To Sue or Not to Sue

I remember clearly when I applied for tenure at a prior institution. I had worked there for the obligatory six years when I submitted my dossier for review by the appropriate committee and individuals.

I knew that the tenure track was a long and difficult road. And I was well aware that I had to convince a number of committees and individuals that my background and experience met institutional and departmental standards.

Days became weeks, as weeks turned into months. In the end, the institution awarded me tenure. It was very gratifying to know that the institution and my peers decided that I was tenure-worthy.

Of course, the decision could have gone the other way. After all, my institution might have felt that the financial commitment and the risk of conferring tenure on an undeserving applicant were too great. Had this been the outcome, I would have sought a new academic home.

Others choose a different route, especially if they believe that the result was reached improperly or in a discriminatory fashion. These faculty sue the institution, dragging it into a protracted, public, and often nasty dispute. It was this group that became the subject of my dissertation.

I studied all of the published tenure denial decisions involving private colleges and universities in the federal courts for the period 1972-2000. I chose 1972 as my starting point because that was the year that Title VII -- originally enacted in 1964 -- was extended to higher education institutions. (For the purposes of this article, I performed a quick review of decisions published since 2000 -- I discovered nothing that contradicted my findings.)

In all, I reviewed 70 judicial opinions. The themes and trends that emerged are summarized below, along with brief commentary on two cases that I found particularly interesting. Both administrators and faculty should benefit from this article, as it will give them a glimpse into the experiences of their peers.

Before proceeding, however, the usual caveat applies: always consult with a lawyer whenever contemplating or confronting litigation.

Themes & Trends

Federal tenure denial litigation is a fairly recent phenomenon. There were no published federal tenure denial decisions involving private colleges and universities before 1972. This may have been because Title VII (the basis for most tenure denial discrimination claims) was not available to higher education faculty until 1972, eight years after the law’s enactment. Since 1972, tenure denial litigation has risen steadily. For faculty, the avenues for redress are greater than they were before.

Most tenure denial litigation involves Northeast institutions. Nearly 6 of 10 cases were filed against institutions in just three states: New York, Massachusetts and Pennsylvania. This may be because of the concentration of higher education institutions in this region.

Certain allegations emerged as the most common. Slightly over half of the cases studied involved gender discrimination, followed by national origin discrimination (36 percent), race discrimination (30 percent), and contract-related allegations (27 percent). A number of cases (27 percent) involved “other” allegations that included fraud, abusive discharge, defamation, and retaliation. Most of the gender discrimination cases involved women, but cases that involved other types of discrimination and breach of contract cut across gender lines.

The most common legal theory involved Title VII. While various legal theories supported the plaintiffs’ allegations, Title VII was involved in the vast majority (80 percent) of cases. State laws were also invoked quite often, especially when the plaintiff alleged breach of contract or tortious (i.e., wrongful) behavior on the part of the institution. Other state laws invoked included intentional infliction of emotional distress, fraud, and retaliation. A small amount of other federal law violations were also alleged.

The defendant-institution prevailed most often. Even though some cases may have been settled out of court, for those cases that went to trial or were appealed, the plaintiff lost nearly every time. The bottom line is obvious: faculty who bring a tenure denial lawsuit against the institution face an uphill battle; institutions that have procedures in place and properly follow them can be confident that they will prevail.

Institutional Strengths & Weaknesses
As I reviewed each case, a number of institutional strengths emerged. Here’s what I discovered:

• A significant number (61 percent) of the institutions had tenure policies and procedures in place.
• A majority (53 percent) of the institutions had many layers of tenure review.

The following strengths were also noted, although to a much lesser extent:

• Almost a quarter (23 percent) of the institutions had clear tenure criteria.
• A few (14 percent) of the institutions had grievance/appeal procedures in place.

A number of cases demonstrated “other” strengths. These strengths follow, along with some specifics (as cited in the cases).

• Flexible policies for tenure review -- institutional willingness to review and reconsider a tenure application
• Institutional efforts at assisting the tenure applicant -- pre-tenure review, faculty mentoring, and institutional reminders to faculty
• Existence of a well-written faculty handbook -- general tenure criteria (plus specific examples) and the avoidance of statements that would lead a faculty member to believe that the handbook was contractual
• Good institutional documentation -- securing an external reviewer to examine the tenure applicant’s scholarly works; student surveys; well-documented annual and tenure reviews; back-up procedures to obtain teaching evaluations; and an ad hoc committee’s review of the tenure applicant’s scholarly work
• Efforts by the institution to comply with statutory mandates -- having policies and procedures in place for sexual harassment, as well as an institution’s efforts to address Title IX considerations when it hired the tenure applicant

Even though institutions prevailed in nearly every case, some weaknesses did emerge. In no particular order, they were as follows:

• Lack of proper tenure procedures
• Procedural irregularities
• No formal grievance procedures
• Discriminatory behavior
• Unclear tenure criteria
• Willingness of others at the institution to award tenure
• Too many layers of tenure review

Real Life

In my dissertation, I chose four cases that served as examples for other institutions; here, I list two. The first case illustrates poor institutional practice; the second, commendable institutional practice.

Kunda v. Muhlenberg College (1980)

The case: Kunda was a physical education instructor with a bachelor’s degree. She was never told that she needed a master’s degree for employment, advancement, or tenure. Despite receiving a superior rating from her chair and department, her applications for tenure and promotion were denied. Noting that the master’s degree requirement had often been bypassed in Kunda’s department and that male faculty that did not have a master’s degree were hired, promoted, and tenured, an appeals committee unanimously agreed that Kunda had not been properly notified of the degree requirements and should receive tenure and promotion because she possessed the scholarly equivalent of the master’s degree. Ruling in Kunda’s favor, the court concluded that there was ample evidence to support a finding of discriminatory animus on the part of the institution.

Analysis: This case has been cited in numerous judicial opinions. (It is also one of the rare cases in which the court granted tenure to an unsuccessful tenure candidate, albeit with the contingency that the plaintiff obtain her master’s degree within two years.) The message is clear: institutions should (1) establish and communicate clear rank and tenure criteria and (2) treat all rank and tenure applicants fairly.

Zahorik v. Cornell University (1984)

The case: At the conclusion of Zahorik’s first three-year term, she was reviewed in the areas of teaching, research, and community service. As she prepared to apply for tenure, Zahorik was given detailed tenure criteria. The institution’s procedures included having outside scholars review Zahorik’s scholarly work and having an ad hoc committee make a tenure recommendation to her department. The institution also had various levels of appeal for unsuccessful tenure candidates in place, as well as the availability of presidential intercession to determine if the tenure criteria were properly applied. Agreeing with the institution that Zahorik’s teaching and research were deficient, the court concluded that there was no evidence of sexual bias in her tenure decision.

Analysis: This case contains examples of tenure policies and procedures, layers of tenure review, presidential intercession, and clear tenure criteria. It was also one of the few cases that illustrated a mid-tenure review.

Conclusion

It goes without saying that institutions that treat faculty fairly will do much to neutralize charges of discrimination, breach of contract, and other allegations. If not, the downsides could be huge: costly lawsuits, splintered relationships, bad publicity, frightened donors, angry alumni, and wary prospective students.

For faculty, the road to a tenure-denial lawsuit victory is long and costly. Learning from other faculty who have embarked on this path can be very helpful.

I hope that this article will give administrators and faculty a better sense of the ways they can minimize the possibility of tenure denial litigation -- and that, no matter which side of the tenure decision you are on, fairness will prevail.