Appeal from the United States District Court for the Western District of Wisconsin. No. 81 C 566 -- Barbara B. Crabb, Judge.
Cummings, Chief Judge, Cudahy and Coffey, Circuit Judges. Coffey, Circuit Judge, concurring.
Henry L. Martin appeals from an interlocutory order of the district court denying his motion for a preliminary injunction enjoining the University of Wisconsin Law School (hereinafter "Law School") from interfering with his registration at the Law School pending resolution of the merits of his due process claim. Jurisdiction is based on 28 U.S.C. 1292(a) (1). We affirm on the ground that injunctive relief is not warranted because the appellant has not satisfied any of the factors justifying the grant of a preliminary injunction.
In December 1980 the appellant applied for admission to the Law School for the August 1981 term. Question 6(b) of the application for admission asks inter alia if the applicant had ever been convicted of criminal conduct. The appellant answered "yes" to question 6(b). If an applicant answers "yes" to Question 6(b), the application requests a full explanation. The appellant responded "I am a former legal offender. I received a full pardon in 1971 from former Wisconsin Governor Patrick J. Lucey. This pardon is on file in the Secretary of State's office." The appellant was notified of his acceptance to the Law School on March 5, 1981, and accepted the offer of admission on April 10, 1981.
On July 21, 1981, the appellant's case manager informed the Law School that appellant was then incarcerated in a federal prison in Milan, Michigan, serving a ten-year sentence for interstate transportation of forged securities. Appellee Thome and the appellant spoke by phone*fn1 on July 22, 1981, and Thome told him "that the federal conviction and his failure to disclose it affected his admission to the Law School." Thome directed the appellant to send the Law School "official information regarding this conviction." The appellant asserts that Thome directed him to write a letter explaining the circumstance behind his conviction and incarceration. The appellant responded with a letter attempting to explain why he did not "mention or detail" his federal conviction.
On July 24, 1981, the Law School notified the appellant by letter that it was reconsidering his application "because of your failure to disclose material facts as requested." The letter specifically stated that a misrepresentation constituted grounds for rescinding the appellant's admission. The letter concluded:
Before taking this step, however, we will review the materials you are now in the process of sending us. Of particular importance is a full explanation of your present conviction and incarceration and the reasons why you failed to disclose this information to us.
The appellant's letter to the Law School, however, was mailed prior to his receipt of the letter from the Law School to him. The appellant did not communicate again with the Law School after July 22, 1981. On August 4, 1981, the Law School revoked the appellant's admission to the Law School on the grounds that the appellant's application had failed to disclose his federal conviction and that his conversation with appellee Thome on July 22, 1981 and subsequent letter to the Law School implied that his federal conviction was about to be vacated. In fact his conviction had already been upheld on direct appeal and the appellant was challenging his conviction in a collateral action raising many of the same issues that had been decided on direct appeal.
The appellant filed this action on August 17, 1981, asking for declaratory and preliminary and permanent injunctive relief prohibiting the defendant-appellees from interfering with his registration at the Law School. The appellant claims the denial of procedural due process rights in that the Law School revoked his admission without notice or hearing and pursuant to vague or nonexistent standards. A hearing was held on the appellant's request for a preliminary injunction on August 26, 1981. The district court found that the appellant did have a property interest in his admission to the Law School based on the Law School's offer of admission and his acceptance of that offer. The district court went on to find, however, that the appellant had received all the process he was due. The appellant was allowed to respond to the threatened rescission by letter, affidavits and other documents. The district court held that because of the question presented -- whether or not the appellant had failed to disclose his federal conviction -- an opportunity to be heard by letter, affidavit or other documentary material was sufficient. An order denying the appellant's motion for a preliminary injunction was filed on August 27, 1981, and the appellant filed a timely notice of appeal.*fn2
This court will not reverse a grant or denial of a preliminary injunction absent a clear abuse of the district court's discretion. Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 613 (7th Cir. 1982). Furthermore, the deference accorded that discretion is enhanced when the decision is one, such as the decision here, which preserves the status quo. United Church of the Medical Center v. Medical Center Commission, 689 F.2d 693 (7th Cir. 1982). Four factors enter into the district court's exercise of discretion to grant or deny a preliminary injunction: (1) whether the plaintiff will have an adequate remedy at law or will be irreparably harmed if the injunction does not issue; (2) whether the threatened injury to the plaintiff outweighs the threatened harm the injunction may inflict on the defendant; (3) whether the plaintiff has at least a reasonable likelihood of success on the merits; and (4) whether the granting of a preliminary injunction will disserve the public interest. Atari, supra, at 613. The district court concluded only that the plaintiff failed to meet the threshold requirement of showing likelihood of success on the merits, and did not address the other factors denying the appellant's motion. Kolz v. Board of Education of City of Chicago, 576 F.2d 747, 749 (7th Cir. 1978).
The merits of this case involve two issues: whether the appellant has a property interest in his law school admission, and if so, what process is due him before that admission can be revoked. Although we have some reservations about the district court's resolution of both of these issues, we do not find the abuse of discretion necessary to reverse the district court's decision.
As noted above, the district court held that the appellant had a property interest in his admission to law school. The property interest arose, according to the district court, out of the Law School's offer of admission and the appellant's acceptance of that offer.
Generally, property interests are not created by the Constitution but are created and defined by existing rules -- such as state laws*fn3 -- or "mutually explicit understandings" that support a person's claim to entitlement to the benefit and that he may invoke at a hearing. Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Perry v. Sindermann, 408 U.S. 593, 601, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972).
We express one concern with respect to the district court's finding that the Law School's offer and the appellant's acceptance created a property interest in favor of the appellant. The concern is whether a mutually explicit understanding based on an offer and acceptance can exist when the offer is allegedly procured by the applicant's fraud. See Jago v. Van Curen, 454 U.S. 14, 23, 70 L. Ed. 2d 13, 102 S. Ct. 31 (1981) (Blackmun, J., concurring) ("I could also hold that no mutual expectations existed under the circumstances inasmuch as the parole board's order was based on respondent's untruths; respondent could not reasonably believe that there was a legitimate mutual understanding that he would be released.")*fn4 To hold that the applicant's fraud prevents a property interest from arising out of the transaction, however, creates another problem: if no property interest in an admission to the Law School arises when the applicant lies on the application, and if the Law School can decide whether or not the applicant lied without granting the applicant a hearing, then the Law School could deny an applicant a hearing merely by saying the applicant lied.
Because the issues have not been sufficiently developed to permit us to rule unequivocably on the existence of the appellant's property interest in his law school admission, we shall, for purposes of this opinion only, assume that such a property interest exists. Board of Curators, University of Missouri v. Horowitz, 435 U.S. 78, 84-85, 55 L. Ed. 2d 124, 98 S. Ct. 948 (1978) (Court assumes the existence of a liberty or property interest but concludes appellant has not been deprived of due process). We turn next to the question of whether the appellant was denied due process when his admission was revoked.*fn5
The district court held that the appellant had received all the process he was due when he received the opportunity to submit written materials to the Law School prior to its reconsideration of his admission. The court's holding was based upon its finding concerning the weight of the property interest the appellant had at that point in attending the Law School and based upon the precise nature of the issue presented: whether the appellant failed to disclose his federal conviction. Again, we cannot find that the district court abused its discretion in reaching that conclusion.
Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976) sets out the factors to be considered in identifying the specific dictates of due process: (1) the private interest affected, (2) the risk of an erroneous deprivation through the procedure used and the probable value of substitute procedures, and (3) the government's interest. We agree with the district court that prior to beginning classes, the appellant's interest in his law school admission is not entitled to great weight. Cf. Brookins v. Bonnell, 362 F. Supp. 379, 383-84 (E.D. Pa. 1973) (potential enrollee may have no right to due process hearing to prove his right to admission).
With respect to the second factor, the risk inherent in the procedure used, we first note that deprivations of a property interest without opportunity for an oral personal exchange are generally disfavored. Gray Panthers v. Schweiker, 209 U.S. App. D.C. 153, 652 F.2d 146, 160-61 (D.C. Cir. 1980). There are two exceptions to this rule, however, both of which are at least potentially applicable to the case at hand. First, academic dismissals, as opposed to disciplinary dismissals, require no hearing at all. Board of Curators, University of Missouri v. Horowitz, 435 U.S. 78, 87-91, 55 L. Ed. 2d 124, 98 S. Ct. 948 (1978); Woodard v. Marsh, 658 F.2d 989, 998 (5th Cir. 1981), certiorari denied, 455 U.S. 1022, 102 S. Ct. 1721, 72 L. Ed. 2d 141 (1982); Miller v. Hamline University School of Law, 601 F.2d 970, 972 (8th Cir. 1979). The deference accorded academic dismissals is based on the policy of fostering academic freedom at the university level. Regents of the University of California v. Bakke, 438 U.S. 265, 311-15, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978) (Powell, J.). This policy is of greater importance in the case of admissions. Id. at 312; Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1305 (1975). To the extent that the Law School's reconsideration of the appellant's acceptance to the Law School represented a reconsideration of his suitability as a law student and potential lawyer, then the revocation of his acceptance can be analogized more closely to an academic than it can to a disciplinary dismissal.
The second situation in which an oral personal appearance may not be required is in the situation that arose in Eldridge. When the issue is "sharply focused and easily documented," then an oral hearing is unnecessary. Eldridge, supra at 343; Mattern v. Mathews, 582 F.2d 248, 256 (3d Cir. 1978), certiorari denied sub nom. Califano v. Mattern, 443 U.S. 912, 61 L. Ed. 2d 876, 99 S. Ct. 3101 (1979). The district court in this case decided this issue on the authority of Eldridge. Two problems disturb us. First, Eldridge did provide for a full post-deprivation hearing; the Law School here does not. Second, the issue of whether or not the appellant failed to disclose his federal conviction on his law school application is shading very close to the issue of the applicant's credibility and veracity. And where credibility is in issue, an oral hearing is required. Mathews v. Eldridge, supra, 424 U.S. at 343-44, citing Goldberg v. Kelly, 397 U.S. 254, 269, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970). Nevertheless, because our review at this stage is limited, because the district court could reasonably characterize the issue so as to make an oral hearing unnecessary, because the reconsideration by the Law School ...