From the American Association of University Professors website, under "Issues in Higher Education" :: "Tenure"
aaup.org
[Much more there]
What I think all of this says (just my reading), is that professors can indeed be dismissed, given:
1. Sufficient just cause, and
2. Careful due process.
<<<<"III. Dismissal For Cause Of Faculty
One of the most contentious issues in higher education involves efforts to terminate the tenured appointments of faculty members and term appointments of faculty members before their expiration. In such situations, significant academic due process protections attach. Generally accepted dismissal procedures are delineated in the 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings, which is discussed below.
Dismissal is different from nonreappointment and nonrenewal. Nonreappointment and nonrenewal involve not retaining a nontenured faculty member beyond the expiration of the current term of appointment. Dismissal involves breaking an appointment. Generally accepted procedural protections for nontenured faculty are set forth in AAUP's Statement on Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments, which is discussed further below.
Distinguishing between dismissal and nonrenewal of faculty is critical in determining what, if any, due process protections attach. A Virginia Supreme Court case, Fun v. Virginia Military Institute, 427 S.E.2d 181 (Va. 1993), highlights the importance of using these terms correctly. In Fun, the administration's letter to a faculty member notified him that his appointment would not be renewed but, in so doing, made "no reference to nonrenewal, but 'refer[red] instead to 'regulations for dismissal'." The court found a question of fact existed about whether the nonrenewed professor was legally entitled to the due process procedures for dismissed faculty. As a legal matter, absent evidence of illegal discrimination or violation of protected constitutional rights or failure to follow contractual obligations, the nonrenewal of a faculty member's appointment does not usually trigger legal due process protections.
A. What is "Just Cause"?
Adequate cause has been defined as:
a basis on which a faculty member, either with academic tenure or during a term appointment, may be dismissed. The term refers especially to demonstrated incompetence or dishonesty in teaching or research, to substantial and manifest neglect of duty, and to personal conduct which substantially impairs the individual's fulfillment of his institutional responsibilities.
Faculty Tenure: Commission on Academic Tenure 256 (Keast, ed., 1973) ("Faculty Tenure").
While AAUP provides extensive advice on the procedural protections to be afforded faculty who face dismissal for cause, the identification of the substantive grounds for the dismissal of faculty is left primarily to individual campuses. The 1958 Statement observes:
One persistent source of difficulty is the definition of adequate cause for the dismissal of a faculty member. Despite the 1940 Statement of Principles on Academic Freedom and Tenure, and subsequent attempts to build upon it, considerable ambiguity and misunderstanding persist throughout higher education, especially in respective conceptions of governing boards, administrative officers, and faculties concerning this matter. The present statement assumes that individual institutions will have formulated their own definitions of adequate cause for dismissal, bearing in mind the 1940 Statement and standards which have developed in the experience of academic institutions.
Redbook at 12. As one scholar explains AAUP policy:
[T]he particular standards of "adequate cause" to which the tenured faculty is accountable are themselves wholly within the prerogative of each university to determine through its own published rules, save only that those rules not be applied in a manner which violates the academic freedom or the ordinary personal civil liberties of the individual. An institution may provide for dismissal for "adequate cause" arising from failure to meet a specified norm of performance or productivity, as well as from specified acts of affirmative misconduct. In short, there is not now and never had been a claim that tenure insulates any faculty member from a fair accounting of his professional responsibilities within the institution, which counts upon his service.
William Van Alstyne, "Tenure: A Summary, Explanation, and 'Defense'," AAUP Bulletin 57:328 (1971).
RIR 5(a) acknowledges that "adequate cause" is an appropriate standard under which to dismiss faculty so long as it is "related, directly and substantially, to the fitness of faculty members in their professional capacities as teachers or researchers." See AAUP, "Academic Freedom and Tenure: University of Virginia," Academe: Bulletin of the American Association of University Professors 60 (Nov.-Dec. (2001) (finding that complaints against professor, which involved mishandling of research funds, were "related, directly and substantially" to his fitness in his professional capacity as a researcher) ("Academe"). The 1940 Statement provides that tenured faculty members whose appointments are terminated for cause will receive at least one year of notice or severance salary unless the grounds for dismissal involve moral turpitude:
The concept of moral turpitude identifies the exceptional case in which the professor may be denied a year's teaching or pay in whole or in part. The statement applies to that kind of behavior which goes beyond simply warranting discharge and is so utterly blameworthy as to make it inappropriate to require the offering of a year's teaching or pay. The standard is not that the moral sensibilities of persons in the particular community have been affronted. The standard is behavior that would revoke condemnation by the academic community generally.
1970 Interpretive Comments 9, Redbook at 7.
What conduct constitutes just cause should be sensitive to the nature of higher education. Professors Barbara Lee and William Kaplin suggest that "nstitutions should not comfortably settle for the bald adequate-cause standard. Good policy and (especially for public institutions) good law should demand more." Accordingly, such definitions "should be sufficiently clear to guide the decision-makers who will apply them and to forewarn the faculty members who will be subject to them." Kaplin & Lee, The Law of Higher Education 277-78 (3rd ed. Jossey-Bass) ("The Law of Higher Education").
Sound institutional policies often incorporate AAUP recommended policies and procedural standards. One commentator has observed that "[p]ublic institutions have successfully overcome a vagueness challenge to 'adequate cause' standards by adopting the AAUP 'Statement on Professional Ethics' and incorporating the statement in the faculty handbook." Dismissal for Cause at 15. In Korf v. Ball State University, 726 F.2d 1222 (7th Cir. 1984), for example, a federal appellate court rejected a professor's challenge to his dismissal, which was based on the sexual advances he made to male students. The administration claimed that the incorporation in the university's faculty handbook of the Statement on Professional Ethics, which prohibits exploitation of students and promotes the professor's proper role as counselor, properly provided a basis for the professor's dismissal. The court rejected the argument of the faculty member, finding that the grounds for dismissal were not unconstitutionally vague, and opining that the institution did not need to list every type of impermissible conduct, so long as the grounds for dismissal were consistent with reasonable professional standards that were understood by the faculty.
Failure to clearly define adequate cause may lead courts to invalidate particular actions or other severe sanctions. See, e.g., Tuma v. Board of Nursing, 593 P.2d 711 (Idaho 1979) (invalidating suspension for "unprofessional conduct"); Davis v. Williams, 598 F.2d 916 (5th Cir. 1979) (invalidating regulation prohibiting "conduct prejudicial to good order"). But see Ohio Dominican College v. Krone, 560 N.E.2d 1340 (Ohio App. 1990) (state court declined to discuss whether the institution's standard of dismissal for "grave cause" was vague).
B. Substantive Grounds for Dismissal
Dismissal should, of course, be a "last resort." Brian Brooks, "Adequate Cause for Dismissal: The Missing Element in Academic Freedom," 22 J. Coll. & Univ. L. 331, 353 (Fall 1995) ("Adequate Cause"). The substantive grounds for dismissal for cause generally include incompetence, neglect of duty, insubordination, and immoral or unethical conduct. Dismissal for Cause at 21; Adequate Cause at 331; Robert M. Hendrickson, "Removing Tenured Faculty For Cause," 44 Educ. L. Rptr. 483, 491 (1998); Timothy B. Lovain, "Grounds for Dismissing Tenured Postsecondary Faculty For Cause," 10 J. of Coll. & Univ. L. 419, 422 (Winter 1983).
Courts tend to look favorably upon opportunities provided to faculty to "remediate" their perceived deficiencies before dismissal. As one commentator observes:
When a person who once proved himself to be competent is eventually judged to be incompetent, there is no winner. The university has lost a valuable asset in the form of an active, competent professor (remember, he was once judged competent) and the professor has lost his livelihood. Therefore, whenever possible, action should be taken to restore the faculty member to his former position of competence. Such action may take many forms. If the professor is simply not "participating," informing him of the eventual result of that course of action may remedy the problem. The teacher may suddenly teach and the scholar may suddenly publish. When the problem involves the quality of the teaching or scholarship, then the remedial actions will need to be more aggressive. Specific weaknesses and areas for improvement should be identified. The professor should be given a timetable for compliance. Assistance might also be provided in the form of leave, a sabbatical or a decreased class load so that the professor can devote his time to the recommended improvements. The essential point is that the focus should be on rehabilitation not on dismissal.
Adequate Cause at 353; see also Dismissal for Cause at 48 (observing that "a plan of remediation and a reasonable period of time to address deficiencies may be warranted" depending on the faculty conduct at issue).
1. Immoral Behavior. One commentator has observed that "[j]udicial decisions do not provide a precise definition of immorality in the context of higher education." Dismissal for Cause at 35. In the end, allegations of immoral behavior must be understood in the context of higher education. See, e.g., Texton v. Hancock, 359 So.2d 895 (Fla. App. 1978) (where professor was dismissed for immorality, and the charges included using profanity in the classroom and drinking heavily in a student's home, the court found insufficient grounds for dismissal because "Ms. Texton's conduct must be judged in the context of her more liberal, open, robust college surroundings"). Immoral behavior as grounds for dismissal of faculty members tends to cover sexual misconduct, harassment, and dishonesty. Plagiarism is a typical basis for academic dishonesty. See, e.g., Agarwal v. Regents of the University of Minnesota, 788 F.2d 504 (8th Cir. 1986) (upholding university's dismissal of faculty member for the immoral conduct of plagiarizing a laboratory manual); Yu v. Peterson, 13 F.3d 1413 (10th Cir. 1993) (upholding termination of faculty member appointment at University of Utah because of plagiarism found by faculty committee, which determined that Dr. Yu "knowingly held out the disputed paper as his own work, with knowledge that it included extensive duplications or close paraphrasing of the co-authored report").
2. Neglect of Duty. Neglect of duty, which is sometimes alleged to constitute insubordination, involves the failure of faculty members to carry out their professional obligations. As numerous courts have noted, definitions of these terms in the higher education context are "rather meager." See Botts v. Shepherd College, 569 S.E.2d 456 (W. Va. 2002). See, e.g., Stastny v. Board of Trustees of Central Wash. Univ., 647 P.2nd 496 (Wash. App. 1982) (upholding termination of tenured faculty member for unapproved leaves of absences, including a trip to Israel during the beginning of the semester, after repeated "liberal grants of absences," because professor's conduct "directly related substantially" to his fitness as a faculty member); McConnell v. Howard University, 818 F.2d 58 (D.C. Cir. 1987) (remanding case for further proceedings in breach-of-contract action by professor who challenged his dismissal for "neglect of professional responsibilities"); Prebble v. Broderick, 535 F.2d 605 (10th Cir. 1976) (upholding dismissal of tenured faculty member for neglect of duty, which involved professor's failure to teach eight days of scheduled classes in one semester). But see Trimble v. Southern West Virginia Community and Technical College, 549 S.E.2d 294 (W. Va. App. 2001) (ruling that administration violated West Virginia constitution when it "immediately terminated. . . a tenured public higher education teacher, who has a previously unblemished record . . . for an incident of insubordination that is minor in its consequences," specifically the professor's failure to submit his syllabi using new campus software"). See generally Annotation, "What Constitutes 'Insubordination' as Grounds for Dismissal of Public School Teachers," 78 ALR 3rd 83 (1977 & Supp. 2003).
3. Incompetence. Efforts to dismiss faculty for incompetence generally rely heavily on the evaluations of peers in determining whether a professor is no longer competent to carry out his or her duties. AAUP policy provides that in pre-termination hearings involving dismissals for incompetence, "the testimony will include that of qualified faculty members from this or other institutions of higher education." RIR 5(c)(12), Redbook at 27. See, e.g. Riggin v. Board of Trustees of Ball State University, 489 N.E.2d 616 (Ind. Ct. App. 1986) (upholding dismissal where professor failed to cover relevant topics in the course syllabus, organized lectures poorly, failed to attend class regularly, and failed to provide students the opportunities to meet with him one-on-one); King v. University of Minnesota, 774 F.2d 224 (8th Cir. 1985) (upholding dismissal of tenured faculty member based, in part, on the evaluations of colleagues and consecutive department chairs about his poor teaching, research and service, that he often had teaching assistant substitute teach, and that he failed to grade 16 of 22 students in one course).
4. Ethical Misconduct. AAUP's Statement on Professional Ethics provides that faculty should "avoid any exploitation, harassment, or discriminatory treatment of students," and that "professors do not discriminate or harass colleagues. They respect and defend the free inquiry of associates." Redbook at 133-34. See, e.g., Korf v. Ball State University, 726 F.2d 1222 (7th Cir. 1984) (upholding dismissal of faculty member for violation of professional ethics based on AAUP's statement); Filippo v. Bongiovanni, 961 F.2d 1125 (3rd Cir. 1992) (upholding dismissal by Rutgers University of a tenured chemistry professor, relying in part on the university's adoption of AAUP's professional ethics statement to find the professor had "exploited, threatened and been abusive" to "visiting Chinese scholars brought to the University to work with him on research projects"); Yao v. Board of Regents of The University of Wisconsin System, 649 N.W.2d 356 (Wis. App. 2002) (upholding board's decision to dismiss professor for "intentionally tampering with a colleague's laboratory materials")." >>>> |
