The University Record, January 21, 1997

FACULTY PERSPECTIVES

Academic Tenure in Public Academe is a Property Right

By L. Keith Yohn
Associate Professor of Dentistry

 

On July 1, 1989, 17 professors at the School of Dentistry had their tenured appointments unilaterally and arbitrarily reduced from 12 to 9 months per fiscal year. (The Dental School continues to operate on a 12 month basis.) This reduction in period of employment produced a privation of the professors' protected, vested property rights in the terms of their university apointments with tenure. On July 18, 1991, Prof. Yohn filed a complaint in the Michigan Court of Claims to recover his property rights. Having wound its way through the state courts without recovery or compensation for property rights, the case is currently being prepared for submission to the federal courts. The following essay examines the legal status of academic tenure.

 

PROLOGUE

 

One hundred and seventy eight years ago in his oral argument before the United States Supreme Court, Daniel Webster raised academic tenure issues. Although the Court never addressed the tenure issues, Mr. Webster prevailed on other grounds. Webster's words ring just as true today as they did in 1818. Mr. Webster:

 

No description of private property has been regarded as more sacred than college livings. They are the estates and freeholds of a most deserving class of men; of scholars who have consented to forego the advantages of professional and public employment, and to devote themselves to science and literature, and the instruction of youth, in the quiet retreats of academic life. Whether, to dispossess and oust them out of their livings; to do this, not by the power of their legal visitors, or governors; and to do it without forfeiture, and without fault; whether all this be not in the highest degree an indefensible and arbitrary proceeding, is a question, of which there would seem to be but one side fit for a lawyer or a scholar to espouse. The Trustees of Dartmouth College v Woodard, 17 US 518 pp 583-84 (1819).

 

INTRODUCTION

 

Tenure rights in higher education are not created by a constitution. They are created by an understanding in the academic community. Generally, the courts are loath to interfere in the affairs of the academic community. Recently, the United States Third Circuit Court of Appeals held that professors can go to court to receive their due process, McDaniels v Flick, 59 F3d 446 (3rd Cir. 1995). This ruling means that the courts will be called upon more frequently to protect a professor's academic tenure rights from cronyism, favoritism, religious, philosophical, political, sex, race, age, or any other illegitimate reason(s) alleged by governing boards and/or their administrations.

 

DEFINITIONS AND PRINCIPLES

 

Courts and faculty have similar perceptions of the definition of "tenure":

 

Tenure; "Generally, tenure is right, term, or mode of holding or occupying, and "tenure of an office" means the manner in which it is held, especially with regard to time." Winterberg v University of Nevada System, 89 Nev 358; 513 P2d 1248, 1250. "Status afforded to teacher or professor upon completion of trial period, thus protecting him or her from summary dismissal without sufficient cause or economic reasons. A faculty appointment for an indefinite period of time." University Educ. Ass'n v Regents of University of Minnesota, Minn; 353 NW2d 535, 540. "Tenure denotes relinquishment of the employer's unfettered power to terminate the employee's services." Zumwalt v Trustees of California State Colleges, 31 Cal App 3d 61 1; 607 Cal Rptr 573,579 (1973).

Tenured faculty; "Those members of a school's teaching staff who hold their positions for life or until retirement. They may not be discharged except for cause." Black's Law Dictionary, 6th edition pp 1469-70, West (1991).

 

The United States First Circuit Court of Appeals has provided a frequently cited statement on academic tenure. They stated that:

 

Tenure involves a long-term academic and financial commitment by a university to an individual, providing faculty with unusually secure positions tantamount to life contracts. This security and the freedom of expression it allows, arguably help the university carry out a basic function---the vigorous exchange of ideas--- a function that itself enjoys constitutional protection. Beitzell v Jeffrey, 643 F2d 870 p 875, (1st Cir. 1981).

 

The United States Fifth Circuit Court of Appeals, after reviewing the report by the Commission on Academic Tenure in Higher Education and the 1940 Statement of Principles on Academic Freedom and Tenure formulated by the Association of American Colleges and the American Association of University Professors, stated:

 

One common characteristic stands out: that, with academic tenure, the institution is making a general commitment for employment which is normally expected to continue, with the individual's consent, until his death or retirement. Hennessey v National Collegiate Athletic Association, 564 F2d 1 136 p 1 142, (5th Cir. 1977).

 

The decisions of courts in jurisdictions throughout the United States uniformly agree that the United States Constitution and a State's Constitution decree that different rules apply in employer-employee relationship cases in
which the Federal or a State government is the employer. A search and study of case law authorities shows two branches of law protecting professors' tenure rights in the academic community. One branch deals with private colleges and universities involving the legal theory of contracts. The second branch deals with public colleges and universities involving the legal theory of protected, vested property rights.

