HOW UNIVERSITIES AND COLLEGES UNDERMINE THE DEFENSE OF TENURE DENIAL CASES

Jacques J. Parenteau
Madsen, Prestley & Parenteau, LLC

111 Huntington Street
New London, Connecticut 06320
June 2002

This paper will assert that universities and colleges undermine the defense of a tenure denial case by inappropriately arguing that the court should defer to institutions when making "academic" employment decisions regarding tenure and promotion. Invariably, sophisticated university attorneys argue that judicial deference to academic employment decisions involving tenure is required by principles of academic freedom. Yet, a close examination of this argument reveals there is no foundation for the claim that principles of academic freedom prevent judicial review of tenure and promotion decisions. Blind adherence to this position will ultimately undermine an academic institution's credibility, with courts, juries and the public.

Broadly defending every tenure decision by repeating the mantra that no employment decision involving a professor should ever be "second-guessed" by a judge or jury is an intellectually suspect position. In fact, it is now beyond doubt that claims of restrictive review of tenure decisions cannot always be premised upon principles of academic freedom. In some cases, judicial deference has no application because the tenure decision is challenged on the basis of a failure to abide by specific promises made during the employment relationship unrelated to the substance of the tenure decision. Thus, an academic institution's failure to consider whether the denial of tenure case raises issues other than the correctness of the substantive judgment of a decision-maker can result in a needless expenditure of time and money. Furthermore, with the reputations of the institution and professors at stake, tenured and non-tenured alike, counsel should be cautious when blindly relying upon a claim to judicial deference. In some cases, such reliance may provide nothing more than a false sense of security, because the court's charge to the jury will not contain the instruction to defer to the institution's decision. Rather, the instruction to the jury will be: did the institution fairly follow its own rules?

  Having represented nearly thirty professors and administrators in employment disputes against every major educational institution in Connecticut over the last thirteen years, I have gained a good deal of exposure to the issues that arise in denial of tenure lawsuits. Although most of the cases were resolved by a settlement, usually after suit was brought, between May of 1998 and January 1999, three tenure denial cases were brought to trial against three different academic institutions. Two tenure denial cases were tried to a jury verdict. The third case, claiming contract rights akin to de facto tenure, was tried to a federal judge. These academic cases presented contract, tort and discrimination claims. Although admittedly an oversimplification, the result followed the trial judge's position on the appropriate instruction regarding deference afforded to academic employment decisions. In the first jury case, the judge charged the jury that it could not "second-guess" the university or find a breach of contract unless the decision made was "arbitrary, capricious or in bad faith." Many experts were prepared to testify that the decision made was arbitrary, but the court limited their testimony. The jury found for the university. In the second jury case, the judge refused to give the "no second-guessing" charge in relation to the contract claim, but allowed the jury to focus on the promises in the Faculty Handbook and determine whether the decision-making committee followed the rules provided there. The jury found for the plaintiff and awarded her nearly seven hundred thousand dollars in contract damages. Both cases were appealed and error was assigned to the jury instructions in both cases. The verdicts were sustained on appeal with and without the so-called "no second-guessing" charge. The jury trial cases are reported at Craine v. Trinity College, 259 Conn. 625, 791 A.2d 518 (2002) (concluding the evidence supported jury's conclusion that defendant breached the employment agreement because college indicated plaintiff would be evaluated on one standard but denied her tenure because of failure to meet a different one) and Daley v. Wesleyan University, 63 Conn. App. 119, 772 A.2d 725, cert. denied, 256 Conn. 930, 776 A.2d 1145 (2001) (holding jury properly instructed that breach of employment agreement regarding tenure can only found if the decision was arbitrary, capricious or in bad faith). Whether it is possible to reconcile both decisions is beyond the scope of this article, but suffice it to say, a breach of contract claim is not always premised on "second-guessing" a substantive decision.

