry's Ph.D., and the lack of that academic merit badge on the part of another, successful candidate.

E. Non-recusal of Fernandez with regard to the tenure recommendation respecting Mayberry.

No more does it advance Mayberry's case to point to the fact that Fernandez, who became his adversary, by virtue of his recommendation to deny tenure, did not recuse himself. It will not suit to fashion a rule, or reach a result which, in its consequences, will expose universities to great turmoil and expense, unless they automatically rearrange the departmental structure to remove the department chairman or other evaluating faculty members from further participation as to a particular candidate for tenure everytime sparks fly. See Megill v. Board of Regents of the State of Florida, 541 F.2d 1073, 1079 (5th Cir. 1976). The inordinate increase in cost and the elimination of effectiveness which manifestly would attend any such rule are all too evident. Such a rule would be an open invitation to manipulative activities by a candidate to neutralize consideration by a department chairman who the candidate had cause to believe did not, for adequate reason, favor a grant of tenure.

The evidence must, therefore, be substantial that the senior faculty member participating in the evaluation process of a candidate for tenure has so lost his objectivity that he no longer is able to look on the task from the university's perspective, but instead has personalized it and converted it into something approaching a personal vendetta. Duke v. North Texas State University, 469 F.2d 829, 834 (5th Cir. 1972).

F. Absence of sufficient causal connection between Mayberry's criticisms and Fernandez' recommendation not to grant tenure.

The law is a study and function of human life, not an exercise of automatons. It is, consequently, an aggregate of approximations, not an exact science. So a resort to percentages to demonstrate a point is only to provide an illustration, not to suggest that sufficiency of the evidence can be reduced to such mathematical precision.

With that caveat in mind, let us suppose that for either of the two factors in the equation, standing alone, there was sufficient evidence to have supported a jury verdict in Mayberry's favor. The two factors are, of course, (a) a favorable prospect, before his protected criticism was uttered, of Mayberry's receiving tenure, and (b) some degree of assurance with which it could be said that Fernandez knew of the criticisms as originating with Mayberry before he, on April 13, 1972, submitted his recommendation that Mayberry not be granted tenure. The evidence favoring Mayberry on either factor, standing alone, while weak, still, we may assume, would have sufficed for a jury verdict in Mayberry's favor. Let us, as best we may, recognizing that we thereby substitute an apparent simplicity for an actual complexity, assign values of 5% and 8% likelihood respectively. If one of them had been at the virtual certainty level,²³  the case would hold at the 5% to 8% range of probability. But both were far from the virtual certainty level, and multiplication of the two, one against the other, yields a figure of less than .005. That is, the causality percentage of the case, for which Mayberry, as plaintiff, had the burden of proof was but 4/10ths of 1%. Put another way, it is 99.6% certain that denial of tenure was not associated with the protected criticism. In the real, everyday world, the residual 4/10s of 1% is less than a scintilla, and the case falls for failure of proof.

Against the strong probability that tenure would not be forthcoming for Mayberry, the evidence that Fernandez retaliated for reasons of free speech exercise is just too attenuated, especially evidence of the essential causal link, namely, knowledge by Fernandez by April 13, 1972 that Mayberry was the source of remarks critical of him. See Chambliss v. Foote, 421 F. Supp. 12, 15 (E.D. La. 1976) ("The evidence does not support a finding of any causal connection between the statements made or demonstrative activities engaged in by the plaintiff or her husband and the non-renewal of her contract."), aff'd on basis of the district court's opinion, 562 F.2d 1015 (5th Cir. 1977), cert. denied, 439 U.S. 839, 99 S. Ct. 127, 58 L. Ed. 2d 137 (1978); Markwell v. Culwell, 515 F.2d 1258 (5th Cir. 1975).

All in all, therefore, both obstacles in Mayberry's path, combined, have proven too much for him to overcome, even assuming that, had but one of them existed, his evidence would have been sufficient to surmount it.

