Procedures Tenured v. Non-Tenured

1. Tenured Have a property interest in their continued employment. Property interest is a substantive right and procedural due process must be provided to a tenured professor before termination. Non-Tenured If non-renewed at end of contract term, have a right to procedural due process if: employee has an objective expectation of renewed employment ifcollege’s policies and procedures give them procedural rights ProceduresTenured v. Non-Tenured

2. What is tenure? Professor William Van Alstyne of Duke University wrote: Tenure, accurately and unequivocally defined, lays no claim whatever to a guarantee of lifetime employment. Rather, tenure provides only that no person continuously retained as a full-time faculty member beyond a specified lengthy period of probationary service may thereafter be dismissed without adequate cause. . . . [T]enure is translatable as a statement of formal assurance that . . . the individual's professional security and academic freedom will not be placed in question without the observance of full academic due process. W. Van Alstyne, Tenure: A Summary, Explanation, and ‘Defense’, AAUP BULL. 57:329 (1971), reprinted in Matthew W. Finkin, The Case for Tenure 3, 4 (1996) (emphasis added).

3. What is tenure? Faculty tenure in higher education is, in its essence, a presumption of competence and continuing service that can be overcome only if specified conditions are met. Faculty tenure is similar to civil service protection and to judicial tenure. It is not a lifetime guarantee of a position. • Tenure is usually provided for in: • an institution's governing documents (bylaws, state statutes, etc.); • the faculty handbook; • an individual faculty member's letter of appointment; and/or • if applicable, collective bargaining agreements. Donna E. Euben, Tenure: Current Perspectives and Challenges, American Association of University Professors (October 2002).

4. Substantive v. Procedural Due Process • Procedural due process is required when government (state school) action adversely affects a substantive right. • In the context of tenured professors, the substantive right is their property interest in their continued employment. • Once it is established that a protected property interest exists, procedural due process must be afforded the property right holder before he may be deprived of it.

5. Due Process for Tenured Faculty The minimum procedural due process to be afforded a tenured professor who opposes proposed termination under the Fourteenth Amendment requires the professor: • Be advised of the cause or causes of his termination in sufficient detail to fairly enable him to show any error that may exist; • Be advised of the name and nature of testimony of witnesses against him; • Be afforded a meaningful opportunity to be heard in his own defense at a reasonable time after such advice; and • Before a tribunal that both possesses some academic expertise and has apparent impartiality toward the charges.

6. Procedural Due Process • The college must do more than offer the tenured professor the opportunity to request a hearing. • The hearing must meet the constitutional minimums and it must take place before termination. • Termination before a procedural due process hearing is ineffective because the effective date of termination cannot precede the due process hearing as a matter of law.

7. The Due Process Hearing • Minimum requirements of procedural due process are: • Notice of the cause(s) for termination in sufficient detail to fairly enable her to show any error that may exist; • Notice of the names and the nature of the testimony of witnesses against her; • At a reasonable time after such notice, must be given a meaningful opportunity to be heard in her own defense; • A hearing should be before a tribunal that has some academic expertise and has apparent impartiality toward the charges.

8. The Due Process Hearing, cont. • Due process procedures contemplate that the employee will be advised of the evidence against him, and that he will be given an effective opportunity to rebut that evidence • Always consult your policies for specific notice or procedural requirements for the due process hearing

9. Non-tenured employees • Non-tenured employees have a constitutional right to procedural due process when they have an objective expectation of renewed employment • May also be entitled to procedural due process pursuant to the college’s policies and procedures • Always have right to substantive due process regardless of tenure status

10. Expectation of Employment • Employee who has an expectancy of continued employment may be deprived of that expectancy by mere ceremonial compliance with procedural due process. • A professor may have a property interest in her job even without a formal contractual tenure provision, through an implied contract, verbal pledges, policies or practices of the institution, or through informal understandings with administration.

11. Expectation of Employment, cont. • Examples of ways a college can create expectancy of continued employment without tenure: • Assurances of renewal • Promises for a probationary contract • Practices of giving employee opportunity to remedy employment problems, rather than non-renewal • Expectation of continued employment may be likely in a college that has no explicit tenure system even for senior members of its faculty that nonetheless may have created such a system in practice.

12. Property Interest in Policies • Grievance policy • Practices and procedures • Official accreditation documents • Commission on Colleges of the Southern Association of Colleges and Schools requires that “[t]ermination and non-renewal procedures must contain adequate safeguards for protection of academic freedom.” • College’s accreditation reports may indicate “good cause” is necessary for termination

13. Substantive Due Process • Regardless of tenure, an employee cannot be dismissed or not be rehired for constitutionally impermissible reasons such as race, religion, or the assertion of rights guaranteed by law or the Constitution • College policies should guarantee a full due process hearing if an employee raises an issue of violation of legally protected rights as the cause for non-renewal or dismissal

14. The Biased Tribunal • As part of the due process hearing, an employee is entitled to a fair tribunal • Should have some academic expertise and apparent impartiality toward the charges • Sources of bias which are sufficient to disqualify decision-makers: • prejudgment of the facts • personal interest

15. The Due Process Hearing: Problems to Avoid • Make sure the grievant receives adequate notice of the hearing • If grievant asks for more time to gather evidence, hire an attorney, or has a legitimate scheduling conflict, give her more time • If the grievant requests documents relevant to her complaint, make these documents available to her before the hearing • Give the grievant sufficient time to present her evidence and testimony

16. First Amendment Retaliation Cases • A public college professor cannot be punished in retaliation for having sought to protect her lawful and constitutional right under the First Amendment • Plaintiff must show that speech is constitutionally protected and that the speech was a substantial or motivating factor in the decision non-renew or dismiss