Date: 05-27-2022

Case Style:

CATHERINE A. JORITZ v. UNIVERSITY OF KANSAS

Case Number: 123086

Judge:

Henry W. Green Jr.

Before BRUNS, P.J., GREEN and ISHERWOOD, JJ

Court:

COURT OF APPEALS OF THE STATE OF KANSAS

On appeal from The Douglas District Court

Plaintiff's Attorney:

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Defendant's Attorney: Derek T. Teeter and Michael T. Raupp

Description:

Topeka, KS - Employment Law lawyer represented defendant with appealing her being wrongly terminated from her tenure track employment.

The University hired Joritz as an assistant professor in the Film and Media Studies
(FMS) Department in 2012. Her job as an assistant professor was a tenure track position.
Before the University hired Joritz, she had worked in the film industry,
specializing in animation, for many years. Also, before the University hired Joritz, she
had emigrated to Germany, living there for many years. Once at the University, Joritz
continued her work in animation. In addition to teaching FMS courses, some on
animation, Joritz started researching Lotte Reiniger; Reiniger was a 20th century German
silhouette animator, whom Joritz intended to write a book about. Significantly, Joritz'
research on Reiniger was part of her efforts to obtain tenure at the University.
4
A Review of the Relevant Agency Rules
Under the FMS Department's rules on Promotion and Tenure Procedure and the
University's Faculty and Senate Rules and Regulations, a tenure candidate must undergo
an initial review, commonly called a Progress Toward Tenure Review (PTTR), of the
candidate's teaching, service, and research work before the candidate applies for tenure.
For a FMS Department tenure candidate specifically, the FMS Department's rules state
that a candidate seeking tenure status is "expected to engage in scholarly and/or creative
research." Concerning books, the rules explain that "[s]cholarly books and monographs
shall be considered important evidence of research capability." But the rules further state:
"Scholarship that merits tenure is defined as a researched or creative monograph, or a
combination of published articles, edited books, or research-based textbooks equivalent
to a monograph in quantity and quality."
As for the FMS Department's review procedures, the FMS Department's Initial
Review Committee (IRC) completes the PTTR. In doing so, the IRC evaluates a tenure
candidate's efforts in teaching, service, and research based, in part, on the candidate's
dossier, which details the candidate's historical work and University work as an assistant
professor. Also, during the PTTR process, the IRC "shall" seek the opinions of "outside
reviewers," including faculty and students, about the candidate's qualifications. Yet, in
completing the tenure candidate's PTTR, the candidate's efforts in teaching, service, and
research are not given the same weight. An FMS Department's tenure candidate's
teaching evaluation constitutes 40% of the candidate's review. The candidate's research
evaluation constitutes 40% of the candidate's review, while the candidate's service
evaluation constitutes 20% of the candidate's review.
In the end, the IRC rates a tenure candidate's performance in teaching, service, and
research as excellent, very good, good, marginal, or poor before making a
recommendation—by simple majority—whether the candidate has made enough progress
5
toward tenure to continue the candidate's tenure track employment. After doing this, the
IRC forwards its recommendation to the FMS Department's committee as a whole, which
does not vote on the rating of performance, but only on a recommendation of whether the
candidate should continue their tenure track employment. The committee as a whole
prepares the PTTR candidate's evaluation form before forwarding it to the FMS
Department Chair. The Chair must then "indicate separately, in writing, whether he or
she concurs or disagrees with the recommendations of the committee of the whole." And
after this, the FMS Department Chair should notify the candidate of the IRC's
recommendation.
When the IRC gives a tenure candidate a favorable recommendation, that
recommendation is automatically forwarded to the College of Liberal Arts and Sciences'
College Committee on Appointments, Promotion, and Tenure (CCAPT) for approval.
The IRC also forwards its recommendations to the CCAPT (1) when the FMS
Department Chair seeks further review of the IRC's favorable or unfavorable
recommendation or (2) when the tenure candidate seeks review of the IRC's unfavorable
recommendation. Regardless of why the CCAPT is reviewing the IRC's recommendation,
the CCAPT engages in an independent review that neither affirms nor reverses the IRC's
PTTR recommendations.
According to the College of Liberal Arts and Sciences' bylaws, during the
CCAPT's review, the CCAPT must "[c]onsider all recommendations for advancement in
academic rank and granting of continuous tenure for members of the College Faculty."
Also, according to the College of Liberal Arts and Sciences' PTTR purpose statement, the
purpose of CCAPT's review is "to determine whether departmental standards of
evaluation and assessment of the individual are in line with those of the College and
University promotion and tenure committees." In doing so, its "special concern" involves
reviewing cases where it appears the department gave the tenure candidate a favorable
review but the CCAPT "would [have] evaluate[d] the candidate more critically."
6
Ultimately, the CCAPT makes its own recommendation on whether a particular tenure
candidate has made sufficient progress toward tenure, and it forwards this
recommendation to the College of Liberal Arts and Sciences' Dean. After this, the Dean
writes a letter to the tenure candidate's department chair, notifying the chair of the
CCAPT's recommendation on the candidate's continued employment with the University.
And after this, the department chair should notify the candidate of the CCAPT's decision.
When the CCAPT recommends termination of a candidate's tenure track
employment, the Dean should also send the CCAPT's recommendation to the Provost.
Upon receiving this letter, the College of Liberal Arts and Sciences' PTTR purpose
statement provides that the Provost should notify the unsuccessful tenure candidate "in
writing of the [CCAPT's] recommendation and the reasons for it" before forwarding this
recommendation to the Chancellor for final agency action. In the Provost's letter,
however, the Provost must also tell the unsuccessful tenure candidate about the right to
appeal to the Faculty Rights Board (FRB).
Should an unsuccessful tenure candidate appeal to the FRB, the University's
Faculty and Senate Rules and Regulations states that the candidate must prove that the
CCAPT erred by recommending that the University terminate his or her tenure-track
employment. Those rules further provide that during the unsuccessful tenure candidate's
appeal, the FRB has a limited review:
"The Function of the FRB in the promotion and tenure context is not to review the merits
of promotion and tenure recommendations, nor to substitute its judgment on the merits,
but rather to identify specifically defined appealable errors that undermine the evaluation
process itself and to recommend appropriate accommodations or adjustments to the
Chancellor for consideration in making the final promotion and tenure decision."
As indicated by the preceding rule, after the FRB engages in its limited review, it
forwards its written recommendation to the Chancellor for final agency action. The rules
7
state that during the Chancellor's review, the Chancellor has access to the entire agency
record, which includes "the recommendations of the initial, intermediate, and university
level review." It also provides that in making the decision whether to terminate a
candidate's tenure track employment, the Chancellor may consider any other
"information" the Chancellor "deems appropriate." After doing this, the Chancellor
decides whether to continue or terminate the candidate's tenure track employment before
notifying the Provost of his or her decision. Then, the Provost must notify the candidate
of the Chancellor's decision.
Because the Chancellor's decision is the final agency action, upon the Chancellor's
decision, there are no more levels of administrative review. Thus, following the
Chancellor's decision, dissatisfied unsuccessful tenure candidates must challenge their
