Sunday, March 11, 2018

Tenure Problems (and Discrimination?) at South Dakota Law

MyannaI am re-posting here, with permission, a post David Frakt has posted over at The Faculty Lounge:

... Associate Professor Myanna Dellinger ... is the Editor-in-Chief of the ContractsProfBlog and a rising star in legal academia. She is the creator of the Global Energy and Environmental Law podcast (also available on iTunes), a frequent speaker at academic symposia and author of a dozen law review articles and many other publications.

After graduating first in her class at the University of Oregon School of Law in 2008, she had two clerkships, including for the Hon. Procter Hug, Jr. on the U.S. Court of Appeals for the Ninth Circuit. Myanna started her academic career as a Visiting Assistant Professor at Whitter Law School in 2010-11 and then accepted a tenure-track position at Western State College of Law in 2011-12. She was promoted to Associate Professor in 2014, effective for the 2014-15 academic year. In 2014, she was recruited by the University of South Dakota School of Law Dean Thomas Geu and offered a lateral position as an Associate Professor for the 2015-16 academic year, which she accepted. Since arriving at USD, Myanna has continued to thrive. She has published four highly-regarded law review articles since joining the faculty there, and has consistently received outstanding teaching evaluations. In 2016, she received a Fulbright Fellowship to the Institute for Advanced Sustainability Studies in Potsdam, Germany. She is highly involved in service to the school, the community and the broader profession and has brought significant positive attention to the school.

With credentials like this, one would think that the University of South Dakota would be thrilled to have her and would be doing everything to keep her, especially given the fact that the law school has only one tenured female faculty member and was cited by the ABA in its last site visit for its lack of gender diversity. Unfortunately, that is not the case. Although the law school has been strongly supportive of Myanna, the central University Administration seems to be doing everything they can to make her feel unwelcome.

Myanna’s problems started in her second year at the law school. In 2016, Jim Moran, the Provost and Vice President of Academic Affairs, initiated an effort to strip Myanna of her title as Associate Professor and demote her to Assistant Professor. The Provost apparently objected to the law school offering a lateral appointment as Associate Professor to Myanna without his prior approval, even though it was clearly within the Dean’s authority to do so, and the appointment was approved by the University President. Myanna was forced to hire a local attorney, at considerable expense, to defend herself against that blatant attempt to breach her contract. Ultimately, she was successful in retaining her title, but it became clear that the Provost would do everything within his power to prevent her from getting tenure in a timely fashion.

From the time that the law school recruited her, Myanna had been promised that she would be eligible for tenure consideration in her third year. Under the law school’s tenure rules, it is standard procedure for Associate Professors to apply for tenure in their third year as Associate Professors. At the start of this academic year, Myanna’s third at USD, Dean Thomas Geu reaffirmed his support for Myanna to apply for tenure this year and directed the Associate Dean of Academic Affairs to seek external reviews of Myanna’s scholarship for inclusion in her tenure package. Although her law school colleagues were strongly supportive, Myanna anticipated that she would encounter resistance from the Provost and President and might ultimately have to resort to legal action. Accordingly, she retained my services to assist her in the tenure process. The first step in the tenure process was to file a petition for prior service credit for to the USD Board of Regents. This is also standard practice at USD. According to the Board of Regents policy manual, “the Board strongly suggests that faculty members submit requests for prior service credit toward tenure only after the faculty member has assembled a complete portfolio for tenure review.” Myanna submitted her petition, along with a complete tenure portfolio and other supporting materials, on time, in September.

In her petition, she requested that she be given three years of credit for her five years of teaching at ABA-Accredited law schools prior to joining the USD faculty. Under law school tenure rules, associate professors are “normally” eligible for tenure in their sixth year of service (three years as an Assistant Professor, and three as an Associate Professor) so three years was all she needed to be ensure her unequivocal eligibility for tenure. The petition was required to be reviewed by the Dean, Provost and President before submission to the Board of Regents. Dean Geu wrote a detailed memorandum in support of the petition, explaining why Myanna deserved three years of prior service credit. But the Provost and President refused to concur with the Dean’s recommendation. They each wrote separate perfunctory memos to the Board recommending that Myanna receive only one year of prior service credit. They offered no specific rationale for their recommendations.

The Board of Regents met in October, and, following the “University’s recommendation” granted Myanna only one year of prior service credit towards tenure. When I inquired as to whether the Board had actually reviewed Myanna’s petition on the merits or had simply followed the President’s recommendation, I learned that the University had not actually forwarded Myanna’s petition and supporting materials to the Board, so the Board had never had the opportunity to consider them. I filed a grievance with the University protesting this gross procedural failure. The President initially denied the grievance, but then agreed to an informal settlement conference. During the conference, I asked him why he opposed Myanna’s petition, and he explained that it had nothing to do with her personal merits, but that he was personally philosophically opposed to any new faculty member receiving tenure without an extended period of service in residence at the University of South Dakota. He agreed to write a new recommendation to the Board, recommending an additional year of prior service credit (but still not the two additional years we were requesting), and explaining that his recommendation was not based on the specific merits of Myanna’s petition but rather on his personal views in general regarding how long a professor should have to be in residence at USD before they should be given tenure. He also agreed to forward Myanna’s full original petition and supporting materials and any additional materials that she or I wished to include for the Board’s reconsideration in support of our request for two more years.

