Coming to terms with tenure

Strong procedures and policies in places which will ensure strict compliance with the law

The tenure process remains instrumental to universities in maintaining academic freedom and in soliciting the country’s top minds to forgo employment in industry and seek employment in higher education. However, the system has evolved overtime, and so have the requirements for making and holding onto tenure. At the same time, the economic crisis of the last few years has opened a flood gate of highly qualified applicants seeking employment as faculty. The increased labor pool and tightening financial constraints has cause employment related litigation to rise. The key to any institution which is overrun by these types of suits is having strong procedures and policies in places which will ensure strict compliance with the law. When the employment termination standard is heightened by a “good cause” requirement, it is vital that employers understand exactly what processes they must follow and what burdens they must meet to either avoid or be successful in litigation.

With increasing frequency, terminated tenured professors are appealing their non-renewals and terminations with cause via internal due process hearings and even before the courts. The general presumption regarding tenured professors is that they cannot be fired, but this is an inaccurate perception. In fact, the National Education Association found that approximately 2 percent of tenured professors are dismissed each year. But what tenured professors do have on their side is a high burden placed on the educational institution to provide due process, meaning the faculty member must be given, at a minimum, oral or written notice of the dismissal, reasons for the termination, an explanation of the evidence obtained by the employer, and an opportunity for a fair and meaningful hearing. Good cause must be shown for terminating the tenured professor.

The history of tenure

The concept of tenure dates back to 1158, when the Holy Roman Emperor Frederick Barbarossa issued an edict protecting scholars in their journey. After the American Revolution, however, tenure had very little force or support. It was not until Harvard College appointed “indefinite” faculty positions in the early 1800s that the tenure system would truly take shape. During the nineteenth century, important donors influenced the demands of the board of trustees and sometimes mandated the removal of certain professors. This changed in the twentieth century as some major universities, such as Harvard, Columbia, and the University of Chicago instituted policies that prohibited donors from promoting the termination of faculty members. A stronger movement formed in 1913 when eighteen full professors at Johns Hopkins University signed a letter imploring other professors to join their new association that would protect their scholarly missions. In the following two years, six hundred scholars joined to form the American Association of University Professors (“AAUP”).

The AAUP led the charge in creating protections for university professors. In 1915, the declaration of principles of the AAUP was created, which supported formal academic tenure with clearly stated grounds for dismissal. They advocated for many of the protections that are currently in place for tenured professors, including written reasons for dismissal and an opportunity to be heard in self-defense. After World War II, soldiers flooded into colleges and universities, resulting in a shortage of professors. As a way to entice more professors, colleges and universities increasingly offered formal tenure as a “side benefit.”

In 1972, the courts finally heard cases on the issue of termination of tenured professors. The U.S. Supreme Court held that if a tenured professor’s employment is terminated, the professor is entitled to due process. This included the right to appear personally in a hearing, examine evidence, respond to accusations, and be represented by counsel. The number of wrongful termination cases dramatically increased as a result.

What constitutes “good cause?”

“Good cause” can be defined differently based on the institution or the state in which the professor teaches. Many states have rules related to tenure. For example, California allows termination of a “permanent employee” for, among other reasons, immoral or unprofessional conduct, dishonesty, unsatisfactory performance, unfitness for service, and knowing membership in the Communist Party. Connecticut, as another example, provides six reasons for dismissal of a tenured professor, some of which include inefficiency or incompetence based on evaluations that comply with State Board of Education guidelines, moral misconduct, and disability proven by medical evidence. The general practice, however, is for individual institutions to have their own rules and regulations for achieving and maintaining tenure. Within these guidelines, institutions can impose higher standards on professors by defining “good cause” more broadly by giving specific examples of what constitutes “good cause.”

Michigan State University (“MSU”) provides a good example of a university expanding the scope of what constitutes “good cause.” MSU publishes its policies and procedures for dismissal of tenured faculty for cause in its Faculty Handbook. The “Grounds for Dismissal” section clearly identifies nine causes for termination, including but not limited to:

  • Intellectual dishonesty Acts of discrimination, including harassment, prohibited by law or University policy 
  • Acts of moral turpitude 
  • Theft or misuse of University property 
  • Incompetence Refusal to perform reasonable assigned duties 
  • Use of professional authority to exploit others
  • Violation of University policy substantially related to performance of faculty responsibilities, and
  • Conviction of violation(s) of law(s) which are substantially related to the fitness of faculty members to engage in teaching, research, service/outreach, and/or administration.

Each university is open to creating its own guidelines for what it considers “good cause” to be, but these definitions need to be within the bounds of applicable state and federal law.

