               Richard C. SPULER, Plaintiff–Appellant,

                                      v.

  Gertrud B. PICKAR, James H. Pickering, A. Benton Cocanougher,
Richard L. Van Horn, and the Board of Trustees of the University of
Houston, Defendants–Appellees.

                               No. 90–2408.

                    United States Court of Appeals,

                              Fifth Circuit.

                              April 14, 1992.

Appeal from the United States District Court for the Southern
District of Texas.

Before DAVIS, JONES, and EMILIO M. GARZA, Circuit Judges.

     EDITH H. JONES, Circuit Judge:

     Plaintiff Richard Spuler brought suit against the University

of Houston, alleging that he was denied due process of law in being

refused tenure and terminated.             A jury awarded damages, after

finding that Spuler had a reasonable expectation of continued

employment    and   that    the     defendants    acted    arbitrarily    and

capriciously in denying tenure and in discharging him.              The court

granted    defendants'     motion   for     judgment    notwithstanding   the

verdict.    Spuler appeals from that ruling.           We affirm.



                                    FACTS

     In 1980, Spuler was appointed an assistant professor in the

German Department at University of Houston.             He was subsequently

re-appointed each year.       In August 1985, at the end of Spuler's

fifth year at the University, Dr. Gertrud Pickar, the German

Department chairwoman, notified Spuler that his contract would not

be renewed after the 1985–86 school year.          Financial reasons were
offered as the basis for the decision.



     Understandably unhappy with the decision, Spuler asked that he

undergo the tenure approval process so that he might represent to

potential employers that he was being considered for tenure.                 The

respective departmental and college tenure committees obliged and

found that Spuler had complied with tenure requirements and was

eligible for tenure consideration.         Tenure decisions are evaluated

according to performance in the areas of teaching, research,

professional       scholarship,    and   institutional       service.        The

University's faculty handbook states "tenure is granted to faculty

members upon the successful completion of a probationary period

[at] the university...."           Initial screening and evaluation is

conducted     by   the   respective   department      and   college,    with   a

recommendation transmitted to the university Provost and President.

The ultimate decision to grant or deny tenure is made by the Board

of Regents, upon recommendation of the President.



     The jury found that the University's rules and regulations

created   a   reasonable     expectation   of   continued     employment     for

Spuler. The jury also found that the department chairwoman and the

other   defendants       acted   arbitrarily    and   capriciously      in   not

recommending tenure and in discharging Spuler.                  They awarded

$13,279 in damages against the department chairwoman and $39,837 in

damages against Dr. James H. Pickering, dean of the College of

Humanities and Fine Arts.         The jury also assessed $542 in damages

against both the University Provost, A. Benton Cocanougher, and the
University President, Richard L. Van Horn, both of whom concurred

in the recommendation to deny tenure to Spuler.



     Shortly after Spuler left the University, a tenured professor

resigned from the German Department.           Spuler was not offered the

position,   and   the    vacant   position    remained   unfunded    for   two

successive years.       However, two months after Spuler departed, the

University advertised nationally for a German professor.                   The

University explained that Spuler was a linguistics expert and

taught elementary courses, while the professor who resigned was a

professor of German literature.              Although the basic language

acquisition courses could be taught by any German Department

faculty   member,   specialized     knowledge—which      Spuler   lacked—was

needed to teach the literature classes.



     In ruling on defendants' motion for judgment notwithstanding

the verdict, the trial court held that Spuler enjoyed no property

interest in continued employment at the University, since Spuler

was employed on a year-to-year contract.           The court further held

that the University was entitled to deny Spuler tenure.             The court

also held that the tenure denial decision was reasonable, and not

arbitrary and capricious, being based on legitimate financial

considerations.



                            STANDARD OF REVIEW

      A judgment notwithstanding the verdict (JNOV) should be

granted by the trial court
     only when the facts and inferences point so strongly and
     overwhelmingly in favor of the moving party that reasonable
     jurors could not arrive at a contrary verdict, viewing the
     facts in the light most favorable to the party against whom
     the motion is made, and giving that party the advantage of
     every fair and reasonable inference which the evidence
     justifies.

