The American Association of University Professors, the oldest and most prestigious trade association for college and university faculty (organized in 1915) recently published an article on its website titled

 

“RESPONDING TO FINANCIAL CRISIS, LEGAL CONSIDERATIONS”

Within the article, 17 questions are posed and answered regarding dismissal of tenured professors but perhaps the most important, question 12, asks: I am a tenured faculty member at a public institution. What are my constitutional rights with respect to continued employment? The answer relies on a 1972 U.S. Supreme Court decision in Perry v. Sinderman, 408 U.S. 593 (1972) and several federal appellate cases including the 8th circuit (2001); 7th circuit (1992) and  6th circuit (1990), all upholding the due process rights of tenured faculty deemed to have a “property interest” in their public employment.

 

In a 2003 case arising at Colorado State University, the U.S. Court of Appeals for the 10th circuit, in Hulen v. Yates, 322 F.3d 1229, ruled that an associate professor who was tenured “possessed a property interest in his position…and that any change in salary or employment status of a faculty member which does not rest upon mutual agreement with the administration shall be susceptible to test by appropriate dues process procedures.”

 

In a 2015 federal trial court ruling involving a KU medical school professor, the U.S. District court for Kansas, in Klaassen v. University of Kansas School of Medicine, 84 F.Supp.3d 1228, found that plaintiff properly alleged a property interest in continued employment as a tenured professor and noted that defendants “do not dispute that this is a viable and protectable interest.”

It appears that notwithstanding the edict of the Kansas Board of Regents, federal courts in Kansas still believe that a tenured professor has a property interest in his employment at a state college or university but this interest, or “right”, may be subject to features within a collective bargaining agreement or faculty handbook, particularly regarding negotiated provisions dealing with “financial exigency.” Other considerations include questions of whether a faculty position is funded through an outside source such as a government agency or a foundation. Such funded positions may be exempt from furlough actions based on the contractual terms of the grant.

The dismissal of a tenured professor may not be a “slam-dunk” for the Kansas Board of Regents or any other state university system citing financial exigency without adequate proof that such an exigency exists. Universities are famous for paying the head football coach millions of dollars and for having layers of deans, associate deans, assistant deans etc. with no qualms about claiming those high salaries are essential to the functioning of the university.

Cohen & Duncan Attorneys LLC represents faculty in Kansas, Missouri and throughout the United States in disputes regarding tenure rights, tenure-track rights and related employment questions. For more information on these issues, contact Clifford Cohen or Andrew Duncan.