Full opinion text
MEMORANDUM AND ORDER ALLEN SHARP, Chief Judge. INTRODUCTION The plaintiff, Francis K. Fong, filed this action on April 7, 1988, to enjoin officials of Purdue University from allegedly attempting to silence him and drive him from his tenured position on the Purdue faculty. Dr. Fong asserts that the defendants’ conduct violates his First and Fourteenth Amendment rights. His complaint purports to allege claims under 42 U.SU. § 1983. The complaint invokes this court’s federal question jurisdiction under 28 U.S. C. §§ 1331 and 1343(a)(3) and (4). As was highlighted at the outset by the court, this suit is for injunctive relief ás opposed to damage relief, and it could not be otherwise under the Eleventh Amendment immunity principles set forth in Kashani v. Purdue University et al., 813 F.2d 843 (7th Cir.1987), cert. denied, — U.S.-, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987). See also, Shannon v. Bepko, 684 F.Supp. 1465 (S.D.Ind.1988). This court has cautioned that these proceedings will not be used as a public forum for personal revenge against a long list of officials who, for legitimate reasons, chose not to take up a cause for which they had no legal responsibility. , Neither the law, nor the university’s policies can be read to impose an affirmative duty on the part of Purdue, to tilt all the windmills of all its employed geniuses, however correct their theories and research might ultimately turn out to be. An array of intense interpersonal conflicts has developed between this plaintiff and many others at Purdue and elsewhere. The list of alleged villains in this case includes, among others, certain individuals from the United States Attorney’s office, the Justice Department, the Federal Bureau of Investigation, the Tippecanoe County Prosecutor’s office, the National Science Foundation (NSF), the Purdue faculty and administration, the Indiana State Police, and the Governor of Indiana. The plaintiff alleges that the defendants conspired with the above individuals in an attempt-to silence him from “blowing the whistle” or from prosecuting his claims. There can be no question about the fact that Dr.- Fong wanted the officials at Purdue University to join his frontal assault on the National Science Foundation. There can also be no doubt that Dr. Fong wanted the persons in his own scientific discipline at Purdue University and elsewhere to join him in his two decades-long battle to discredit the opposing scientific viewpoint of Professor Melvin Calvin of University of California at Berkeley. To the extent that one of the realistic purposes of this lawsuit is to achieve either or both of these results, such is well beyond even an expansive activist view of the proper functions of this court. As a final preliminary comment, this court has emphasized its unwillingness to be placed in the position of judging Dr. Fong’s science. That judgment is here neither necessary nor appropriate. The president of Purdue University and others have said kind things in this court and elsewhere about the scientific accomplishments of Dr. Fong. There is evidence in the record indicating that all the persons expert in his scientific discipline are not of one mind on the relevant subject of photosynthesis. However, this is not a bridge to be crossed here by this court. In a most generalized way, the dimensions and characteristics of photosynthesis probe very deeply into the nature of the universe and the nature of life itself in that universe. To determine the ultimate question of scientific truth in this deeply disputed context is well beyond either the requirements of this court in this case, or the capacity of this court in a generalized sense. Here, this court is required to decide a much narrower dispute within clearly established parameters under the First and Fourteenth Amendments of the Constitution of the United States. In addition to sorting through the factual morass that has developed over the course of more than a decade, the court must address, A) the proper office of preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure in this circuit, and B) the historical and current requirements under 42 U.S.C. § 1983. The court will then examine the nature of the plaintiff’s claims here, in the pleadings and in the course of these proceedings, with respect to the major issues of procedural and substantive due process. Procedural due process will be addressed and dealt with at length, although during the hearings certain related questions then appeared unripe. In addressing substantive free speech rights of this professor as a public employee at a state university, the court will discuss the standards governing the university’s alleged retaliation, and in so doing must examine the alleged nexus between any arguably protected speech exercised by the plaintiff, and the university’s decision to initiate censure and dismissal proceedings. A. PRELIMINARY INJUNCTION In ruling on an injunction the court considers four factors, as recently reviewed by this court in Naked City, Inc. v. Aregood, 667 F.Supp. 1246, 1256 (N.D.Ind.1987), and cases cited therein. To obtain a preliminary injunction, a plaintiff must demonstrate: (1) a threat of irreparable harm without an adequate remedy at law; (2) some likelihood of success on the merits of the claim; (3) a balance of relative harm weighing in favor of granting the injunction; and (4) compatibility of the injunction and the public interest. Id., citing Chicago Board of Realtors, Inc. v. City of Chicago, 819 F.2d 732, 735 (7th Cir.1987). These criteria have been similarly, but otherwise stated as being that the plaintiff bears the burden of demonstrating (1) inadequacy of a remedy at law; (2) irreparable harm absent issuance of the injunction; (3) greater irreparable harm than the defendant would suffer if an injunction were granted; (4) a reasonable likelihood of prevailing on the merits; and (5) a lack of harm to the public interest, should the injunction be granted. Kowalski v. Chicago Tribune Company, 854 F.2d 168, (7th Cir.1988); Curtis v. Thompson, 840 F.2d 1291 (7th Cir.1988); see also, Brunswick Corporation v. Jones, 784 F.2d 271, 273-74 (7th Cir.1986); Roland Machinery Corp. v. Dresser Industries, Inc., 749 F.2d 380, 382-88 (7th Cir.1984). For the reasons set forth fully in this opinion, the plaintiff’s motion for preliminary injunction must be denied under either analysis. Dr. Fong fails to show a reasonable likelihood of success on the merits of either his First or Fourteenth Amendment claims. His cause also fails in terms of the balancing test. Finally, in the opinion of this court, to grant an injunction here would not be compatible with the public interest. B. UNITED STATES CODE TITLE 42, SECTION 1983 Pursuant to § 1983: [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress____ 42 U.S.C. § 1983. To bring a successful § 1983 claim, the plaintiff must prove that the defendant deprived him of a right secured by federal law or the Constitution while acting under color of state law. Bergren v. City of Milwaukee, 811 F.2d 1139 (7th Cir.1987); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1339 n. 1 (7th Cir.1985). Otherwise stated, § 1983 requires proof that (1) defendants acted under color of state law, (2) defendants’ actions deprived plaintiff of ... rights, privileges or immunities guaranteed by the Constitution, and (3) defendants’ conduct proximately caused plaintiff’s deprivation. Volk v. Coler, 845 F.2d 1422 (7th Cir.1988), quoting Webb v. City of Chester, Illinois, 813 F.2d 824, 827 (7th Cir.1987). In the interest of crystallizing the legal issues here, this court pointed out at the outset of the proceedings, that allegations of defamation, damage to reputation, and inability to enlist research assistance, will not, without deprivation of a recognized liberty or property interest, support a § 1983 claim. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Elliott v. Hinds, 786 F.2d 298 (7th Cir.1986); Bone v. City of Lafayette, 763 F.2d 295 (7th Cir.1985); Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136 (7th Cir. 1984). Thus, one of the threshold issues to be addressed is the nature of the plaintiff’s liberty and property interests in Purdue University employment. Historically, in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) the Supreme Court pointed to three main purposes for § 1983: (1) to override state laws which impinge on constitutional rights and privileges; (2) to provide a federal remedy where the remedy provided by state law was inadequate; and, (3) to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice. Monroe concluded that the adequacy of a state law remedy was irrelevant and that it need not be sought and refused before involving the federal remedy. This conclusion, along with an expanded definition of “under color of law,” led to an increase in federal court civil rights cases. For a thorough review of the history and development of § 1983 law subsequent to Monroe, see Barnier v. Szentmiklosi, 565 F.Supp. 869 (E.D.Mich.1983), reversed in part for other reasons, 810 F.2d 594 (6th Cir.1987). Two types of cases developed in relationship to alleged constitutional violations. One type was based on violations of the provisions of the Bill of Rights or other substantive guarantees applicable to actions of state officials by virtue of Fourteenth Amendment incorporation. The second type of case involved purely procedural due process claims brought under the Fourteenth Amendment. Barnier, 565 F.Supp. at 874. Both types of claims are raised here, and will be reviewed separately after a general recitation of the facts here presented. At the conclusion of the hearing in Lafayette, Indiana, on April 28, 1988, this court requested that counsel simultaneously file and exchange briefs on the evidence by June 6, 1988. This was agreeable. The plaintiff thereafter requested an extension to June 20,1988, and the same was granted as to the filings by both parties. The defendants filed such brief on June 17, 1988, at 3:33 p.m. The plaintiff filed such brief on June 24, 1988, with benefit of the defendants’ brief. The matter is now ripe for determination. The findings of fact and conclusions of law contained herein are intended to satisfy the requirements of Rule 52 of the Federal Rules of Civil Procedure. TESTIMONY Francis Fong was born in Shanghai, China in 1938, and came to the United States in 1956 to attend Princeton University, where he completed his Ph.D. in 1962. After about three years of research, Dr. Fong came to Purdue University in January of 1968 as an associate professor. He became tenured in 1969, and was a full professor in 1972 at the age of thirty-three. In 1973 Dr. Fong changed his field of study from dead to living substances. By 1976 he began formulating a theory of photosynthesis, which contradicted the prevailing theory of Nobel Prize winner, Melvin Calvin. According to Fong, prominent persons in the scientific community, notably those associated with the National Science Foundation (NSF), knew as early as 1955, that Calvin’s “dark theory” of photosynthesis was incorrect. This knowledge was allegedly kept quiet by political forces in the NSF, and others, who, according to the plaintiff, fraudulently restricted funding for any research that ran counter to the Calvin school of thought. In 1976 Dr. Fong began formulating his “light theory” of carbon reduction, whereby the process of photosynthesis could be used to split water into hydrogen and oxygen in sunlight. The sun, as a virtually inexhaustible supply of energy, could thus be tapped in a manner that would have profound implications in terms of solving the industrial world’s energy crisis. While this outcome was predicted in 1976, Dr. Fong and his students were able to demonstrate the theory in 1978 laboratory experiments. Using common spinach plants, a chlorophyll “water splitting” reaction was shown. In effect, photosynthesis could conceivably be used to produce electricity. The results were reported in a scientific publication, and were picked up by a Scott and Forseman biology textbook published in 1980. The work of Dr. Fong and his students apparently brought about a dichotomy of thinking in the field of photosynthesis. According to Dr. Fong, the more his research progressed, the more trouble he encountered from the NSF and certain persons at Purdue, who, in his view, conspired to prevent him from pursuing his research. In 1979 Dr. Fong attended a photochemistry conference organized by Professor Calvin, and from this conference submitted two grant proposals to the NSF. The plaintiff’s proposals were reviewed by a committee of anonymous referees. Dr. Fong testified that one of the referees used wording that was highly likely to have been chosen by Dr. Calvin himself, who had exclusive access to certain information as a principal consultant of one of the General Electric Company’s research groups. Fong referred to the word selection as “almost like a fingerprint” of Calvin. When one of the plaintiff’s two proposals was rejected at the lower level of review, Dr. Fong, assertedly on the advice of the NSF director, initiated a reconsideration process. The plaintiff testified that in late September of 1979, Dr. Dale Margerum, then the chairman of Dr. Fong’s department, asked the plaintiff to back away from pursuing reconsideration. Allegedly, Dr. Margerum stated a concern that if the proposal reached the level of Dr. Pimentel, who was then the deputy director of NSF and successor to Calvin at Berkeley, there might be reprisals against the university in terms of its grants and funding. Dr. Fong also testified that Dr. Margerum threatened to wipe out his research if he did not pull back from seeking a reconsideration. Dr. Margerum firmly denied these allegations, stating flatly that Dr. Fong’s statements were lies. The issue of credibility will be discussed at length, later in this opinion. At this point in the saga, Dr. Fong wrote to NSF and to Dr. Pimentel, informing them of Dr. Margerum’s alleged statements. NSF responded with a confirmation of Dr. Fong’s right to pursue reconsideration. The plaintiff testified further that Provost Haas of Purdue offered $45,000 from the Purdue Research Foundation to comply with Dr. Margerum’s request that he stop pursuing reconsideration. Reportedly, Dr. Margerum’s request resulted from his alleged conversations with three NSF officials, named by Fong as Ken Hancock, program director for one of the rejected proposals, Arthur Kowalski, program director for the other proposal, and Dr. Fred Findeis, a former Purdue alumnus. Dr. Margerum denied the alleged content of any such conversations as being coercive. Dr. Fong testified that in July of 1980 a committee