Meanwhile, the Faculty Retention, Promotion and Tenure (RPT) Committee had already begun to review Myanna’s tenure application. With a deadline looming for the RPT Committee to complete their work and Myanna’s prior service credit petition still under consideration, the Committee inquired whether Myanna still wished to move forward with her application. She replied that she did. Indeed, from the beginning of the process, Myanna made it clear that she was not relying solely on the prior service credit process to establish her eligibility for tenure. The Law School and University tenure rules make clear that while six years of service is the “normal” period for tenure consideration, outstanding candidates who met the standards for tenure early could apply early under an exception to policy. Myanna had checked the box on the University’s required standard tenure application form indicating that she wished to be considered under this exception. Understanding this, the RPT Committee unanimously voted to recommend Myanna for tenure, and presented a thorough report and recommendation to the Dean which was strongly supportive of her candidacy.

While the Dean was reviewing Myanna’s tenure package and preparing his recommendation, the Board of Regents met again and reconsidered Myanna’s prior service credit petition. Again, the Board followed the President’s recommendation and awarded her with one additional year of prior service credit. The Dean asked Myanna if she still wished to proceed with her application, as it would be considered early based on the Board’s decision. He advised her that if she was denied on the merits that she would then receive a terminal year contract. Myanna reaffirmed to the Dean that she wished to move forward with her application. The Dean then prepared his recommendation. Like the RPT Committee, he strongly endorsed her application, reporting that “her records contain overwhelming evidence that she exceeds the standards for tenure based on her accomplishments at USD Law.” The Dean noted that he was applying the University’s exceptional circumstances exception for early tenure for those “faculty members who have established records clearly worthy of tenure and promotion with outstanding potential.” The Dean noted that, although nominally considered early, Myanna was, in fact in her eighth year of law teaching overall, her seventh on the tenure track, her fourth as an associate professor and her third as an associate professor at USD law school, “which is the ‘normal’ time in service as an associate professor.” The Dean’s report was submitted to the Provost on January 30, 2018.

Over a month later, Myanna received a brief, one paragraph memorandum from the Provost stating that she was “not eligible to be considered for tenure” because a “decision to recommend tenure normally will be made during the faculty member’s sixth year of service at the law school” and “the Board of Regents awarded her only two years of prior credit.” The Memo concluded “we are returning your materials to you. Please note that this is not a judgement one way or the other on the merits of your candidacy.”

Although it is not entirely clear why the Provost and President are so opposed to Myanna receiving tenure, there have been some disturbing signs that there are other factors at play in Myanna’s case beyond these administrators’ professed belief that lateral hires should not be promoted on the same schedule as homegrown faculty members. In 2016, Myanna published an article in the Columbia Journal of Environmental Law Trophy Hunting Contracts - Unenforceable for Reasons of Public Policy, 41 Colum. J. Envtl. L. (2016) (SSRN Link) that was highly critical of trophy hunting. Although the article was very well-received in the legal academy, the article was very controversial in South Dakota, where hunting, including big-game hunting, is still a popular activity. The article ignited considerable controversy in South Dakota and the law school was criticized for allowing Myanna to publish it. Rather than encouraging Professor Dellinger’s colleagues to come to her support, the law faculty were directed not share their views externally and not to respond to comments posted on the USD Law listserv. The Provost’s unsuccessful efforts to demote Myanna began shortly thereafter.

Based on the Provost’s pattern of hostility to Myanna, we were disappointed but not surprised by his latest action of refusing to process her tenure file. However, it is not at all clear under what authority the Provost purports to be acting. The Law School Tenure Rules do not specify any role for the Provost in the tenure process and the University tenure rules and Board of Regents tenure policy clearly state that the Law School has the authority to establish its own tenure rules. Although the Provost was plainly hoping that Professor Dellinger would simply give up on her tenure application and wait to apply for tenure next year, Professor Dellinger decided she was not willing to give up without a fight. Thus, on Friday, March 9, Myanna and I filed a Motion for Declaratory Judgment (link to Motion)(link to Motion Exhibits) in the South Dakota State Circuit Court in Vermillion seeking a declaration that she is eligible for tenure consideration this year and an order directing the Provost to continue processing her application on the merits. We have asked the Court to set an expedited schedule for the Provost’s response and a hearing, if necessary.

We are hopeful of a positive outcome in the Court. Certainly the facts and the law are on Myanna’s side. Unfortunately, Myanna’s extended legal battles to defend her rights have put a severe financial strain on her. USD is one of the lowest-paying law schools in the country (even third year Associate Professors like Myanna are still paid under six figures) so there is not a lot left over for legal fees. Although I have done all of my work on the case either pro bono or at a deeply discounted rate, it is still a major struggle for Myanna to pay for the ongoing fees and costs of litigation. Accordingly, Myanna has set up a Legal Defense Fund with Go Fund Me. This fund will be used to pay for court costs (filing fees, pro hac vice fee, etc.), and past, present and future legal fees. If the Court orders a hearing in the case, I have promised Myanna to represent her at the hearing pro bono, but the fund would be used to pay for my travel expenses to South Dakota, which is not the cheapest place to get to. If you have a few bucks to spare and would like to support Myanna, please consider donating to the fund.

Stay tuned here for further developments on the case. In the meantime, I welcome your comments, questions and ideas on the matter and on the Declaratory Judgment Motion. In particular, if anyone knows of any analogous cases involving a dispute between a law school and University administration on a tenure eligibility question, Myanna and I would be very interested to hear about it. Thank you.


Employment Discrimination | Permalink


Post a comment