A more interesting question is whether the doctrine of judicial deference to academic employment decisions is appropriate in the first instance. College and university counsel repeatedly request that courts defer to academic institutions when considering employment decisions related to tenure and promotion. The concept of academic freedom is said to be at the heart of the request. Advancing the position that academic freedom protects every tenure decision from review, and that no such decision is permitted to be "second-guessed," is not, however, an accurate statement of the law. More than one court has recognized that not every "academic decision" requires judicial deference. As the Connecticut Supreme Court recently noted when responding to the assertion that court and juries should not "second-guess" tenure decisions, "The principle of academic freedom does not preclude us from vindicating the contractual rights of a plaintiff who has been denied tenure in breach of an employment contract." Craine v. Trinity College, 259 Conn. at 654, 791 A.2d at 540. The question remains whether the principle of academic freedom should ever be relied upon to limit the review of tenure decisions.

As will be shown, applying a deferential standard of review to college and university decisions involving denial of tenure does not spring from any established principle of contract law, nor is a deferential standard of review normally expected or agreed to by the parties as a part of the academic employment agreement. Rather, the concept of judicial deference to academic employment decisions appears to have been conceived in reaction to tenure denial discrimination claims brought after Congress amended Title VII in 1972 to apply the Civil Rights Act of 1964 to universities and colleges. When discrimination claims were brought to federal court for trial, federal judges were called upon to decide whether illegal discrimination tainted the decision to deny tenure. Reacting favorably to the university and college claim that the courts were ill suited to decide tenure cases all over again, the courts refused to sit as a "Super Tenure Committee."

Lieberman v. Gant, 630 F.2d 60 (2nd Cir 1980) is one of the most cited cases calling for judicial deference to academic employment decisions involving tenure. Briefly reviewing the facts described in the opinion, one immediately understands why the Court of Appeals would not readily engage in a lengthy re-examination of the substantive decision involving Dr. Lieberman using other professors as comparators. Brought to trial in the United States District Court in Connecticut on April 20, 1976, Lieberman concluded two years later on May 26, 1978. The trial "produced a transcript of nearly 10,000 pages and almost 400 exhibits and consumed 52 days of court time." Id. at 62. Briefs were due on July 31, 1978, but defendants did not file their brief until March 5, 1979. Plaintiff's counsel never filed proposed findings of fact and conclusions of law. "Despite the difficulties arising from the length of the trial, the long gap between its end and the filing of defendant's brief, and the plaintiff's failure to submit any proposed findings or conclusions or a brief...," Judge Clarie issued a decision on August 2, 1979. Id.

On appeal to the Second Circuit, Judge Friendly identified the problem in a footnote as follows:

We do not understand how either the federal courts or universities can operate if the many adverse tenure decisions against women or members of a minority group that must be made each year are regularly taken to court and entail burdens such as those here incurred. This is not the first case of this sort. See, e.g., Johnson v. University of Pittsburgh, 435 F. Supp. 1328 (W.D. Pa. 1977) (dismissing complaint alleging refusal to grant promotion and tenure was discriminatory after 74 days of trial, 12,085 pages of testimony, 73 witnesses and nearly 100 exhibits.)

Id. Against this background of evident frustration with the length of the trial and the voluminous evidence, and intending to preempt similar cases from coming to trial in the future, Judge Friendly declared a judge-made policy against providing full scale trial of cases like Dr. Lieberman's, because Congress could not have intended this result. Many of the statements supporting judicial deference subsequently relied upon by college and university attorneys are taken from the following passage in the opinion.

The Congress that brought educational institutions within the purview of Title VII could not have contemplated that the courts would sit as "Super-Tenure Review Committee(s)", Keddie v. Pennsylvania, 412 F. Supp. 1264, 1270 (M.D. Pa. 1976; their role was simply to root out discrimination. Chief Judge Claire thus did not err in declining plaintiff's invitation to engage in tired-eyed scrutiny of the files of successful male candidates for tenure in an effort to second-guess the numerous scholars at the University of Connecticut who had scrutinized Dr. Lieberman's qualifications and found them wanting, in the absence of independent evidence of discriminatory intent or a claim that the plaintiff's qualifications were clearly and demonstrably superior to those successful males, a claim which was not made by Dr. Lieberman because it could not have been sustained.