G. The nature of a tenure grant at the university level, and the absence of stigma in a failure to receive tenure.

To counter that reduction of the plaintiff's case to or below the de minimis level, Mayberry can point to something which he may argue augments the figures to his favor, enhancing the likelihood that he would have been granted tenure, were it not for the criticism. In his fifth continuous year at the University, he could call attention to four occasions (indeed to five, counting the final year allowed in order to comply with the rule requiring 12 months' advance notice of non-reappointment) when his work was deemed so satisfactory that the University renewed his teaching contract. That, Mayberry can contend, raised his probability of receiving tenure to a virtual certainty, there having been no evidence of any prior effort to terminate him, but, on the contrary, a reiterated expression of satisfaction with his work.

There is some immediate surface plausibility to the argument, but it dissipates entirely following a review of just what appointment, at a university level, to tenured status signifies-and, even more to the point, what non-appointment does not signify.

There appears to lurk in some quarters a belief that the jury would have been within its rights to infer from five years of continuous service by Mayberry, satisfactory enough to merit repeated yearly reappointment for yet another year, that some unworthy reason must have underlain his failure to win tenure, and that negative reaction to his unfavorable criticism was, indeed, the occasion of unmerited mistreatment. Such a suspicion is no more than that, unsupported by evidence, and at complete odds with the concept of tenure as it exists in American institutions of higher learning.

To address that point will necessitate a rather detailed description of the tenure concept. The rules governing teacher employment status at institutions of higher learning such as the University, as is customarily the case throughout the United States, derive primarily from generally applicable, nationwide principles. While professors and instructors, on the one hand, and individual institutions, on the other, may make overriding agreements which will, naturally, take precedence, they are not usual. In the case of the University and Mayberry, rather than any inconsistent, specialized terms controlling, the University Faculty Manual, to the extent here relevant, coincides with or supplements the generality.

As an authoritative source for the applicable rules we turn to Faculty Tenure, A Report and Recommendations by the Commission on Academic Tenure in Higher Education, 1973 (hereafter "Faculty Tenure"). As stated in the Preface to that book:

The Commission on Academic Tenure in Higher Education was established during 1971 and worked under a grant from the Ford Foundation. The commission was jointly sponsored by the Association of American Colleges (AAC) and the American Association of University Professors (AAUP), two organizations with a long history of joint activity in the development of policies relating to higher education. In particular, the AAC and the AAUP were the framers of the 1940 Statement of Principles on Academic Freedom and Tenure, the fundamental document on the subject. The 1940 statement was a restatement and expansion of the 1925 Statement on Academic Freedom and Tenure, prepared by a conference of educational organizations, including the AAC and the AAUP, convened by the American Council on Education. The 1925 statement, in turn, had replaced the original 1915 Declaration of Principles drawn up by the Committee on Academic Freedom and Tenure of the AAUP and endorsed by that association in 1915-1916.

By 1970, the 1940 Statement of Principles on Academic Freedom and Tenure had been officially endorsed by eighty-one professional organizations. It had been incorporated, explicitly or by reference, in detail or in principle, in the policies of most of the institutions of higher education in the United States....

In 1971 the AAC and the AAUP created the Commission on Academic Tenure as a separate, autonomous unit. It was to design and carry out its own program of investigation and make its report directly to the academic community and the general public, without reference to the sponsors. This agreement was expressly understood by all members of the commission and has been scrupulously observed. Faculty Tenure, therefore, presents the views of the Commission and not those of the AAC or the AAUP or the Ford Foundation.

From Faculty Tenure, the following picture evolves, both from an historical point of view, and as things are now:

1. After a varied history of ups and downs, the status of university teachers had sunk to where, by the latter days of the Nineteenth Century, everyone served at the will of the university administrators. Practically no one had formal assurance of continued employment. See Faculty Tenure, 122-23, 127-28, 135.

2. In 1900, an egregious endeavor by a most substantial financial backer and sole trustee of a distinguished institution, Stanford University, to bring about the dismissal of an established professor because the financial backer disliked his professional views, served as a catalytic agent toward the development of do's and don'ts regarding dismissal of established university professors. Id. 137-42. The major initial objective was protection of academic freedom, the elimination of thought control, and the outlawing of punishment for "unacceptable" ideas. Id. 137, 143-44.

