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Tenure and Contract

Started by Mercudenton, April 13, 2024, 08:10:33 PM

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I asked this in abstract here:

But to return to it now, as I'm still trying to get advice about legal situation.

My institution currently defines tenure as a "with cause" contract. It also says that tenured faculty will be offered a contract every year.

This year, they want tenured faculty to sign a new contract that basically makes tenured faculty "at will" employees (i.e. dismissal for any - or no - cause).

Can this happen? Employment law would stop dismissal "at will during" the duration of a "with cause" contract; but this is a new contract for next year. Nothing in the faculty handbook says tenured faculty will be offered a "with cause" contract each year - it just says "a contract". So could the institution claim it is fulfilling this by offering an "at will" contract?

 At the same time, if tenured faculty accept a "at will" contract they have effectively signed away tenure and all its protections.

Is there any legal recourse for tenured faculty asked to renounce their tenure status/accept a "at will" contract in relation to next year's contract?

 Are there examples of institutions that have successfully taken away or nullified every tenured professor's tenure?


I think you'd better consult a lawyer with a deep knowledge of this stuff, and have them look at all the wording.


Decades ago my institution nullified tenure and switched everyone to one-year contracts. We're located in an at-will employment state. Faculty eventually lobbied successfully for multi-year contracts, but they can be converted to one-year if programs are being cut, which has happened, but only infrequently.

I agree with Hegemony that a lawyer versed in both higher ed and employment law would be helpful.
"How fleeting are all human passions compared with the massive continuity of ducks...."


What is the enforcer of tenure at your place?

For some places, where faculty are unionized, the collective bargaining agreement enforces tenure.

For some public institutions, it's state law.

For some places, it's the university's governing body.

For some places, it's a faculty handbook.

For some places, it's the wording in the individual contracts.

For some places, it's merely a long-standing tradition that is never questioned.

For some places, it's a combination of some or all of the above.

The best case scenario is all of the above. Every institution is different. If the administrators at my university tried to turn tenured faculty into at-will employees via the wording in individual contracts, heads would roll. YMMV. Since YMMV, consult a lawyer. It would be even better if all of your faculty in the same situation pitched in to consult a lawyer and possibly represent all of you when it's time to hit back. Yes, you must hit back with a lawyer, ASAP. Info gathering here will not be as helpful.


Most of the things Lightning listed are actually implicitly part of the contract at those places.
For instance, for us, the faculty handbook is part of everyone's contract. That way, each individual contract need only specify any terms specific to that faculty member (such as salary and course releases). However, its isn't any kind of law that automatically makes the FHB part of the contract, its the fact that its stated in the Trustees by-laws that makes it part of everyone's contract, and thus through contract law, binding. Of course that situation could be totally different somewhere else, so, yes, you'd have to go to an attorney who specializes in academic labor law, including contracts. From what I understand, "at will" doesn't matter if both parties agree to terms of another contract that isn't at will (such as the probationary period before tenure, and then tenure after that if you get it). Especially at a private institution though, the Trustees can go back on such by-laws and screw the faculty and everyone else. They might have to keep tenure for anyone who already has it, or compensate them, but again, that probably depends a lot on specifics of the state and exactly what the faculty was entitled to in the first place.


Quote from: Hegemony on April 13, 2024, 09:46:12 PMI think you'd better consult a lawyer with a deep knowledge of this stuff, and have them look at all the wording.

Yeah, that's obviously next step. But none of us have the money for lawyers so...


Quote from: lightning on April 14, 2024, 06:03:38 AMWhat is the enforcer of tenure at your place?

Board of Trustees, on President's command. Sounds like we're screwed.


Some lawyers will do an initial free consult and work on contingency if they think there's room for a law suit.
Oh yes, the only way anyone can enforce anything is via law suit (or threat of one), so, be ready to sue your employer. Be ready for them not to like that.  There's probably only room for one if they are taking away tenure from people who already have it.


Quote from: Mercudenton on April 14, 2024, 07:23:19 PM
Quote from: lightning on April 14, 2024, 06:03:38 AMWhat is the enforcer of tenure at your place?

Board of Trustees, on President's command. Sounds like we're screwed.

In the not-so-distant past, some right-wing nut job tried to eliminate tenure at my place, via proposed changes in state legislation and funding mechanisms.

The attempts to eliminate tenure went nowhere, because when faced with a group of people that will hit back, bullies retreat.

If someone is trying to eliminate tenure at your place, they are testing your resolve and willingness to fight them and to see if you roll over easily.

Also, most politicians that try to eliminate tenure don't really have the will to really fight a group of tenured faculty and their supporters. They are mainly doing it as an easy way to level up on culture war points with their constituents. But it also serves as a test and if they find out that faculty have no spine, then, they know that they can send in their goons un-opposed when they raid tenure and plunder the university.


This is not legal advice...

Are you public or private? If you are public, everyone who already has tenure is likely protected by the contracts clause, though you might have the threaten to sue, unless you have really weird language about tenure.

If you are private, this depends on specific language about what your handbook and contact said when you were given a tenured contract. But the case law is surprising often pro-faculty.

The following is helpful: