In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1019

Louis Wozniak,

Plaintiff-Appellant,

v.

Thomas F. Conry, et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Central District of Illinois.
No. 97-2182--Michael P. McCuskey, Judge.


Argued October 26, 2000--Decided January 10, 2001




  Before Easterbrook, Kanne, and Evans, Circuit Judges.

  Easterbrook, Circuit Judge. After 28 years of
teaching at the University of Illinois at Urbana-
Champaign, Louis Wozniak became a rebel. Members
of the engineering faculty teach undergraduate
classes, which are divided into sections. To
ensure consistency in grading across sections,
the University requires professors to grade on a
prescribed curve and to submit their grading
materials. At the end of the fall semester in
1994 Wozniak turned in grades for his two
undergraduate sections but refused to submit the
required materials for review. Despite demands
from increasingly high rungs of the University’s
hierarchy, Wozniak persisted in his position. In
June 1995 Wozniak asked the Chancellor of the
University to intervene; after the Chancellor
declined to do so, the Dean of the College of
Engineering gave Wozniak one last chance to
comply or to explain himself. Wozniak let the
deadline pass in silence, but the Dean did not.
Wozniak asserts that the Dean barred him from
teaching any further classes, canceled his
research funds, and reassigned him to manage the
engineering faculty’s Web site. His title
(Associate Professor of General Engineering) and
his salary were unaffected, however, and he
remains on the faculty. Wozniak contends in this
suit under 42 U.S.C. sec.1983 that, by stripping
him of professorial responsibilities and
privileges, the University violated both the
first amendment and the due process clause of the
Constitution.

  The district court granted summary judgment for
the defendants. We therefore give Wozniak the
benefit of all reasonable inferences from the
evidentiary record, which is rife with disputes.
This means, in particular, that we accept
Wozniak’s contention that he has been foreclosed
from any teaching (though the University says
otherwise), barred from all research (again the
University says otherwise), and thus effectively
shuttled from the faculty to the administrative
staff. Moreover, we accept Wozniak’s contention
that such a change of duties is out of the
ordinary, indeed unheard of, for a tenured member
of the faculty. It follows that Wozniak has
created a material dispute about the question
whether the University has deprived him of his
professional stature, a form of property
interest--for an employer that strips an employee
of the ordinary incidents of the job, in a way
that could lead a reasonable, self-respecting
person to resign, has constructively discharged
that person even if the employee’s title and
salary are unaffected. Thus a police department
that strips a ranking officer of duties and
assigns him to shuffle papers in a broom closet
has deprived that officer of property. See
Parrett v. Connersville, 737 F.2d 690 (7th Cir.
1984). Likewise a school board that reassigns a
school’s principal to a trifling administrative
post. Head v. Chicago School Reform Board of
Trustees, 225 F.3d 794, 803-04 (7th Cir. 2000).
If Wozniak is describing events correctly, he
lost more than his dignity and the opportunity to
influence students. He lost all prospects of
promotion to full professor (though these could
not have been bright, since he was still an
associate professor 28 years into his teaching
career) and, because he lost research support,
future scholarly publications, recognition within
the profession, and the chance of obtaining
private consulting work, all bit the dust.
Wozniak did not quit, but this is not fatal to
reliance on a theory of constructive discharge;
some employees have poor prospects elsewhere
(often their opportunities are diminished by the
same acts that amount to a constructive
discharge). See Hunt v. Markham, 219 F.3d 649
(7th Cir. 2000). Because state law and the
University’s regulations give Wozniak tenure as
a faculty member and not just as an all-purpose
employee equally suited to the classroom and the
janitorial staff, the dramatic change of duties
affected his "property" within the meaning of the
due process clause. Compare Board of Regents v.
Roth, 408 U.S. 564 (1972), with Perry v.
Sindermann, 408 U.S. 593 (1972).
  Wozniak believes that this resolves matters in
his favor, but it does not, because the due
process clause does not require that a formal,
adversarial hearing precede every decision
affecting property. An employee who keeps his
title and salary has lost considerably less
property than one fired outright, and we know
from Mathews v. Eldridge, 424 U.S. 319, 333-35
(1976), that the extent of process increases with
the severity of the deprivation. Wozniak was
entitled to "some kind of hearing," Goss v.
Lopez, 419 U.S. 565, 579 (1975) (emphasis in
original), which means that he was entitled to an
opportunity to present his side of the story. See
Henry J. Friendly, "Some Kind of Hearing", 123 U.
Pa. L. Rev. 1267 (1975). He had that chance many
times, through multiple levels of review within
the University, and one who has spurned an
invitation to explain himself can’t complain that
he has been deprived of an opportunity to be
heard.

