Faculty Tenure: politics, procedure, and “for cause” termination of academic tenure
This post surveys the legal landscape of “for cause” terminations of tenured faculty. I recently discussed the alternate ground for terminating academic tenure, for “financial exigency”, here and here.
Importantly, termination of tenure is a self-regulated process. Most colleges/universities have detailed procedures for hearings and appeals governing de-tenuring. To aggrieved professors, these procedures can appear very biased, essentially permitting institutions to review their own decisions.
Courts, however, defer to these processes and will sustain terminations unless there is significant deviation from the prescribed procedures. Tenure, therefore, does not ensure job security so much as it ensures procedures that must be followed upon job termination.
The following is a quick survey of court cases dealing with terminations of tenured academics for “cause.” These cases are the proverbial “tip of the iceberg” because they are the rare cases in which faculty challenge their terminations through expensive, time-consuming, and potentially embarrassing litigation. Even among this non-representative set, however, courts rarely side with terminated tenured faculty. The bolded institution name links to the relevant court decision.
The most commonly contested tenure terminations relate to sexual misconduct. Terminable conduct runs the gamut from sexual comments in class, to improper consensual relationships, to coerced sexual encounters. Ithaca College and Wayne State terminated tenured professors over allegations of inappropriate sexual comments. Cornell, Bennington, Tennessee State and Michigan State have terminated professors over allegations of sexual harassment of, or relationships with, students. Penn State and Lehigh dismissed professors based upon other professors’ claims that the professors had inappropriate relationships with students. And Ohio State terminated a professor for pursuing a relationship with a local high school student.
Courts rarely sustain challenges to terminations for sexual misconduct. A court flunked Miami University’s termination of a professor, holding that MU improperly utilized its sexual harassment procedure instead of its more rigorous de-tenuring procedure. Similarly, a court on procedural grounds flunked Michigan State’s termination of a professor for failing to disclose allegations of sexual misconduct during his hiring process.
Also extremely common are terminations for a wide range of anti-social behavior towards colleagues and students. Former professors at Nova Southeastern, University of Maryland, City University of New York, University of Minnesota and University of Tennessee have unsuccessfully contested their terminations for a wide range of threatening, demeaning, or otherwise cranky conduct. A professor terminated by Texas A&M for aggressive conduct, however, successfully sued the University for retaliation.
Academic dishonesty is a common ground for termination of tenure. Many of these terminations do not result in litigation because the evidence of misconduct is irrefutable and/or faculty do not want to litigate the embarrassing accusations in public. Professors have pursued protracted, but unsuccessful, litigation against University of Illinois and University of Utah for terminating their tenured professorships for academic dishonesty. A professor also sued Arizona State for terminating her for plagiarizing several syllabi. Notably, a professor successfully sued the University of Pennsylvania for improperly terminating his position for alleged research misconduct and was awarded $2.9 million in damages against the University.
Fighting the Administration
Fighting with the administration may also jeopardize a tenured appointment. Marywood University terminated a professor who produced and circulated two videos ridiculing Marywood’s administration. The University of Wyoming dismissed a professor for “insubordination to the President” relating to the professor’s communications with certain donors. However, a notable decision flunked Marquette University’s termination of a professor for a controversial blog post about the University.
Attendance and Teaching
Poor attendance and teaching can get a tenured professor canned. Central Michigan dismissed a tenured professor who missed “preparation week” even though he apparently relied upon a bulletin incorrectly identifying the start date of classes. University of Minnesota dismissed a professor who received repeated complaints about absenteeism and poor teaching. Howard University terminated a professor who refused to teach a class in which he had an aggressive encounter with a student. Related but somewhat different, North Dakota University dismissed a professor for disclosing confidential information about a student in class.
Inflammatory political conduct may result in termination. University of Colorado dismissed a professor who came under scrutiny after making inflammatory comments about September 11 victims. University of Kansas dismissed a professor for failing to answer whether he had been a member of the Communist Party.
Finally, financial misconduct obviously can result in loss of tenure. Notre Dame terminated a professor who misused grant money to purchase equipment outside of the grant. University of Georgia terminated a professor suspected of using University resources to benefit a company owned by the professor. University of North Carolina terminated a professor for requesting to be reimbursed for legal fees that the professor incurred dealing with a legal issue against UNC.
Academic tenure provides important but not unlimited job security. A host of conduct can jeopardize a tenured appointment. As reflected by the cases above, faculty often mistakenly believe that their conduct is protected and their positions secure when that is not the case. In reality, virtually any conduct that is noxious to the administrators and faculty members staffing the committees and appellate panels presiding over de-tenuring procedures may provide grounds for termination. In the insular environment of an academic department or campus, such decisions may be tainted by perceived or actual bias. Courts, however, are unlikely to reverse those decisions unless there is a failure to follow an institution’s established procedures.