was formed to review his -research difficulties, which was made up of Purdue Vice Presidents Greenkorn, Brown, and Fischang. On October 24, 1980, the committee reported to Provost Haas that, in its opinion, Dr. Fong should address questions about his salary and the review of his NSF proposal, to University Grievance Procedures for Academic Personnel. Dr. Fong testified that the document was a “secret document” of which he was not even aware until the recent proceedings. According to Dr. Fong, from a study of all the papers published by Dr. Calvin and his students and associates on the subject of carbon dioxide reduction, it was evident that all along the Calvin group knew that carbon reduction was a light process, not a dark process. Upon making this discovery, Dr. Fong contacted the editor of the Journal of American Chemical Society, Dr. Calvin himself and Dr. Pulitz of the Department of Energy. When Calvin did not respond to the relevant inquiries, the plaintiff began publicly questioning him by letters which were distributed to many people. In the October, 1981, issue of “Mosaic”, a scientific publication of the NSF, it was stated that Dr. Fong’s work had not been replicated by others. That statement has since been shown to be false. Dr. Fong was able to discover that the article had been written by the General Electric Corporation. After contact from the plaintiff’s earlier attorney, General Electric printed a retraction in 1983. Beginning in about December of 1983, staff members of Senator Richard Lugar began reviewing Dr. Fong’s problems and concerns. According to the plaintiff, upon confirmation that his scientific concepts were corroborated, mostly by foreign scientists, Senator Lugar “decided to take direct action,” by writing letters to Energy Secretary Hodel and the NSF Director, suggesting that they sponsor workshops to discuss both views of photosynthesis. Plans for such a workshop died in the midst of a controversy over the content of the workshop and the issue of having the proposal reviewed by a peer review committee. Meanwhile, Dr. Fong continued his research, focusing on the conversion of sunlight into electricity, the splitting of water into hydrogen and oxygen, and the reduction of carbon dioxide to core organic matter. The discoveries gleaned from these studies led to the examination of the photo-physical chemical properties of all the systems, ultimately resulting, according to Fong, “in a recent discovery of the .entire mechanism for the carbon reduction process.” Dr. Fong testified that it was at about this time that Provost Haas, in the fall of 1983, initiated a “restitution and restoration process” for the purpose of clearing the plaintiff’s name and reconsidering his salary. In the course of this process, Dean Allen Clark allegedly solicited some reviews which called Dr. Fong’s work a fraud. Fong testified that the censure and dismissal hearings had revealed that the names for these reviews had been suggested by Dr. Harry Pardue, the plaintiff’s department head. Dr. Fong further testified that Dean Clark’s negative recommendations were rejected by President Beering, with whom the plaintiff met on May 15, 1984. At that time, Dr. Beering reportedly criticized Dr. Margerum’s behavior with respect to threats and fears of reprisals. The court notes that Dr. Beering remembered those conversations quite differently than did Dr. Fong. According to the plaintiffs review of events, he and Dr. Beering reached a “comprehensive agreement” in August of 1984, to restore him to his proper place in the academic community. According to Fong, the agreement was never fulfilled. According to President Beering, there was never such an agreement. In October of 1984, Dr. Fong sustained some head injuries in an automobile accident. During the course of his recuperation, a Gas Research Institute grant was processed by the Purdue University Research Foundation, and a long-term commitment by the Gas Research Institute was lost. About a year later Science Magazine ■ published an article submitted by a Dr. Greenbaum, a former colleague of Dr. Fong at the Gas Research Institute who was familiar with Dr. Fong’s work. No credit was given to Dr. Fong, which caused Dr. Fong to view the article as plagiarism. In support of Fong, Professor Austin Angelí, of the Purdue Science Department sent a letter to the magazine which indicated that the Greenbaum article presented no new claims. On another occasion, Dean Yackel, the acting dean of the School of Science, also spoke in Dr. Fong’s behalf, by sending a letter to the Chemistry Executive Committee on March 3, 1986, shortly before Dr. Fong’s annual evaluation of performance as a scientist. In July, 1986, Acting Dean Yackel became Associate Dean of the School of Science, Provost Haas became Distinguished Professor of Mathematics, and Kenneth Kliewer became the new Dean of Science. Varro Tyler became a new Vice President for Academic Affairs. Drs. Kliewer and Tyler are named defendants in this case. Dr. Fong testified that during that summer of 1986, he remained in touch with Senator Lugar’s office. At the same time, according to the witness, Dr. Beering had authorized an “internal investigation” of the plaintiff’s situation at Purdue. During the same summer, and again in September, it appears that someone broke into Dr. Fong’s office. In the course of these events, materials were allegedly taken which related back to matters occurring in the fall of 1981. Dr. Fong reported these break-ins to campus authorities. At some point during the summer, Dr. Beering was said to have authorized a joint meeting of the new staff to consider Dr. Fong’s problems. On October 8,1986, Drs. Tyler, Varro, Kliewer, Pardue, Fong and Beering met for about one and-a-half hours. According to Dr. Fong, in the early part of the meeting, Dr. Beering discussed the August, 1984, “contract”, the terms of which could not be consummated until the new group of administrators were together. According to Dr. Fong, President Beering’s recording of that meeting, as well as the transcript, were altered to remove the president’s alleged directive that Deans Tyler and Kliewer were to perform the contractual agreement that had been arranged with Dr. Fong. Richard Kemmer, a Purdue University tape recording technician, testified that upon receiving the tape from Lieutenant Gibson, he made an accurate copy of the tape, which was picked up, along with the original, by Lieutenant Gibson. Mr. Kemmer testified that he made no changes or alterations of either the tape or the copy. Mr. Kemmer stated that upon listening to Dr. Fong’s copy of the tape later, he noted that some of the words seemed to be abruptly cut off, as if someone had tampered with the tape. On cross-examination the witness acknowledged that he had no way of knowing if the tape brought back by Dr. Fong was the same tape he had copied. He also stated that he had no knowledge of anyone having done anything maliciously or intentionally wrong in connection with any of the tapes. He reiterated, however, on redirect that he had indicated to Dr. Fong that the tape seemed to have been tampered with by someone. In recalling the events which were said to have transpired shortly after that August meeting, Dr. Fong discussed a second meeting at which it was said to have been determined that Dean Kliewer would allow a letter to be sent