  What is more, even for the most important
decisions, an evidentiary hearing is required
only if there are material factual disputes.
District courts regularly grant summary judgment
without receiving oral testimony, and they
dismiss complaints without receiving evidence,
yet no one supposes that the Federal Rules of
Civil Procedure violate the Constitution on that
account. The due process clause does not require
a hearing--in either a court or a university--
where there is no disputed issue of material fact
to resolve. See Codd v. Velger, 429 U.S. 624
(1977); Paige v. Cisneros, 91 F.3d 40 (7th Cir.
1996). Here there is no material dispute: Wozniak
refused to follow the University’s grading rules,
and in this suit he trumpets a claim of right to
defy them. Why hold a hearing when the
insubordination is conceded? Sometimes the
Constitution extends an opportunity to tell one’s
side of the story and thereby inform the
decisionmaker’s discretion in selecting the
appropriate penalty. See Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 543 & n.8
(1985); Goss, 419 U.S. at 583-84. The University
gave Wozniak that chance at least three times,
thus affording all the process that is due. A
faculty member is hardly in a position to argue
that the opportunity to submit an explanation or
statement of position in writing is inadequate;
professors make their living by the written word,
so illiteracy is not a risk that the
decisionmaker must consider when devising
procedures for dispute resolution.

  Wozniak’s remaining arguments are frivolous. He
contends, for example, that the University’s
decision deprives him of "substantive due
process." But this doctrine applies only to
decisions affecting fundamental civil rights. See
Washington v. Glucksberg, 521 U.S. 702, 720-22
(1997). No teacher has a fundamental right to
hand in random or skewed grades, or to pretend
that 95% of his students are better (or worse)
than average. No person has a fundamental right
to teach undergraduate engineering classes
without following the university’s grading rules.
Quite the contrary, both a university and its
students have powerful interests in the
comparability of grades across sections, for
grades are a university’s stock in trade and
class rank may be vital to a student’s future. By
insisting on a right to grade as he pleases,
Wozniak devalues his students’ right to grades
that accurately reflect their achievements.

  As for Wozniak’s claim that students have a
right under the first amendment, federal
statutes, or notions of privacy to keep grading
information from a university’s administrators:
Wozniak lacks standing to make such an argument.
Students themselves would be the right
plaintiffs. The contention also is unfathomable.
Grades appear on students’ transcripts; the
transcripts bear the university’s seal and
imprimatur, so a university necessarily knows
every student’s grades. Transcripts (and
diplomas, if the grades warrant them) are issued
by the university, not by members of the faculty
individually or collectively. It is the
University’s name, not Wozniak’s, that appears on
the diploma; the University, not Wozniak,
certifies to employers and graduate schools a
student’s successful completion of a course of
study. Universities are entitled to assure
themselves that their evaluation systems have
been followed; otherwise their credentials are
meaningless. Some universities offer their
faculty more control over grading than the
University of Illinois afforded Wozniak, and
maybe discretion is good. But competition among
systems of evaluation at different universities,
not federal judges, must settle the question
which approach is best. Each university may
decide for itself how the authority to assign
grades is allocated within its faculty.

  Finally, Wozniak’s contention that he is the
victim of "retaliation" for taking his stand
against the University’s grading policy adds
nothing. A violation of an employer’s lawful
rules does not become an improper basis for
decision just because the employee makes his
position known to the public. Wozniak does not
contend that other professors have defied the
University’s grading rules, kept their silence,
and escaped any response. Without proof of that
kind, the University’s decision must be
understood as a reaction to Wozniak’s behavior,
not as a penalty for his speech about that
behavior.

Affirmed
