To Be or Not to Be a Dolt?

That was the question raised by Mary Anne Hedrich, the plaintiff in Mary Anne Hedrich v Board of Regents of the University of Wisconsin System, et. al., 2001 WL 1620128 (7th Cir. Wis.). A dolt is a "stupid person" according to Webster's II New College Dictionary. Ms. Hedrich alleged, in her complaint, that she was portrayed as a "dolt" during her tenure application process, which violated her "liberty interest" protected by the due process clause of the 14th Amendment of the U. S. Constitution. Ms. Hedrich was employed as a tenured-track faculty member in the Department of Health, Physical Education, Recreation and Coaching (the Department). When she applied for tenure during 1995, the tenured faculty in the Department reviewed her tenure file and rated Ms. Hedrich above average in teaching and service, but gave her a below average rating for scholarly activity. Ms. Hedrich had no publications to her credit, despite the fact that she had been told in two performance evaluations that publications would be a critical factor in her tenure decision. The committee ultimately voted seven to one to deny Ms. Hedrich tenure. Ms. Hedrich appealed to the University Tenure Appeals Committee, which concluded that the department faculty committee's decision to deny tenure was not consistent with the performance criteria adopted by the department as stated in the University handbook. In Wisconsin, if a tenure appeals panel concludes that the Department based its decisions to deny tenure on impermissible facts, a Wisconsin statute provides that an independent committee (a Notestein committee) may be convened to conduct an independent assessment of a candidate's qualifications. If the Notestein Committee determines that the faculty member should receive tenure and the chancellor makes an affirmative recommendation to that effect, then the board of regents may grant tenure over the objection of the faculty member's department. One impermissible factor that may trigger a Notestein committee is the improper consideration of qualifications, such as the failure to consider available data bearing materially on the quality of the performance. While the University decided not to convene a formal Notestein Committee, the faculty senate executive committee convened an ad-hoc credential review committee during the spring of 1997 and concluded that Ms. Hedrich had properly been denied tenure. Ms. Hedrich filed suit against the University claiming she was discriminated against because of "gender, sexual orientation, and age," and deprived of her "constitutionally protected liberty interests in her good name and reputation without due process of law." Ms. Hedrich argued that she had been deprived of her liberty interests in pursuing her chosen career in violation of her due process rights. Specifically, she complained that comments or statements made during the tenure process destroyed her freedom to take advantage of other employment opportunities. In order to succeed, Ms. Hedrich had to present evidence that the University engaged in conduct that was so stigmatizing that it crossed the line from defamation, which is not actionable under the constitution, over to an infringement of a "liberty interest." The court explained that the denial of tenure or employment is not, by itself, stigmatizing conduct. A termination is only stigmatizing if it is accompanied by a publicly announced reason that "impugns [the employees'] moral character," or implies "dishonesty or other job related moral turpitude." In an attempt to meet her burden, Ms. Hedrich argued that she was portrayed as a "dolt" when statements were made that she did not meet the standards of scholarship and did not submit the relevant documentation for consideration by the faculty. Because these statements did not suggest the kind of moral turpitude or dishonesty that would give rise to a liberty interest claim, it was dismissed. This case serves as a guideline for colleges and universities during the tenure selection process. During any tenure selection process, the participants must attempt to: (a) utilize the same standards and criteria consistently for all candidates; (b) not make statements during the process that are not based on true facts about the candidate; and (c) avoid specific remarks that could impugn the candidates' reputation for honesty and moral turpitude, unless overwhelming evidence supports such a claim and is related to the criteria for determining tenure. If these