in his name, protesting an NSF magazine article which had discounted Dr. Fong’s work. Dr. Kliewer supposedly had also agreed to review Dr. Fong’s secretarial support. As a result, he was said to have ordered that the plaintiff’s temporary secretary be hired as his permanent personal secretary. Soon after the August meeting, Dr. Fong was out of the country for a time. Upon his return he was informed that his secretary’s time would be split with another office, allowing him three hours a day. When the plaintiff inquired about why the changes had been made, Dr. Kliewer reportedly responded that Dr. Fong would be treated just like everyone else. Dr. Fong interpreted this statement to mean that the terms of his “contract” would not be honored. Along with these events, according to Dr. Fong, an “internal investigation” was in the process of being organized. Believing that something “very wrong” was happening, Dr. Fong informed Dr. Robinson, his associate department head, that he intended to attempt to transcribe his own tape recording of one of the meetings at which the “agreement” had been discussed. While in the process of doing so on January 9, 1987, Dr. Fong reportedly was invited to have coffee with Dr. Robinson. While away from his office, someone removed both the tape and the floppy disk upon which Dr. Fong had intended to put the transcription. The incident was reported to the Purdue police and, allegedly on the advice of attorneys, to the Board of Trustees. Dr. Fong further stated that he first gave Dr. Beering’s office an opportunity to respond to his concerns before contacting other persons. At this point in time, Dr. Fong and his family were preparing to go on a ski vacation, when they reportedly received a mysterious telephone call of an harassing nature, which caused Dr. Fong to contact the Tippecanoe County prosecutor’s office, a state representative, and the Attorney General’s office. These events took place in May of 1987, at which time Dr. Fong reported the break-ins of July 1986, September 1986, January of 1987, and the telephone call, to the state police, to Walter Valentine of the Lafayette F.B.I. office, to Mr. Valentine’s supervisor, Harry Mclnturff in Indianapolis, to Senator Richard Lugar’s office, and to the U.S. Attorney’s office in the Northern District of Indiana. It was also in the Spring of 1987, that Dr. Fong became aware that a petition was circulating in the Purdue Chemistry Department for the purpose of initiating censure and dismissal proceedings against him. Dr. Fong stated that he became formally aware of the petition by a letter from Dr. Beering which was dated June 2, 1987, and which designated Dr. Kenneth Kliewer as the administrative representative to review the matter with Dr. Fong. In mid-June, 1987, Dr. Fong met with Dean Kliewer. According to Dr. Fong the gist of that meeting was to inform him of the nature of the complaint, that being, the harassment of various people with allegations of fraud, and further to instruct the plaintiff in a method of avoiding the censure and dismissal proceedings, that being, to stop alleging such violations, specifically with respect to the “Berkeley-Purdue-NSF problem.” In response, Dr. Fong informed Dr. Kliewer that the state police had advised him that he should record the meeting and report the events to the police on the basis that criminal obstruction could be involved if his livelihood were threatened. Dr. Kliewer was apparently unimpressed by these representations. Despite Dr. Kliewer’s alleged directives, Dr. Fong continued to inform authorities as to his perception of the problem. According to Dr. Fong, the threats and harassing telephone calls that Drs. Marge-rum and Tyler alleged they had received from him were mischaracterized, and that he had only informed them that, in the case of Dr. Margerum, a suit for money damages might be sought, and in the case of Dr. Tyler, that a resignation by him might be sought. Dr. Fong further testified at length with respect to his ongoing conflict with Dr. Margerum, stating that at one point, Provost Haas requested that Dr. Fong write a letter in opposition to the idea of Dr. Margerum’s becoming a dean. Dr. Marge-rum later denied the validity of these statements. In reviewing an incident of alleged mutual assault in Dr. Margerum’s office, Dr. Fong stated that the incident involved the plaintiff’s request for a standard form which would allow a Chinese scholar to work in his lab for a year, with expenses to be paid by the government. According to Fong, upon being denied the request, the plaintiff asked that his letter of request be returned to him so that he could seek a resolution from Provost Haas. When Dr. Margerum would not return the letter, Dr. Fong allegedly reached for it, whereupon the latter put on his hand on the former’s arm, attempting to push Dr. Fong away. According'to Dr. Fong, Dr. Margerum then ran to the outer office “and this in fact became the altercation.” Dr. Fong stated that when he inquired about, a report having been filed, the police informed him that it was just his word against Dr. Marge-rum’s. Despite this perceived reassurance, Dr. Fong felt as if the incident had continually been used against him in a manner suggesting that he had hit Dr. Margerum, which he, in essence, denied. Dr. Steven C. Beering, President of Purdue University, testifying under direct examination as an adverse witness, stated that over the years, since assuming the presidency in 1983, he has had numerous telephone conversations with the plaintiff. President Beering acknowledged that at various times he had discussed with Professor Fong the possibility of negotiating an agreement by which Dr. Fong would drop the threat of a lawsuit against the university in exchange for the university’s investigation of problems with the NSF. The witness also stated that he had advised the plaintiff that he had not availed himself of administrative remedies and due process available at the university level. President Beering recalled a 1985 meeting with Dr. Fong, Provost Haas, Dean Yackel and himself at which Dr. Fong’s requests of various university officials were discussed. The witness denied that any such discussions involved an agreement of a contractual nature, despite the fact that Dr. Fong was known to refer to the discussions as such. Dr. Beering acknowledged that a meeting occurred at which Dr. Fong’s proposed August, 1984, agreement was discussed. As the witness recalled, neither he nor Provost Haas then viewed the proposal as contractual. President Beering testified that on several occasions he had advised the plaintiff to go through recognized channels, such as his department, school and division, rather than attempting to deal directly with NSF. In so doing he emphasized the university’s willingness to deal with the problems by its standard means. Under questioning by counsel for Purdue, Dr. Beering stated that although he at first listened with some empathy to Dr. Fong’s complaints about the NSF, Dr. Margerum, and others, upon further investigation he found no irregularities. Dr. Beering acknowledged that he had agreed with Dr. Fong to review his situation as well as his salary, but reiterated that he never made any agreement that could be considered a contractual commitment. The witness recalled writing to Dr. Fong on June 2, 1987, to inform him that thirty faculty