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IN THE COURT OF APPEALS OF IOWA No. 8-839 / 08-0345 Filed December 31, 2008

DAVID E. MELTZER, Petitioner-Appellant, vs. BOARD OF REGENTS, STATE OF IOWA, and IOWA STATE UNIVERSITY, Respondents-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.

David Meltzer appeals from the district courts ruling on judicial review upholding the denial of his promotion to associate professor with tenure. AFFIRMED.

Victoria L. Herring, Des Moines, for appellant. Thomas J. Miller, Attorney General and David S. Gorham, Assistant Attorney General, for appellees.

Heard by Vaitheswaran, P.J., and Potterfield, J. and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).

2 POTTERFIELD, J. David Meltzer appeals from the district courts ruling on judicial review upholding Iowa State Universitys decision to deny him a promotion to associate professor with tenure. He contends the decision to deny him tenure was

unreasonable, arbitrary, capricious, and an abuse of discretion; and that the process violated his procedural rights. Meltzer asserts he has satisfied all

contractual obligations, thus requiring promotion to the tenured position. Finally, he contends the district court erred in not allowing him to present additional evidence. I. Background Facts and Proceedings. David Meltzer was hired as Assistant Professor, Department of Physics and Astronomy ("Department") at Iowa State University ("University") on a tenure-track appointment in 1998. The letter offering Meltzer his position noted the expectation of "teaching excellence and the development of a nationally recognized program in physics education based on solid research and publication in leading journals for the field." Because physics education is an emerging discipline in the field of physics and astronomy, I will express some of our expectations in detail. You are expected to carry on an active research program in physics education or science education leading to national recognition for excellence in the field. Appropriate activities include (but are not limited to): 1) publication of physics education or science education papers in refereed journals; 2) publication of physics curriculum material such as textbooks, workbooks, laboratory manuals, study guides and curricular material using appropriate media; 3) presentation of invited talks at professional meetings, workshops, and other universities; 4) development of in-service teacher training; 5) securing external funding for physics education research; 6) serving on review panels for funding agencies; 7) serving on editorial boards of professional journals; 8) serving as reviewer for journals

3 and textbooks; 9) supervising Ph.D. students in science education; 10) participating in AAPT activities. The offer letter also mentioned and attached a copy of the Departments promotion and tenure document, the "Blue Document." The Blue Document notes that evaluations for promotion "shall be those broadly specified in the Faculty Handbook, based upon the areas of research, teaching, and service," with research and teaching having "overriding importance." For promotion to associate professor, "excellence sufficient to lead to a national or international reputation is required and would ordinarily be shown by the publication of approximately fifteen papers of good quality in refereed journals." However, the Blue Document states: "It should be emphasized . . . that subjective judgment is involved in all of these cases; promotion with fewer papers than indicated above, or non-promotion with more, could occur based upon the Committees evaluation of the research involved." In all cases of promotion, the ultimate criterion which is expected to be applied in deciding the departmental recommendation is the question "will this promotion significantly enhance the ability of the Department and Iowa State University to meet the responsibilities implied by their respective missions?" All of the above guidelines for consideration are designed to answer this question in each individual case. No individual is considered to have proprietary right to promotion. No individual earns a promotion without having earned a "yes" to this question. The Faculty Handbook notes that a faculty member is ordinarily reviewed for tenure in the sixth year. An applicant for associate professor with tenure is to have a "solid academic reputation," show "promise for further development and productivity," and demonstrate "excellence in scholarship that establishes the individual as a significant contributor to the field or profession, with potential for

4 national distinction, effectiveness in areas of position responsibilities, and satisfactory institutional service." The Faculty Handbook notes that a "key tool" in the promotion and tenure review process is the position responsibility statement ("PRS"). Meltzers PRS states: 1) You will carry out a research and scholarship program that is nationally competitive and recognized. This includes creation of the conceptual framework for the research, raising funding to support the work, and reporting the results in major journals; 2) you will perform classroom and laboratory teaching at a level consistent with Department norms established by peer and student evaluations; and 3) you will contribute to the outreach and service aspects of department activity. Under the Blue Document, a two-thirds vote of those eligible is required for recommendation of promotion. Meltzer sought early promotion in his fifth year and was denied. In Meltzers sixth year--academic year 2003-04--he was considered for promotion to associate professor with tenure. Twenty-nine faculty members voted on Meltzers promotion: twelve voted for and seventeen voted against. A Department promotion and tenure committee recommended denial. The Department chair agreed with the committees recommendation. Pursuant to University procedures, Meltzer appealed and was

unsuccessful at the following levels: the College of Liberal Arts and Sciences Tenure and Promotion Committee and its Dean; the University Provost; and the University President. The President noted, A grant of lifetime tenure is a privilege, not a right. The decision is weighty for both the candidate and the institution. It requires careful consideration together with application of judgment and

5 discretion. It requires a holistic review of the candidates record. In the primary area of emphasis, it is not a determination of the minimum necessary to be competent. University standards require a showing of "excellence in scholarship," together with "an assessment that the candidate has made contributions of appropriate magnitude and quality and has a high likelihood of sustained contributions to the field, or profession and to the University." Faculty Handbook,

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