termination by suing the University under the KJRA.
The University Terminates Joritz' Tenure Track Employment
During the 2014-2015 academic year, which was Joritz' third year as an assistant
professor in the FMS Department, Joritz' underwent her first PTTR. At that time, the
FMS Department found that Joritz' record was "insufficient to demonstrate progress
toward tenure in the areas of teaching and research." Also, although her service record
was better than her teaching and research record, the FMS Department identified Joritz'
service record as another "area of concern."
Because Joritz failed to prove sufficient progress toward tenure during her initial
PTTR, the CCAPT "required [her] to undergo a subsequent probationary review" during
the 2015-2016 academic year. When the CCAPT notified Joritz that she had failed her
first PTTR, it told Joritz that she should "increase [her] service commitments on both the
national and international level." Additionally, it told her that she would need to complete
her important projects related to obtaining tenure—the book on Reiniger and a couple of
8
ongoing film projects, including Film Feed—at least one year in advance of her
mandatory tenure review. Although not entirely clear from the record on appeal, based on
Joritz' assertions, it seems that her mandatory tenure review year was during the 2018-
2019 academic year.
In any case, during the 2015-2016 academic year, Joritz underwent another PTTR.
In her dossier for this PTTR, Joritz stated that the projected completion for her book on
Reiniger was 2019. Meanwhile, she stated that Film Feed's projected finish was 2017.
At the FMS Department level, the IRC ultimately found that Joritz' had done
enough during the past year in the areas of teaching, service, and research to demonstrate
progress toward tenure. As a result, the IRC committee recommended that Joritz keep her
tenure track employment with the University. In making its decision, the IRC outlined
Joritz' recent efforts to improve her teaching. And it explained that Joritz' service was
adequate.
As for her research, the IRC discussed Joritz' ongoing work on the Reiniger book
and Film Feed. In doing so, it noted that in her dossier, Joritz had stated that she planned
to complete her Reiniger book in 2019. It then provided the following explanation why
Joritz' research work had demonstrated sufficient progress toward tenure during the past
academic year:
"The Committee recognizes the scope and number of projects [that Joritz] is
engaged in, and to the extent that she can complete these and have them adjudicated in a
timely manner, the Committee believes she 'Demonstrates progress toward tenure.' Many
of [Professor] Joritz's creative and scholarly projects are the result of years of planning,
and in some cases, she has masterfully incorporated her research into her animation
production classes, as the silhouette animation by Reiniger exemplifies. Moreover, the
Hall Center Creative Work Fellowship for 2016 should aid her in completing Film
[Feed], which she will send out for vetting and screenings at film festivals. We
9
understand that finishing a 2-minute piece such as Film Feed is extremely laborious and
time consuming, and are encouraged that the Hall Center Fellowship will provide her the
time required to bring the project to completion. If this piece and others come to fruition
as publications and at juried festivals the Committee trusts that her publications, her
presentations, and her outreach will grow her reputation and contribute to that of the
University of Kansas and the Department of Film and Media Studies."
Still, the Chair of the FMS Department did not agree with the IRC's
recommendation. As a result, upon completion of Joritz' second PTTR evaluation, the
FMS Chair wrote the CCAPT a letter, explaining that he disagreed with the IRC's finding
that Joritz' work demonstrated sufficient progress toward tenure. In this letter, although
the FMS Chair agreed with the IRC's assessment on Joritz' teaching, he disagreed with
the IRC's assessment on Joritz' service and research record. The FMS Chair's specific
concern about Joritz' service record involved Joritz' treatment of others, which he alleged
violated the University's rule about not engaging in activities that disrupt "operations of
the academic unit." He alleged that the IRC "members recognized an ongoing pattern of
disrespectful, combative, and disruptive behavior from [Joritz] directed towards other
faculty, students, and staff as a topic of concern." But he alleged that when conducting
her PTTR, the IRC disregarded Joritz' behavioral issues because it was "unsure as to how
or whether the matter should be formally addressed."
On Joritz' research, the FMS Chair explained that he believed Joritz' research work
was inadequate:
"In its deliberations, the Committee unanimously agreed that the quantity of [Joritz']
major works did not meet expectations and seemed to have advanced very little during
her four years at [the University]. Some members, however, felt that recent progress
made by [Joritz]—specifically, two public presentations and a non-peer reviewed review
of a museum exhibit—indicated a trend of improvement. To reflect this plurality, the
Committee considered 'Improvement Required for Continued Progress' but as that
10
category seemed to indicate a further—in this case, fifth year—review, the Committee
settled on 'Demonstrates progress toward tenure.'
"In my own evaluation, however, I remain unconvinced that [Joritz'] record of
accomplishments indicates a sustainable program of major scholarly activity.
Specifically, there are several problems with the candidate's book project on Lotte
Reiniger as it is presented. In terms of conception and organization, the candidate
acknowledged to me last week that none of the manuscript has been written nor does she
have a clear conception of the project's basic organization. She is still collecting materials
and requires a greater grasp of the archival holdings before she can begin analysis of the
data and formulate a book proposal. By her admission, a substantial portion of the Lotte
Reiniger archive at the Stadtmuseum in Tubingen, Germany remains un-cataloged and
unknown to her and officials there have denied her requests for access to those materials.
Further, she said even her access to the private collection of [G.M.] in Canada is
becoming limited due to his declining mental and physical condition. Questions of
organization and access aside, considering [Joritz'] minimal record of scholarly
publication to date, the demands of several labor-intensive film production projects in
progress, and her other ongoing commitments, I doubt whether she will be able to
complete the project in a timely manner or, I regret to say, at all. [Professor Joritz'] area
of specialization is not my own, but as a published film/media historian whose research
includes animation, I believe that presenting this book project as a sustainable major
scholarly work is unrealistic and the candidate's research record warrants only 'Record
not sufficient for progress to tenure.'" (Emphasis added.)
Because the IRC gave Joritz a favorable recommendation, the IRC's PTTR
evaluation was forwarded to the CCAPT as required by the FMS Department's rules on
Promotion and Tenure Procedure. And in accordance with the FMS Department rules, the
FMS Chair's letter disagreeing with the IRC's recommendation of sufficient progress
toward tenure was also forwarded to the CCAPT.
Eventually, as required by the College of Liberal Arts and Sciences' purpose
statement, the Chair of the CCAPT sent the Dean of the College of Liberal Arts and
Sciences a letter with the CCAPT's recommendation to terminate Joritz' tenure track
11
employment. Shortly thereafter, and also in accordance with the College of Liberal Arts
and Sciences' purpose statement, the Dean sent a letter to the Interim Provost notifying
her of the CCAPT's recommendation for nonreappointment. He also sent another letter to
Joritz, which was mostly identical to the letter the CCAPT Chair suggested the Dean send
to Joritz.
Importantly, although the Dean's letter to the Interim Provost summarized the
CCAPT's findings, the Dean's letter to Joritz included a more detailed explanation of why
the CCAPT recommended termination of her tenure track employment. In the Dean's
letter to Joritz, he explained that Joritz' teaching record was "the strongest component of
