The University Record, September 16, 1998
By L. Keith Yohn, D.D.S., M.S.,
Associate Professor of Dentistry
Conferral of academic tenure converts an at-will employment status into a constitutionally protected property right which tenured faculty possess until retirement from public academia. The legal basis for the definition of academic tenure has been published on the Faculty Perspectives Page of The University Record, vol. 52, no.18, p. 8 (January 21, 1997) and vol. 53, no. 27, p. 8 (April 8, 1998). This essay provides a more specific, personal and historical account.
In 1969, the U-M Dental School expanded its curriculum to 12-month operations because faculty recommended and the administration agreed that students needed more clinical experience before entering private practice. This pedagogical change required the commitment of instructional staff, and so professors in the Dental School were conferred tenure for 12 months of employment per year. Almost two decades later, on March 27, 1987, the U-M Provost attended a meeting of the Dental School faculty and announced his intent to reorganize the Dental School and reduce its budget, but to retain its existing 12-month operations. Unilaterally, the Provost disenfranchised the unit executive committee, installed an interim dean, and appointed a transition committee. In accord with the Provost's plan, on July 1, 1989, the Regents and the administration reduced the appointment period of 17 tenured professors from 12 months to 9 months with loss of 25 percent salary. Eleven of the 17 professors were offered contractual teaching opportunities for two additional months of salary compensation each year. The six tenured professors who were most vocal in opposing the reorganization process were black-listed and punished by excluding them from opportunity for the additional months of compensated employment. The reduction in appointment period resulted in a 25 percent seizure of property rights from these professors without due process, sufficient "cause," or compensation. The seizure of property rights was executed without authority under the United States Constitution and the laws of the Regents of the University of Michigan, the State of Michigan and the United States. That seizure is contrary to the traditions of the common law upon which our Constitution was founded.
If the Regents and their agents arbitrarily and capriciously seize 25 percent of the property rights of tenured faculty today, there is nothing to prevent them from seizing 50 percent, 75 percent or 100 percent of their property rights tomorrow. The framers of the United States Constitution and the Bill of Rights knew only too well that a government can become tyrannical, greedy, self-serving, arrogant, amoral and corrupt. They formulated these constitutional principles to protect each citizen from such dangers.
In his essay "Property," James Madison, author of the Fifth Amendment's just compensation clause, articulated the constitutional principle of "inviolability" of property. He argued (1) that the requirement for just compensation evidenced a government's "pride in maintaining the inviolability of property rights," and (2) that consistency with underlying principle required observance of diverse real, personal and property rights. He reasoned that a government that provided just compensation when it took real, personal and property rights honored its commitment to an individual's personal freedom. Government would dishonor that commitment if it were to have directly violated the property which individuals have in their opinions, their religion, their persons, and their faculties ...
indirectly violate their property, in their actual possessions, in their labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues and soothe their cares. (Emphasis in original).
Madison's description of the nature of the property for the just compensation clause, "indirectly violate their property in the labor that acquires their daily subsistence," goes to the heart of the matter of this essay.
For almost a century the U.S. Supreme Court has upheld the constitutional rights of teachers in public institutions, the Court held:
[T]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. *** in view of the nature of the teacher's relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment. Shelton v Tucker, 364 US 479,487 (1960); Keyishian v Board of Regents, 385 US 589,603 (1967). And, it can hardly be argued that either students or teachers shed their constitutional rights *** at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. Tinker v Des Moines School Dist., 393 US 503,506 (1969).
Academic tenure is one of a professor's most cherished possessions; it is a property right that is protected by the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution. Board of Regents v Roth, 408 US 564, 571-72, 578 (1972). The right to possess property is the highest basic right known to man. Fulton Light, Heat & Power Co. v State, 121 NYS 536 (NY Ct. Cl. 1909); Black's Law Dictionary, 6th edition p 1216, West (1990). This right is held to be higher than contractual rights. Garner v Michigan State University, 185 Mich App 750, 758-59 (1990).
