Miracle v. Hush

Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS November 9, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ AMANDA MIRACLE; CHRISTOPHER LOVETT; MICHAEL BEHRENS; ROB CATLETT; CHARLES EMMER; BRENDA KOERNER; SHERYL LIDZY; MICHAEL MORALES; LYNNETTE SIEVERT, Plaintiffs - Appellees, and DAN COLSON; MAX MCCOY, Plaintiffs, v. No. 25-3032 KEN HUSH, President; BRENT THOMAS, Provost and Vice President of Academic Affairs; KEVIN JOHNSON, General Counsel; STEVEN LOVETT; JULENE MILLER; BILL FEUERBORN; CHERYL HARRISON-LEE; SHANE BANGERTER; ANN BRANDAU; MARK HUTTON; SHELLAINE KIBLINGER; JON ROLPH; ALLEN SCHMIDT; HELEN VAN ETTEN; CARL ICE; CYNTHIA LANE; BLAKE BENSON; DIANE MENDOZA; WINT WINTER; JOHN DICUS, Defendants - Appellants.  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 2 _________________________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 5:23-CV-04056-JAR-GEB) _________________________________ Dwight R. Carswell, Deputy Solicitor General (Kris W. Kobach, Kansas Attorney General, and Matthew L. Shoger, Assistant Attorney General, with him on the briefs), Office of the Attorney General, Topeka, Kansas, for Defendants-Appellants. J. Phillip Gragson (Amanda S. Vogelsberg, John H. Hutton, and Kara Eisenhut, with him on the brief), Henson, Hutton, Mudrick, Gragson & Vogelsberg, LLP, Topeka, Kansas, for Plaintiffs-Appellees. _________________________________ Before MATHESON, EBEL, and EID, Circuit Judges. _________________________________ EBEL, Circuit Judge. _________________________________ In this interlocutory appeal, we examine whether qualified immunity extends to personnel at Emporia State University (“ESU”) and members of the Kansas Board of Regents (“KBOR”) regarding the termination of several tenured professors pursuant to a suspension of tenure protections. The Plaintiffs, a group of nine professors, 1 brought a variety of constitutional claims under 42 U.S.C. § 1983, including violations without due process of their protected property interest in continued employment, their liberty interest in their reputation absent due process, 1 Eleven professors sued Defendants in the district court. Since, two of those professors agreed with Defendants to stipulate that the appeal would be dismissed with prejudice as to them. See ECF No. 25, Stipulation to Dismiss Plaintiffs- Appellees Colson and McCoy (July 25, 2025). Therefore, nine professors remain as Plaintiffs. 2  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 3 their right to freedom of association, and their right to equal protection, stemming from the claim that they were fired because of their political beliefs and activities. Defendants, administrative members of the university that terminated Plaintiffs and members of KBOR—which is responsible for supervising public universities throughout the state—moved to dismiss all claims against them as barred by qualified immunity. The District Court for the District of Kansas denied the motion to dismiss for most claims because it found that Defendants were not entitled to qualified immunity. Defendants appealed to our court. We affirm in part and reverse in part. I. JURISDICTION First, we briefly address Plaintiffs’ argument that we do not have jurisdiction to consider Defendants’ qualified immunity claim at this time. Despite Plaintiffs’ assertion that overcoming qualified immunity is central to their claims, and thus is not an immediately appealable collateral order, it is well-established that interlocutory appeals are appropriate to determine whether such claims could be dismissed on qualified immunity grounds. See, e.g., Ellis v. Salt Lake City Corp., 147 F.4th 1206 (10th Cir. 2025). One of the primary justifications for allowing an interlocutory appeal of a decision denying qualified immunity is that government actors are entitled “not to be forced to litigate the consequences of official conduct.” See Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). To preserve this entitlement, courts will review a denial of qualified immunity, to the extent it turns on questions of law, prior to the claims proceeding to an otherwise final disposition. Therefore, 3  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 4 we have jurisdiction to review the “final” order denying qualified immunity. Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009). II. BACKGROUND A key to our opinion is that this case comes to us at the motion-to-dismiss stage. A defendant asserting qualified immunity at the motion-to-dismiss stage faces a more challenging standard of review than when that defense is asserted at summary judgment. Luethje v. Kyle, 131 F.4th 1179, 1187 (10th Cir. 2025). “This is because the court analyzes only ‘the defendant’s conduct as alleged in the complaint’” Id. (quoting Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014)); see Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004) (stating that in defendant’s appeal from partially denied motion to dismiss for qualified immunity “we adopt the facts as stated in the complaint”). Similarly, at the motion to dismiss stage, we view the facts and make all inferences in the light most favorable to the non-movant. Frey v. Town of Jackson, 41 F.4th 1223, 1232 (10th Cir. 2022). Plaintiffs were all tenured professors at ESU, a public university in Kansas, as of January 2021. Defendant Hush was the interim President of ESU, Defendant Thomas was at times Provost and Vice President of Academic Affairs and Dean of the College of Liberal Arts and Sciences, and Defendants Lovett and Johnson were associate general counsel and general counsel, respectively, for ESU. At the time, ESU policy stated that tenured faculty could only be fired for cause, or if their program was discontinued, or in the event of financial exigency. To terminate for cause, ESU would organize a faculty committee to assess the cause for dismissal. 4  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 5 The Kansas Board of Regents (“KBOR”) is a state body that supervises postsecondary education institutions in the state of Kansas, and it is made up of members appointed by the governor. The remaining non-ESU Defendants are members of KBOR. KBOR has its own policy on terminations—known as the Workforce Management Plan (“WMP”). Similar to ESU’s policy, the WMP stated that tenured faculty could be terminated only for adequate cause, “except in the case of program or unit discontinuance or under extraordinary circumstances because of financial exigency.” (I Aplt. App. 35 ¶ 47.) However, in a meeting on January 20, 2021, KBOR voted to temporarily amend its WMP. The temporary amendment, citing the financial pressures caused by COVID-19, stated that “notwithstanding any other Board or institutional policy, any state university employee, including a tenured faculty member, may be suspended, dismissed, or terminated from employment by their respective university.” (Id. at 146 (emphasis omitted).) The amended WMP also said that universities need not demonstrate nor declare financial exigency before terminating any employee, “and no existing university policy hearing procedures shall apply to such decisions.” (Id.) Before acting on this new policy, however, the amended WMP provided that universities had to submit to KBOR a plan for how they would carry out this process. Originally, universities had forty-five days to get KBOR’s approval for a framework to terminate employees under the amended WMP. Shortly thereafter, KBOR voted to extend this window to July 1, 2021. Though neither the district court nor the parties discussed how many Kansas state universities presented a framework for approval, it 5  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 6 appears that none submitted frameworks in the forty-five-day window and only one university (not ESU) is shown to have considered submitting a framework following this initial extension. There is nothing in the second amended complaint (“SAC”) reflecting whether this other university did or did not submit a framework for approval. 2 Sixteen months after the WMP amendment, in May 2022, KBOR reopened the window and removed the application deadline entirely, though the expiration date of the tenure suspension amendment remained December 31, 2022. On September 14 and 15, 2022, Hush and Thomas presented a framework to KBOR for ESU to implement, which had been drafted jointly by the ESU Defendants, suggesting that 7% of ESU faculty could be impacted. KBOR approved ESU’s Framework on September 15. The same day, ESU terminated all nine Plaintiffs, to be effective on May 16, 2023. The termination letters Plaintiffs received from interim President Hush, allegedly drafted along with university counsel Lovett and Johnson, did not state precise or tailored reasons for the terminations. Rather, the letters generally stated that Plaintiffs were being terminated “due to extreme financial pressures accelerated by COVID-19 pandemic, decreased program and university enrollment, continuing and ongoing increases in the cost of operations across campus, and substantive changes in the educational marketplace.” (Id. at 46 ¶ 75.) Then, similar to the approved ESU Framework, the letters listed a series of general, non-specific and non- 2 The Second Amended Complaint is the operative pleading document in this case. 6  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 7 exclusive bases for termination, including: low enrollment, cost of operations, reduction in revenues for specific departments, current or future market considerations, necessary restructuring, realignment of resources, performance evaluations, teaching and research productivity, and low service productivity. The SAC alleged that ESU was not facing any financial exigency. In presenting the ESU Framework to KBOR, it was alleged that President Hush acknowledged this fact explicitly. ESU was alleged to be experiencing increased enrollment, was fully funded, had seen a decrease in operating costs, and had recently reported significant profits and increased enrollment from some of the departments in which the terminated professors taught—all as revealed during a presentation by ESU to KBOR entitled “Review Low Enrollment Programs Under Strategic Program Alignment.” (SAC Ex. 6 (KBOR Meeting Agenda, Mar. 17-18, 2021).) 