[her] dossier." After saying this, however, the Dean took issue with Joritz' service and
research record. He alleged that Joritz' service record was "weakened by the repeated
instances of dismissive, defensive and inappropriate behavior towards colleagues, staff,
and [graduate teaching assistants]" as described in the FMS Chair's letter. As for Joritz'
research record, the Dean told Joritz the following:
"Your research record indicates serious deficits. Though you have recently
presented two public presentations and a non-peer reviewed review of a museum
exhibition, there was agreement among [the IRC, the FMS Chair], and CCAPT that, even
with this recent activity, the quantity of your major works was not sufficient as evidence
of progress to tenure. Moreover, the status of your proposed book on Lotte Reiniger is
unclear. Given that you do not envisage completion of the project until 2019, and given
the limited additional evidence of research productivity, CCAPT is very concerned about
your lack of progress towards tenure."
In the Dean's letter, although he did not explicitly state what all of Joritz' concerns
were, he also noted that he had spoken to Joritz about some concerns that she had with
her PTTR. He explained that although Joritz had "raised a number of concerns with [him]
(and several others), including that prejudicial statements were included in the [IRC]
review," he alleged that Joritz' specific concerns had no bearing on the IRC's, the
12
CCAPT's, or his recommendation. In doing so, he stressed that the IRC "gave [her] a
favorable recommendation." Additionally, he asserted that the "CCAPT did not have
access to any information that stemmed from issues [Joritz] raised and the faculty
member [Joritz] identified as biased was recused" from the CCAPT review.
Once the Interim Provost received the Dean's letter, she sent a letter to Joritz
explaining that she agreed with the Dean's recommendation to terminate her tenure track
employment because her service and research record were inadequate. In this letter, the
Interim Provost also told Joritz that unless she appealed to the FRB, she was forwarding
her recommendation to the Chancellor for final agency action.
Joritz exercised her right to appeal to the FRB. In her appeal, Joritz made
numerous arguments about procedural violations that occurred at every level of her PTTR
process. She also took issue with the FMS Chair's letter disagreeing with the IRC's
finding that she had made sufficient progress toward tenure. In doing so, although she
stressed that she had not yet received a copy of the FMS Chair's letter, Joritz alleged that
it contained factually inaccurate information based on the content of the letters that she
had received from the Dean and the Interim Provost. In particular, she took issue with the
FMS Chair's assertion that G.M., the last living coworker of Reiniger, was senile. She
alleged that this person was healthy and emphasized that she had already conducted hours
of audio interviews with him. She further took issue with the FMS Chair's assertion that
she had limited access to the museum in Germany containing important primary sources
on Reiniger. As evidence that this assertion was false, she alleged that she had spoken to
the museum's curator within the past week, who had told her that she could access "any
materials [Joritz] may need from their archive."
Eventually, the FRB Chair wrote the Chancellor a letter explaining that the FRB
found a single procedural violation during Joritz' PTTR process. She explained that
contrary to the College of Liberal Arts and Sciences' PTTR purpose statement, the FMS
13
Chair did not meet with Joritz to discuss her PTTR evaluation after the Dean notified her
of the CCAPT's recommendation of nonreappointment. But she further explained that the
FRB did not believe that this procedural violation "significantly prejudiced Professor
Joritz in the PTTR process." Relatedly, although she never alleged that the FMS
Department violated its PTTR procedures, she suggested that the FMS Department
amend its PTTR rules so that its Chair could no longer serve as a nonvoting member of
the IRC to avoid the appearance of "a lack of independent judgment of the candidate's
record."
Concerning Joritz' assertion that the FMS Chair's letter contained factually
inaccurate information, the FRB Chair told the Chancellor that the FRB found that the
following statements were incorrect: (1) the FMS Chair's statement that G.M. was
"'lapsing into senility and ill health'" and (2) the FMS Chair's statement that "officials at
the Stadtmuseum in Tubingen, Germany have denied Professor Joritz access to an
archive of materials necessary to the completion of the project" on Reiniger. She also told
the Chancellor that these factually inaccurate statements likely influenced the CCAPT's
as well as the Dean's conclusion that the status of Joritz' proposed book on Reiniger
remained unclear. As a result, the FRB recommended that the Chancellor disregard those
statements in her "independent judgment of the [candidate's] record." For this same
reason, the FRB Chair told the Chancellor that she should "take[] into account" the
CCAPT's and the Dean's "mistaken reliance" on those factually inaccurate statements
when considering whether Joritz' research record demonstrated sufficient progress toward
tenure to continue her tenure-track employment.
Yet, except for the preceding problems, the FRB rejected Joritz' many arguments.
The FRB chair told the Chancellor that outside from the issues outlined in her letter, the
FRB found no violation of Joritz' faculty rights during her PTTR process.
14
A couple of days after the Chancellor received the FRB Chair's letter, the Interim
Provost sent Joritz a letter stating that the Chancellor had decided to accept the
recommendation for nonreappointment. Regarding the Chancellor's reason for
terminating Joritz' tenure track employment, the Interim Provost provided the explanation
below:
"In my letter dated April 13, 2016, you were advised that [the Dean] had
recommended that you be given notice of non-reappointment for the reasons stated in his
April 8, 2016 letter to you, and that I concurred with his recommendation. You appealed
the notice of non-reappointment to the [FRB], which recommended that the Chancellor
disregard two statements contained in the Department [Chair's] letter and take into
account the impact of those statements on the Dean's and CCAPT's recommendations in
her independent review of your record. The recommendation for non-reappointment and
letter from the FRB were forwarded to the Chancellor who, after careful review, has
decided to accept the recommendation for non-reappointment. In doing so, the
Chancellor determined that FRB went beyond its jurisdiction in its recommendation.
Nonetheless, even excluding consideration of the information in the Chair's letter, the
Chancellor determined that your research record demonstrated insufficient progress
toward tenure, warranting non-reappointment."
The District Court Denies Joritz' Petition for Review
After the Chancellor decided to terminate Joritz' tenure track employment with the
University, Joritz filed a petition for judicial review under the KJRA with the district
court. As she did in her appeal to the FRB, in her petition, Joritz made numerous
arguments about procedural violations occurring at every level of her PTTR process. She
asserted that certain agency officials, including the FMS Chair, intentionally violated
PTTR procedural rules so the University would terminate her tenure track employment.
And she took issue with the fact that a professor who served on the IRC was also a
member of the CCAPT.
15
Based on all this, Joritz argued that the University violated the KJRA in five ways
when terminating her tenure track employment: (1) by erroneously interpreting the law
contrary to K.S.A. 77-621(c)(4); (2) by failing to follow prescribed procedures contrary
to K.S.A. 77-621(c)(5); (3) by allowing persons who should have been disqualified from
membership of the CCAPT on this committee contrary to K.S.A. 77-621(c)(6); (4) by
basing her termination on evidence that was not substantial when viewed in light of the
record as a whole contrary to K.S.A. 77-621(c)(7); and (5) by terminating her in the first
place as this decision was unreasonable, arbitrary, and capricious contrary to K.S.A. 77-
