DAVID E. MELTZER , P etitioner - Appell an t , vs. BOARD OF REGENTS, STATE OF IOWA, and IOWA STATE UNIVERSITY , Respondents - Appell ees .
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IN THE COURT OF APPEALS OF IOWA
No. 8-839 / 08-0345
Filed December 31, 2008
DAVID E. MELTZER,
Petitioner-Appellant,
vs.
BOARD OF REGENTS, STATE OF IOWA,
and IOWA STATE UNIVERSITY,
Respondents-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
David Meltzer appeals from the district court‟s ruling on judicial review
upholding the denial of his promotion to associate professor with tenure.
AFFIRMED.
Victoria L. Herring, Des Moines, for appellant.
Thomas J. Miller, Attorney General and David S. Gorham, Assistant
Attorney General, for appellees.
Heard by Vaitheswaran, P.J., and Potterfield, J. and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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POTTERFIELD, J.
David Meltzer appeals from the district court‟s ruling on judicial review
upholding Iowa State University‟s decision to deny him a promotion to associate
professor with tenure.
He contends the decision to deny him tenure was
unreasonable, arbitrary, capricious, and an abuse of discretion; and that the
process violated his procedural rights.
Meltzer asserts he has satisfied all
contractual obligations, thus requiring promotion to the tenured position. Finally,
he contends the district court erred in not allowing him to present additional
evidence.
I. Background Facts and Proceedings.
David Meltzer was hired as Assistant Professor, Department of Physics
and Astronomy (“Department”) at Iowa State University (“University”) on a
tenure-track appointment in 1998. The letter offering Meltzer his position noted
the expectation of “teaching excellence and the development of a nationally
recognized program in physics education based on solid research and
publication in leading journals for the field.”
Because physics education is an emerging discipline in the
field of physics and astronomy, I will express some of our
expectations in detail. You are expected to carry on an active
research program in physics education or science education
leading to national recognition for excellence in the field.
Appropriate activities include (but are not limited to): 1) publication
of physics education or science education papers in refereed
journals; 2) publication of physics curriculum material such as
textbooks, workbooks, laboratory manuals, study guides and
curricular material using appropriate media; 3) presentation of
invited talks at professional meetings, workshops, and other
universities; 4) development of in-service teacher training; 5)
securing external funding for physics education research; 6) serving
on review panels for funding agencies; 7) serving on editorial
boards of professional journals; 8) serving as reviewer for journals
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and textbooks; 9) supervising Ph.D. students in science education;
10) participating in AAPT activities.
The offer letter also mentioned and attached a copy of the Department‟s
promotion and tenure document, the “Blue Document.”
The Blue Document notes that evaluations for promotion “shall be those
broadly specified in the Faculty Handbook, based upon the areas of research,
teaching, and service,” with research and teaching having “overriding
importance.” For promotion to associate professor, “excellence sufficient to lead
to a national or international reputation is required and would ordinarily be shown
by the publication of approximately fifteen papers of good quality in refereed
journals.” However, the Blue Document states: “It should be emphasized . . . that
subjective judgment is involved in all of these cases; promotion with fewer papers
than indicated above, or non-promotion with more, could occur based upon the
Committee‟s evaluation of the research involved.”
In all cases of promotion, the ultimate criterion which is expected to
be applied in deciding the departmental recommendation is the
question “will this promotion significantly enhance the ability of the
Department and Iowa State University to meet the responsibilities
implied by their respective missions?” All of the above guidelines
for consideration are designed to answer this question in each
individual case. No individual is considered to have proprietary
right to promotion. No individual earns a promotion without having
earned a “yes” to this question.
The Faculty Handbook notes that a faculty member is ordinarily reviewed
for tenure in the sixth year. An applicant for associate professor with tenure is to
have a “solid academic reputation,” show “promise for further development and
productivity,” and demonstrate “excellence in scholarship that establishes the
individual as a significant contributor to the field or profession, with potential for
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national distinction, effectiveness in areas of position responsibilities, and
satisfactory institutional service.” The Faculty Handbook notes that a “key tool” in
the promotion and tenure review process is the position responsibility statement
(“PRS”).