Harwood & Assoc., Inc. v. Texas Bank & Trust, 654 F.2d 1073, 1076

(5th Cir. Unit A, September 1981) (citing Boeing v. Shipman, 411

F.2d 365, 374–75 (5th Cir.1969) (en banc)).     On appeal, we apply an

identical legal standard, viewing the evidence in the fashion most

favorable to the party opposing the motion.        Ellison v. Conoco,

Inc., 950 F.2d 1196, 1203 (5th Cir.1992).     Thus, we may affirm the

district court only if we find that no reasonable jury could have

determined that Spuler was entitled to a reasonable expectation of

continued employment, or that he was discharged arbitrarily and

capriciously.



                        PROPERTY INTEREST

     The   threshold   issue    is    whether     Spuler   held    any

constitutionally-protected property right.      Baker v. McCollan, 443

U.S. 137, 146–47, 99 S.Ct. 2689, 2695–96, 61 L.Ed.2d 433 (1979).

The nature of Spuler's claim of property right must be determined

by reference to Texas law.   Board of Regents v. Roth, 408 U.S. 564,

568, 92 S.Ct. 2701, 2704, 33 L.Ed.2d 548 (1976).       If there is no

protected property interest, there is no process due, i.e., the

status is employment at will, modified by annual contracts.       Roth,

408 U.S. at 569, 92 S.Ct. at 2704.



     Public employees must demonstrate a property right founded on
a "legitimate claim of entitlement" based on "mutually explicit

understandings."    Roth, 408 U.S. at 577, 92 S.Ct. at 2708;                       Perry

v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d

570 (1972).   Spuler claims that he had a reasonable expectation of

achieving tenure if he was qualified, and that alone constitutes a

legitimate property interest.            He bases his claim on the faculty

handbook provision.      The University counters that the handbook,

under ample Texas precedent, cannot give rise to an employment

contract where the handbook is not accompanied by an express

agreement regarding discipline and discharge.



     Spuler   premises      his       assertions     that    the       faculty    manual

contractually creates enforceable property rights on Aiello v.

United Airlines, Inc., 818 F.2d 1196 (5th Cir.1987).                      In Aiello, a

long-term   employee    with      a    stellar     record    was       discharged      for

falsifying an expense voucher. Aiello must be understood as a case

in which all parties to the suit treated the employment manual as

giving   certain   contract       rights,        including       the     right    to    be

discharged only for specific, enumerated reasons. The court relied

on Texas cases in which express oral promises were offered and

later construed as implied contract provisions.                    See, e.g., Union

v. Brown, 694 S.W.2d 630 (Tex.App.—Texarkana 1985, writ ref'd

n.r.e.);      Johnson       v.        Ford   Motor     Co.,        690     S.W.2d       90

(Tex.App.—Eastland, writ ref'd n.r.e.).              Texas state courts, whose

decisions   must   inform      our     determination        of    Spuler's       claimed

property right, Roth, 408 U.S. at 568, 92 S.Ct. at 2704, uniformly

embrace the notion that employee handbooks or manuals, standing
alone, "constitute no more than general guidelines," absent express

reciprocal agreements addressing discharge protocols.                Reynolds

Mfg. Co. v. Mendoza, 644 S.W.2d 536, 539 (Tex.App.—Corpus Christi

1982 no writ).       See also Ryan v. Superior Oil Co., 813 S.W.2d 594,

596 (Tex.App.—Houston [14th Dist.] 1991, writ denied);               Hicks v.

Baylor     Medical      Univ.   Med.    Center,    789    S.W.2d    299,   302

(Tex.App.—Dallas 1990, writ denied); Benoit v. Polysar Gulf Coast,

Inc., 728 S.W.2d 403, 406 (Tex.App.—Beaumont 1987, writ ref'd

n.r.e.);     Vallone v. Agip Petroleum Co., 705 S.W.2d 757, 759

(Tex.App.—Houston [1st Dist.] 1986, writ ref'd n.r.e.);             Totman v.

