James C. Todd 2017-08-23 15:07:14
An introduction to tenure litigation in higher education. Academic tenure is meant to be a protection against arbitrary removal of faculty members. Like civil service or some union contracts, tenure ensures that certain faculty members cannot be dismissed without good cause and adherence to extensive due process procedures. The obvious value of this status ensures that the denial or termination of tenure is a major source of litigation for institutions of higher education. Typically, the tenure track is a seven-year process: five years to prepare the tenure application, a year for the application to be considered at multiple levels and receive a final decision, and a year for an unsuccessful applicant to seek other employment. The tenure decision often occurs simultaneously with a decision on promotion; typically, an assistant professor on the tenure track is promoted to an associate professor with tenure. Tenure and promotion are both judged on three general criteria: teaching, scholarship, and service. The assessment of teaching is increasingly based on student evaluations. Scholarship is most often measured by publication of peerreviewed articles (in “refereed” journals) or books. It can also include presentations to academic conferences. Service means service to the academic community, most often by participation on department, college, or university committees. A candidate’s “tenure packet” or “dossier,” which includes a curriculum vitae, references, and a list of publications, among other items, is reviewed by the standing tenure committees of her department, college, and university. In the usual process, the committees, department chair, and college dean each make a recommendation. Depending on the institution, including whether it is part of a state university system, the final decision rests with the university president, system chancellor, or board of regents. University policies usually allow a rejected applicant to seek reconsideration through some sort of hearing or paper review. With so much at stake, it is not surprising that many disappointed applicants for tenure seek legal recourse. By the time the final decision is made, the faculty member will have invested several years of effort. Tenure is an “up or out” decision: if the applicant is unsuccessful, her career at that institution comes to an end and the process must begin all over again (if at all) somewhere else. Although, statistically, most such challenges that reach a final court decision favor the school administration, the costs and disruption of this kind of litigation—often dividing faculty into opposing camps—frequently convince universities to settle rather than continue the conflict. Among the most frequent grounds for challenge—but among the least successful—are due process, when the tenure applicant’s employer is a public higher education institution,1 and breach of contract, when the tenure applicant’s employer is a private college or university.2 However, federal and state courts have consistently ruled that until tenure is in fact granted a tenure-track instructor is an at-will employee who can be dismissed without formal procedural safeguards.3 Even in the rare instance where a plaintiff can point to an arguable basis (such as contractual) for an expectation of continued employment, procedures for review of tenure applications and review of denial are usually elaborate enough to satisfy procedural due process or contractual obligations. As discussed later, challenges by public sector plaintiffs might also include substantive due process or “liberty interest” claims. Consequently, a successful challenge to the denial of tenure must be brought on grounds that do not depend on a “property interest” in obtaining tenure. The claims most likely to succeed, or at least to survive a dispositive motion, allege various forms of legally prohibited discrimination or retaliation. Discrimination claims allege that tenure was denied not on the merits of the application but because of a legally protected status—such as race, gender, national origin, disability, age, or religion, among others. A cause of action may also allege that the tenure denial was in reprisal for the applicant’s opposition to prohibited discrimination—against either her or another employee. Public college or university faculty may also bring actions alleging retaliation for speech protected by the First Amendment or for “whistleblowing.”4 Federal and state law allow a wide margin of error for academic decision-makers. Courts are highly reluctant to second-guess the judgment of academicians on the merits of a tenure candidate’s teaching, scholarship, or service.5 But this deference can be overcome by a strong showing of the kinds of facts that will support a discrimination or retaliation claim for non-faculty employee plaintiffs.6 Once tenure is granted, the faculty member no longer serves at the pleasure of her university employer. Instead, he or she can be dismissed only for good cause, which is usually limited to a narrow range of egregious shortcomings, such as gross incompetence or moral turpitude. Lack of “collegiality” when it significantly interferes with the academic mission can in some cases support the termination of a tenured professor. In contrast to tenure denial cases, denial of due process or, in private institutions, failure to follow contractually guaranteed procedures, can be a viable claim by a tenured faculty member contesting termination. Constitutionally, the tenured public university faculty member is entitled to “(1) be advised of the cause for his termination in sufficient detail so as to enable him to show any error that may exist; (2) be advised of the names and the nature of the testimony of the witnesses against him; (3) a meaningful opportunity to be heard in his own defense within a reasonable time; and (4) a hearing before a tribunal that possesses some academic expertise and an apparent impartiality toward the charges.”7 To prevail on an allegation of lack of impartiality, the plaintiff must show actual, rather than merely apparent, bias.8 A tenured public university plaintiff may also claim a denial of “substantive due process,” which entitles her to a decision that is not “arbitrary and capricious.”9 That is, the decision-makers must exercise professional judgment based on factors rationally related to the purpose of the decision.10 Rigorous procedures that give the claimant an adequate opportunity to challenge the grounds for termination help to ensure substantive as well as procedural due process. Plaintiffs suing public colleges and universities for tenure denial or termination also frequently add a “liberty interest” or “stigma-plus” claim. To prevail on this cause of action, the claimant must show that the defendants officially publicized false stigmatizing (equivalent to defamatory) charges that foreclosed future employment opportunities without a chance to rebut them.11 As with the other procedure-based claims, university processes for challenging the denial or termination of tenure are usually sufficient to satisfy the requirement that the employee be given the opportunity for a “name-clearing hearing.” As with challenges to tenure denial, a suit opposing the discharge of a tenured faculty member is more likely to prevail when the plaintiff has a viable case for illegal discrimination and/or retaliation. Likewise, this kind of litigation raises non-legal concerns that can factor into considerations of whether to settle. Tenure is so critical in higher education that a dispute over denial of tenure or termination of a tenured professor can engender serious tensions between faculty and administration or among faculty—or exacerbate already existing tensions. Such conflicts can seriously interfere with teaching, scholarship, and service. Academic administrators and policymakers sometimes find it more advantageous to pay a larger settlement amount that is conditioned on the plaintiff never again seeking employment at that institution. College officials and attorneys must weigh the possibility that any future action perceived as adverse by a successful tenure litigant who has been retained on the faculty will result in allegations of retaliation. In other cases, the concern that settlement will invite future litigation by other faculty may convince college officials and attorneys to assume the risks of continued litigation. TBJ NOTES 1) Spuler v. Pickar, 958 F.2d 103, 106-07 (5th Cir. 1992). 2) Baylor Univ. v. Coley, 221 S.W.3d 599 (Tex. 2007). 3) See, e.g., Whiting v. Univ. of S. Miss., 451 F.3d 339, 344-45 (5th Cir. 2006). 4) Tex. Gov’t Code § 554.001 et seq. 5) Spuler, 958 F.2d at 107; see also Levi v. Univ. of Tex. at San Antonio, 840 F.2d 277, 281 (5th Cir. 1988). 6) See, e.g., Schmidt, Termination Motivation: Proving discrimination and retaliation in employment law cases, 80 Tex. Bar J. 154 (2017). 7) Levitt v. Univ. of Tex. at El Paso, 759 F.2d 1224, 1228 (5th Cir. 1985). 8) Id. 9) Spular, 958 F.2d at 107; Levi, 840 F.2d at 280. 10) Spular, 958 F.2d at 107. 11) Whiting, 451 F.3d at 347-48. JAMES C. TODD was certified in civil trial and civil appeal law by the Texas Board of Legal Specialization and worked as an assistant attorney general, where he represented state universities and officials in state and federal litigation. He is retired and now lives in Lunenburg, Massachusetts.
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