Sixth Circuit Makes Faculty Tenure Almost Meaningless

When is tenure not tenure?  The answer according to the Sixth Circuit Court of Appeals is that the grant of tenure is defined by the terms of the employment contract rather than a philosophical understanding of tenure.  The Cooley law school dismissed tenured Professor Lynn Branham at the end of her one year contract in December of 2006.  There had been disputes over the subjects of the classes assigned to Professor Branham in that period.  The school wanted her to teach constitutional law and torts, though her vocal preference was to teach criminal law.  She did teach those classes in the spring semester and took a medical leave over the summer.  She was again assigned those classes in fall but refused to teach them.  The school dismissed her in December of that year.

She sued Cooley on various counts, most of which were dismissed by the District Court.  The one claim in which she prevailed was breach of contract.  The school had not followed its contractual process that called for a hearing before the full faculty with the possibility of an appeal to the school’s Board of Directors in case of an adverse decision.  The District Court ordered the hearing to be held.  Professor Branham lost by a vote of 89-15 and the Board upheld the dismissal.

The opinion describes the relevant issue at hand:

As the district court noted, and as Branham concedes, “‘tenure’ [does not] mean[] anything other than what [Branham’s] employment contract provides.”  Further, under Michigan law, “contracts for permanent employment are for an indefinite period of time and are presumptively construed to provide employment at will.”  Rowe v. Montgomery Ward & Co., 473 N.W.2d 268, 271 (Mich. 1991).  The term “tenure” is not defined in Branham’s employment contract, but Branham contends that “tenure” means “lifetime appointment” or “continuous employment.”

Professor Branham relies on Appendix 1 of the American Bar Association’s Standards, Statements on Academic Freedom and Tenure.  The text of the Appendix is incorporated by reference in the employment contract and it states in part:

After the expiration of a probationary period, teachers or investigators should have permanent or continuous tenure, and their service should be terminated only for adequate cause, except in the case of retirement for age, or under extraordinary circumstances because of financial exigencies.  In the interpretation of this principle it is understood that the following represents acceptable academic practice:

* * * *

4. Termination for cause of a continuous appointment, or the dismissal for cause of a teacher previous to the expiration of a term appointment, should, if possible, be considered by both a faculty committee and the governing board of the institution. In all cases where the facts are in dispute, the accused teacher should be informed before the hearing in writing of the charges and should have the opportunity to be heard in his or her own defense by all bodies that pass judgment upon the case. The teacher should be permitted to be accompanied by an adviser of his or her own choosing who may act as counsel. There should be a full stenographic record of the hearing available to the parties concerned. In the hearing of charges of incompetence the testimony should include that of teachers and other scholars, either from the teacher’s own or from other institutions.  Teachers on continuous appointment who are dismissed for reasons not involving moral turpitude should receive their salaries for at least a year from the date of notification of dismissal whether or not they are continued in their duties at the institution.

ABA Standard 405 calls for schools to have a policy for tenure, the Appendix being an example.  The Court notes that the description of tenure in the Appendix is merely a model, and not the type of tenure held by Professor Branham.  In any event the language of Appendix 1 does not extend rights beyond those in the contract.  She is not entitled to “permanent or continuous tenure.”  The Court of Appeals stated:

Branham’s contract, including Policy 201, which refers to the concept of tenure but does not go so far as to define tenure as a right to continuous employment, does not create an obligation of continuous employment: her contract expressly limits its term to a single year.  While Branham may have had “tenure” in the sense that she had academic freedom, and that she and Cooley generally expected that they would enter a new employment contract in subsequent years, nothing in her employment contract, or the documents incorporated by reference therein, provides for a term of employment greater than one year.  The district court did not err in concluding that Branham is due only the employment protection and process specified in her contract.

I have a funny feeling that faculty, and not only those in Michigan, will be looking at the terms of their contract.  The meaning of the case is that while a faculty member may hold tenure, the employment contract defines the length of employment with no obligation to renew.  If that is the case, then tenure as law faculty understands the concept means, well, nothing.  There was a bit of a firestorm last year when the ABA considered revising the tenure language in the Standard. There is still no resolution to that matter, though the Sixth Circuit may have mooted the issue.  I expect Deans to consult with General Counsel and university presidents to answer the question, “You mean Professor X has tenure but I don’t have to offer him/her a contract?”  As Donald Duck might say, “oh boy, oh boy, oh boy.”  I expect a few more cases from other circuits testing the reasoning of this holding.  In the meantime, it’s law professor beware.  [MG]