621(c)(8). She then asked the district court to grant her the following relief: (1) to
reinstate her tenure track employment with the University, (2) to reinstate the fellowship
that she lost because of her termination and its corresponding $1,000 award, (3) to order
the FMS Department to give her a semester without teaching classes to research Reiniger,
(4) to order the University to give her another year to prepare for her next PTTR, (5) to
order the University to allow her "the right to assemble impartial evaluators consisting of
University faculty and administrators for her future evaluations"; and (6) to order the
University to remove all "discriminatory, factually inaccurate, and libelous material"
from her University employment record.
In its response, the University denied violating the KJRA when terminating Joritz'
tenure track employment. In addition to largely denying the fact statements that Joritz had
included in her petition, the University argued that many of Joritz' fact statements were
irrelevant to deciding her specific KJRA claims. Likewise, it noted that Joritz devoted
much of her facts section to legal arguments, which it would not respond to because those
arguments should not have been included in her facts section. As a result, the University
asked the district court to deny Joritz' petition and all of her requested relief.
Eventually, both parties filed briefs with the district court to support their
respective positions. In her brief, Joritz largely repeated her complaints contained in her
petition for review. Nevertheless, she also made a new argument. Although she did not
16
explain what provision the University relied on that was unconstitutional, in addition to
her other KJRA claims, Joritz now argued that the University relied on an
unconstitutional rule or statute when terminating her tenure track employment contrary to
K.S.A. 77-621(c)(1). In its brief, the University countered that each of Joritz' arguments
were meritless. It stressed that Joritz carried the burden of proof, and it stressed that the
harmless error rule applies to lawsuits filed under the KJRA. It then argued that Joritz had
failed to prove that the University or its officials committed any prejudicial error during
her PTTR process during the 2015-2016 academic year. In making this argument, the
University also argued that our Supreme Court's decision in Harsay v. University of
Kansas, 308 Kan. 1371, 430 P.3d 30 (2018), supported the denial of Joritz' petition for
judicial review.
After the parties briefed their respective positions, the district court held oral
arguments. At oral arguments, the parties largely repeated the arguments made in their
briefs. Yet, at this time, Joritz also took issue with the University's reliance on Harsay
because Harsay involved a person who would have actually been awarded tenure had the
University not terminated her tenure track employment.
In the end, however, the district court issued a memorandum decision denying
Joritz' petition for judicial review. Even though Joritz argued that the Harsay decision
was distinguishable from her case, the district court rejected this argument. It ruled that
Joritz' specific complaint about Harsay involving a person who would have actually been
awarded tenure did not mean the law within Harsay was inapplicable to her case.
Afterwards, it made the following fact-findings: (1) that during her initial PTTR in the
2014-2015 academic year, Joritz had been warned that she needed to complete her major
research projects at least a year before she applied for tenure, (2) that in her dossier for
her second PTTR in the 2015-2016 academic year, Joritz had conceded that her Reiniger
book would not be finished until 2019 and that Film Feed would not be finished until
2017, and (3) that from the agency record, nothing indicated that the Chancellor violated
17
any University rules or procedures when terminating Joritz' tenure track employment.
Then, it ruled that Joritz had failed to establish that the University violated any provision
of the KJRA in terminating her tenure track employment for the following reasons:
"There is no evidence to find that the agency action, or any regulation on which
the agency acted is unconstitutional on its face or as applied to Professor Joritz as
contemplated by K.S.A. 77-621(c)(1). Nor are there facts to find that [the University]
erroneously interpreted or applied the law to support a violation under subsections (c)(4)
or (5). To whatever degree any review board or committee did not conform to
[University] policy, none of those bodies were the decision-makers so as to support a
violation of K.S.A. 77-621(c)(6). As more fully discussed with regard to the analysis of
subsection (c)(7), the evidence does not permit the conclusion that the agency action was
otherwise unreasonable, arbitrary or capricious as prohibited by subsection (c)(8).
"The record reflects that [the Chancellor] provided a May 13, 2016, letter that set
forth the basis for her decision—to include concurrence with the reasons articulated in
her prior notice of non-reappointment—but stated her own, independent conclusion that
reappointment was not warranted. A review of the record here provides substantial
support, as set forth in [the fact-findings], that the process afforded Professor Joritz was
sufficient to justify the decision. While this Court can and must defer to the established
law that such decisions are imbued with a presumption of validity, the deficiencies
recited above, considering the record as a whole, make clear that when [the Chancellor]
references the inadequacy of [Professor] Joritz' research record reflected inadequate
progress, the evidence exists to support this conclusion. Whether [Professor] Joritz
agrees, or can convince others to agree, is no evidence that merits relief under the KJRA.
"At each stage of the review process, concerns were articulated as to the lack of
sufficient research and scholarship—despite any aspirational comments in support of
Professor Joritz' goals. The record as a whole reflects these recurring statements and, in
fact, fair notice to Professor Joritz that these expectations existed and were in jeopardy of
not being met. [Citations omitted.]"
Joritz timely appealed the denial of her petition for judicial review to this court.
18
ANALYSIS
Did the District Court err by denying Joritz' petition for review?
In her appellant's brief, Joritz makes numerous arguments why we should reverse
the district court and grant her petition for judicial review. Even so, her arguments can be
broken down into three broad categories: First, Joritz argues that the district judge who
denied her petition for judicial review committed judicial misconduct when doing so.
Second, Joritz argues that the district court made multiple legal errors when denying her
petition for judicial review. Those errors include misapplying our Supreme Court's
precedent in Harsay and misunderstanding its scope of review as stated under K.S.A. 77-
621. Third, Joritz argues that the district court wrongly determined that the University's
termination of her tenure track employment was supported by substantial evidence when
viewed in light of the record as a whole as stated under K.S.A. 77-621(c)(7). In making
this argument, Joritz' complaints focus on alleged inadequacies with the Chancellor's
decision to terminate her tenure track employment with the University, which she says
that the district court ignored.
The University counters that we should affirm the district court's denial of Joritz'
petition for judicial review both because there are procedural problems with her
arguments and because her arguments are groundless. The University starts its appellee's
brief by pointing out that Joritz has raised many arguments in the facts section of her
appellant's brief. In citing Kansas Supreme Court Rule 6.02(a)(4) (2021 Kan. S. Ct. R.
35), the University asks us to disregard all arguments that Joritz raised in her facts
section. Next, it contends that each of Joritz' arguments about the district court
committing judicial misconduct largely hinges on her misunderstanding of the applicable
law. As for Joritz' other arguments, the University contends that Joritz has not met her
burden of proving that it or its officials violated the KJRA during her second PTTR
process and agency-level appeal so as to cause harm. As with Joritz' judicial misconduct
19