members of the School of Science had petitioned to invoke a B-48 proceeding against him, on the basis of his continuing accusations and harassment of faculty and administration. When asked if he had any personal knowledge of such conduct on the part of the plaintiff, President Beering stated: “Dr. Fong has on repeated occasions over the years written and called and used threats and intimidation with me personally and with my office staff. He has written voluminously outside of the University to agencies of the federal government, of the state government, to newspapers, both local and national, exercising his First Amendment rights____ And he has certainly let many people know what his concerns are. He has done this in a way that has been threatening and intimidating and as has been stated by his colleagues and department professors characterized as objectionable behavior.” President Beering added that Dr. Fong has also accused him falsely of criminal acts such as tampering with evidence in the form of a tape. Finally, the witness testified that a long list of exhibits constituted correspondence from him to Dr. Fong which attempted to deal with his alleged problems. President Beering also reviewed the events surrounding the meeting of October 8,1986, at which Vice President Tyler, Kenneth Kliewer, Dr. Fong and he, discussed the plaintiffs concerns. Again, the president at that time stressed the importance of first addressing problems at the department level. Dr. Beering taped this meeting himself, using a “hand-held dictating machine.” At the conclusion of the meeting, the tape was delivered to Mrs. Kathleen Hatke, the president’s assistant. Both the transcription and the tape of the meeting were placed in the office files. With respect to the taping of the October meeting, Dr. Beering stated that he had suggested the taping, indicating that a transcript should be made for all parties. The tape recorder was not started at the outset of the conversation, and inasmuch as he had to leave early, “the entire meeting was not taped.” The transcript was “similarly incomplete.” Although President Beering did not know it at the time, he later learned that the plaintiff had also taped the meeting, but had lost his personal copy. When Dr. Fong requested the original tape, the university declined, but offered to make a copy of the tape for him through the audio-visual services. The transfer involved Mrs. Hatke, Lieutenant John Gibson, and Mr. Kemmer from audiovisual services. President Beering acknowledged that Grant Kepner, Director of Security, had informed him that a charge had been made, that someone had tampered with the tape, and that the tape had, in Mr. Kepner’s opinion, actually been tampered with. President Beering denied knowing anything about any alterations in the tape. He did not recall anything unusual occurring that might have caused a break in the tape, again stating that the tape was not complete in terms of taping the whole meeting. Dr. Beering also reviewed a telephone conversation with Dr. Fong in which he acknowledged the merit and accuracy of Dr. Fong’s work as a scientist. In Dr. Beering’s opinion, any question about the plaintiff’s reputation as a scientist had been removed. Dr. Beering also admitted having agreed to review the plaintiff’s salary, which was done on several occasions. Under the university’s test of “merit and market,” Dr. Fong’s salary and back pay expectations were not found to be justified. The witness explained that the review process involved peers within the department as well as the chairman, the dean, the vice-president, the president and the board of trustees on a yearly basis. President Beering recalled that upon Dr. Fong’s request, he had at one point contacted the NSF to determine if the plaintiff’s applications had been dealt with in an unusual or extraordinary fashion. The witness was unable to detect any evidence of unfair treatment. President Beering believed that he had had about three conversations with the NSF concerning Dr. Fong’s problems. He did not recall specifically with whom he had spoken on these occasions. According to President Beering, complaints and concerns about Dr. Fong’s conduct were repeated and frequent over a period of 15 years, a situation which eventually resulted in issuance of a warning to Dr. Fong that there might be serious administrative and legal consequences if he did not cease making libelous accusations and engaging in continuous harassment of the secretarial staff and faculty, his colleagues, and the university administrators. In issuing this warning, Dr. Beering had in mind that Dr. Fong’s colleagues had on several occasions stated that they were ready to formally lodge their complaints about the plaintiff in the form of a faculty grievance. The witness emphasized that he has nothing to do presently with the hearings in which members of the faculty have in fact initiated proceedings against Dr. Fong. President Beering expressed that his position is somewhat difficult with respect to the courtroom proceedings, inasmuch as he is the final arbitrar of the internal administrative faculty proceeding which remained then in progress. Once the committee has completed the hearings and has submitted a report on the charges, it will be President Beering who will make a final ruling for the university. In response to the court’s questioning, President Beering stated that in his opinion the procedures in Executive Memo B 48 do comply with the standards of the American Association of University Professors. The witness also denied having been involved in any retaliatory conduct against the plaintiff for any exercise of First Amendment rights. Finally, President Beering stated that Dr. Fong had accused him of criminal conduct in the form of tampering with evidence, as well as other offenses in the form of alleged torts and contract violations. Dr. Beering acknowledged that Frank Fong had at one time filed a notice of tort claim against the University and that a short time thereafter, on March 16, 1987, Dr. Fong was notified of the proceedings against him. According to Kathleen Hatke, administrative assistant to Dr. Beering, a tape recording of the October 8th meeting was given to her immediately following it. She did not recall with certainty who gave the tape to her. The witness kept the tape in her drawer for a few days before giving it to her secretary to transcribe. She acknowledged that other members of the administration might have had access to her office, perhaps even after hours. Once her secretary, Aynsley Helwer had transcribed the tape, she returned it to the witness who listened to it as she read the transcript. Both the tape and the transcript were then filed. The tape was placed in a marked envelope, and left there until Dr. Fong requested a copy, whereupon it was given to Lieutenant John Gibson to take to the audio-visual room. Mr. Richard Kemmer of the audio-visual department, received the tape there. The next day Lieutenant Gibson picked the tape up from Mr. Kemmer. The tape was returned to the envelope and the file from which it came, where it remained since. Dr. Fong suggests that someone tampered with the office copy to delete Dr. Beering’s reference to a “contract” between Fong and Purdue. Upon examination by the defendant’s attorney, Kathleen Hatke stated that she had been harassed by Dr. Fong