Control Data Corp., 707 S.W.2d 739, 744 (Tex.App.—Ft. Worth, no

writ);     Molder v. Southwestern Bell Tel. Co., 665 S.W.2d 175

(Tex.App.—Houston [1st Dist.] 1983, writ ref'd n.r.e.).



     The foregoing cases all illustrate the consistency with which

Texas courts have adhered to the employment-at-will doctrine first

enunciated in Eastline & R.R.R. Co. v. Scott, 72 Tex. 70, 75, 10

S.W. 99, 102 (1888).          This doctrine has borne the test of time,

being eroded by only a few narrow statutory and judicially created

exceptions not present in this case.            The ineluctable conclusion

that under Texas law employment manuals generally do not create

contract rights guides our resolution of Spuler's property interest

claim.



     We    now   turn    to   the   specific   language   upon   which   Spuler

premises his claim to a constitutionally-protected property right.

The faculty manual provides, in pertinent part:
     Faculty members are on probationary appointments until they
     have been granted tenure. During the probationary period,
     decisions to renew or terminate appointments or to deny tenure
     shall be made at the campus level in accordance with the
     principals and procedures set forth in this Handbook. Tenure
     is awarded only at the specific campus of the university.

     Tenure is granted to faculty members upon the successful
     completion of a probationary period on the University Park
     campus. The service of tenured faculty shall be terminated
     only for adequate cause, except in cases of financial
     exigency, discontinuance of programs, or retirement because of
     age.

     The decision to terminate the services of a non-tenured
     faculty member is not a form of dismissal for cause.
     Non-reappointment of a faculty member without tenure does not
     require charges or demonstration of professional unfitness.

The faculty handbook's preface states that it is intended "to be

only a guide for faculty of the University of Houston–University

Park.    It does not purport to be a comprehensive, self-contained

policy document...."



        The unadorned language regarding tenure, as quoted above, is

indicative     rather   than     imperative.      In   harmony   with

well-established Texas law, we hold that the University's faculty

handbook did not create a property right in continued employment or

an assurance of tenure.      The handbook was not a written employment

agreement, and was not supplemented or supplanted by any express

agreement     or   written    representation   regarding   termination

procedures.    Because the faculty handbook bestowed no contractual

rights on Spuler and no concomitant obligations on the University,

and because Spuler points to no other source of entitlement to

tenure, Spuler enjoyed no property interest the deprivation of

which merited procedural or substantive due process protection.

Establishment of a formal tenure process generally "precludes a
reasonable expectation of continued employment" for non-tenured

faculty.   Edinger v. Board of Regents of Morehead State Univ., 906

F.2d 1136, 1140 (6th Cir.1990), accord Lovelace v. Southeastern

Mass. Univ., 793 F.2d 419, 423 (1st Cir.1986);       Eichman v. Indiana

State Univ. Bd. of Trustees, 597 F.2d 1104, 1109 (7th Cir.1979).

See also Dube v. The State Univ. of New York, 900 F.2d 587 (2d

Cir.1990), cert. denied, ––– U.S. ––––, 111 S.Ct. 2814, 115 L.Ed.2d

986 (1991);     Goodisman v. Lytle, 724 F.2d 818 (9th Cir.1984);

Beitzell v. Jeffrey, 643 F.2d 870 (1st Cir.1981).



      Spuler    nonetheless   asserts   that   he   was   entitled   to   a

non-arbitrary and capricious decision on tenure.           In Honore v.