3. There has evolved the concept of tenure, a conferral of status on proven scholars which, absent considerations not directly involved in the present case (namely, demonstrated incompetence, moral turpitude, financial exigency or program elimination) insures permanent employment from the time of grant of tenure until the reaching of retirement age.

4. The status of tenure, effectively precluding, as it inevitably does, for possibly a very long time, the replacement of a less good teacher by a better one, is recognized as carrying with it a duty that great care be exercised in its conferral.²⁴  Only scholars of proven distinction are deemed to merit tenure. Id. x, 59:

In the real world, a probationary period is necessary, and tenured status must rest upon explicit judgment.

... The commission recommends that the award of tenure always be based on an explicit judgment of qualifications, resulting from continuous evaluation of the faculty member during the probationary period, in the light of the institution's stated criteria.

(Emphasis in original.) Demonstration of factors well beyond the mere passage of time in service,²⁵  namely (a) creditable scholarship, (b) accomplished pedagogy, (c) able service to the university in matters associated with its maintenance, operation, growth and continued endurance, and (d) developed collegiality-the capacity to relate well and constructively to the comparatively small bank of scholars on whom the ultimate fate of the university rests²⁶ -is required by the university, and should be established before a candidate is granted tenure.

Faculty members in universities in general who had proven their own worth appreciated the possibility of pollution of the academic atmosphere, in which their own lives were conducted, through indiscriminate admission of insufficiently tested candidates who might prove to be unproductive, uncollegial, or both.²⁷ 

5. Out of that requirement of demonstration by the would-be tenured teacher of important developing qualifications and qualities,²⁸  has arisen the concept of probationary status customarily accorded to beginning teachers.²⁹  Usually, at the outset, employment is for a single year, though regularly the requirement of prior notice (here a year) of non-reappointment extends duration of the service period by the length of the required period of notice. Such employments in probationary status were dealt with in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), which held that they created no expectation of continued employment or other property interest and no right to a hearing.

Faculty Tenure emphasizes that the probationary status should not be too short,³⁰  and sets as a desirable maximum seven years of employment in that category (six years of probationary status, with the decision on tenure in the sixth year, and, absent a grant of tenure, one terminal year, with no hope for tenure and no possibility of further reappointment). Id. 61 ("Allowing for a full year's notice in the event of an unfavorable decision, this means an effective probationary period of six years ....").³¹ 

It is a fact of basic importance that non-renewal, following the running of the established probationary period, is not a dismissal, and is altogether lacking in invidious connotations.³²  There are numerous factors apart from the probationer's level of competence entering into the decision whether to confer tenure-the sine qua non for remaining in a university's employ after expiration of the probationary period. It is not a criticism to be denied tenure.³³ 

The University's system with which we here deal did not extend its probationary status period to the outside maximum allowable under what Faculty Tenure has reported to be the customary guideline. Nor did it shorten it to less than the recommended minimum. The University called for the tenure decision in the fifth year, one year earlier than the maximum allowed and the very minimum suggested in Faculty Tenure, with a terminal sixth year. In higher education generally, a period of probationary status greater than six years (plus one notice year) would be frowned on, and anything longer than that is apt to be deemed to have operated to create actual or de facto tenure. Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972).

Obviously, at some point, the teacher is entitled to a decision, and cannot be kept dangling too long. The University, since it was well within the guidelines, was acting in accord with accepted university practices. It was, therefore, entirely appropriate that Mayberry, in his fifth year, was still a probationary teacher. His employment, covered by his contract for the fifth year, would be fully subject to nonrenewal, and, indeed, would have to terminate subject to the extra year required to satisfy notice obligations. Unlike the situation in all previous years, Mayberry, in the fifth year, was no longer eligible for reappointment to further probationary status for another year.³⁴  The fifth was the last possible year in probationary status. Following it were only two possibilities: (1) he would serve out his sixth, or terminal (no longer probationary), year and then depart,³⁵  or (2) he would be granted tenure-a significantly different status-effectively a new job.

