Davis Faculty Association

Report from AAUP: Terrific decision from Colorado state court on tenure & handbooks

The following is a report from Rachel Levinson, Senior Counsel of the American Association of University Professors. So, for example, where the text below says “we submitted an amicus brief…” please read that as AAUP submitted an amicus brief.


A Denver trial court handed down a really great decision last week in Saxe v. Metro State, a case in which we submitted an amicus brief at an earlier stage, and for which Matt Finkin provided crucial, dispositive expert testimony. See http://www.aaup.org/AAUP/protect/legal/2005-09+amicus.htm#tenure for a description of the case and of our amicus brief.

In the most recent decision, attached, the court concluded that when the board of trustees of the Metropolitan State College of Denver unilaterally revised the tenure provisions in its 1994 handbook relating to faculty priority and relocation, the revisions affected “vested rights,” and the changes were therefore unconstitutional under the Colorado Constitution.

In deciding whether the rights in the 1994 handbook were vested, the court used a three-factor test: (1) whether the public interest was advanced or retarded by the modifications; (2) whether modification of the rights as embodied in the 1994 handbook gave effect to or defeated the bona fide intentions or reasonable expectations of the affected individuals; and (3) whether the 2003 handbook “surprised” individuals who had relied on contrary provisions of the 1994 handbook.

The court – relying heavily on Matt’s testimony – made some important findings:

With respect to the first point, the public interest was damaged by the modifications: “[T]he public interest is advanced more by tenure systems that favor academic freedom over tenure systems that favor flexibility in hiring and firing. By its very nature, tenure promotes a system in which academic freedom is protected. Further . . . inherent in a tenure system is inflexibility in firing decisions; if the College wanted a more flexible system of employment, the College should not have utilized a tenure-based system. This weighs the public interest strongly in favor of academic freedom. The Court recognizes that the public interest is served by a public college with flexible hiring and firing policies. However, such policies are in direct conflict with the fundamental tenets of a tenure system. Indeed, a tenure system that allows flexibility in firing is oxymoronic.”

On the second point, although there was no evidence of the intentions of the affected individuals, the court determined that it is reasonable to consider industry-wide standards and that the industry-wide expectations (as described by Matt) are that tenure will be abrogated only as a matter of last resort. This was the case even though the college did not actually adopt AAUP policies. “Evidence of industry standards may be used to demonstrate the parties’ intent. . . . Mr. Finkin testified that the core notion of tenure is that the tenured faculty member will be terminated only as a last resort after all other avenues of reductions in force are exhausted. Mr. Finkin testified that questions of reductions in force are central to the notion of tenure, and tenured faculty members should be retained in preference to probationary appointees. Mr. Finkin testified that if termination is unavoidable, relocation, if possible, is an inherent expectation. Finally, Mr. Finkin concluded by testifying that the 2003 Handbook provisions regarding priority and relocation did not give effect to the reasonable expectations of tenured faculty.” Because no other evidence regarding the plaintiffs’ expectations was produced by the plaintiffs or the defendants, the court concluded that the 1994 handbook, not the revised 2003 handbook, gave effect to the reasonable expectations of the faculty members.

Finally, although there was no direct evidence that the faculty members were surprised by the changes in the 2003 handbook, the court concluded that there was enough circumstantial evidence to suggest surprise. Among other things, the court pointed again to Matt Finkin’s testimony regarding the reasonable expectations of tenured professors, and inferred that the plaintiffs must have been surprised by the 2003 handbook changes.

The changes in the 2003 Handbook pertaining to priority and relocation were therefore “retrospective changes of vested rights” and were invalid under the Colorado Constitution.

Matt thinks it is extremely likely that the college will appeal, but it also seems more likely than not that the decision will stand; the trial court’s job here was to make a finding on the factual record, which it did, and an appeals court is likely to be fairly deferential to those findings. This is a terrific victory, and well worth circulating not just to the Colorado chapters but also more widely. We’ll update the description on the website, too. I was in touch late last week with reporters at the Chronicle & Inside Higher Ed, and these pieces appeared on Friday and today:

http://chronicle.com/news/index.php? id=6593&utm_source=pm&utm_medium=en


Kathi also suggested that we get in touch with the Post and the Wall Street Journal, to play up the financial angle of this (i.e., that even in a time of financial crisis, tenure can trump other considerations), which I think is a great idea. I’ll forward it to the reporter at the Wall Street Journal who’s been interviewing folks here about tenure & academic freedom issues; Martin and Robin, are there other contacts that we should send it to?

Thanks –

This entry was posted on Friday, July 17th, 2009 at 7:49 pm and is filed under Calls to Action, Faculty Governance, Working Together. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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