3 In this same presentation, the SAC alleges that some Plaintiffs received individual commendations for their performance, and ESU recommended continuing to fund their programs—a recommendation that KBOR ratified. 4 3 Documents attached to pleadings are “part of the pleading for all purposes,” and thus may be considered on a motion to dismiss. Fed. R. Civ. P. 10(c). 4 “Plaintiffs allege in the SAC that ESU did not qualify for that financial exigency provision [amended by KBOR] because ESU was fully funded during the academic year for which Plaintiffs received termination notices. They allege that overall enrollment had in fact increased, operating revenues had increased, and operating expenditures had gone down.” (Dist. Ct. Mem. & Order 29 (footnote omitted).) Additionally, Exhibit 6 to the SAC, a KBOR Meeting Agenda, stated that the History Program in which some of the Plaintiffs taught brought in a net revenue of $593,000, was efficiently run, was awarded a “With Excellence” designation by the university’s Office of Institutional Effectiveness, and had “highly productive” faculty members. (SAC Ex. 6 (KBOR Meeting Agenda, Mar. 17-18, 2021).) 7  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 8 Plaintiffs allege that they were instead terminated because of their political beliefs and activities. These activities included speaking in favor of unionization, collecting signatures for unionization, attending meetings to discuss the amended WMP prior to their terminations, and holding liberal political beliefs. The KBOR amended WMP and ESU’s approved framework each provided a mechanism for professors to appeal a termination in a hearing before the Office of Administrative Hearings (“OAH”). All nine Plaintiffs exercised this option to appeal. The appeal process involved individual hearings in which Defendants Hush, Lovett, and Johnson defended the university’s decision to terminate each professor, though allegedly without stating the precise reason for termination. The ESU Framework, as well as the amended WMP, required the university chief executive officer to provide “any supporting evidence or documentation” in response to a professor’s notice of appeal. (SAC Ex. 3 at 15 (KBOR Meeting Minutes Jan. 20, 2021); SAC Ex. 10 at 20 (KBOR Meeting Minutes May 18–19, 2022); SAC Ex. 11 at 9 (KBOR Meeting Minutes Sept. 14–15, 2022).) ESU allegedly did not provide any evidence to justify the terminations. Plaintiffs were entitled to submit a pre-hearing brief and could present arguments, but they could not conduct discovery, call witnesses, cross-examine the university witnesses, nor present further evidence. The OAH reversed the termination decisions of six Plaintiffs and affirmed the termination Specifically, it recognized that Plaintiff Chris Lovett won the 2019 Edgar Langsdorf Award for Excellence from the Kansas State Historical Society and Plaintiff Amanda Miracle won the Schillinger award for service to ESU women in 2017. Some other programs that Plaintiffs worked in were also listed as profitable. 8  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 9 decisions of three Plaintiffs. 5 ESU then filed state court petitions for review of the six reversals. While those claims remain pending, ESU placed those six Plaintiffs on paid leave, restricting their access to university locations and resources needed to maintain tenure. Plaintiffs sued Defendants under § 1983 for eliminating their protected property interest in continued employment without complying with procedural or substantive due process, their liberty interest in their reputation without due process, their right to freedom of association, their right to equal protection, and for engaging in a conspiracy to contravene these rights. Defendants respond that they have qualified immunity that bars relief on all claims. Therefore, Defendants moved to dismiss under Federal Rule of Civil Procedure Rule 12(b)(6) for failure to state a claim upon which relief can be granted. 6 To overcome Defendants’ qualified immunity defense, Plaintiffs are required to allege a violation of a constitutional right that was clearly established. See Est. of Deweese v. Hancock, 186 F.4th 1276, 1280‒81 (10th Cir. 2026). The district court 5 Specifically, the OAH reversed the terminations of Plaintiffs Behrens, Catlett, Emmer, Miracle, Morales, and Sievert, while affirming the terminations of Plaintiffs Koerner, Lidzy, and Lovett. Of the two Plaintiffs that have since settled, one had their termination reversed and the other had their termination affirmed. 