In establishing that, where other, permissible grounds existed supporting a decision not to rehire a teacher, a Board of Education might take into account the First Amendment protected conduct to make it more certain of the correctness of its decision, the Supreme Court held:

This is especially true where, as the District Court observed was the case here, the current decision to rehire will accord "tenure." The long-term consequences of an award of tenure are of great moment both to the employee and to the employer. They are too significant for us to hold that the Board in this case would be precluded, because it considered constitutionally protected conduct in deciding not to rehire Doyle, from attempting to prove to a trier of fact that quite apart from such conduct Doyle's record was such that he would not have been rehired in any event.

Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 286, 97 S. Ct. 568, 575, 50 L. Ed. 2d 471 (1977).

Those consequences of reaching the fifth year as a probationary teacher were well known to Mayberry. They generally pertain to recommended university policy. Under them, Mayberry's old job with the University had to come to an end. Only if he should be selected by the University for the new job-that of tenured professor-might he remain.

To reiterate, it was not enough for Mayberry simply to show an exercise of First Amendment rights, followed by a denial of tenure. That post hoc propter hoc approach³⁶  wrongfully eliminates the manifold other requirements to be satisfied, some quite independent of the candidate's qualifications, before tenure is conferred.³⁷  If the two quite distinct types of employment: (a) probationary, with no assurance of reappointment after the fixed contract period and (b) tenured, with virtually guaranteed employment until the age of retirement is reached, related to two different employees or candidates for employment, the grounds on which the claims of the plaintiff rest would largely evaporate. Someone from outside the university would have an almost impossible task, given the many and varied, inevitably subjective factors,³⁸  going into a decision to offer tenure,³⁹  in establishing that he would have been tendered tenure employment but for something he said or wrote which fell within the protection of the First Amendment. Cf. Franklin v. Atkins, 562 F.2d 1188 (10th Cir. 1977), cert. denied, 435 U.S. 994, 98 S. Ct. 1645, 56 L. Ed. 2d 83 (1978). So far as the probationary employee in his final year is concerned, he is in a comparable status as to what he must prove, since for the one time only he is formally under active consideration for tenure. His advantage lies simply in the fact that improbability will not seem quite so rampant with respect to any claim by him of First Amendment violation because of his prior intimate association with the institution and its faculty.

Thus, no inference favorable to Mayberry's case is to be drawn from his previous satisfactory, annually renewed probationary service. The attempt to step up to tenured status introduced too many other considerations which would explain what happened to permit the jury to decide that Mayberry was in some way mistreated simply because his connection with the university was allowed to come to an end after five one-year renewals of his probationary status.

The Remarks of Mayberry Have Been Assumed to Have the Status

ofConstitutionally Protected Utterances

There is no suggestion intended that the First Amendment is totally vitiated in tenure cases. We do not accept appellants' contention that the remarks by Mayberry merely reflected bickering, disruptive of harmony not entitled to any First Amendment protection, a route to decision followed by a number of courts confronted with litigation not unlike the present case. See Roseman v. Indiana University of Pennsylvania at Indiana, 520 F.2d 1364, 1368 (3d Cir. 1975) ("... we have concluded that plaintiff's communications fall outside the First Amendment's protection."), cert. denied, 424 U.S. 921, 96 S. Ct. 1128, 47 L. Ed. 2d 329 (1976).⁴⁰  We are loath to say that there was no First Amendment dimension whatever to utterances by Mayberry so that, even had the evidence sufficed to support a finding that, if Mayberry's criticisms had not been made, Fernandez demonstrably was prepared to recommend him favorably for tenure, still Mayberry could not have recovered. See Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979). Similarly, we are not disposed to conclude that Mayberry's expressions were only a jumping of the gun, no more than an attempt to erase the handwriting on the wall. The record, while indicating that Mayberry's disappointment was, in point of fact, inevitable because of the necessity for staff reduction in the department, did not establish that he knew so when he made his protected criticisms.⁴¹ 

Conclusion

In conclusion, we observe that the law, in its insurance of justice in one context, should not, unwittingly, become a tool for meting out injustice in another. It is for that reason that more than suspicion, more than unproven possibilities are required before the Court may intervene in the operation of the tenure conferring process.⁴²  It is our conclusion that Mayberry's case rested on no more than unsubstantiated conjecture, and must be decided against him, the party on whom is placed the burden of persuasion.⁴³ 

REVERSED.