arguments, the University contends that Joritz' specific complaints about KJRA violations
largely hinge on her misunderstanding of the applicable law.
In her reply brief, Joritz challenges the University's recitation of the facts, arguing
that the University included many "false and/or misleading statements" in its appellee's
brief. At the same time, she contends that we should apply the "pro se standard of
review" to her appeal. According to Joritz, it would be unfair for us to ignore her
arguments within her facts section because she is pro se. Citing federal caselaw, she
asserts that under this pro se standard, "[p]ro se litigants' court submissions are to be
construed liberally and held to less stringent standards than submissions of lawyers."
Then, relying on this assertion, she contends that if we can reasonably understand her
arguments, we should address each argument that she has included in her appellant's
brief, no matter where she has included it in her appellant's brief.
1. Joritz is not Entitled to Special Treatment because she is a Pro Se Appellant.
Before turning to the specific problems with Joritz' chief arguments in her
appellant's brief, we address the problematic arguments raised by Joritz in her reply brief.
Most significantly, although Joritz asks us to use a special standard of review because she
is pro se, Joritz is not entitled to special treatment as a pro se appellant. As just noted, in
her reply brief, Joritz argues that pro se litigants' court submissions are to be construed
liberally and held to less stringent standards than submissions of lawyers. To support this
argument, Joritz cites only federal caselaw, which has held that pro se parties' pleadings
are held to less stringent standards than formal pleadings drafted by lawyers. See
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007). She
asserts that since she is pro se, it would be unfair for us to ignore some of her arguments
because they are "inartfully drawn." So, Joritz wants us to liberally construe all her
arguments and consider all of her arguments no matter where they are located in her
appellant's brief.
20
Although Joritz candidly acknowledges that some of her arguments are "inartfully
drawn," she fails to recognize that some of her arguments suffer from a glaring
procedural problem. Her problem is that she failed to comply with the procedural rules
allowing us to consider some of her arguments on appeal. And as stressed by the
University, one of the more obvious procedural rules that Joritz has violated is Kansas
Supreme Court Rule 6.02(a)(4). This rule explicitly states that an appellant's brief must
contain "[a] concise but complete statement, without argument, of the facts that are
material to determining the issues to be decided in the appeal." (Emphasis added.) Rule
6.02(a)(4) (2021 Kan. S. Ct. R. 36).
Under Kansas law, the pro se liberal construction rule does not mean that pro se
litigants can ignore procedural requirements. Instead, "[w]hile pro se pleadings are to be
liberally construed so that relief may be granted if warranted by the facts alleged, this
simply means that the substance of the pleading controls over its label." In re Estate of
Broderick, 34 Kan. App. 2d 695, 701, 125 P.3d 564 (2005). As a result, we have
explained:
"'A pro se litigant in a civil case is required to follow the same rules of procedure and
evidence which are binding upon a litigant who is represented by counsel. Our legal
system cannot function on any basis other than equal treatment of all litigants. To have
different rules for different classes of litigants is untenable. A party in civil litigation
cannot expect the trial judge or an attorney for the other party to advise him or her of the
law or court rules, or to see that his or her case is properly presented to the court. A pro se
litigant in a civil case cannot be given either an advantage or a disadvantage solely
because of proceeding pro se.' Mangiaracina v. Gutierrez, 11 Kan. App. 2d 594, 595-96,
730 P.2d 1109 (1986)." 34 Kan. App. 2d at 701.
See also Guillory v. State, 285 Kan. 223, 229, 170 P.3d 403 (2007) (citing the preceding
precedent with approval).
21
Joritz here argues otherwise. But she is not entitled to special treatment as a pro se
litigant when it concerns her failure to follow procedural rules. While we should liberally
construe her arguments when properly raised, we cannot address arguments that are not
properly before us. See also K.S.A. 60-2101(a) (explaining this court's limited
jurisdiction). Nor can we bolster arguments that are properly before us but inadequately
briefed. See Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017) (holding that a
point raised incidentally in a brief and not argued therein is inadequately briefed and thus
waived and abandoned); see also In re Adoption of T.M.M.H., 307 Kan. 902, Syl. ¶ 6, 416
P.3d 999 (2018) (holding that a point raised without pertinent authority or without
analysis explaining why it is sound despite a lack of supporting authority is inadequately
briefed and thus abandoned).
Also, we note that this is not the first time Joritz has asked a court to apply a
special pro se standard of review. Highly summarized, Joritz sued the University as well
as some of its officials in federal court, alleging that the University discriminated against
her contrary to Title VII of the Civil Rights Act of 1964 when terminating her tenure
track employment. Joritz eventually lost her lawsuit. But before she was denied relief, the
federal district court issued two orders rejecting Joritz' request to treat her pleadings
differently because she was pro se. See Joritz v. University of Kansas, No. 17-4002-SACJPO, 2020 WL 6286351, at *3 (D. Kan. 2020); and Joritz v. University of Kansas,
No. 17-4002-SAC-JPO, 2020 WL 5253396, at *4 (D. Kan. 2020); see also Joritz v. GrayLittle, 822 Fed. Appx. 731 (10th Cir. 2020) (unpublished opinion). In the order issued by
the federal district court about three months before Joritz filed her appellant's brief in this
case, the court explicitly denied Joritz' request to ignore the University's persuasive claim
preclusion argument because she was a pro se litigant. It explained it would not do so
because "[t]he Tenth Circuit has stated over and again that while a court may liberally
construe pro se filings, it must not assume the role of advocate or search the record and
construct arguments for a pro se litigant." 2020 WL 6286351, at *3.
22
So unlike many pro se appellants who may not fully realize the risks of
representing themselves, Joritz knew about the risks of proceeding pro se. Despite
knowing those risks, Joritz continued to represent herself in this appeal. Then, in addition
to the Kansas caselaw barring Joritz' request to impose a special pro se standard of
review, Joritz' arguments about using a special pro se standard of review are particularly
unpersuasive since she knew that her pro se status entitled her only to the liberal
construction of her arguments on filing her appellant's brief in this case.
In turn, it is readily apparent that Joritz' other reply brief arguments are also
flawed. First, her pro se status does not allow her to ignore appellate procedures,
including Rule 6.02(a)(4). Because Rule 6.02(a)(4) explicitly prohibits arguments in fact
sections, there is no excuse for Joritz' failure to follow this rule. For this reason, we will
not consider the approximately 10 arguments that Joritz has included in her facts section.
Next, in her reply brief, Joritz briefly contends that the University raised a new
argument in its appellee's brief by pointing out her facts section's deficiencies. Based on
this contention, she suggests that she is not raising a new argument in her reply brief by
requesting a special pro se standard of review. Nevertheless, appellees may note
procedural problems with the appellant's arguments. By doing this, appellees merely
point out inadequacies with the appellant's arguments as included in the appellant's briefs.
Also, if anything, it is Joritz who has raised a new argument in her reply brief by
asserting that there is a pro se standard of review requiring us to ignore her failure to
follow procedures. Hence, in addition to the other problematic arguments in her reply
brief, Joritz' reply brief violates Kansas Supreme Court Rule 6.05 (2021 Kan. S. Ct. R.
37), which states that a reply brief may contain only arguments "made necessary by new
material contained in the appellee's or cross-appellee's brief."
In summary, Joritz argues that we should use a special pro se standard of review
where she is held to less stringent standards than lawyers when considering arguments on
23
appeal. Nevertheless, Kansas caselaw establishes that Joritz' pro se status entitles her only
to the liberal construction of arguments that are properly before us. She cannot avoid
complying with appellate procedure because she is pro se. If she were allowed to do so,
she would gain an unfair advantage over the University since it relied on the procedural
deficits in her appellant's brief when responding to her arguments in its appellee's brief.
In addition, as stated previously, it is not our duty to unearth and then address all the
various arguments that Joritz has included in impermissible places within her appellant's
brief. See Rule 6.02(a)(1)(A), (5) (explaining that appellants must divide their arguments
by issue with citation to the appropriate standard of review). Once again, "[j]udges are
not like pigs, hunting for truffles buried in briefs." Dunkel, 927 F.2d at 956. Nor are they
archeologists searching for buried treasure. DeSilva, 181 F.3d at 867. Hence, we hold
three things: (1) that Joritz is not entitled to a special pro se standard of review, (2) that
Joritz' facts section arguments are impermissible under Kansas Supreme Court Rule
6.02(a)(4), and (3) that Joritz' reply brief arguments are impermissible under Kansas
Supreme Court Rule 6.05.
2. Joritz' Underlying Arguments are Improperly Raised, Inadequately Briefed, or
Baseless.
Having established that Joritz is not entitled to the special treatment she has
requested because of her pro se status, we will address Joritz' underlying arguments
concerning whether the district court wrongly denied her petition for judicial review.
Because Joritz is suing the University under the KJRA, K.S.A. 77-621 defines the scope
of our review. K.S.A. 77-621(a)(1); see also K.S.A. 77-606 (stating that the KJRA is the
exclusive means of judicial review of an agency action). Notably, when considering
appeals under the KJRA, we exercise the same statutorily limited review of the disputed
agency action as does the district court. Bd. of Cherokee County Comm'rs v. Kansas
Racing & Gaming Comm'n, 306 Kan. 298, 318, 393 P.3d 601 (2017). Also, in making
24
determinations under K.S.A. 77-621, all courts reviewing the disputed agency action
must take "due account . . . of the rule of harmless error." K.S.A. 77-621(e).
Unless some provision says differently, parties challenging the agency action carry
the burden of proving the invalidity of the disputed agency action. K.S.A. 77-621(a)(1).
Subsection (c) of K.S.A. 77-621 lists the limited circumstances in which courts may grant
relief to parties under the KJRA. In relevant part, K.S.A. 77-621(c) states:
"The court shall grant relief only if it determines any one or more of the
following:
(1) The agency action, or the statute or rule and regulation on which the agency
action is based, is unconstitutional on its face or as applied;
. . . .
(4) the agency has erroneously interpreted or applied the law;
(5) the agency has engaged in an unlawful procedure or has failed to follow
prescribed procedure;
(6) the persons taking the agency action were improperly constituted as a
decision-making body or subject to disqualification;
(7) the agency action is based on a determination of fact, made or implied by the
agency, that is not supported to the appropriate standard of proof by evidence that is
substantial when viewed in light of the record as a whole, which includes the agency
record for judicial review, supplemented by any additional evidence received by the court
under this act; or
(8) the agency action is otherwise unreasonable, arbitrary or capricious."
When considering whether disputed agency actions were supported by evidence
that was substantial "in light of the record as a whole" as stated under K.S.A. 77-
621(c)(7), the phrase "'in light of the record as a whole'" means:
"[T]he adequacy of the evidence in the record before the court to support a
particular finding of fact shall be judged in light of all the relevant evidence in the record
cited by any party that detracts from such finding as well as all of the relevant evidence in
25
the record, compiled pursuant to K.S.A. 77-620 [the provision controlling agency
records], and amendments thereto, cited by any party that supports such finding,
including any determinations of veracity by the presiding officer who personally
observed the demeanor of the witness and the agency's explanation of why the relevant
evidence in the record supports its material findings of fact. In reviewing the evidence in
light of the record as a whole, the court shall not reweigh the evidence or engage in de
novo review." K.S.A. 77-621(d). (Emphasis added.)
And when considering whether disputed agency actions were "unreasonable, arbitrary or
capricious" as stated under K.S.A. 77-621(c)(8), the phrase "unreasonable, arbitrary or
capricious" concerns whether the agency action was justified. Kansas Dept. of Revenue v.
Powell, 290 Kan. 564, 569, 232 P.3d 856 (2010).
Thus, in this appeal, Joritz carries the burden of proving that the district court
wrongly denied her petition for judicial review because the University's disputed actions
during her second PTTR and agency-level appeal constituted impermissible agency
actions under K.S.A. 77-621(c) that caused actual harm during those proceedings.
a. Judicial Misconduct Arguments
For Joritz' judicial misconduct arguments, her main complaint on appeal is that the
district judge who considered her petition for review committed misconduct by "basing
its ruling on false, fabricated facts, distorted facts, misleading statements and material
misrepresentations" when it made certain fact-findings while denying her petition for
review. She then dissects the district judge's fact-findings, making approximately 18
arguments why the district judge falsified, misrepresented, or omitted certain facts from
his fact-findings when denying her petition for review. Overall, Joritz' judicial
misconduct complaints focus on her belief that the district judge ignored the evidence
that she presented proving that the University violated its PTTR procedures because he
was biased in favor of the University.
26
In making her judicial misconduct claim, Joritz merely alleges that the district
judge was biased in favor of the University without presenting any analysis of why the
district judge would be biased. Yet, what we expect from Joritz' argument are reasons for
believing the district judge committed judicial misconduct. Indeed, we expect
independent evidence for the claim made in her conclusion and in her premise. Joritz'
argument presupposes what she endeavors to prove, namely, that the district judge was
biased in favor of the University. This is what is being begged. Nevertheless, this is
something, of course, that Joritz should prove: that the district judge was biased in favor
of the University. Joritz' claim, however, is entirely unsupported in her brief. So Joritz'
argument assumes just what she needed to prove.
Appellants do not meet their burden of establishing error on appeal by making
conclusory contentions without any analysis, let alone evidence, to support their claims.
RAMA Operating Co. v. Barker, 47 Kan. App. 2d 1020, 1031, 286 P.3d 1138 (2012). It
follows that, by making conclusory contentions on appeal, appellants necessarily raise
their arguments incidentally in their briefs, which results in abandonment of their
arguments. 47 Kan. App. 2d 1020, Syl. ¶ 14. Plainly, because Joritz provides no analysis
or evidence why the district court was biased in favor of the University, Joritz' judicial
misconduct arguments are fatally flawed. Simply put, Joritz' misconduct claims against
the district judge, as well as most of her complaints against University officials involved
in her termination, are actually unsupported ad hominem attacks on their personal
character that do not address why the district court affirmed the University's termination
of her tenure track employment.
Notwithstanding the preceding, Joritz cannot establish that the district court
committed misconduct just because she disagrees with the district court's fact-findings
against her. For example, many of Joritz' judicial misconduct complaints involve her
belief that the district court somehow acted inappropriately by finding that her research
record contained deficits because, by her own admission, she would not complete her
27
Reiniger book until 2019 and her Film Feed project until 2017. In making these
misconduct complaints, Joritz tries to pick apart this finding (1) because she may have
completed those projects before her mandatory tenure review year and (2) because
completion of those projects was not a requirement of her second PTTR during the 2015-
2016 academic year. But Joritz' arguments misrepresent the district court's fact-findings
and the record on appeal.
Joritz never clearly explained when her mandatory tenure review year was in her
petition for judicial review. Instead, her petition implied that her mandatory tenure review
year would have been three years after her second PTTR during the 2015-2016 academic
school year, which would have been sometime during the 2018-2019 academic school
year. And her complaints either ignore or misrepresent the evidence that the district court
relied on in making the disputed fact-finding. The Dean's letter to Joritz following the
CCAPT's review of Joritz' initial PTTR by the FMS Department, explicitly told Joritz
that it was important for her to complete her ongoing research projects "in time for juried
exhibition and peer evaluation at least one year in advance of [Joritz'] mandatory tenure
review," that is, at least one year before 2019 at the latest. Yet, in her dossier for her
second PTTR during the 2015-2016 academic school year, Joritz explicitly stated that her
projected completion of her book on Reiniger was 2019 and her projected finish for the
movie Film Feed was 2017.
In short, a review of some of Joritz' judicial misconduct arguments supports that
Joritz has misrepresented the district judge's fact-findings, as well as the record before the
district judge, to support her misconduct arguments. Although Joritz may disagree with
the district court's fact-findings against her, her disagreement with those fact-findings or
the omission of other fact-findings does not mean that the district court engaged in
misconduct. Additionally, Joritz' failure to cite any authority supporting her allegation of
judicial misconduct—based on her disagreement with the district judge's fact-findings—
28
shows she has inadequately briefed her judicial misconduct argument. This failure is akin
to abandoning her argument. See Russell, 306 Kan. at 1089.
Most importantly, though, Joritz never argued that the district judge committed
misconduct below. Instead, as stressed by the University, she has raised this argument for
the first time on appeal.
Generally, we do not consider issues raised by appellants for the first time on
appeal. In re Adoption of Baby Girl G., 311 Kan. 798, 801, 466 P.3d 1207 (2020). This
includes when appellants have argued that the district judge engaged in judicial
misconduct for the first time on appeal. See State v. Jones, 273 Kan. 756, 787, 47 P.3d
783 (2002); Bohanon v. Werholtz, No. 104,490, 2011 WL 2135163, at *4 (Kan. App.
2011) (unpublished opinion). Also, although there are a few exceptions to this general
rule, our Supreme Court has held that appellants must invoke one of those exceptions
since Kansas Supreme Court Rule 6.02(a)(5) requires appellants to explain why an issue
not raised below should be considered for the first time on appeal. The court has further
warned that appellants who violate this rule risk a ruling that their arguments are
inadequately briefed and thus waived and abandoned. In re Adoption of Baby Girl G.,
311 Kan. 802-03.
In conclusion, although Joritz has spent the bulk of her appellant's brief arguing
that the district judge committed misconduct when denying her petition for judicial
review, Joritz has waived and abandoned all her judicial misconduct arguments by failing
to adequately brief those arguments.
b. Legal Error Arguments
As for Joritz' legal error arguments, throughout her appellant's brief, Joritz argues
that the district court made many legal errors when denying her petition for judicial
29
review. Even so, her chief legal arguments are as follows: (1) that the district court
wrongly relied on our Supreme Court's precedent in Harsay, (2) that the district court
wrongly limited its review to evidence that only supported the University's termination of
her tenure track employment, and (3) that the district court wrongly limited its review to
the Chancellor's decision to terminate her tenure track employment. A review of Joritz'
arguments as compared to the district court's memorandum decision denying her petition
shows that each of Joritz' legal error arguments are unfounded.
Joritz arguments about the district court's reliance on Harsay concerns the district
court's discussion of the applicable standard of review in its memorandum decision. She
asserts that the district court's reliance on Harsay was misplaced because she is appealing
from her termination following an unsuccessful PTTR while Harsay was appealing from
her termination following an unsuccessful final tenure review. She also takes issue with
the district court's finding that if there was a distinction between her case and Harsay, the
distinction was that "'tenure [was] a decision that justifies greater court scrutiny than the
tenure track decision simply because the tenure candidate has invested more time and
effort in the ultimate decision under review.'" Of note, in making this argument, Joritz
further argues that the district court's misapplication of our Supreme Court's precedent in
Harsay violated her due process rights under the Fifth and Fourteenth Amendments to the
United States Constitution.
In its entirety, the district court's standard of review discussion within its
memorandum decision stated:
"The decision under review is one that involves a great deal of particular
experience and judgment by persons familiar with the caliber and nature of the skills,
expertise and qualities required of a University of Kansas Professor. It is the product of
input from numerous colleagues, review committees and, ultimately, the Chancellor. In
that way, it is distinct from fact determinations of the kind involved in inherently more
objective decisions such as disability determinations, Herrera-Gallegos v. H&H Delivery
30
Service[], Inc., 42 Kan. App. 2d 360[, 212 P.3d 239] (2009)[,] or a Board of Tax Appeals
[decision] considering classification or valuation of land, In re Protests of Oakhill Land
Co., 46 Kan. App. 2d 1105[, 269 P.3d 876] (2012).
"For that reason, the standard of 'substantial competent evidence' that must exist
to support a decision such as that under consideration here is most appropriately stated in
Harsay . . . . The decision of whether to grant tenure, or whether to continue someone on
the track towards tenure, are both very much matters of 'business judgment' that a court
should not disturb by substituting its judgment for that of the [U]niversity.
"Professor Joritz disputes the application of this conclusion from Harsay to her
case because the issue is not tenure but the continued path towards tenure. One could say
this is a distinction without a difference. Yet, one difference that arguably exists would be
this: [T]enure is a decision that justifies greater court scrutiny than the tenure track
decision simply because the tenure candidate has invested more time and effort in the
ultimate decision under review.
"The Court is unpersuaded that a distinction exists. And, in any event, [the
University] need only show that there is substantial competent evidence to support its
decision. This determination by the court must be based in light of the record as a whole.
That Professor Joritz can make a strong case for a different conclusion does nothing to
affect the outcome given the deference this Court must extend if that substantial evidence
burden is met."
Although Joritz argues that the district court's reliance on Harsay was misplaced
since she and Harsay were terminated at different times during their tenure track
employment, the district court correctly found that Joritz' complaint involved a
distinction without a difference. As explained when outlining our scope of review, parties
seeking judicial review of an agency action must sue under the KJRA, and K.S.A. 77-621
defines the scope of review for all courts reviewing agency actions. It therefore follows
that the same standard of review that applied in Harsay's lawsuit against the University