  Lieberman v. Gant, 630 F.2d at 67-8 (emphasis added).

  Judge Friendly's dicta, announced an extremely deferential stance toward academic institutional tenure decisions. Obviously, judicial deference to substantive, academic decisions involving tenure imposes a great deal of trust on the institution and on the fairness of the tenure decision-making process. Nevertheless, some would argue that requiring all potential discrimination plaintiffs (women, minorities, disabled and individuals over 40) to prove that their qualifications "were clearly and demonstrably superior" to a comparator, when the employment decision involves tenure, unfairly sets a higher standard for one type of employee, the assistant or associate professor seeking tenure. Many would agree that such a high standard of proof would be "clearly and demonstrably" objectionable if the employment position at issue was the manger of a retail establishment. Unfortunately, there are few courts willing to set aside the evident disparity this standard represents when applied to academic employees. "A court may not simply substitute its own views concerning the plaintiff's qualifications for those of the properly instituted authorities; the evidence must be of such strength and quality as to permit a reasonable finding that the denial of tenure was 'obviously' or 'manifestly' unsupported." Brown v. Board of Trustees of Boston University, 891 F.2d 337, 346 (1st Cir. 1989) (plaintiff prevails on claim of gender discrimination and is awarded tenure despite the higher standard of proof required). Courts have repeatedly adopted this judicial policy across the country. From a review of the cases cited above and at note 6, it appears that university counsel's strategy to invoke the doctrine of judicial deference in every tenure case has been enormously successful. In that case, why should universities abandon the position that courts should always defer to university or college decisions involving tenure? For one thing, blind adherence to this position ultimately undermines the integrity of the university or college when it is more important to prevail than to assure that the decision made was legitimate. More importantly, institutions should consider that courts might eventually be persuaded that the doctrine of judicial deference to academic decision-making lacks support at its core, because the theory is itself inconsistent with principles of academic freedom. Thus, an even more compelling argument for abandoning blind adherence to the doctrine of judicial deference is based on intellectual honesty and clarity of thought in the examination of tenure claims by academic counsel.

As noted above, principles of academic freedom are claimed to be at the root of the "no second-guessing" rule, but a review of the United States Supreme Court's decision cited as precedent for the policy provides evidence for a contrary conclusion. In Lieberman v. Gant, Judge Friendly stated, "A university's prerogative 'to determine to determine for itself on academic grounds who may teach' is an important part of our long tradition of academic freedom." Id. 630 F.2d at 67, citing Sweezy v. State of New Hampshire, 354 U.S. 234, 263 77 S. Ct. 1203, 1 L.Ed.2d 1311 (1957) (Frankfurter, J., joined by Harlan, J., concurring in the result). Yet, upon review of the majority opinion in Sweezy, it is plainly seen that the doctrines of academic freedom and freedom of political expression actually support exposing the tenure decision to open and fair examination in a court of law. In reversing the professor's conviction in Sweezy, Chief Justice Warren referred to the importance of academic freedom and political expression as catalysts for the free expression and exchange of ideas in the university setting.

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die.

Sweezy, 354 U.S. at 250, 77 S. Ct. 1211-12 (emphasis added). The principle of academic freedom that should guide counsel and courts when reviewing tenure denial claims is best expressed in the last two sentences. In order for scholarship to flourish, it must be expressed and evaluated in an atmosphere free of intimidation. Just as teachers and students must be free to inquire, study and evaluate, judges and juries must be permitted, without shackles applied by one party to the contract, to review a professor's claim that her agreement with the university or college has been unfairly breached or that illegal discrimination infected the decision to withhold the award of tenure. In short, the doctrine of academic freedom announced in Sweezy does not prohibit review of tenure denial claims; to the contrary, the principle of academic freedom underscores the need for an open, unrestricted judicial review.

Perhaps one of the most enlightened decisions on the subject of judicial deference to university decision-making and consistent with the principle of academic freedom expressed in Sweezy appears in McConnell v. Howard University, 818 F.2d 58, 260 U.S. App. 192 (D.C. Cir. 1987) (Edwards, J.). The case was presented on appeal after Howard University had won at the trial level on the question of deference to academic decision-making. Relying upon language in the Faculty Handbook that declared the decision of the Board of Trustees in a tenure dismissal case "shall be final," the trial court determined the standard of review would require proof that the "Board's decision was arbitrary, or the plaintiff has proffered evidence of improper motivation or irrational action." Id. at 201. This deferential standard was rejected by the Court of Appeals.

  Such a reading of the contract renders tenure a virtual nullity. Faculty members like Dr. McConnell would have no real substantive right to continued employment, but only certain procedural rights that must be followed before their appointment may be terminated. We find this to be an astonishing concept, and one not compelled by a literal reading of the Faculty Handbook.

  McConnell v. Howard University, 818 F.2d at 67, 260 U.S. App. at 201. After further review, Judge Edwards declared, "On remand, the trial court must consider de novo the appellant's breach of contract claims; no special deference is due the Board of Trustees once the case is properly before the court for resolution of the contract dispute." Id. at 68, 202 (emphasis added).

  Howard University further claimed that its decision was entitled to deference because all the process below made it similar to an agency decision. Judge Edwards stated:

Here ...there is a contract to review, and it has been brought into issue by the appellant's legal complaint. The reasonableness of the University's actions is relevant only insofar as the actions of are consistent with the parties' contract. It would make no sense for a court blindly to defer to a university's interpretation of a tenure contract to which it is an interested party.

Id. at 69, 203 (emphasis added).

  When Howard University urged the Court of Appeals to follow the reasoning of the District Court, "that a federal court should hesitate before significantly intruding in the administration of university affairs," Judge Edwards eloquently invoked principles of academic freedom to reject this limitation on judicial inquiry and evaluation of university conduct:

We find no support for this argument in this case. This is not a 'three-cornered dispute;' rather, what is at stake are the contractual rights of Dr. McConnell. However, taking the point more broadly, we do not understand why university affairs are more deserving of judicial deference than the affairs of any other business or profession. Arguably, there might be matters unique to education on which courts are relatively ill equipped to pass judgment. However, this is true in many areas of the law, including, for example, technical, scientific and medical issues. Yet, this lack of expertise does not compel courts to defer to the view of one of the parties in such cases. The parties can supply such specialized knowledge through the use of expert testimony. Moreover, even if there are issues on which courts are ill equipped to rule, the interpretation of a contract is not one of them. We find no precedent in the District of Colombia for the District Court's view, nor do we find persuasive precedent in any other jurisdiction.

Id. 69-70, 203, 204 (emphasis added).

Although McConnell v. Howard University involved a challenge by a tenured professor to his dismissal, the holding of the case has been extended beyond the dismissal context. "McConnell's reasoning readily encompasses the promotion setting as well as the disciplinary one. We can discern no principled reason why it should be delimited to the latter setting, which gave rise to the McConnell litigation... As we see the issue, the University cannot claim the benefit of the contract it drafts but be spared the inquiries designed to hold the institution to its bargain." Kyriakopoulos v. George Washington University, 866 F.2d 438, 447, 275 U.S. App. 237, 246 (D.C. Cir. 1989) (Starr, J.). Accord, Craine v. Trinity College, 259 Conn. at 654, 791 A.2d. at 540. The Kyriakopoulos court was also quick to point that the decision did not reach "judicial recalculation" of the university's evaluation of scholarly merit. However, as noted, juries are not always asked to recalculate a university's evaluation of scholarly merit in a breach of contract tenure denial claim. "Thus, the jury properly was instructed to decide whether the defendant consistently applied the standards in the manual and the second letter of reappointment. It was not asked to determine whether the plaintiff met those standards." Craine, 259 Conn. at 663, 791 A.2d at 545.