6 Defendants’ motion to dismiss in the lower court also cited Rule 12(b)(1), lack of subject matter jurisdiction, as a basis for dismissal. Defendants argued that, by failing to demonstrate their injuries were caused by Defendants’ conduct, Plaintiffs did not satisfy the requirements of standing. The district court rejected this argument, and Defendants did not challenge this rejection in their Motion to Reconsider to the district court, nor did they raise any standing arguments in their appellate briefs, focusing instead on Rule 12(b)(6) and their qualified immunity defense. Therefore, we will do the same. 9  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 10 denied the motion to dismiss the property interest claims because it found that Plaintiffs had sufficiently alleged a protected property interest that confers constitutional due process protections. The district court also denied Defendants’ motion to dismiss the equal protection, freedom of association, and accompanying conspiracy claims. The district court granted the motion to dismiss the liberty interest claims against the KBOR Defendants and Thomas because Plaintiffs had not alleged any statements attributed to them, but denied the motion to dismiss for Hush, Lovett, and Johnson because they allegedly drafted the termination letters at issue. We conclude that Plaintiffs’ SAC sufficiently alleges they had a property interest under state law, which entitled them to due process protections. Likewise, the lack of procedural process provided to Plaintiffs prior to the adoption of the ESU Framework and the lack of substantive justification for the subsequent terminations are sufficient plausibly to allege clearly established violations of procedural due process at the motion-to-dismiss stage. Accordingly, we affirm the district court’s decision to allow Plaintiffs’ procedural due process claim, including the civil conspiracy to deprive Plaintiffs of their property interest to the extent it is based on the deprivation of procedural due process, to go forward. We conclude, however, that Plaintiffs failed to allege a clearly established deprivation of substantive due process. We, therefore, reverse the denial of Defendants’ motion to dismiss on that claim, as well as on Count III’s civil conspiracy claim to the extent it is based on an alleged substantive due process violation. 10  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 11 As to the remaining constitutional claims (the liberty interest, freedom of association, equal protection, and other overarching conspiracy claims), there is insufficient support in the SAC’s factual allegations for these claims against the KBOR Defendants, and Defendants Thomas, Lovett, and Johnson. Therefore, we reverse the district court’s decision not to dismiss and instruct the district court on remand to dismiss the remaining constitutional claims against these Defendants. Because Defendants do not challenge the district court’s decision to deny the motion to dismiss these claims as to Defendant Hush, we will not question the district court’s determination as to that decision. III. ANALYSIS On appeal, Defendants initially argue that Plaintiffs’ property interest claims should be dismissed because they did not have a tenured property interest in continued employment or, alternatively, that any property interest they did have had been validly terminated. Defendants then argue that any remaining constitutional claims should be dismissed against all Defendants other than Hush because Plaintiffs have not alleged sufficient facts to support the claims. We will address each in turn. A. Property Interest Claims We begin by analyzing Plaintiffs’ claims that Defendants deprived them of a property interest without due process. We conclude both that Plaintiffs sufficiently alleged a legitimate tenured property interest in continued employment created under state law, and that they sufficiently alleged that Defendants did not afford adequate procedural due process to the Plaintiffs when violating this property interest. 11  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 12 Therefore, we affirm the district court’s decision to deny Defendants’ motion to dismiss on Plaintiffs’ procedural due process claims, including the conspiracy to deprive them of their property interest in violation of procedural due process. We conclude, however, that Plaintiffs failed to allege a clearly established violation of substantive due process and, therefore, reverse the district court’s decision to deny Defendants’ motion to dismiss on that claim, as well as the civil conspiracy claim to the extent it is based on a substantive due process violation. i. Plaintiffs sufficiently allege that they had a property interest in continued employment created under state law Plaintiffs had all received tenure from ESU prior to the WMP amendment. Plaintiffs allege that this gave them a legitimate property interest in their continued employment as tenured faculty members that is protected under the Due Process Clause. We agree. “Property interests are not created by the Constitution, ‘they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). To determine whether Plaintiffs had a property interest, then, we look for a state law basis to create that interest. “State law sources for property interests can include statutes, municipal charters or ordinances, and express or implied contracts.” Schulz v. City of Longmont, 465 F.3d 433, 444 (10th Cir. 2006) (quoting Kingsford v. Salt Lake City Sch. Dist., 247 F.3d 1123, 1128 (10th Cir. 2001)). 