Meltzer‟s PRS states:
1) You will carry out a research and scholarship program that is
nationally competitive and recognized. This includes creation of the
conceptual framework for the research, raising funding to support
the work, and reporting the results in major journals;
2) you will perform classroom and laboratory teaching at a level
consistent with Department norms established by peer and student
evaluations; and
3) you will contribute to the outreach and service aspects of
department activity.
Under the Blue Document, a two-thirds vote of those eligible is required
for recommendation of promotion. Meltzer sought early promotion in his fifth
year and was denied. In Meltzer‟s sixth year—academic year 2003-04—he was
considered for promotion to associate professor with tenure. Twenty-nine faculty
members voted on Meltzer‟s promotion: twelve voted for and seventeen voted
against. A Department promotion and tenure committee recommended denial.
The Department chair agreed with the committee‟s recommendation.
Pursuant
to
University
procedures,
Meltzer
appealed
and
was
unsuccessful at the following levels: the College of Liberal Arts and Sciences‟
Tenure and Promotion Committee and its Dean; the University Provost; and the
University President.
The President noted,
A grant of lifetime tenure is a privilege, not a right. The decision is
weighty for both the candidate and the institution. It requires
careful consideration together with application of judgment and
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discretion. It requires a holistic review of the candidate‟s record. In
the primary area of emphasis, it is not a determination of the
minimum necessary to be competent. University standards require
a showing of “excellence in scholarship,” together with “an
assessment that the candidate has made contributions of
appropriate magnitude and quality and has a high likelihood of
sustained contributions to the field, or profession and to the
University.” Faculty Handbook, § 5.2.3.2. Our policies do not tie
the grant of tenure to a defined set of results. Nowhere do our
policies indicate that favorable evaluations, external reviews,
funding levels or a defined number of scholarly works will assure
success.
The President acknowledged that Meltzer‟s was a “difficult case” because
Meltzer had “achieved a great deal.” The President reviewed Meltzer‟s claims (1)
that improper procedures were followed; (2) that the decision was arbitrary and
capricious, as well as a newly raised claim; and (3) that a significant factor—
invited presentations—was ignored. The President found no grounds to overturn
the decision to deny tenure. The Regents concurred.
Meltzer then requested that an independent faculty senate committee
review the denial of his application for promotion.
An Ad Hoc Investigation
Committee (“AIC”) of three was appointed to investigate. The AIC concluded that
Meltzer‟s “appointment letter outlines not only the department‟s expectations of
him but also provides a framework for his promotion and tenure evaluation.” It
also expressed concern with his “extremely generic” PRS and found it “extremely
unfortunate that these two documents were not consistent with each other.” The
AIC expressed the opinion that use of colloquia without explicitly identifying their
use in the Blue Document was “arbitrary and capricious.” It was the opinion of
the AIC that external review letters, which were unanimously in favor of Meltzer‟s
promotion, were discounted and concluded that “discounting of the external
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letters was an arbitrary decision” and violated the Faculty Handbook. The AIC
concluded, however, that Meltzer‟s claim that the effectiveness of his teaching
activities was based on additional expectations not found in the Handbook, did
not harm Meltzer. It also rejected his claim that his record of invited lectures was
ignored. As a result of its findings, the AIC recommended that the decision to
deny tenure be reversed. It also recommended that the Department revisit how it
structures its PRS for their faculty.
Responses were received from the Department committee chair and
others noting, among other things, that the appointment letter included the
Department‟s promotion and tenure document. The faculty senate committee
voted on the AIC‟s recommendations: seven of twelve committee members voted
to reverse the denial of tenure.
The Department chair disagreed with this
committee‟s recommendation and affirmed his original decision to deny tenure.
Meltzer appealed a second time to the President and, finally, again to the
Regents. Meltzer then sought judicial review in the district court.
