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Thursday, August 09, 2012

What is tenure?

As reported here, the Sixth Circuit recently held that a tenured professor at Thomas Cooley Law Schooldid not have permanent employment or a right to continuous employment, where the contract was only for a one-year term and did not provide for, or define, tenure. The court also read the ABA standards, which were incorporated into the contract, as exemplary and hortatory, and not as formal contractual definitions of tenure as lifetime employment in this contract. The court also held that a faculty review process held three years after the termination decision was sufficient process under the contract.

I always have considered myself to be on a one-year contract that is automatically renewable, except for cause and with certain contractual process rights, which seems to be what the Sixth Circuit is saying here. Do others define tenure differently?  Is this decision unique to the contract at issue and to Michigan law? Is this case really not about tenure per se (despite the tenor of the NLJ report) but about a conclusion as to what cause and process is sufficient for a school to fire a tenured professor?

Update: Jeff Hisrch comments at Workplace Prof Blog, calling the court's disregard for the ordinary meaning of tenure "troublesome" as a matter of ordinary contract law, doubting that anyone at Cooley believed or inteended that faculty could be fired at will at the end of an academic year. Jeff believes this is partly a product of the contracts at issue and most contracts specifically define tenure (or will going forward). One of my initial thoughts, confirmed by Jeff's post, is that under the Sixth Circuit's view, a tenured professor has less job security year-to-year than a professor on a long-term contract.

Posted by Howard Wasserman on August 9, 2012 at 11:04 AM in Howard Wasserman, Teaching Law | Permalink


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The case wasn't about non-renewal without cause of a one-year contract. It was about whether a tenured professor could be fired for refusing to
teach the courses that the dean assigned her-- con law instead of her
preferred criminal law. Even if
the contract had been for lifetime employment, the issue would
have been the same.

Posted by: Eric Rasmusen | Aug 12, 2012 8:46:19 PM

Jeff - Thanks for the correction. I was thinking of my own state institution where I've been engaged in rewriting university-wide dismissal procedures precisely because of the post-deprivation hearing delay problem. My comments re implied contract remain relevant, I think, and Bruce has nicely underscored them.

Posted by: Michael Duff | Aug 9, 2012 2:30:40 PM

If there's an undefined term in the contract, one source of meaning is supposed to be industry custom. I'm surprised the court didn't look at that, or any other evidence as to what the parties may have meant by the term other than the text of the contract itself plus a document incorporated by reference. It's as if the disdain for legislative history for statutory interpretation has made its way to contract law.

Posted by: Bruce Boyden | Aug 9, 2012 1:53:06 PM

Some readers may be unaware that Cooley is a private law school. As such, the procedural due process guarantee of the Fourteenth Amendment does not apply to this employment dispute because there is no state action. The Sixth Circuit makes this point on page 8 of its unanimous opinion.

Posted by: Jeff Kahn | Aug 9, 2012 12:34:38 PM

I think the case reflects just how hollow the concept of procedural due process has become ("some kind of hearing" years after the discharge) and how much we are riding on the law of implied contract -- not to mention the employment law burden shifting mechanism -- in the states where we fortunately (or unfortunately) happen to be teaching.

Posted by: Michael Duff | Aug 9, 2012 11:25:31 AM

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