Thursday, April 17, 2014

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Shock Decision: Court Rejects Concept of Tenure as Lifetime Appointment

In a decision sure to send shock waves throughout the world of higher education, a federal appellate court has sided with a private law school in saying tenure does not guarantee continued employment. In Catholic colleges and universities, tenure has sometimes been used to protect the jobs of professors who undermine the institutions' Catholic mission. The decision, issued on Monday by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, upholds a lower court's ruling that the termination of Lynn. S. Branham, a tenured professor at Thomas M. Cooley Law School, was not improper. Branham is now a visiting professor at St. Louis University School of Law, a Jesuit Catholic institution. Branham began teaching at Cooley in 1983 and was a tenured law professor at Cooley at the time of her termination in 2006 for refusing to teach a certain class, according to court records.  Although she had tenure, Branham had renewed many one-year teaching contracts with the Michigan law school until her dismissal. She sued for wrongful termination, but a U.S. District Court decided the case in the law school's favor. On appeal, Ms. Branham pointed to a law-school policy and to a guideline from the American Bar Association to support her assertion that, under her contract, "tenure means a lifetime appointment or a guarantee of continuous employment." The Sixth Circuit panel, however, rejected that argument and reportedly said "the concept of tenure" did not include a right to continuous employment. The court's decision explicitly states that tenure "does not create an obligation of continuous employment: her contract expressly limits its term to a single year." The court says that while Branham may have had “tenure” in the sense that she had academic freedom, nothing in her employment contract guaranteed continued employment. The ruling is currently binding in the 6th Circuit which includes parts of Tennessee, Michigan, Kentucky and Ohio, but could be used as precedent in other courts. Branham's attorney, Alan F. Blakley, told The Cardinal Newman Society that "this decision is preposterous and shows a fundamental misunderstanding of the concept of tenure and academic freedom." He said the court's decision attempts to make tenure meaningless, as faculty will have no expectation of continued employment. "Tenure has always meant a right to a new contract every year," he said, adding that college faculty "should be scared to death" by this decision. But administrators at Cooley, in a written statement, said the appeals court ruling was a "total vindication" of the school's decision to terminate Ms. Branham despite her tenured status.
The Sixth Circuit’s decision is a total vindication for Cooley's removal of Branham for refusing to do her job,” said James Robb, Cooley’s Associate Dean for Development and Alumni Relations and Senior Counsel.  “The Sixth Circuit’s decision is very important to institutions of higher learning because it confirms that ‘tenure’ is a contractual concept which takes its meaning only from the language of the particular employment contract and from nothing else.  The word ‘tenure’ itself adds no gloss, contrary to what Branham had urged,” Robb said. “The decision vindicates Cooley’s particular good-cause process and reaffirms the long-established principle that institutions of higher education are entitled to manage their own affairs,” said Robb.  The appellate court stressed that “Where an internal grievance procedure such as Cooley’s is in place, and where it is followed, this Court does not have the authority to second-guess Cooley’s determination of good cause.”

Catholic Education Daily is an online publication of The Cardinal Newman Society. Click here for email updates and free online membership with The Cardinal Newman Society.

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