Possession of a university appointment with tenure is a property right that sustains professors and their families, and allows them to pursue the goals of their chosen profession while they serve society. A university appointment with tenure is a property right that protects a professor from tyrants, arrogance, greed, envy, corruption, pretext, animosity, self-serving interest, conspiracy, favoritism, and religious, philosophical, political, national origin, sex, race, age discrimination or any other illegitimate reason(s) alleged by governing boards and their administrations. It also protects U.S. citizens at large by ensuring that a group of educators exist who cannot be silenced by threat of immediate dismissal. Hence it protects truth.
On August 2, 1989, I submitted a complaint to the interim dean of the Dental School about the reduction in my tenured university appointment period from 12 to 9 months per fiscal year. After 7 hours of hearings, a Grievance Review Board issued an unfavorable decision and I was denied appeal of the decision by the administration. Next, I initiated a lawsuit against the Regents and various administrators for the reduction in my appointment period.
I employed an attorney during the grievance procedure, but because of the expense, I carried on the legal struggle by myself, learning the judicial procedures as needed. In July 1991, I filed a complaint in the Michigan Court of Claims. The judge submitted the case to mediation. The mediation panel voted unanimously in my favor. The mediation panel's monetary award was insufficient compared to the damages, however, and the case went to trial. The judge ruled that I did not have a valid contract signed by the Regents. The Michigan Court of Appeals affirmed the decision by the Court of Claims. The Michigan Supreme Court denied my application to plead the case before them. On January 6, 1997, I filed a complaint in the United States District Court for the Eastern District of Michigan claiming a taking of my property rights without compensation. The District Court declared that the statute of limitations had expired and dismissed the case. The United States Sixth Circuit Court of Appeals affirmed the District Court's decision. On April 20, 1998, the United States Supreme Court denied my petition that they hear the case. In each instance the decision of the court was based on technicality (e.g. the statute of limitation question) and not on the substance or merit of the case. For instance, the Regents' lawyers argued that the statute of limitation clock started when the Provost first announced his intention to reorganize the School, and not over two years later when the property rights were actually taken away.
On April 29, 1998, I petitioned the current Provost to revisit the arbitrary and capricious reduction in my appointment period because the administration had denied me an appeal under the University's grievance procedure guidelines and had not conducted a post-determination review of the grievance review board's decision. I stated to the Provost that because the courts had not rendered an opinion on the matter we did not know whether the Regents and/or administration can or cannot take professors' property rights without due process, a sufficient cause or just compensation. I said, "However, I will appeal to the court of public opinion and get their decision."
I related to the Provost that I have received two professional degrees from the University and have been a member of the faculty for 35 years. It is not my intention to damage the name, image or reputation of my alma mater. I love the University of Michigan. But, it is my intention to change the hostile, amoral and unjust atmosphere that prevails on this campus. I suggested to the Provost that it would be in the best interest of the University to settle this matter in an honorable fashion and requested that there be negotiations to obtain a satisfactory resolution for both parties before I went to the news media.
In the middle of June 1998, a University attorney and I commenced negotiations. After several meetings, on July 24, 1998, we reached a satisfactory agreement which included awards compensatory to the damages as well as reinstatement of my full appointment.
I challenged the seizure of my property rights and the invasion of my freedoms by going through the University's grievance procedure without a resolution. Subsequently, I litigated the matter in various state and federal courts without obtaining an opinion on the issue of relevance. On July 24, 1998, after nine years of fighting, the Regents and their administration finally negotiated a satisfactory settlement in this matter. Perhaps it signals more collegial, less adversarial attitudes in high places.
Yes! freedom to teach, freedom to do research, freedom to perform service for the University and the public, plus property rights and academic tenure are all worth fighting for. They are worth the fight for more than personal reasons, however. Academic tenure is worth fighting for because without it we cannot do the job of protecting the truth. Tenure protects our right to find the truth and teach the truth without loss of employment. Protected truth seeking and truth speaking helps create the educated population that is the living guarantor of a free society.