concern" of the First Amendment. See Reno, 507 U.S. at 301-03,
113 S.Ct. at 1447; National Paint, 45 F.3d at 1129. By
contrast, substantive due process protection is reserved for
"matters relating to marriage, family, procreation, and the right
to bodily integrity." Albright, 510 U.S. at 272, 114 S.Ct. at
812. Thus, Defendants' Motion for Summary Judgment is GRANTED as
to Count V.
Count VI alleges a liberty interest in academic freedom as
created by state law, specifically the Illinois Constitution.
(Response to Reply, p. 3.) Substantive due process protects
fundamental rights enumerated in the Constitution and other
unenumerated "significant interests" that usually relate "to
marriage, family, procreation, and the right to bodily
integrity." Kraushaar, 45 F.3d at 1047; Albright, 510 U.S. at
272, 114 S.Ct. at 812. A liberty interest in a state-created
right to academic freedom is neither an enumerated fundamental
right nor anything like the other unenumerated significant
interests which would indicate that it deserves substantive due
process protection. See Kraushaar, 45 F.3d at 1047. Thus,
academic freedom as created by state law is not protected under
the substantive due process rubric.
Furthermore, "the Supreme Court has never held that such
state-created interests constitute a fundamental liberty interest
protected under a substantive due process theory. Rather, the
Court has analyzed state-created liberties under a procedural
due process theory." Id. (emphasis in original); accord
Robinson v. Howell, 902 F. Supp. 836, 843 (S.D.Ind. 1995). State
law is not a proper starting point from which to determine
whether conduct is reasonable under the federal Constitution.
Kraushaar, 45 F.3d at 1047.
Accordingly, as a matter of law, this claim fails, and
Defendants' Motion for Summary Judgment is GRANTED as to Count
B. State Claims for Substantive Due Process Violations
Rubin argues that he has stated substantive due process claims
because his claims include allegations of other substantive
constitutional rights (citing Kauth v. Hartford Ins. Co. of
Ill., 852 F.2d 951, 958 (7th Cir. 1988) (dealing with a property
interest)) and because Defendants deprived him of his liberty
interests in an arbitrary and capricious manner. (Complaint, ¶¶
184, 189, 194.) Rubin then states that, "Much of what the
grievants complained of could be considered sexual harassment
under any stretch of the imagination," which seems
counterintuitive. (Emphasis in original.) (Memo. in Opp., p. 6.)
Defendants contend that Manolakes' decision was not arbitrary
and capricious and is supported by the record: Rubin's
uncontested statements, the investigation team's report,
Manolakes' own education, his 30 years of experience teaching
(including teaching Elementary Education 345), and his knowledge
of the student grievants. (Memo. in Supp., pp. 7-9.) Defendants
further argue that this Court's review of that decision should be
Rubin does not argue a denial of an interest protected
absolutely by substantive due process. Dennis E. v. O'Malley,
256 Ill. App.3d 334, 628 N.E.2d 362, 373-74, 194 Ill.Dec. 865,
876-77 (1993). The focus is not on a state statute. Brown v.
Dep't of Pub. Aid, 274 Ill. App.3d 410, 654 N.E.2d 582, 589, 211
Ill.Dec. 120, 127 (1995), result abrogated by Jacobson v. Dep't
of Pub. Aid, 171 Ill.2d 314, 664 N.E.2d 1024, 216 Ill.Dec. 96
(1996), (stating that where a fundamental right is at stake,
"there must be a compelling State interest to justify significant
interference by a statute [which] must be narrowly drawn" and
that strict scrutiny applies); Messenger v. Edgar, 157 Ill.2d 162,
623 N.E.2d 310, 316, 191 Ill.Dec. 65, 71 (1993) (stating
that, absent a fundamental right, the rational basis test
applies). Instead, the parties agree that the issue is whether
Manolakes' decision was arbitrary and capricious. (Memo. in
Supp., pp. 7-10; Response, p. 6.) Defendants argued, and Rubin
did not disagree, that this issue is distinct from an inquiry as
to whether the Court approves of Manolakes' decision. (Memo. in
Supp., pp. 8-9.)
Under Illinois substantive due process case law, a defendant's
action is arbitrary
and capricious when "a rational relationship between the punitive
action taken and legitimate disciplinary objectives behind the
sanction" is lacking. Myre ex rel. Myre v. Board of Educ.,
108 Ill. App.3d 440, 439 N.E.2d 74, 83, 64 Ill.Dec. 145, 154 (1982)
(Alloy, J., dissenting); see also Korf v. Ball State Univ.,
726 F.2d 1222, 1228-29 (7th Cir. 1984) (stating, in the context of a
federal substantive due process claim, that a professor's
termination was not arbitrary where the reasons for it were
adequate). Phrased differently, the inquiry is whether the
defendant's actions result in punishment having no reasonable
relationship to the objectives sought. Hamer v. Board of Educ.,
66 Ill. App.3d 7, 383 N.E.2d 231, 234, 22 Ill.Dec. 755, 758
(1978) (stating this inquiry in the context of a property right).
There is a dearth of Illinois law interpreting substantive due
process claims based on arbitrary and capricious decision making.