Termination cannot be based on activity protected by the Constitution

One of the most appealing aspects of working in higher education in the access and ability to conduct research and explore one’s academic freedom. The D.C. Court of Appeals once described the tenure system as “designed to eliminate the chilling effect which the threat of discretionary dismissal casts over academic pursuits” and “to foster our society’s interest in the unfettered progress of research and learning by protecting the profession’s freedom of inquiry and instruction.” A requirement for many professors to even attain tenure is to publish academic works. In doing so, professors may express beliefs contrary to those of the institution or the individuals comprising the administration. That being said, no court has held that academic freedom is a distinct and legally enforceable independent right absent and beyond constitutional guarantees.

A tenured professor at South Dakota State University (“SDSU”) was fired twice by the school after the first termination was deemed procedurally invalid. SDSU dismissed Mike Catangui, an entomologist, from his employment with the university in June 2010. Catangui was not given a faculty hearing, which was an established protocol in a termination of this kind. The AAUP wrote a letter of complaint to SDSU for failing to follow proper procedure, and Catangui was reinstated. On August 14, 2010, however, the Board of Regents overruled his temporary reinstatement. The problem with the Board of Regents doing this is that the faculty committee that heard Catangui’s case was not scheduled to deliver its report until August 30, 2010. The most critical reason for Catangui’s termination was that he refused to support regional soybean aphid spraying recommendations. His research did not support the recommended timing and quantities of those pesticides, and he could not advise his constituents to engage in an activity he knew to be wrong or ineffective. Because this rationale was the basis for his termination, his dismissal became an issue of academic integrity and freedom of speech.

No lawsuit has been filed in the Catangui case, so it is uncertain how a court would handle the issue. A recent Colorado case, however, exposed the murkiness of termination resulting from protected free speech. Ward Churchill was a tenured professor at the University of Colorado at Boulder. He wrote about the September 11 terrorist attacks, making inflammatory comments including one which described the victims of the terrorist attacks as “little Eichmanns,” clearly referring to Nazi war criminal Adolf Eichmann. Before making a termination decision, the university created an ad hoc panel to investigate Churchill’s academic works. The panel determined that his essay constituted protected free speech and could not be the basis for his termination.

The twist appears, however, in that the university discovered during its investigation of his academic works several allegations of other academic misconduct from Churchill. After a formal investigation, the panel concluded that Churchill had committed “serious, repeated, and deliberate research misconduct,” and the university’s Standing Committee on Research Misconduct recommended that Churchill be fired. Churchill filed a lawsuit pursuant to 42 U.S.C. § 1983, alleging that the misconduct investigation and subsequent termination were retaliatory acts that violated his constitutional right to free speech. He sought damages and equitable relief, but the Court denied him both remedies because the Board of Regents was absolutely and statutorily immune from liability.

Churchill also claimed that the Board of Regents acted in bad faith. The Court acknowledged that the law for bad faith in employment termination cases is unsettled but held that a reasonable public official would not know that the initiation of an employment investigation in response to protected speech would be unlawful. Thus, the actions taken by the Regents did not support a claim of bad faith.

The university protected itself from liability in several ways, as the Court pointed out. First, the termination involved many procedural safeguards. Churchill was given essentially all of the same rights afforded to someone on trial. He could present witnesses, conduct oral argument, offer evidence, cross-examine witnesses, and be represented by an attorney. Second, the internal investigation was thorough and fair. The internal investigation took two years and involved the consideration of five university bodies. Finally, Churchill had the opportunity to challenge the Board of Regent’s decision through an administrative review statute, even though he chose not to do so.

Aside from these procedural considerations, the Court also used practical considerations to support its holding. The Court reasoned that universities “need a certain degree of autonomy in their employment decisions,” and “to hold otherwise could compromise the University’s institutional mission and integrity.”

Tenured professors also enjoy contractual protection pursuant to Article 1, Section 10 of the U.S. Constitution. The U.S. Supreme Court has held that a state may not interfere with public or private contracts unless the action is reasonable and necessary to serve an important public purpose. The term necessary was defined as being essential and unable to be achieved through any other viable means.

Termination of non-tenured professors

Even though the higher burden placed on educational institutions involves dismissals of tenured professors, these schools must also ensure compliance with the law when terminating tenure-track professors or non-tenured professors. Due process is not required for these latter categories of professors absent a liberty or property interest, discussed below. However, many Universities provide for due process review/hearings for non-renewals for tenure-track professors. Moreover, normal protections against at-will employment termination are applicable.

As with tenured professors, institutions of higher education cannot fire a non-tenured professor on a basis that is protected by the Constitution. Several state courts have made it clear that professors at public universities have constitutionally guaranteed rights regardless of a tenured or untenured status. For example, the Court in Shelton v. Tucker declared unconstitutional an Arkansas law requiring public school or college teachers to file annually a list of organizations to which he belonged or regularly contributed. The Court extended first amendment protections to untenured teachers, thereby “preventing governmental evaluations of their beliefs based upon organizational associations.” The U.S. Supreme Court has also affirmed the notion that non-tenured professors receive constitutional protections from termination. Public institutions cannot, for example, fire a tenured or non-tenured professor for expressing unpopular opinions.

Moreover, the Supreme Court has established guidelines under which faculty at public institutions are entitled to procedural due process under the Fourteenth Amendment of the U.S. Constitution if their termination adversely affects a liberty or property interest. A property interest is defined as “clearly [having] more than an abstract need or desire for it. He must have more than a unilateral expectation of it…and must, instead, have a legitimate claim of entitlement to it.” A liberty interest would be adversely affected if dismissal was based on a charge of dishonesty, immorality, or where “a person’s good name, reputation, honor or integrity is at stake because of what the government is doing to him, or where the state…imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” Failure to renew a non-tenured professor’s contract by itself does not adversely affect a liberty interest, and the length of employment of a non-tenured professor is generally irrelevant.

In Board of Regents of State Colleges v. Roth, David Roth was hired as an assistant professor of political science at Wisconsin State University-Oshkosh for a fixed term of one academic year. After completing this term, he was informed that he would not be rehired for the next school year. There was no statutory or administrative standard that would support automatic re-employment since Roth was not a tenured professor.

The President of the university gave Roth no reason and no opportunity to challenge the decision through a hearing. Roth filed a lawsuit alleging that the decision not to rehire him infringed on his Fourteenth Amendment rights both substantively and procedurally, but the Supreme Court only decided whether Roth had a constitutional right to a statement of reasons and a hearing on the decision not to rehire him. The Supreme Court held that Roth’s non-renewal of his employment contract did not implicate any interests in liberty. The university, in declining to rehire Roth, did not make any claims that would “seriously damage his standing and associations in his community,” nor did it impose on Roth a “stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” Moreover, the university never provided for contract renewal whatsoever, so Roth had no property interest in employment at the university.

Some states are taking steps toward broader job security for at-will employees. In 1987, Montana became the first state to pass a law to protect at-will employees from unjust dismissal; the law was held to be constitutional by the Montana Supreme Court. The statute requires “just cause” for dismissal and other personnel actions, such as demotion. One reason that perhaps the statute appealed to employers is that it limits the employee’s ability to recover punitive damages to cases where the employer acted with actual fraud or malice. In the context of employment as a professor, however, most employment relationships are formed through contracts that include a specific term of employment. Thus, professors would not be at-will and would have only the due process protections discussed above if they have a liberty or property interest in their employment.

Remedies for terminated professors

Should a tenured professor who has been fired decide to take his case to court, the usual remedy is damages because this type of case involves an alleged breach of an employment contract. The Court in most cases will not afford specific performance to the professor €“ i.e., rehiring of the professor €“ because it wants to avoid forcing an employer and employee into an incompatible relationship. When granting damages, courts will calculate future damages, including anticipated salary.

This is not to say that courts will never grant reinstatement of the wrongfully terminated professor. An improperly terminated tenured professor working in a public university may be entitled to reinstatement through a statutory provision. Mandamus may be an additional remedy where an improper dismissal contravenes such a statutory directive. Even where there is no statutory provision calling for reinstatement, courts have ordered that the terminated tenured professor be reinstated. The Fifth Circuit upheld reinstatement as the appropriate remedy and stated, “Enforcement of constitutional rights frequently has disturbing consequences. Relief is not restricted to that which will be pleasing and free of irritation.” Reinstatement is most likely where it is successfully argued that damages are inadequate or where a constitutional violation has taken place.

How can institutions protect themselves?

The Churchill case taught us several good lessons. First, higher education institutions need to have a thorough internal investigation process before terminating a tenured professor. University of Colorado at Boulder conducted a two-year investigation with the consideration of five university bodies. Second, providing adequate due process is a must, and the more opportunities for response by the professor in question, the less chance the institution has of being accused of wrongful termination. As part of the due process owed to Churchill, for example, the university gave him the equivalent of a mini-trial. This ensured that Churchill could not later claim that he had not been able to respond to the allegations against him. When in doubt, more due process is always better to ensure a sense of fairness for all involved including the grieved faculty, his or her department colleagues, and ultimately the University.

€” Craig Robson, an associate in the Orange County office of Michelman & Robinson, LLP


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