The district court addressed the claims made by Meltzer and reviewed the
appeal process, noting the reasons provided at the various levels of appeal for
the denial of tenure. The court found that Meltzer had waived his claims with
respect
to
Iowa
Code
section
17A.19(10)
(2005)
subsections
(a)
(unconstitutional), (b) (beyond the authority delegated to agency), (e) (improperly
constituted body of decision makers), (f) (decision not supported by substantial
evidence), (l) (irrational, illogical, or wholly unjustifiable interpretation of law), and
(m) (irrational, illogical, or wholly unjustifiable application of fact to law).
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The court found Meltzer had preserved his claim that the denial of tenure
was arbitrary and capricious. Iowa Code § 17A.19(10)(n). The district court
wrote:
University decision-makers were concerned about the lack of
impact of Meltzer‟s scholarship: low number of publications, low
number of citations to his publications, lack of evidence that his
curriculum had been adopted, and a poorly received colloquium.
Meltzer claims: a) that he had satisfied the criteria or b) the criteria
should not have been considered or c) the University ignored other
relevant criteria. The University did not act in an arbitrary and
capricious manner . . . .
The court concluded that the “University considered the relevant facts and
adequate evidence demonstrates that Meltzer did not satisfy the high standard
required for promotion to Associate Professor with tenure.”
With regard to Meltzer‟s claims of procedural violations, the district court
found that the offer letter did not set forth the promotion and tenure criteria. The
criteria were found in the Department‟s policy and the Faculty Handbook. In a
well-written and reasoned decision, the court enumerated Meltzer‟s various
claims and concluded he had failed to show that the University violated any rule
or procedure. The court noted that even if there were such a violation, Meltzer
had failed to prove any resulting prejudice.
The district court affirmed the
decision to deny Meltzer promotion with tenure.
Meltzer now appeals.
II. Scope and Standard of Review.
Tenure entitles a faculty member to continuous, lifetime appointment with
an academic department. The decision whether to grant tenure and the criteria
used to guide that decision are within the statutory mandate of the agency and
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are peculiarly within its discretion and area of expertise. Genetzky v. Iowa State
Univ., 480 N.W.2d 858, 861 (Iowa 1992). Thus, we begin our analysis being
mindful of the discretion owed to the agency here:
We are mindful of the singular nature of academic decisionmaking, and we lack the expertise to evaluate tenure decisions or
to pass on the merits of a candidate‟s scholarship. We have said
that “[w]hile Title VII unquestionably applies to tenure decisions,
judicial review of such decisions is limited to whether the tenure
decision was based on a prohibited factor.” Brousard-Norcross v.
Augustana College Ass’n, 935 F.2d 974, 976 (8th Cir.1991). The
Supreme Court has made it clear that “[w]hen judges are asked to
review the substance of a genuinely academic decision, . . . they
should show great respect for the faculty‟s professional judgment.”
Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S. Ct.
507, [513,] 88 L. Ed. 2d 523, [532] (1985) (footnote omitted); see
also Bd. of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 90, 98
S. Ct. 948, [958,] 55 L. Ed. 2d 124, [135] (1978).
Okruhlik v. Univ. of Ark., 395 F.3d 872, 879 (8th Cir. 2005).
The exclusive remedy for judicial review of a decision concerning tenure is
under Iowa Code section 17A.19(1). Genetzky, 480 N.W.2d at 861. The district
court is to apply the statutory standards of sections 17A.19(10) and (11). Under
section 17A.19(10)(n), agency action can be reversed or modified if it was
“[o]therwise unreasonable, arbitrary, capricious or an abuse of discretion.”
A decision is “arbitrary” or “capricious” when it is made without regard to
the law or underlying facts. Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d 904,
912 (Iowa 1987).
A decision is “unreasonable” if it is against reason and
evidence “as to which there is no room for difference of opinion among
reasonable minds.” Id.
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III. Arbitrary and Capricious Claims.
We have thoroughly reviewed the record related to Meltzer‟s application
for promotion.
We note that the closeness of the question has been
acknowledged throughout this process. Had the Department vote been in favor
of promotion and the promotion nonetheless denied, we would be more inclined
to find the denial arbitrary and capricious.