12  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 13 Pursuant to both ESU policy and KBOR’s WMP pre-2021, tenured faculty could only be fired for cause, for program discontinuance, or for financial exigency. Therefore, Plaintiffs had a state-law basis for their conditional property interest in continued employment that cannot be deprived without due process, see, e.g., Kosik v. Cloud Cnty. Cmty. Coll., 827 P.2d 59, 63 (Kan. 1992); Brenna v. S. Colo. State Coll., 589 F.2d 475, 476 (10th Cir. 1978), unless there was either cause to terminate, their program was discontinued, or there was a financial exigency. Defendants argue that public employees only have a legitimate expectation of continued employment if they can only be fired “for cause.” Therefore, Defendants assert that because the preexisting KBOR and ESU policies stated that tenured professors could be fired for reasons other than cause—specifically, program discontinuance or financial exigency—Plaintiffs have no legitimate expectation in continued employment, and thus they have no property interest in continued employment. This position is in error. Time and again, we have recognized that government employees had a legitimate expectation of continued employment in analogous circumstances. For example, in West v. Grand County, we considered the termination of a legal secretary to the county attorney whose contract provided that she “could not be terminated except for cause, curtailment of work, or lack of funds.” 967 F.2d 362, 364 (10th Cir. 1992). We recognized that precedent “made it clear that when a person’s employment can be terminated only for specified reasons, his or her expectation of continued employment is sufficient to invoke the protections of the Fourteenth 13  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 14 Amendment.” Id. at 366 (citing, among other cases, Goudeau v. Indep. Sch. Dist. No. 37, 823 F.2d 1429, 1431–32 (10th Cir. 1987) (finding property right in expectation of continued employment when individual could only be terminated for specified reasons “including a lack of work or funds”)). The fact that these specified reasons reached beyond “cause” is of no moment for the issue of establishing a property right. The Fourth Circuit has stated, in relation to a tenured teacher’s property interest, that “[t]he national academic community’s understanding of the concept of tenure incorporates the notion that a college may refuse to renew a tenured teacher’s contract because of financial exigency so long as its action is demonstrably bona fide.” Krotkoff v. Goucher Coll., 585 F.2d 675, 678 (4th Cir. 1978). This, the Fourth Circuit said, is the “most widely-accepted academic definition of tenure.” Id. at 679 (quoting Ronald C. Brown, Tenure Rights in Contractual and Constitutional Context, 6 J. of Law and Educ. 279, 280 (1977)). The Fourth Circuit concluded that, not only does the exception to tenure for financial exigency fall short of eliminating professors’ property interest, this exception is essentially taken as granted in the definition of tenure. Indeed, Defendants themselves allegedly posited as much both during KBOR’s discussion of the new policy and in ESU’s briefs to the OAH, stating “tenure does not mean that a job is guaranteed regardless of financial circumstances.” (SAC Ex. 3 at 13 (KBOR Meeting Minutes Jan. 20, 2021); SAC Ex. 7. at 3 (ESU response to Administrative Appeal).) The existence of enumerated circumstances 14  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 15 under which tenured professors can be terminated does not destroy the tenured professors’ expectation in continued employment absent those circumstances. To be sure, other enumerated reasons for termination affect the Plaintiffs’ expectation. In the situation of a bona fide financial exigency or discontinuance of a program, Plaintiffs here would no longer have a property interest in continued employment. See Krotkoff, 585 F.2d at 680. But this does not totally eliminate their property interest; it just shapes its contours. Given the alleged lack of financial exigency, or program discontinuance, or other enumerated cause for termination, Plaintiffs sufficiently allege a legitimate expectation of their continued employment. ii. Procedural due process We now address Plaintiffs’ claim that Defendants violated their procedural due process rights. We begin by discussing the applicable clearly established law setting out the process required and relevant exceptions. Then, we proceed to discuss the process provided and whether it satisfied due process. We conclude Plaintiffs adequately pled that Defendants violated their procedural due process rights when KBOR approved the ESU Framework as a predicate to the terminations, thereby weakening Plaintiffs’ tenure rights, and Plaintiffs’ cause of action ripened when the Plaintiffs were then terminated by ESU. a. Deprivation of a property interest in continued public employment