Douglas, 833 F.2d 565, 568 (5th Cir.1987), this court acknowledged

the possibility of a substantive due process claim to tenure if

Honore also proved that he had a property interest in obtaining

tenure.    Even if the latter condition were satisfied, we disagree

that Spuler's evidence fulfilled the demanding standard for a

substantive due process violation.       The tenure process—from the

initial recommendations of the candidates by the professoriat to

the ultimate review by university administrators and members of the

Board of Regents—is intrinsically subjective. Such a determination

is not readily scrutinized in the adversarial judicial forum. "The

judicial inquiry is properly only whether the decision was made,

wisely or not, by a specific exercise of professional judgment and

on the basis of factors clearly bearing on the appropriateness of

conferring academic tenure."     Siu v. Johnson, 748 F.2d 238, 245

(4th Cir.1984).   The only substantive process due Spuler, assuming
he had a property interest, was the exercise of professional

judgment, in a non-arbitrary and non-capricious fashion.



       Spuler    asserts       that       the    University        administrators,

particularly the head of the German Department and the dean of the

College   of    Humanities     and     Fine     Arts,   acted    arbitrarily   and

capriciously in recommending against tenure.               Spuler notes that at

about the time he was terminated, a tenured professor left the

German    Department     and     the     University     launched    a   nationwide

replacement search.        He raises this point as evidence countering

the University's assertion that declining enrollment in the German

Department and the corresponding budgetary restrictions were the

reasons that Spuler was not offered tenure.               The department chair,

the college dean, and the University Provost each testified that

Spuler was not granted tenure because of financial reasons.                    The

department chairwoman testified that the department's financial

circumstances necessitated a decision between approving Spuler for

tenure or continuing the graduate program in German studies.                   She

stated that elimination of the graduate program would have resulted

in even more austere funding for the German Department, and would

have    critically     injured     the     German     program.      Although   the

University sought to replace the professor who departed shortly

after Spuler, the open position required a scholar with the ability

to teach the more specialized literature courses, a qualification

Spuler lacked. Given the overwhelming evidence of a rational basis

to support the decision to deny tenure to Spuler, we sustain the

district court's determination that no reasonable juror could find
that the University officials acted arbitrarily and capriciously in

denying tenure to Spuler.1



                            QUALIFIED IMMUNITY

         We review de novo the legal conclusion that the University

defendants were entitled to qualified immunity from suit.             Because

we hold that Spuler had no constitutionally protected property

interest,     and   that   he   was   not    dismissed     arbitrarily      and

capriciously, we need not determine whether the trial court erred

in granting qualified immunity to the defendants. Notwithstanding,

court challenges associated with denial of tenure persist; and the

affirmative qualified immunity defense rests on whether public

officials have violated a clearly-established right.             To that end,

we note that, in future challenges, officials formulating tenure

decisions in circumstances similar to the instant case will likely

benefit from qualified immunity.



     That Spuler cites no legal authority in his challenge to the

trial court's grant of qualified immunity presages the merits of

this argument.      To succeed in his challenge to the defendants'

qualified    immunity,     Spuler   must    show   that   at   the   time   the

University determined to terminate his contract, a reasonable

university official would have known that termination under like


     1
      Spuler also argues that the University could not deny him
tenure unless University officials had declared a financial
exigency. However the evidence at trial unequivocally
established that the University policy required a declaration of
financial exigency to terminate an already tenured professor,
absent good cause, and not to deny tenure to a candidate.
circumstances would have violated Spuler's due process rights.              In

sum, Spuler would have to show that a non-tenured professor had a

clearly-established,        constitutionally-protected       interest       in

continued University employment, and that denying him tenure for

financial reasons was arbitrary and capricious.                   Anderson v.

Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523

(1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct.

2727, 2738, 73 L.Ed.2d 396 (1982)), see also Dube, 900 F.2d at 597.

As    has   been   shown,   Spuler   had   no   constitutionally-protected

interest at the time of his termination.               We agree with the

district court that the University defendants were entitled to

qualified immunity.



                                  CONCLUSION

       As a matter of law, Spuler failed to prove the existence of

any constitutionally-protected interest in achieving tenure.               The

district     court   properly    granted   judgment   notwithstanding      the

verdict in favor of the defendants.        The defendants did not violate

any    clearly     established   constitutional    rights   and    were   thus

entitled to qualified immunity. The decision of the district court

is AFFIRMED in all respects.