on the telephone at some point between 1977 and 1983. She indicated that he had asked how much money she made and had stated, “by the time I get finished with you, you will need a lot more money and you will have nothing left.” At the time, the witness was the administrative assistant to President Hansen. She denied having any feelings one way or another about Dr. Fong as a result of this incident. Dr. Dale Margerum testified that he came to Purdue in 1954 as an inorganic and analytical chemist. From 1978 to 1983 he acted as chairman of the department of chemistry. Dr. Margerum visited the NSF in 1979 to see if he could raise funds for special projects and to see if and what grants were available. He stated that he “did make a case” with several of the people at the NSF that Dr. Fong’s reconsideration should be given fair consideration. In turn, the NSF “went to some length” to explain the review process, but stated that Dr. Fong’s proposal did not get enough favorable reviews for NSF to fund him. According to Margerum, the NSF had even sent out a second set of reviews which came back less favorable than the first. Several people supposedly recommended that Dr. Fong write a whole new proposal to meet the objections raised by the review committee. According to Dr. Margerum it was not unusual for the NSF to suggest that a proposal be rewritten, but Dr. Fong refused to follow the suggestion. He wanted the university to take action against the NSF and to assert that his proposal was not fairly reviewed. Because Dr. Margerum was convinced that the review had been fair, he refused to take up Dr. Fong’s cause against the NSF. The witness added that the plaintiff had widely disseminated lies about him by writing to various colleagues in the field of chemistry and elsewhere. In response to Dr. Fong’s allegation that Dr. Margerum, Provost Haas, and Dr. Clark met with him and offered him $45,000 to discontinue his attempt to obtain NSF funding, the witness stated that a meeting took place, but that no offers, promises or threats were made. According to Dr. Margerum, Dr. Fong did himself make a request for a large sum of money. The witness stated that the plaintiff’s lies and misrepresentations about him had been so often and so widespread that eventually, he would not speak to Dr. Fong without a witness present. Dr. Margerum testified that Dr. Fong had sent memos and letters about him to as many as 50 people at a time, and had spread lies about him both by these means and by phone calls. The witness stated that Dr. Fong’s conduct made it impossible to both function as department head and to respond to contiguous charges. Dr. Margerum, therefore, ignored the charges for the most part, responding as time allowed. Dr. Margerum alleged that at one time Dr. Fong assaulted him both verbally and physically in response to the witness’ refusal to meet a particular demand. In Dr. Margerum’s words: he came around the desk and ... pushed ... hard enough between a hit and a push and was threatening other action. And I stepped out of the office into the anteroom where he — where he repeated this type of physical and verbal assault to which there were then witnesses. By Dr. Fong’s account, the witness initiated the altercation. On other occasions, Dr. Fong reportedly harassed Dr. Margerum and his family by repeated phone calls while he was department head. Regarding such conduct the witness testified: He called my wife when I wasn’t there. He also called my son when I wasn’t there. And one time when he was trying to force me to take action, this was again with regard to the NSF, he threatened to wipe me out financially. He threatened me physical harm. And he did this through my son who was at that time 15 years of age. He — my son stopped answering the telephone because he kept calling back. And the tape recorder on the answering machine at our house — he used it by repeated calls until it was completely used up. Dr. Margerum acknowledged that he was one of the professors from the chemistry department that had signed the petition to initiate censure and dismissal proceedings against Dr. Fong. In explaining why, the witness stated that the plaintiff had caused disruption for over a decade both within and without the university community, and that his “outlandish” conduct had caused visiting speakers to be reluctant to come to Purdue. In Dr. Margerum’s view the plaintiff’s conduct tended to consume an enormous amount of time in the department inasmuch as Dr. Fong demanded to be listened to not for minutes but for hours and days. The witness stressed that his decision to sign the petition was totally independent of Dr. Fong’s scientific work. Dr. Margerum felt that the plaintiff had lied and elaborated upon lies so thoroughly, that perhaps he believed himself, and that, at any rate, his conduct had completely discredited him as a professor. On cross-examination, Dr. Margerum acknowledged that despite Dr. Fong’s conduct his own ability to get grant money had not been affected, nor had his research, nor had he been resultantly rejected for publication. Dr. Margerum admitted that he had urged Dr. Fong to write a new proposal to the NSF rather than to seek reconsideration. He denied knowing who made up the NSF review committee or why Dr. Fong’s proposals were turned down. Dr. Margerum denied that the university offered $45,000 to Dr. Fong to not pursue reconsideration. With respect to the “altercation” in Dr. Margerum’s office, the witness placed the incident during a time when Dr. Fong had, in his view, failed to initiate a research grant under which his own research students were to be paid. For this reason, Dr. Margerum was unwilling to discuss adding a Chinese scholar to the department. He did not recall being handed a piece of paper or refusing to return it. He did recall that the incident involved a request for a Chinese scholar to be added to the department, which he refused to consider. In closing his testimony, Dr. Margerum stated that he reported the incident to the police, and that he had no doubt in his mind that he had been physically assaulted. Testifying in support of Dr. Fong was Dr. John Diestler, who came to Purdue in 1969, was tenured in 1972, and became a full professor in 1979. Dr. Diestler, like Frank Fong, is a physical chemist. The two men engaged in cooperative research several times in the past few years. According to Dr. Diestler, the plaintiffs research was of the highest caliber. He further testified that although he had seen Dr. Fong become angry, he had never seen him be violent. Dr. Diestler described the field of photosynthesis as highly competitive, and the research and academic work of Dr. Fong as having potentially enormous impact. The witness described the chemistry department as being made up of about 45 people with ten or eleven of them being involved in the physical chemistry division. According to Dr. Diestler, Frank Fong at one time had one of the larger groups of research assistants, a fact which contributed directly to his ability to obtain funding, which in turn could be seen to affect standing in the academic community at large. On cross-examination the witness acknowledged that he had received copies of letters containing Dr. Fong’s allegations of criminal conduct on the part of government and Purdue officials. Dr. Harvey Marshall, a sociology professor at Purdue, testified that as a member of the American Association of University Professors (AAUP) since 1969, and president of the Purdue chapter, he first became acquainted with Dr. Fong when the plaintiff contacted him about his plight in June of 1987. After an initial discussion of Dr. Fong’s problems, Dr. Marshall received a call the Friday night before the plaintiff’s dismissal hearings were to begin. The plaintiff informed Dr. Marshall that the dismissal committee was planning to go ahead with hearings despite the fact that Dr. Fong’s attorneys had quit his case and he would not be represented. Dr. Marshall stated that he told the plaintiff that he would not, if he were in his position, attend the hearing without an attorney. The witness indicated that one function of the AAUP is to enlist the help of an observer from another institution to evaluate the fairness of such proceedings. Dr. Marshall observed that academic freedom is an important value at Purdue. It is addressed in executive memorandum B 48, essentially as freedom to pursue any research interests that are of importance to him or her and within his or her expertise. On cross-examination Dr. Marshall testified that in his opinion Purdue had followed a scrupulous procedure with respect to the conduct of the hearings up to the time when the hearing committee went ahead without Dr. Fong’s presence. In response to this court’s questioning, Dr. Marshall conceded that although academic freedom is broadly construed at Purdue, it would not be within its scope to falsely accuse someone of criminal conduct. In his opinion, however, it would be within the scope of the policy to make such accusations if one believed them to be true. According to Dr. Marshall, executive memorandum B 48 would be seen to comply with the standards and procedures recommended by the AAUP. On re-cross the witness acknowledged that a letter from the AAUP in Washington, D.C. which was dated January 7, 1988, and carboned to him, had indicated that the AAUP was unaware of any procedural irregularities in the processing of Dr. Fong’s case. Based on an assumption that this statement was made after the committee proceeded without Dr. Fong present, the witness disagreed with the AAUP’s point of view. Walter Valentine, Special Agent with the Federal Bureau of Investigation (F.B.I.), first met Frank Fong in the early 1980’s. In 1983, Dr. Fong requested a meeting with Agent Valentine at which he discussed, in general terms, a fraud of federal grant money emanating from the NSF. The witness warned the plaintiff that if he wished to make such an allegation, it should formally be done soon, because otherwise the statute of limitations would run. Dr. Fong did not contact Agent Valentine within the advised time period. In September of 1986, Agent Valentine asked to see Dr. Fong concerning a bank fraud which was being investigated by the FBI. One of the bank’s loans had been made to Dr. Fong. Having lost over $400,-000 on the loan, the bank had written the amount off for tax purposes. In the course of discussing this matter with Dr. Fong, the plaintiff produced 19 tape recordings relating to that investigation, which were characterized by Fong as containing confessions of wrongdoing by various attorneys, certified public accountants, bankers and internal revenue agents. In January of 1987, having reviewed the tapes, Agent Valentine told Dr. Fong that there was absolutely nothing on the tapes in the nature of confessions. The tapes did contain phone calls to various bankers, lawyers, and CPA’s which Agent Valentine viewed as being of an harassing nature on Dr. Fong’s part. Agent Valentine also testified that he had received “innumerable phone calls, as many as three a day” on the subject of Dr. Fong’s accusations against the NSF and university officials. On at least a dozen occasions in a period of about 15 months, Agent Valentine informed the plaintiff that he found no indications of a crime having been committed, especially one that would be a matter for.F.B.I. investigation. After receiving countless phone calls from Dr. Fong, Agent Valentine eventually informed the plaintiff that he could no longer allow him to take up his time, that he had his rights too, and that he considered Dr. Fong to be harassing him. Agent Valentine advised the plaintiff that if he had further complaints to take them up with his Indianapolis supervisor, Henry Mclnturff. The witness recalled these events out of a twenty-three-year career with the FBI. Dr. Kenneth Kliewer, Dean of the School of Science at Purdue, testified that he first met the plaintiff at the October 8, 1986 meeting with Dr. Beering and others. When asked if at that meeting President Beering had issued a directive to him, Dr. Tyler, and Dr. Pardue to perform the terms of the “contract” with Dr. Fong, the witness testified that Dr. Fong’s statement to that effect was false. Dr. Kliewer recalled that the October meeting ended with Dr. Fong threatening Dr. Tyler. Nonetheless Dr. Kliewer wrote to NSF to verify that any proposals submitted by Dr. Fong would be reviewed objectively. Dr. Fong reportedly dismissed NSF’s affirmative response as meaningless. Dr. Kliewer indicated that Dr. Fong had repeatedly harassed him and his family with phone calls, once informing Dr. Kliewer’s wife, at 10:55 p.m. of an intention to destroy Dr. Kliewer’s career. The witness also described a “blizzard of calls”, which were “ferocious” and “intimidating” in tone, with the invariable theme of money being owed to Fong. The witness estimated the calls to have been about twenty in number, beginning from 8:45 p.m. and ending at 4:05 a.m. On June 19, 1987, Dr. Kliewer met with Dr. Fong for an informal discussion of the prevailing problems. The witness later learned that Dr. Fong had a tape recorder concealed on his person during the meeting. Dr. Kliewer recalled that Dr. Fong would ask the same question of him a number of times and then would ask him to repeat his answers. When Dr. Kliewer learned of the hidden tape recorder, he became angry, especially since it had been agreed that the conversation could be recorded. Dr. Kliewer testified that Dr. Fong had accused him of criminal conduct in correspondences that were copied, at least on their face, to Governor Robert Orr and Senator Richard Lugar, and that were sent to the Purdue Board of Trustees. The witness further referred to charges against a vast array of others, indicating that Dr. Fong showed no signs of discontinuing his disruptions. In Dr. Kliewer’s opinion, “the negative effects associated with the antics of the last decade are real, palpable and, ... within the chemistry element ... ubiquitous.” On cross-examination, Dr. Kliewer denied having any particular sensitivity to Dr. Fong’s being Chinese, although he had so referred to him in the administrative hearings. The witness admitted that he considered Dr. Fong “a scoundrel.” Dr. Kliewer acknowledged that he had recommended that President Beering not provide the plaintiff with a list of conditions to avoid a hearing, rather that procedures for censure and dismissal be forthwith initiated, as a consequence of having met with Dr. Fong to no avail. Dr. Harry Pardue, a Professor of Chemistry at Purdue, acted as the head of the chemistry department from July 1, 1983 through June 30, 1987. He testified that he is familiar with procedures for applying for grants, for example, from the National Science Foundation. The witness admitted being one of the professors who had signed the petition to remove Dr. Fong from the department, stating that he based his decision on the plaintiff’s harassing telephone calls, some made to him personally, as well as on his widespread accusations of criminal conduct, some directed at him personally. According to Dr. Pardue, the university had attempted to work with Dr. Fong for many years, and the plaintiff had been advised on several occasions to go through proper channels to address his perceived grievances. Dr. Pardue testified that he had contacted Dr. Findeis of the NSF, and that the two of them had meant to be helpful in advising that Fong submit a formal proposal. In Dr. Pardue’s opinion, the plaintiff’s conduct had dealt a strong blow to the morale of the chemistry department, and caused concern that people may believe his accusations. On cross-examination, Dr. Pardue stated that Dr. Fong had lately stepped up the intensity of his accusations as well as the scope. Dr. Pardue reiterated that prior to initiating the proceedings, the university had attempted to work out the problems with Dr. Fong. He pointed to Dr. Fong’s charges, his misstatement of facts, and his harassment and intimidation as being the primary, but not the exclusive grounds for initiating the proceedings. To the best of the witness’ knowledge, no one had resigned from the chemistry department due to the plaintiff’s conduct. In reference to the hotly disputed meeting of October, 1986, the alleged tape tampering and the alleged discussion of Dr. Fong’s “August 1984 agreement”, the witness, who was there present, denied hearing any of the discussion alleged by Dr. Fong. Dr. Varro Tyler, Executive Vice President for Academic Affairs at Purdue, described preparation of the petition to initiate censure and dismissal proceedings against Dr. Fong, stating that the charges against the plaintiff are true to the best of his knowledge. Dr. Tyler also stated that he and several others had jointly put together the charges which were formalized with the assistance of the university attorney. In reference to Dr. Fong’s allegation that President Beering had directed performance of the university’s “contract” with the plaintiff, Dr. Tyler stated that the allegation was “a lie.” He also stated that he had personally been threatened or harassed by Dr. Fong, once at the conclusion of the October 8th meeting. Dr. Tyler described this incident as follows: “He came over to me and he towered above me and said, T will get you for what you said.’ And I looked up at him, and I said, ‘is that a threat.’ He said, ‘yes, that is a threat.’ ” According to Dr. Tyler, the plaintiff then called his office the next morning to remind him that he had been threatened, whereupon Tyler made a report to the Purdue police. Dr. Tyler testified further that at the February 15, 1988 censure and dismissal hearing, Dr. Fong threatened to have the witness fired, and threatened to have the university’s attorney disbarred. In describing his motivation in going forward with the censure and dismissal proceedings, Dr. Tyler stated that upon receiving a petition signed by 30 full professors of chemistry which stated that the plaintiff represented an undesirable colleague, he felt that there was no alternative but to put together the charges. The witness testified that his action had nothing to do with academic freedom in his opinion. Dr. Tyler indicated that his experience with complaints about Professor Fong had extended over years, and he felt the time had come, upon receipt of the petition, to do something about the situation. The witness testified that upon the request of members of the committee by way of Dr. Wayne Perry, the committee chairman, he had asked that security police be present at the university hearing.2 In Dr. Tyler’s estimation, the censure and dismissal proceedings will cost the university in the neighborhood of $100,-000.00 without attorney fees. As a final matter, Dr. Tyler, having read the transcript of the October, 1986 meeting, recalled the events as corresponding therewith. I. THE PROCEDURAL DUE PROCESS CLAIM “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of Regents v. Roth, 408 U.S. 564, 568, 92 S.Ct. 2701, 2704, 33 L.Ed. 2d 548 (1971). Where there are protected interests at stake, there is a right to some kind of prior hearing. Id. at 570, 92 S.Ct. at 2705. Protected property interests are “created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Id. at 577, 92 S.Ct. at 2709. Not all employment will involve a protected property interest. The law is clear, for example, that there exists no statutory authority which accords due process rights to probationary employees. See, e.g., Davis v. City of Chicago, 841 F.2d 186 (7th Cir.1988). In this case there is no question that Dr. Fong has a Fourteenth Amendment property right in his job. That right is created in his tenure contract with the university. Yatvin v. Madison Metropolitan School District, 840 F.2d 412, 416 (7th Cir.1988). As a tenured teacher the plaintiff can be fired only for cause. Button v. Harden, 814 F.2d 3,82 (7th Cir.1987). With respect to the plaintiff’s liberty interests, a public employer is prohibited from firing an employee, “on publicly stated grounds that are stigmatizing, without providing due process of law”. Yatvin at 417, citing Colaizzi v. Walker, 812 F.2d 304, 307 (7th Cir.1987) and Jungels v. Pierce, 825 F.2d 1127, 1131 (7th Cir.1987). These protections do not extend to harassment of employers nor to the commission of torts against employers by employees. See, Yatvin, 840 F.2d at 418. Indeed, if an employee’s charges are truly baseless, “the employee’s action in filing them may itself be a form of misconduct justifying disciplinary measures not rightly deemed retaliatory.” Id., citing Rucker v. Higher Educational Aids Board, 669 F.2d 1179, 1182 (7th Cir.1982). The above cases indicate clearly that an employee’s liberty and property interests, in the context of the leveling of any and every form of accusation against an employer, will range from limited to unprotected. In any event, on these facts, there can be no question that the plaintiff was afforded more than adequate protections in terms of procedural due process. On September 15, 1987, Dr. Fong was given notice of the charges against him, which notice is marked as Appendix “A” and incorporated herein by reference. On November 13, 1987, two firms of attorneys that were then representing the plaintiff were provided with a further elaboration of these charges which is marked as Appendix “B” and incorporated herein. No claim is here made that the plaintiff was not fully apprised of the nature of the charges against him, for indeed none could be made. By a letter dated September 15,1987, Dr. Tyler notified Professor Tilton W. Perry, Chairman of the Faculty Committee on Censure and Dismissal Proceedings, of the charges preferred against Dr. Fong. Dr. Tyler requested that Perry convene the Faculty Committee on Censure and Dismissal Proceedings to consider the charges, determine their validity, and make a recommendation to the President. • Soon thereafter, that Committee advised the plaintiff that a hearing would be conducted on November 7-8, 1987, to consider the charges. On October 6, 1987, a representative of t