Does Tenure Mean You Can’t Be Laid Off?

Two weeks ago a state district judge in Denver issued a ruling that makes it next to impossible for a college in the Colorado state system to revise its faculty handbook so as to make it easier to lay off tenured faculty members in the event of a reduction in employment force, even when state law and the previous version of the faculty handbook itself allow the college to make the revisions.
Denver District Judge Norman D. Haglund’s June 8 order, in the case of Saxe vs. Board of Trustees of Metropolitan State College of Denver, which has spent at least five years in the Colorado court system, including an appeal, stated that the “public interest” in the academic freedom of tenured faculty outweighs any public interest that a financially stretched public college might have in preserving flexibility in hiring and firing tenured professors so as to serve its student body more effectively. As Inside Higher Education reported, Haglund effectively said that “not only is tenure a good thing for the professors who enjoy it, it is valuable to the public.”
As Inside Higher Ed also reported, the Saxe case is “much more important” than the specific issues at play, which involved the efforts of the trustees of Metro State, a 21,500-student, heavily Hispanic four-year public college in one of Denver’s oldest urban neighborhoods, to put into effect a revised faculty handbook in 2003 that rescinded a provision in the previous handbook, issued in 1994, generally requiring that non-tenured faculty be laid off before the jobs of tenured faculty members be touched. The 1994 handbook also required that that college first attempt to place affected tenured professors in other campus jobs, a requirement that the trustees rescinded in 2003. Haglund ruled that the changes amounted to a deprivation of the “vested rights” of tenured Metro State professors.

Furthermore, Haglund wrote, the very idea of flexibility in a college’s hiring and firing system is “in direct conflict with the fundamental tenets of a tenure system. Indeed a tenure system that allows flexibility in firing is oxymoronic.”
The Saxe case is important because Haglund’s ruling adopted—and gave the force of state constitutional law to—an expansive definition of tenure rights that has been promoted for years by the American Association of University Professors (AAUP). The AAUP, as a professors’ union, takes an aggressive position on tenure that is sometimes at odds with that of financially pressed college administrators seeking to shut down fiscally draining or under-enrolled academic departments so as to deploy scarce resources elsewhere.
While nearly everyone in academia agrees that tenured professors can’t be fired except for cause or in the case of a college-wide financial crisis, the AAUP takes tenure rights a daring step further. In the AAUP’s official statement issued in the wake of Haglund’s ruling, the organization states 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 reduction in force are exhausted.” Haglund whole-heartedly agreed. He wrote: “[T]he changes made in the 2003 Handbook pertaining to priority and location…are retrospective changes of vested rights and are therefore.invalid under…the Colorado Constitution.”
That means: Tenured professors go first into the lifeboats should financial disaster strike a college, while adjuncts, junior faculty, visiting profs, contract hires, graduate teaching assistants, and others lacking the protections of tenure are to be pushed into the sea first, no matter how valuable their services may be to students or to the college as a whole. And while Haglund’s ruling has the force of law only in Colorado and only with respect to public institutions of higher learning that are regarded as arms of the state under Colorado’s constitution, lawyers and judges in other states are likely to look to the Saxe case for guidance in deciding what faculty tenure means and whether tenured professors deserve job protection at the expense of the welfare of students.
Indeed, the entire Saxe case can be viewed as a successful push by the AAUP to force the wholesale adoption in Colorado of its own particular definition of tenure. The lawsuit, brought by Metro State English professor Eugene Saxe and four other Metro State professors who were in no danger of being laid off (Metro State has never actually tried to implement a reduction in force), was financed by the Colorado Federation of Teachers, an affiliate of yet another academic union, the American Federation of Teachers. None of the five claimed that Metro State had jeopardized his or her academic freedom, or that their own teaching jobs were threatened in any way. Their lawsuit involved threats to their livelihoods that could be fairly characterized as purely theoretical.
Furthermore, none of the five professors, who contended that Metro State had breached their employment contracts by altering the priority terms of the 1994 handbook (all five had been granted tenure before 2003), actually took the stand and testified when the case went to trial in 2005. In fact, their only witness at trial on the issue of tenure protection was Mathew Finkin, who happened to be…former general counsel for the AAUP and former chair of the AAUP’s Committee on Academic Freedom and Tenure. As might be expected, Finkin’s testimony read like a recapitulation of the AAUP’s tenure talking points. Haglund essentially agreed, ruling that the AAUP position amounted to an “industry standard” and that the five professors had a “vested right” to priority in keeping their jobs and to relocation to another department should those jobs be terminated.
Haglund’s ruling may be good news to the AAUP, but it is likely to be a bitter pill to swallow for Metro State, which is now facing actual, as opposed to theoretical, drastic cuts in its operating budget. The Colorado legislature, in the face of a $1.4 billion state budget shortfall, recently cut public funding for higher education by $153 million. Metro State used to be a unit of the Colorado state college system, but, perhaps in recognition of its unique status as a large, urban, undergraduates-only institution among mostly rural and regional fellow colleges, it won its own independent board in 2002. It was then that Metro State’s trustees decided to draft their own faculty handbook containing departures from the 1994 handbook that governed the entire state-college system. The changes, including the more flexible rules on laying off tenured faculty that were part of the 2003 handbook, were designed to reflect Metro State’s peculiar circumstances: low tuition, low state funding, a huge variety of academic and vocational programs for its varied-needs student body, and hence, a heavy dependence on part-time and adjunct faculty to staff those programs. Metro State’s position was that requiring the termination of those non-tenured instructors before any tenured faculty could be fired in the event of a financial crisis would gut many of those programs and ill serve the Metro State student body.
Indeed, when the Saxe case went to trial in 2005, the judge ruled in favor of Metro State. Although faculty handbooks, like other employment handbooks, can be deemed to constitute employment contracts, the 1994 faculty handbook at Metro specifically provided that its provisions could be altered, and state law also allowed the college’s board to make changes. Since the 2003 handbook didn’t take away tenure itself–or the right not to be fired except for cause or as part of a reduction in force–the professors couldn’t argue that they had been legally harmed the changes, the court ruled.
It was only when the case got to the Colorado Court of Appeals in 2007 that the idea of “vested rights” protected by the Colorado Constitution came into play. The state’s constitution bars state officials (including the trustees of public colleges) from depriving Colorado residents of “vested rights” even if the officials’ actions are sanctioned by contract or law. Under Colorado case law, a right is “vested” if three factors are present: the right advances a “public interest,” the official act “defeats” the reasonable expectations of the affected individuals,” and the act “surprises” people who have relied on a contrary state of affairs. The appeals court then sent the case back to the lower court for a ruling on the vested-rights issue—based on the AAUP-channeling trial testimony of Matthew Finkin. Haglund ruled that the AAUP’s definition of tenure was evidence of an “industry standard” of no-firing on which Metro State professors were entitled to rely no matter what their faculty handbook said.
Haglund’s ruling is good news for the AAUP, and it is presumably good news for tenured professors everywhere, many of whom are undoubtedly worried about layoffs in these days of shrunken endowments and tight state budgets. Ultimately, however, the ruling is likely to be bad news for any academic who would like to get tenure someday, along with its prestige and job protections. According to the U.S. Department of Education, only 32 percent of instructors at college and universities in America either had tenure or were on a tenure track in 2005, compared with 56 percent in 1975. A full 48 percent of college teachers were part-time employees in 2005. If Judge Haglund’s opinion—that a “flexible’ tenure system is “oxymoronic”—becomes adopted by other judges as the law of the land, expect to see increasing numbers of college administrators opting for flexibility and that 32 percent figure looking like a nostalgic remnant from a golden age.