The United States Supreme Court has held in the area of public employment that a public college professor summarily dismissed from a college appointment held under written tenure provisions, Slochower v Board of Education, 350 US 551, 76 S. Ct. 637, 100 L. Ed. 692 (1956); and a college professor dismissed with de facto tenure, Perry v Sindermann, 408 US 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); and college professors and staff members dismissed during the terms of their contracts, Wieman v Updegraff, 344 US 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952); and a teacher hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment, Connell v Higginbotham, 408 US 207, 91 S. Ct. 1772, L. Ed. 418 (1971); have a property right to continued employment that is safeguarded by the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution.

In 1972, in two landmark companion cases, the U.S. Supreme Court set out the distinctions between non-tenured and tenured professors: Board of Regents of State Colleges v Roth, 408 US 564; 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Perry v Sindermann, 408 US 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972). While non-tenured professors may have an expectation of continued employment, they have no entitlement and are subject to discharge without the protection of due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. Tenured faculty members have an entitlement for a cognizable protected, vested property right to continued employment described by the terms of their university appointment when tenure was conferred and have a cause of action when this property right is invaded. The Court explained:

 

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law --- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Roth, supra, p 577.

 

The hallmark of property, the Court has emphasized, is an individual entitlement grounded in state law, which cannot be removed except "for cause." Memphis Light, Gas & Light Water Div. v Craft, 436 US II - 12 (1978); Goss v Lopez, 419 US 565, 573-74 (1975); Board of Regents v Roth, 408 US 564, 576-78 (1972). Once that characteristic is found, the types of interest protected as "property" are varied and as often as not, intangible, relating "to the whole domain of social and economic fact." Logan v Zimmerman Brush Co., 455 US 422 p 430; 102 S. Ct. 1148; 71 L. Ed. 2d 265 (1982).

 

[A]n explicit tenure provision clearly is evidence of a formal understanding that supports a teacher's claim of entitlement to continued employment unless sufficient "cause" is shown. Sindermann, supra, p 601.

 

[J]ust as the welfare recipients' "property" interest in welfare payments was created and defined by statutory terms, so the respondent's "property" interest in employment at Wisconsin State University-Oshkosh was created and defined by the terms of his appointment. Roth, supra, p 578.

 

Thus, to put it as plainly as possible, the United States Supreme Court considered that a professor in public employment possesses a vested property right to continued employment safeguarded by due process which can be created by an implied promise, a contract, de facto tenure or a written tenure provision [a written tenure provision means earned tenure]. Similarly, case law progeny shows that lower courts have followed suit.1

Hence, the weight of legal authority has established a compelling principle: in public academe a tenured professor possesses a protected, vested property right in his/her university employment.

Applying the definitions and principles set out by the preceding cited authorities, a suitable legal definition of the phrase academic tenure in public academe is:

Academic tenure is a reward given by an institution to a professor. It includes a long-term academic and financial commitment that guarantees the professor [except for cause] an entitlement: a protected, vested property right to continued employment. The dimensions of the vested property right are established and described by the terms of the university appointment when tenure is conferred and the professor possesses and enjoys the property right in his/her university appointment with tenure until retirement. This job security protects academic freedom and ensures an institution of a loyal and faithful faculty with high morale.

 

SUMMARY

 

A university appointment with tenure is one of the most prestigious positions in the employment world, Frye v Memphis State University, 806 SW2d 170 (Tenn. 1991). Professors achieve tenure following meritorious productivity during a probationary period. Tenure protects a professor from summary dismissal except for cause; namely: (1) serious misconduct, (2) incompetence, (3) (bona fide) financial exigency, or (4) discontinuance of an institutional program, Stern v University of Oklahoma, Board of Regents, 841 P2d 1168 (Okl App 1992). Tenure typically involves a continuous and permanent academic and financial commitment by a university to an individual who thereby gains a life contract in private colleges and universities or a protected, vested property right in public colleges and universities.

 

1McDaniels v Flick, 59 F3d 446, (3rd Cir. 1995); San Filippo v Bongivovanni, 961 F2d 1125,(3rd Cir. 1992); Frye v Memphis State University, 806 Sw2d 170,(Tenn. 1991); Morris v Clifford, 903 F-)d 574, (8th Cir. 1990); Johnston-Taylor v Gannon, 907 F2d 1577 (6th Cir. 1990); Farkas v Ross-Lee, 891 F2d 290,(6th Cir. 1989); Yatvin v Madison Metro School Dist., 840 F2d 412 (7th Cir. 1988); Agarwal v Regents of Univ. Minn., 788 F2d 504 (8th Cir. 1986); McConnell v Howard University, 818 F2d 58 (D. C. Cir. 1987); Harden v Adam, 760 F2d I 1 58 (9th Cir, 1985); Bignall v North Idaho College, 538 F2d 243 (9th Cir. 1976); Winterberg v University of Nevada System, 513 P2d 1248 (Nev. 1973); Collins v Parsons, 203 NW2d 594 (Iowa 1973); Zumwalt v Trustees o California State College, 31 Cal App 3d 611, (1973); Garner v Michigan State University, 185 Mich App 750 (1990).