applies in Joritz' lawsuit against the University. And, indeed, the Harsay court considered
Harsay's specific complaints under K.S.A. 77-621(c)'s limited scope of review. 308 Kan.
at 1382-85. On top of this, the district court's standard of review discussion was
consistent with our Supreme Court's Harsay decision, which held: (1) that the substantial
31
competent evidence burden of proof was "essentially equivalent" to evidence that is
substantial in light of the record as a whole as meant under K.S.A. 77-621(c)(7) and (2)
that University tenure decisions are based partly on the University's subjective "business
judgment." 308 Kan. at 1382-83. And the district court, like us, was duty-bound to follow
our Supreme Court's precedent. Farmers Bank & Trust v. Homestead Community
Development, 58 Kan. App. 2d 877, 897, 476 P.3d 1 (2020) (holding that lower courts are
duty-bound to follow our Supreme Court's precedent absent some indication that our
Supreme Court is moving away from such precedent).
Besides, Joritz' entire argument about the district court's reliance on Harsay
ignores that the district court also ruled that substantial evidence supported the
University's termination of Joritz' tenure track employment regardless of the Harsay
precedent. It explained that even disregarding the Harsay precedent, Joritz was not
entitled to the relief she requested because substantial evidence in light of the record as a
whole supported the University's termination of her tenure track employment. Thus,
Joritz' specific complaints about the district court's reliance on Harsay are rendered
irrelevant by her failure to address the district court's alternative ruling about substantial
evidence supporting the University's termination of her tenure track employment. See In
re Marriage of Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018) (holding that issues
not briefed by appellants are deemed waived and abandoned).
Next, Joritz' argument that the district court wrongly limited its review to evidence
that only supported the University's termination of her tenure track employment is
similarly unpersuasive. Although her argument is not entirely clear, Joritz seemingly
contends that the district court's comparison of the substantial evidence standard to a
business judgment proves that it wrongly limited its review of the record to only evidence
that supported the University. But as just noted, the Harsay court held that University
tenure decisions are based partly on the University's subjective "business judgment." 308
Kan. at 1383. Also, nothing within the district court's memorandum decision supports
32
that it refused to consider evidence supporting Joritz' KJRA claims. On top of this, it
appears that Joritz has merely misunderstood the district court's discussion about
reviewing agency actions for substantial evidence in light of the record as a whole. In its
standard of review discussion, the district court never implied that it would review the
evidence only supporting the University's termination of her tenure track employment.
Instead, consistent with K.S.A. 77-621(d)'s rule barring courts from "reweigh[ing] the
evidence or engag[ing] in de novo review" when considering whether substantial
evidence in light of the whole supported the agency's disputed action, it explained it
would not "substitut[e] its judgment for that of the University['s]" during its review.
Likewise, Joritz has also misunderstood the district court in arguing that the
district court wrongly limited its review to the Chancellor's decision to terminate her
tenure track employment with the University. She challenges the district court's ruling
that "[t]o whatever degree any review board or committee did not conform with
[University] policy" during her second PTTR and ensuing agency-level appeal, "none of
those bodies were the decision-makers so as to support a violation of K.S.A. 77-
621(c)(6)." She seemingly contends that because the FMS Chair, the Dean, the Provost,
the IRC, the CCAPT, and the FRB all acted on behalf of the University, the University
violated K.S.A. 77-621(c)(6)'s rule barring persons without authority from taking agency
action.
Yet, when it pointed out that any review board or committee was not the decision
maker to support a violation of K.S.A. 77-621(c)(6), the district court was simply
explaining that any error that occurred during Joritz' second PTTR or earlier stage of
Joritz' agency-level appeal was harmless because it was the Chancellor who took the final
agency action on the University's behalf. Then, immediately after the district court made
the disputed ruling, it rejected Joritz' argument about substantial evidence in light of the
record as a whole not supporting the University's termination of her tenure track
employment since the record showed two things: (1) that the Chancellor recognized the
33
potential impact of the FMS Chair's inaccurate statements when engaging in her
independent review and (2) that Joritz' research record was inadequate.
As a result, despite Joritz' arguments otherwise, nothing supports that the district
court made multiple legal errors when denying her petition for judicial review.
c. Factual Error Argument
In Joritz' factual error argument, Joritz takes issue with evidence that the district
court purportedly ignored when denying her petition for judicial review. According to
Joritz, the Chancellor's decision to terminate her tenure track employment with the
University could not have been supported by substantial evidence in light of the record as
a whole as required under K.S.A. 77-621(c)(7) because the FMS Chair's factually
inaccurate statements prejudiced her second PTTR process and her agency-level appeal.
But there are a couple of problems with Joritz' argument.
As just noted, in denying Joritz' petition for judicial review, the district court
implicitly ruled that any error occurring during Joritz' second PTTR and agency-level
appeal was harmless because the Chancellor—the final agency actor on the University's
behalf—explicitly recognized the potential impact of the FMS Chair's inaccurate
statements when terminating Joritz' tenure track employment. Stated another way, the
district court effectively determined that the FMS Chair's factually inaccurate statements
did not prejudice Joritz because the Chancellor had adequately considered the impact of
the FMS Chair's disputed statements during her independent review.
Yet, in her appellant's brief, Joritz never addresses the actual reason why the
district court affirmed the University's termination of her tenure track employment.
Instead, she has created and then knocked down her own strawman argument that hinges
on asserting that the district court ignored critical evidence, without proving that the
34
evidence was, in fact, ignored. As a result, Joritz has abandoned her ability to argue that
the district court wrongly ruled that substantial evidence in light of the record as a whole
supported the University's decision to terminate her tenure track employment. See In re
Marriage of Williams, 307 Kan. at 977 (holding that issues not briefed by appellants are
deemed waived and abandoned).
Also, even if Joritz had not abandoned this argument, the district court's ruling was
consistent with the applicable law and record before it. Again, under K.S.A. 77-621(e),
all courts reviewing the validity of agency actions under the KJRA must take "due
account . . . of the rule of harmless error." Additionally, in the Interim Provost's letter to
Joritz outlining the Chancellor's reason for terminating her tenure track employment with
the University, the Interim Provost explained that "even excluding consideration of the
information in the [FMS] Chair's letter, the Chancellor determined that your research
record demonstrated insufficient progress toward tenure, warranting non-reappointment."
So Joritz' factual error argument is unpersuasive for two reasons: (1) because she
has abandoned it by failing to address the district court's harmless error argument and (2)
because the record definitively establishes that the Chancellor did not ignore the potential
impact of the FMS Chair's factually inaccurate statements during her second PTTR and
agency-level appeal.

Outcome: For these reasons, we affirm the district court's denial of Joritz' petition for judicial review.

Affirmed

Plaintiff's Experts:

Defendant's Experts:

Comments: