Iowa Cases March 27, 2024: Meng v. Iowa Bd. of Regents

Case Description

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Appeal from the Iowa District Court for Polk County, Joseph Seidlin, Judge.

A former assistant professor challenges the district court's denial of her petition for judicial review. AFFIRMED.

Jonathan M. Causey of Causey & Ye Law, P.L.L.C., Des Moines, for appellant.

Brenna Bird, Attorney General, Christopher J. Deist, Assistant Attorney General, and Tessa M. Register (until withdrawal) and Eric Wessan, Assistant Solicitors General, for appellee.

Considered by Bower, C.J., and Greer and Chicchelly, JJ.

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GREER, JUDGE.

After six years on probationary tenure-track status, Dr. Qingli Meng, a professor at the University of Northern Iowa (UNI), submitted to a tenure review, was not recommended, asked to toll her tenure clock, and then, on the final tenure review the next year, was denied tenure. Meng argues that in denying her tenure, the Board of Regents (the Regents) did not follow the prescribed procedure or decision-making process that she was allowed to choose and that its decision was unreasonable, arbitrary, capricious, or an abuse of discretion. We affirm.

I. Background Facts and Prior Proceedings.

Dr. Meng was hired by UNI as an assistant professor in the Department of Sociology, Anthropology, and Criminology (the Department) within the College of Social and Behavioral Sciences in March 2014; she began her employment that August for the 2014-15 academic year. Her offer letter detailed that "[a]s an assistant professor, your primary duties and responsibilities will be teaching, service and research." Further, the letter mentioned UNI's then-in-effect collective bargaining agreement (Master Agreement). Because her hire was on a tenuretrack position, it was probationary, but after six years, she was eligible to apply for tenure. On the tenure-track, she was evaluated once yearly by the department's professional assessment committee (the Committee)-composed of tenured faculty in the Department-and independently by the Head of the Department twice each year.

When Dr. Meng was hired, the Master Agreement contained a section labeled "Principles, Standards, &Procedures for Promotion and Tenure," at Appendix B, which stated:

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Tenure and promotion to Associate Professor requires that the candidate have a documented record of accomplishment in teaching, research/scholarship/creative achievement, and professional service. It is recognized that each candidate will have varied degrees of accomplishment in the three areas. Only after an affirmative judgment as to documented teaching effectiveness has been made can serious consideration be given to an evaluation of research/scholarship/creative achievement, and professional service."

At the same time, the Department had its own criteria used for tenure considerations (Department-specific), which was subject to "the professional judgment of each individual [Committee member]":

In order to achieve tenure, a candidate must meet minimal requirements for adequacy in all three areas: teaching, scholarship, and service. Someone who is an outstanding scholar but is judged inadequate in teaching will not receive tenure. Similarly, even a superb teacher will not receive tenure unless s/he also meets the minimum standards for scholarship and service. This document, together with the annual review letters, provides guidance on those minimum standards.

A person who is merely adequate in all three areas should not expect to receive tenure. However, it is neither required nor expected that any individual be excellent in all three areas. Someone with a good record in all three areas should reasonably expect to attain tenure. Excellence in one area may balance adequacy in another.

(Emphasis added.) Likewise, the old Department-specific criteria required the evaluation of the teaching component to be based upon "professional assessment of syllabi and annual class observation by [Committee] members." However, after the Iowa Legislature restricted subjects that could be part of the collective bargaining agreements, UNI moved the standards and procedures related to tenure and promotion to chapter three of its Faculty Handbook; and, beginning in

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the 2017-18 academic year, the Faculty Handbook governed tenure decisions for all faculty at UNI. The 2019 updated version of chapter three "establishe[d] university level guiding principles and standards, as well as processes to evaluate faculty members across their careers." It then permitted separate "[s]pecific departmental standards and criteria . . . and procedures for reviewing faculty" and contained a specific subdivision for "Departmental Standards" but those had to be compatible with the chapter three provisions. Also in 2019, the Department updated its internal tenure review process to be consistent with chapter three; however, as to faculty hired before these changes, the Department allowed faculty to seek tenure under either the old or new Department-specific system.

With six years in, Dr. Meng sought a tenure review in October 2019. Under the "grandfathering plan," Dr. Meng opted for an tenure evaluation under the old Department-specific system in addition to chapter three of the Faculty Handbook. She signed this written acknowledgment:

(Image Omitted)

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In doing so, she agreed that in her review for tenure she would "be evaluated according to the new University Guiding Standards and Departmental Standards and Criteria document for annual reviews starting in the 2019-2020 academic year." (Emphasis added.) But because of the opt-in, as for the Departmental standards to be applied, she would "be reviewed under the Departmental Standards and Criteria in effect [p]rior to Fall 2019 ( old system )." (Emphasis added.)

With the acknowledgement in place, Dr. Meng applied for tenure and a promotion to associate professor. Four members of the Committee attended four sessions of Dr. Meng's Research Methods course as part of its evaluation of her tenure application. As the standards required, the Committee also looked at her curriculum vitae, course syllabi, student evaluations, and considered perceptions of individual Committee members of Dr. Meng's work. Based on deficiencies found in her teaching and scholarship, the Committee voted eight to one, with two members abstaining, to recommend that Dr. Meng be denied tenure. In its evaluation, the Committee wrote that "Dr. Meng's instruction lacked focus, clarity, and depth." It also found that Dr. Meng had not updated her course materials each year-despite claiming to do so-and most of her exams solely relied on recall, rather than rigor and critical thinking skills. Overall, the Committee found that "Dr. Meng's teaching fails to meet expectations for the department standards for teaching." After receiving the Committee's evaluation letter, Dr. Meng requested a leave of absence for the Spring 2020 semester and asked that her tenure clock stop so could be reviewed again for the 2020-2021 academic year, which UNI allowed.

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In the fall of 2020, Dr. Meng reapplied for tenure, and the Committee again recommended denial of tenure-unanimously, with one member abstaining-for the same reasons; it reached this determination after reviewing Dr. Meng's cover letter, statement of teaching philosophy, research statement, and curriculum vitae as well as observing her classes. The Committee wrote that Dr. Meng offered "inadequate direct instruction that likely fall[s] short of . . . standards for a 3-credit hour course." It was concerned that while Dr. Meng was scheduled to hold class twice a week, she was only doing so once a week and only a handful of students attended the observed classes. It added that her "courses lack rigor and critical thinking necessary to prepare lower-division students for subsequent courses and to meet student learning outcomes for upper-division courses." In addition, the Committee noted "fundamental course design and pedagogical problems." Although the Committee had commented on these same issues in its 2019 evaluation, it found that Dr. Meng had not addressed them in the intervening year. The Committee concluded Dr. Meng met the expectations for service but fell below university and departmental expectations for teaching and scholarship. At the next step of the tenure evaluation process, the Head of the Department conducted an independent evaluation of Dr. Meng's application, agreed with the Committee report, and recommended denial of tenure. In his written denial, he explained that "[i]n general, the standards and criteria between the current Faculty Handbook and departmental standards do not differ from the standards that were in place . . . with the fundamental expectations remaining the same."

As per the Faculty Handbook, Dr. Meng appealed this decision to the Dean and Provost at UNI. Both agreed with the Committee's and the Department Head's

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recommendations. In February 2021, the Provost informed Dr. Meng that she would not be continued as probationary, tenure-track faculty and that her last appointment at UNI would be for the 2021-22 academic year. As the next step, Dr. Meng appealed that tenure decision to UNI, and, following an appeal conference, the Associate Provost for Faculty denied the appeal in April 2021.

Dr. Meng was allowed to request arbitration, which she did. An arbitrator held a hearing over two days in December 2021. Dr. Meng testified at the hearing and explained that she felt that she was being evaluated improperly under both the chapter three university-wide standards and the Department-specific standards. She also stated that her probationary appointment was continued each year without any designation as "on probation with difficulty," meaning that the department never gave her a warning that she was failing to meet expectations. A former member of the tenured faculty in the Department of Sociology, Anthropology, and Criminology-and therefore also a former Committee member-also testified. She stated that the Committee should have reviewed Dr. Meng's tenure application under the now-defunct Master Agreement. At the same time, she also said that "the master agreement covers the entire university, and the tenure standards and the [Committee] procedures of each department had to be in agreement with the master agreement." She added that in the nineteen years that she was part of the Department, she was unaware of anyone besides Dr. Meng being denied tenure and was also unaware of anyone being assigned a teaching mentor. Lastly, the associate provost for faculty testified. He clarified that he chaired the faculty handbook committee and that "[t]here are university guiding standards in the [F]aculty [H]andbook, and then the departments create

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the departmental standards and criteria." He added that a faculty member going up for promotion after 2019 would be subject both to the Department-specific standards and the new criteria in chapter three of the Faculty Handbook.

The arbitrator concluded that "the preponderance of the evidence" established that Dr. Meng was improperly denied tenure because those evaluating her made incorrect findings as to her teaching and scholarship. In his March 2022 written report, he wrote that the Committee "gave little or no credit to the previous series of extensive evaluations detailing Dr. Meng's teaching accomplishments, her efforts to improve her teaching and her continued progress as a teacher." He added that "[i]f one read the previous series of evaluation letters and then this, one might think they are dealing with a completely different professor. It seems almost like this is the first and last evaluation of Dr. Meng and her teaching for purposes of tenure."

Under the Grievance/Appeal procedures, UNI appealed the arbitration decision to the President of UNI, who rejected it and affirmed the denial of tenure in May 2022. In addition to finding "errors and omissions" in the arbitrator's report, the President wrote that although Dr. Meng had selected to be evaluated under the old system, "selecting the 'old system' only pertains to the Departmental Standards and Criteria." Looking at those standards, the President ultimately concluded that the Committee, Department Head, Dean, and Provost had followed the proper procedures in relying on the old Department-specific standards-in addition to the university-wide standards-in determining that Dr. Meng did not meet the standard for teaching expected of tenured faculty. Dr. Meng then appealed to the Regents, who adopted the President's decision without

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modification, affirming the denial of tenure. In December 2022, Dr. Meng sought judicial review of the Regents' decision.

Following a hearing, the district court denied Dr. Meng's petition in June 2023. In its written ruling, the court first clarified that Dr. Meng was only appealing the denial of tenure based on her second 2020 application as she had not appealed after the 2019 denial. It also added that as the President's decision only addressed Dr. Meng's teaching, it could only consider the arbitrator's determination as to the teaching criteria so the arbitrator's determinations on her scholarship and service stood. In looking at the President's decision to deny Dr. Meng tenure, the district court found that the President properly relied on the new university-wide standards in chapter three along with the old Department specific standards as well as the professional judgment of the Committee and thus did not fail to follow the prescribed procedure or decision-making process. It likewise found that the decision was not unreasonable, arbitrary, capricious, or an abuse of discretion as the Committee members "exercised their professional judgment in applying legitimate and known criteria and standards." Dr. Meng appeals.

II. Standard of Review.

Judicial review of an agency decision is governed by Iowa Code section 17A.19 (2022). See Hagen v. Serta/Nat'l Bedding Co. , 1 N.W.3d 1, 4 (Iowa 2024). We apply those standards and determine whether our application of them produces the same result as that reached by the district court. Chavez v. MS Tech. LLC , 972 N.W.2d 662, 666 (Iowa 2022). If we reach the same result, we affirm the judgment of the district court. Mike Brooks, Inc. v. House , 843 N.W.2d 885, 889 (Iowa 2014).

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However, "[p]ursuant to Iowa Code section 17A.19(10), [we] must reverse agency action when any one of several enumerated circumstances [in Iowa Code section 17A.19(10)] exists and 'substantial rights of the person seeking judicial relief have been prejudiced' as a result." Mosher v. Dep't of Inspections &Appeals , 671 N.W.2d 501, 508 (Iowa 2003) (quoting Iowa Code § 17A.19(10)). "The burden of demonstrating the required prejudice and the invalidity of agency action is on the party asserting invalidity." Iowa Code § 17A.19(8)(a).

III. Analysis.

Dr. Meng raises two grounds for reversal. First, she claims that the decision to deny her tenure was "[b]ased upon a procedure or decision-making process prohibited by law or was taken without following the prescribed procedure or decision-making process." Id. § 17A.19(10)(d). Next, she argues that the decision was "[o]therwise unreasonable, arbitrary, capricious, or an abuse of discretion." Id. § 17A.19(10)(n). She asks that we reverse the district court's ruling affirming the Regents and order that UNI reinstate her as a tenured associate professor. She also asks that we grant her backpay and benefits starting from the time she was entitled to be granted tenure, assess costs to the Regents, and award her attorney fees.

A. Procedural Claim.

Throughout all the stages of this dispute, Dr. Meng's focus centered on her contention that the wrong procedures and criteria were used to deny her tenure. As she frames it, why would she have an option to select the old department criteria if the new process and standards, which were not in existence when she was hired, can be used to take her off the tenure-track? First, Dr. Meng claims that the

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Committee and Head of the Department should not have relied on chapter three of the Faculty Handbook in evaluating her application for tenure and, thus, the Regents erred in accepting their reasoning. Because, Dr. Meng argues, chapter three should not have applied to her, they did not follow the prescribed procedure or decision-making process, and such failure was prejudicial to her. Under what Dr. Meng considers the appropriate criteria and procedures, she asserts she only needed to "meet minimal requirements for adequacy in all three areas: teaching, scholarship, and service" and "[s]omeone with a good record in all three areas should reasonably expect to attain tenure." (Emphasis added.) To this argument, the Regents respond that the correct criteria and procedures were utilized in the tenure process. And in any event, chapter three of the Faculty Handbook did apply to Dr. Meng in addition to the Department-specific standards and Dr. Meng's choice to be evaluated under the old Department-specific standards had no effect on the university-specific standards in chapter three.

The Regents point to an October 2019 written acknowledgement signed by Dr. Meng to guide our decision. In effect, Dr. Meng contracted with UNI for how her tenure evaluation would proceed. And, in the February 2021 Department Head's evaluation, the process as it pertained to Dr. Meng was described as follows:

When the university changed its evaluation procedures and standards in 2019 all current probationary faculty at that time had the option to choose whether the current or former evaluation standards would be applied. You have opted to be evaluated under the university and departmental evaluation standards in place prior to 2019. My assessment relies on those standards, namely the 20182019 Faculty Handbook, and departmental standards and procedures found within the 2016-2017 "Policies and Procedures Regarding Professional Assessment by Faculty" and the 2010

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"Criteria for Tenure and Promotion In the Department of Sociology, Anthropology, and Criminology" documents. In general, the standards and criteria between the current Faculty Handbook and departmental standards do not differ from the standards that were In place for teaching, scholarship, and service in the 2013-2019 Faculty Handbook or the 2016-2017 department standards, with the fundamental expectations remaining the same.

In reviewing the procedures employed, "[o]ur role is to ensure that the process was procedurally fair." Meltzer v. Bd. of Regents , No. 08-0345, 2008 WL 5412225, at *6 (Iowa Ct. App. Dec. 31, 2008). A procedure is unfair if it is unreasonable or "clearly against reason and evidence." Hagen , 1 N.W.3d at 5 (quoting Stephenson v. Furnas Elec. Co. , 522 N.W.2d 828, 831 (Iowa 1994)). The procedures and criteria in the Master Agreement and chapter three had the same fundamental expectations. And here, Dr. Meng does not quibble with the requirements that her teaching evaluation included a "professional assessment of syllabi and annual class observation by [Committee members]." At best, in her appellate brief, Dr. Meng contends the older criteria to be used did not require her "to create and update a teaching philosophy or pedagogical materials or the other materials that the [Committee] admonished her for lacking in her evaluation file's artifacts." And even if this extra effort was not required under the older Department-specific criteria, Dr. Meng does not articulate how those criteria represented an unlevel playing field in her review in her brief.

Returning to the old Department-specific criteria, we note that "[t]he interpretation of the criteria herein is subject to the professional judgment of each individual [Committee] member." And that "[s]omeone who is an outstanding scholar but is judged inadequate in teaching will not receive tenure." Unlike, the newer university standards, there was little guidance on specific criteria, instead

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Dr. Meng chose to rely upon the assessment by other tenured department Committee members with a focus on teaching ability. In the Committee's unanimous professional judgment, while recognizing some gains in teaching ability in previous years when she had a teaching mentor, it identified three major concerns with Dr. Meng's teaching as it existed in 2019 and in 2020. Those concerns were: (1) "limited direct instruction in the classroom and protracted absence from class"; (2) "disorganization and lack of clarity, issues raised in observations early in Dr. Meng's career at UNI"; and (3) "Dr. Meng's classroom presentations focused on recall with little application, examples, and contextualization."

In the Committee evaluation, it was noted that in 2016, with the guidance of an assigned teaching mentor, Dr. Meng reported that she observed classes from some of the Department's best instructors and read a book on teaching. Yet, the same year, Committee members observing Dr. Meng's class noted that her "lecture lacked clarity." In 2017, another Committee member observing class wrote that "students were unclear about the expectations of the course." In 2019, an additional Committee member felt that Dr. Meng's "protracted absence from class" and her failure to "arrange sufficient coverage for her classes" during periods of travel detracted from her teaching effectiveness. And even after receiving a critical summary of teaching deficiencies in the 2019 Committee evaluation, Dr. Meng showed no improvement when evaluated the final time for tenure in 2020. In student evaluations from 2020, students wrote that Dr. Meng could have: "[b]etter explained some of the content," "[s]tayed on task and used respectful communication skills," "[m]ade the material not as confusing," "[n]ot gone off on

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random tangents, answered questions in a non[-]condescending way," and "[n]ot been degrading to the class by yelling at us and saying the concepts were difficult when none of the class felt that way." One Committee member observed that a class scheduled to have two weekly sessions was held by Dr. Meng only once per week and that Dr. Meng only read PowerPoint slides, which went to the quality of the course of instruction overall. All in all, the fall 2020 Committee members observing the classroom instruction noted "an alarming lack of direct instruction," a lack of students required to be physically present in the class, classes meeting one-half of the scheduled time and little to no online participation. Student evaluations of Dr. Meng's most-taught class, Research Methods, ranged from 57.9% in one section to 69% in another of students agreeing that she increased their understanding of the material at least moderately.

Aside from failing to demonstrate unfairness, we conclude that both the university-wide procedures in chapter three of the Faculty Handbook and the Department-specific standards should have applied here, were fundamentally the same, and there was no procedural issue that warrants reversal. The procedures the Committee and Head of the Department relied on aligned with the prescribed procedure that addressed competency in teaching, scholarship and service and thus, were not prejudicial to Dr. Meng.

B. Unreasonable, Arbitrary, Capricious, or Abuse-of-Discretion Claim.

Next, Dr. Meng asserts that because her record warranted a grant of tenure, the Regents' ultimate failure to award her tenure amounts to an unreasonable, arbitrary, and capricious decision as well as an abuse of its discretion. She emphasizes the decision to deny tenure was "personal," not based on her "record."

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The Regents respond that Dr. Meng's 2020 evaluations supported her tenure denial and thus it did not abuse its discretion in doing so.

"When judges are asked to review the substance of a genuinely academic decision, such as this one, they should show great respect for the faculty's professional judgment." Regents of Univ. of Mich. v. Ewing , 474 U.S. 214, 225 (1985); accord Okruhlik v. Univ. of Ark. , 395 F.3d 872, 879 (8th Cir. 2005) ("We are mindful of the singular nature of academic decision-making ...."). Put another way, "[t]he decision whether to grant tenure and the criteria used to guide that decision are within the statutory mandate of the agency here and are peculiarly within its discretion and area of expertise." Genetzky v. Iowa State Univ. , 480 N.W.2d 858, 861 (Iowa 1992); accord Maras v. Curators of Univ. of Mo. , 983 F.3d 1023, 1028 (8th Cir. 2020) ("Tenure decisions turn on uniquely specialized, multifactored judgments involving numerous decisionmakers ...." (internal quotation marks and citation removed)). Where reasonable minds can differ, we give deference to the decisionmakers. Meltzer , 2008 WL 5412225, at *5 ("Juries and judges lack the credentials and the knowledge to determine whether a group of scholars should be required to accept into their midst for life a member of the academic community." (citation omitted)).

At the same time, we have guidance for when a tenure decision is unreasonable, arbitrary, capricious, or an abuse of discretion: a decision is unreasonable if it "involves lack of rationality" or "clearly against reason and evidence." Hagen , 1 N.W.3d at 5. A decision is arbitrary or capricious if made "without regard to the law or facts of the case." Banilla Games, Inc. v. Iowa Dep't of Inspections &Appeals , 919 N.W.2d 6, 19 (Iowa 2018) (citation omitted). And

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"[d]iscretion is abused when it is exercised on grounds clearly untenable or to an extent clearly unreasonable." Id. A decision is not "unreasonable" simply because reasonable minds differed on the result. See Norland v. Iowa Dep't of Job Serv., 412 N.W.2d 904, 912 (Iowa 1987).

Here, there is a clear disagreement over Dr. Meng's qualification for tenure, but there were specific reasons articulated by her peers that supported denying her tenure. And to that point, a difference of opinion is a far cry from a decision that is "unreasonable, arbitrary, or capricious." As such, we cannot find that the decision is clearly against reason and evidence, without regard to the facts, or based on untenable or unreasonable grounds.

As for Dr. Meng's argument that the Committee "cherry-picked" from the earlier evaluations to support its decision, we consider that at the start of Dr. Meng's employment at UNI her evaluations listed problems with her teaching that were like those noted in 2019 and in 2020. Then, as the Regents argue, while Dr. Meng sought help and showed improvement with her instruction, after she stopped utilizing the teaching improvement efforts in 2017, the fall 2019 instruction returned to a "disorganized" and "unclear" format, that "left students feeling adrift." And while Dr. Meng disputes that characterization, the evaluations completed by her peers, which is the process employed, formed the basis for the Regents' ultimate decision. Dr. Meng failed to meet the requirement for adequacy in teaching, as demonstrated through the Committee's and Head of the Department's review of her curriculum vitae, course syllabi, student evaluations over her six years of teaching, and the Committee's own observations based on four Committee members attending her classes along with the Head of the

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Department's observations from attending classes. The Committee members expressed concerns about Dr. Meng's teaching abilities, documented through their written recommendation for denial of Dr. Meng's application for tenure. As even under earlier standards, teaching is the foremost consideration for tenured faculty at UNI, relying on such a basis was not clearly against reason and evidence. The Head of the Department's reasoning and observations aligned, and the Regents accepted them. Having found the process and criteria were fairly applied, the tenured faculty members, comprising the Committee, voted against Dr. Meng's tenure status. Although Dr. Meng may disagree with the Regents' ultimate denial of her application, where reasonable minds differ, there is not necessarily an abuse of discretion. Dr. Meng failed to establish the decision to deny tenure was unreasonable, arbitrary, capricious, or an abuse of discretion.

C. Attorney Fee Claim.

Lastly, Dr. Meng requests reasonable attorney fees. Dr. Meng failed to cite any authority for her assertion that we should order the Regents to pay her attorney fees. And in Iowa, "attorney fees are recoverable only by statute or under a contract." NCJC, Inc. v. WMG, L.C. , 960 N.W.2d 58, 62 (Iowa 2021). Because Dr. Meng has not asserted a legal basis for the attorney fees she requests, we do not consider this issue further. See Iowa R. App. P. 6.903(2)(g)(3) ("Failure to cite authority in support of an issue may be deemed waiver of that issue."); Soo Line R.R. v. Iowa Dep't of Transp. , 521 N.W.2d 685, 691 (Iowa 1994) (holding that random mention of an issue, without elaboration or supporting authority, is insufficient to raise issue for appellate court's consideration).

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IV. Conclusion.

Finding the Committee and Head of the Department relied on the correct procedure in evaluating Dr. Meng's application for tenure and that the decision to deny her tenure was rational, made with regard to the law and facts, and based on reasonable grounds, we affirm the district court's denial of Dr. Meng's petition for judicial review.

AFFIRMED.