That, however, is not the case.
Meltzer did not get a majority vote for promotion within the Department, let alone
the required two-thirds. The faculty senate committee voted seven in favor of
promotion and five against. The importance of various aspects of “scholarship”
has been debated and discussed at every level of decision making. Meltzer was
offered ample opportunity to present his position that his scholarship achieved
the level of “excellence” required. It is precisely for the reason that reasonable
minds can differ on such questions, that the court is to give deference to the
decision makers. As one court has stated,
The subjective decision process by which promotion and tenure are
awarded or denied must be left to the professional judgment of
those presumed to possess a special competency in making the
evaluations, unless shown to be arbitrary and capricious or clearly
wrong.
....
Juries and judges lack the credentials and the knowledge to
determine whether a group of scholars should be required to accept
into their midst for life a member of the academic community.
Karle v. Bd. of Trustees/Marshall Univ., 575 S.E.2d 267, 271 (W. Va. 2002)
(internal citations and quotations omitted).
We disagree with Meltzer‟s characterization that the record is infected with
“falsified data.”
While Meltzer can reasonably disagree with the conclusions
10
reached by the University, the record does not indicate the decision to deny
promotion was unreasonable, arbitrary and capricious, or an abuse of discretion.
IV. Procedural Irregularities.
Meltzer contends that the Department failed to: “tie its tenure review to the
Appointment Letter”; “tie the tenure review to the standards of the PRS”; provide
him with written notice that the colloquium would be used as a criterion; properly
evaluate the effectiveness of his teaching; and give due consideration to external
peer reviewers and his record of invited talks. He asserts he was prejudicially
barred from correcting misstatements in his dossier.
We first note that Meltzer took every opportunity to provide additional
information to the numerous decision-makers throughout the review process. At
every level of review, Meltzer received a substantive response to his additional
information.
Meltzer‟s appointment letter set forth expectations of the Department, but
did not provide the basis for promotion. The Department‟s “Blue Document” and
the faculty handbook governed the promotion process. That promotion process
is admittedly subjective in many respects. The importance of various factors in
determining “excellence in scholarship” is beyond the province of the court. Our
role is to ensure that the process was procedurally fair. We, like the district court,
find no procedural errors that prejudiced Meltzer‟s application for promotion.
V. Failure of District Court to Take Additional Evidence.
In reviews of “other agency action,” the taking of additional evidence is
within the discretion of a district court. Sindlinger v. Iowa State Bd. of Regents,
503 N.W.2d 287, 390 (Iowa 1993). Pursuant to Iowa Code section 17A.19(7),
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the court “may hear and consider such evidence it deems appropriate.” However
additional evidence “is for the limited purpose of highlighting what actually
occurred at the agency level in order to facilitate the court‟s search for errors of
law or unreasonable, arbitrary, or capricious action.” Sindlinger, 503 N.W.2d at
390.
Here, the district court concluded that the record was “adequate to make
clear the claims and agency conclusions and the bases serving as the foundation
of each.”
The court found that Meltzer‟s proffered evidence was “either
redundant of that which is already in the record or evidence that goes beyond
„highlighting‟ and is wholly new evidence.” We agree. The district court did not
abuse its discretion in refusing to hear additional evidence.
VI. Conclusion.
We acknowledge that tenure decisions are weighty and carry high stakes
for an applicant.
Having invested six years with the University, Meltzer was
disappointed by the denial of his promotion to associate professor with tenure.
While that decision was not reached on a unanimous vote, the grounds upon
which it was based were not unreasonable, arbitrary, capricious, or an abuse of
discretion. Nor was the process affected by prejudicial procedural violations.
Meltzer asserts he has satisfied all contractual obligations, thus requiring
promotion to the tenured position. However, tenure is not a matter of right. The
decision is within the discretion of the agency and we find no abuse of that
discretion. Finally, the district court did not err in not allowing Meltzer to present
additional evidence. We therefore affirm.
AFFIRMED.
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