Having argued against blind adherence to the doctrine of judicial deference to college and university tenure decisions, it is still true that no plaintiff in an academic employment case should ever ask the judge or jury to substitute their opinion on what is adequate teaching or scholarship. Making tenure decisions are properly the role of the faculty and other peers of the tenure candidate. On the other hand, just because it is undoubtedly the case that the college or university has the right to make the judgment in the first instance, that does not mean that the initial decision is not subject to judicial review, even when that decision involves academic expertise. As Judge Edwards properly observed, courts know how to obtain expertise, that's what experts do in court every day. Indeed the use of expert testimony was referred to with approval in Kyriakopoulos, supra. Expert testimony comparing Julia Brown's qualification to similarly situated males who received tenure at Boston University was sufficient to establish discrimination and an award of tenure, despite the higher standard imposed on her by the First Circuit Court of Appeals. The court in Gladney v. Thomas, 573 F. Supp. 1232 (N. D. Ala. 1983), relied upon the testimony of scholars in the field to find that the college breached the contract when it refused to award tenure after Professor Gladney made efforts to "improve her scholarship," which was the condition imposed to obtain tenure. Expert testimony was also admitted in Craine to rebut newly fashioned reasons offered by the college at trial to support the decision to deny tenure. In each of these cases, what institutions may characterize as "second-guessing" is also properly understood as enforcing the agreement of the parties by holding the college or university to the promises it made at the inception of the six-year probationary period.

  In the final analysis, the doctrine of judicial deference to academic employment decisions is bad public policy lacking any principled basis that causes great harm to academic employees. The parties to the usual academic employment agreement never expressly state that a subsequent reviewing entity, be it judge or jury, should defer to one of the parties to the contract and presume the correctness of the decision. If universities and colleges truly believe they possess discretion to deny tenure without question by judicial oversight, then those institutions should be honest and make "there shall be no second-guessing" an expressed term of the employment agreement between the academic employee and the institution. If a college or university has the last word on whether the contract has been breached, then the right of the employee to claim protection in a court of law after investing six years of his or her career, and being denied the one opportunity at tenure, will be illusory at best. Academic freedom is a concept that calls for openness and it is as equally applicable to the professor as to the institution. It can be argued that a professor's loss of the right to enforce an employment contract based upon a judge-made policy to defer represents an equally abhorrent loss of academic freedom. The denial of tenure can be a stigmatizing event that prevents employment elsewhere in the same field on tenure track. So, the risk of harm from an unfair tenure decision is real and enduring, as such decisions often signal the end of an academic career.

  In conclusion, judicial deference to university and college personnel decisions implicates fundamental fairness in our system. Courts should not so easily align themselves with the university in the tenure contest, and abandon the party who is most often least capable of protecting his or her interest in a court of law. So long as courts continue to accept the legitimacy of the doctrine of judicial deference to academic employment decisions, colleges and universities should assume special responsibility for assuring fairness in tenure decisions, especially in light of the trust imposed on those institutions by the courts. Academic institutions should also be willing to examine whether it is appropriate to limit judicial inquiry into the legitimacy of the academic employment decision on the basis of the principle of academic freedom. As shown by the decision in Craine v. Trinity College, courts will not always abandon their role as guardians of the rule of law fairly applied to all litigants in academic employment cases. Although Craine represents the first time the enlightened reasoning expressed by Judge Edwards in McConnell v. Howard University has been adopted by the highest court of a state, it is likely that other states will follow suit in the appropriate case. Ultimately, college and university counsel undermine their cases by subscribing to the doctrine of judicial deference when that policy is not supported by principles of academic freedom.

7/12/02 5:22 PM

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