One decision states that this claim was made in the original
complaint, but there is no mention of it in the court's
discussion of the third amended complaint. Head v. Lutheran
General Hosp., 163 Ill. App.3d 682, 516 N.E.2d 921, 925, 114
Ill.Dec. 766, 770 (1987). In another, the plaintiff argued that a
defendant's actions were arbitrary and capricious because he had
no authority to investigate and sanction the plaintiff, but the
analysis of this allegation was not published. Zielinski v.
Schmalbeck, 269 Ill. App.3d 572, 646 N.E.2d 655, 657, 207
Ill.Dec. 89, 91 (1995).
This Court's task is to identify the disciplinary objectives
behind Manolakes' decision, determine their legitimacy, and
assess whether they are rationally related to his finding.
Myre, 439 N.E.2d at 83, 64 Ill.Dec. at 154; cf. In re C.E.,
161 Ill.2d 200, 641 N.E.2d 345, 353, 204 Ill.Dec. 121, 129
(1994), cert. denied, sub nom C.E. v. Illinois Dep't of Mental
Health and Developmental Disabilities, ___ U.S. ___, 115 S.Ct.
1956, 131 L.Ed.2d 848 (1995) (stating the need to balance an
individual's liberty with the demands of an organized society).
Providing an academic environment conducive to learning is a
legitimate objective. Controlling potentially offensive and
inappropriate sexually-related comments by a professor to a class
is also a legitimate objective.
Social Studies Methods is a mandatory, preparatory class for
teaching elementary-age children. The grievants alleged, and
other students in the class confirmed, that Rubin asked his
students whether they were engaged or married, would prefer a
husband who was successful or a great lover, believe in abortion,
would prefer the body or mind of a 30-year-old, would teach about
love-making, believe in dispensing birth control devices in the
schools, and would cook breakfast in the nude on request from
their husbands. (Complaint, Exhs. C, D.) The investigative team
did not ask the other students in the class about all of the
comments mentioned in the grievances. Id.
It is this Court's obligation to decide the issue as the
Illinois Supreme Court would, were it presented with the case.
Todd v. Societe Bic, 21 F.3d 1402, 1405 (7th Cir.), cert.
denied, ___ U.S. ___, 115 S.Ct. 359, 130 L.Ed.2d 312 (1994).
The Court finds that there is a rational relationship between a
finding of sexual harassment and the University's objective of
providing students with a healthy learning environment. This is
not a separate and independent finding by this Court that Rubin's
comments and conduct constitute sexual harassment. Rather, it is
a ruling that Manolakes' findings bear a reasonable relationship
to the University's disciplinary objective of maintaining a
desirable classroom atmosphere.
Accordingly, Defendants' Motion for Summary Judgment is GRANTED
as to Counts XIII, XIV,*fn2 XV, XXI, XXII, and XXIII.
III. Procedural Due Process Claims
A. Federal Procedural Due Process Claims
When government action deprives a person of life, liberty, or
property, the deprivation must be implemented in a fair manner.
United States v. Salerno, 481 U.S. 739, 746-47, 107 S.Ct. 2095,
2101, 95 L.Ed.2d 697 (1987). Courts rely on a two-step test to
guide their determinations whether a procedural due process
violation has occurred. Kentucky Dept. of Corrections v.
Thompson, 490 U.S. 454, 459-61, 109 S.Ct. 1904, 1908, 104
L.Ed.2d 506 (1989); Kraushaar, 45 F.3d at 1048-49.
The first question is whether there is a liberty interest to
trigger a constitutional violation when a plaintiff is deprived
of that interest absent adherence to fair procedures. Thompson,
490 U.S. at 459-61, 109 S.Ct. at 1908; Kraushaar, 45 F.3d at
1048. Absent a liberty interest there can be no procedural due
process violation. Thompson, 490 U.S. at 459-61, 109 S.Ct. at
1908; Wroblewski v. City of Washburn, 965 F.2d 452, 457 (7th
Cir. 1992). Liberty interests arise under the due process clause
of the Fourteenth Amendment or under state law, by a statute or a
binding administrative regulation. Thompson, 490 U.S. at
459-61, 109 S.Ct. at 1908; Rowe v. DeBruyn, 17 F.3d 1047, 1051
(7th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 508, 130
L.Ed.2d 416 (1994). Liberty interests are based on substantive
rather than procedural rights. Olim v. Wakinekona,
461 U.S. 238, 249-51, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983); Smith
v. Shettle, 946 F.2d 1250, 1254 (7th Cir. 1991).
If the first question yields a positive response, the second
question is whether there was proper process — fair procedures
such as notice and the opportunity to be heard. Kraushaar, 45
F.3d at 1049; see Wolff v. McDonnell, 418 U.S. 539, 588, 94
S.Ct. 2963, 2990, 41 L.Ed.2d 935 (1974); Hudson v. Chicago
Teachers Union Local No. 1, 743 F.2d 1187, 1192-93 (7th Cir.
1984), aff'd, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232
(1986). The procedural protections required by the due process
clause are derived from balancing the following factors:
First, the private interest that will be affected by
the official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional
or substitute procedural safeguards; and finally, the
Government's interest, including the function
involved and the fiscal and administrative burdens
that the additional or substitute procedural
requirement would entail.
Mathews v. Eldridge,