without notice or hearing is a clearly established violation of constitutional rights, with some exceptions Unlike the creation of their property interest, which we examine under state law, deprivation of that interest without due process is a question of federal 15  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 16 constitutional law. The right to due process “is conferred, not by legislative grace, but by constitutional guarantee.” Loudermill, 470 U.S. at 541 (quoting Arnett v. Kennedy, 413 U.S. 134, 167 (1974) (Powell, J., concurring)). “While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.” Id. (alteration in original) (quoting Arnett, 413 U.S. at 167 (Powell, J., concurring)). “In short, once it is determined that the Due Process Clause applies, ‘the question remains what process is due.’” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The answer to that question is found in federal law. See id. Typically, as “has been settled for some time now,” id. at 542 (citing Davis v. Scherer, 468 U.S. 183, 192 n.10 (1984)), one “essential principle of due process is that a deprivation of . . . property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’” Id. (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950)). A pretermination hearing “need not be elaborate” if it is followed by a separate and adequate post-termination hearing. Id. at 545. But at some point, the terminated employee must be afforded an evidentiary hearing in a “meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965); see Powell v. Mikulecky, 891 F.2d 1454, 1460 n.4 (10th Cir. 1989). We have previously found hearings adequate when the terminated employee was represented by counsel, could present evidence, and could call witnesses on their behalf. E.g., West, 967 F.2d at 369; see also Morrissey, 16  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 17 408 U.S. at 488–89 (listing ability to present witnesses as one of “minimum requirements of due process”). Additionally, “[w]hile not necessary in every case, ‘procedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood.’” Walker v. United States, 744 F.2d 67, 70 (10th Cir. 1984) (footnote omitted) (quoting Willner v. Comm. on Character & Fitness, 373 U.S. 96, 103 (1963)). 7 Finally, “[t]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Loudermill, 470 U.S. at 546 (citations omitted). There are, however, some exceptions to these procedural requirements that are relevant here: specifically, for legislative acts that strip rights and for large scale reductions in force due to bona fide financial concerns. While the Supreme Court has “described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest,’” Loudermill, 470 U.S. at 542 (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)), courts have long recognized that legislative acts may deprive individuals of their property interests without any specific opportunity for a hearing beyond that inherent in a legislative context. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915). 7 “[W]hether the Due Process Clause requires that the terminated employee be offered the right to cross-examine or confront witnesses depends upon the significance and nature of the factual disputes at issue.” West, 967 F.2d at 369. 17  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 18 In Bi-Metallic, the Supreme Court stated that citizens, even those particularly injured by a new law, are not entitled to the notice and hearing typical of due process when the alleged violation comes in the form of legislation. Id. at 444–45. And it did not matter that the generally applicable law in Bi-Metallic was an increase in property tax for all Denver residents and was passed by the Colorado Tax Commission and the State Board of Equalization rather than the state legislature. Id. at 445 (“If the result in this case had been reached, as it might have been by the state’s doubling the rate of taxation, no one would suggest that the 14th Amendment was violated unless every person affected had been allowed an opportunity to raise his voice against it before the body intrusted [sic] by the state Constitution with the power.”). It was the action itself that was legislative. See id. at 446 (distinguishing from Londoner v. City and Cnty. of Denver, 210 U.S. 373 (1908), when hearing was required because a “relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds”). The Court said that notice and a hearing are not required for the adoption of such a generally applicable law for two reasons: 1) it would be too burdensome to allow a hearing for every potentially affected person from a legislative act, and 2) those that oppose the law can pursue change by voting out the legislators. Bi- Metallic, 239 U.S. at 445 (stating that the affected parties’ “rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule”). Therefore, the legislative process intrinsically “provides constitutionally adequate process simply by enacting the statute, publishing 18  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 19 it, and . . . affording those within the statute’s reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those requirements.” United States v. Locke, 471 U.S. 84, 108 (1985). Second, a pretermination hearing may not be required when terminations of “a large number of employees” are “the result of a bona fide reduction in force.” West, 967 F.2d at 367 (collecting out-of-circuit cases). But if it appears that the reduction in force is actually a “subterfuge” and the employees assert that “the reduction in force was a sham aimed particularly at” them, a pretermination hearing is an important check on public employers circumventing constitutional requirements. Id. at 368–69. b. Process provided At the outset, we consider that there are two potential points at which Plaintiffs’ property interest may have been deprived. The first is when KBOR amended the WMP. However, we find that Plaintiffs’ property interest was intact following the legislative amendment of the WMP. This law merely authorized ESU and other educational institutions to take steps to modify its contractual rights with its professors. It did not by itself accomplish such a modification. The second is the two-step process by which Plaintiffs’ employment contracts were modified by ESU: when ESU obtained approval of its Framework as a predicate to its intended firing of the Plaintiffs, and then the ultimate firing of the Plaintiffs together resulted in the contravention of their property right. We thus consider the two steps in tandem as a unified execution process by which ESU wrongfully fired 19  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 20 the tenured professors. Plaintiffs plausibly state a claim that neither of these two steps provided due process. Therefore, we affirm the district court’s denial of Defendants’ motion to dismiss these claims. 1. The WMP Amendment by KBOR did not by itself deprive Plaintiffs of their property interest We first consider the procedural due process provided by KBOR in amending the WMP prior to terminating Plaintiffs’ contracts. KBOR amended its WMP on January 20, 2021. The presentation of and vote on this amendment were not preceded by any public notice nor hearings, and public comment was not permitted at the meeting. The amended WMP also was not formally published. Defendants argue this was a legislative act, for which less due process is required, as opposed to an administrative or adjudicative act. A recent Kansas Supreme Court decision applied this reasoning to permit the revocation of tenure protections from all K-12 teachers in Kansas via an act of the state legislature. Scribner v. Bd. of Educ. of U.S.D. No. 492, 419 P.3d 1149 (Kan. 2018). Defendants urge us to do the same here. Since Bi-Metallic, courts have considered more granular criteria to inform Bi- Metallic’s two-part inquiry into the feasibility of providing notice and hearings and the likelihood that affected individuals can take political action in response. See, e.g., Onyx Props. LLC v. Bd. of Cnty. Comm’rs, 838 F.3d 1039, 1046 (10th Cir. 2016). One consideration in drawing the line between legislative and executive actions, what Defendants refer to as the “key question,” Aplt. Br. 23, is how many 20  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/2026 Page: 21 people are affected by the government action. Onyx, 838 F.3d at 1046. The more people that are affected, the more burdensome it is to hold individual hearings and the more likely it is that the collective group of affected people could vote the relevant government actors out of office if they are displeased—suggesting it was a legislative act. Id. (citing Ind. Land Co. v. City of Greenwood, 378 F.3d 705, 710 (7th Cir. 2004); Kaahumanu v. Cnty. of Maui, 315 F.3d 1215, 1220–21 (9th Cir. 2003)). Another consideration is whether the decision-making body was elected or appointed, id., as this also impacts the ability of affected individuals to vote the relevant government actors out. An elected body tilts the conclusion toward considering an act legislative. Finally, courts have also considered whether the policy itself is a general policy formulation, again suggesting a legislative act, as opposed to a grant of a variance or specific application of a previously formulated policy. In other words, courts ask whether the impetus for the policy was “generalizations concerning a policy or state of affairs” or “adjudicative facts that ‘relate with greater specificity to individuals or particular situations.’” Id. (quoting Developments in the Law—Zoning, 91 HARV. L. REV. 1427, 1509 (1978)). Here, the adoption of the amended WMP related to only tenured employees of public universities in Kansas. They comprise a small portion of the general public, but it could be said that providing individualized hearings to all affected faculty members would be infeasible. Further, here the amended WMP pronounced a general policy for all public Kansas universities in response to the financial state of affairs brought on by the COVID-19 pandemic. On the other hand, the strongest 21  Appellate Case: 25-3032 Document: 34-1 Date Filed: 11/09/202