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U.S. Appeals Court Rules for Tenure Rights

February 20, 2009

A federal appeals court on Thursday restored the right of a formerly tenured faculty member in Puerto Rico to sue for damages in what he argues is a case of unfair dismissal.

The U.S. Court of Appeals for the First Circuit found that a lower court had unfairly applied an unusual law in Puerto Rico in a way inconsistent both with the statute's intent and with the appropriate rights of a tenured professor. The law sets strict limits on how much certain aggrieved employees can receive for an unlawful dismissal -- and those levels are so low that faculty groups feared that applying the measure would make meaningful redress impossible for them. In the case at hand, the professor had worked 28 years, but couldn't have obtained even a year's pay as compensation for dismissal, and would have had no chance at getting his job back.

The appeals court said that the law was designed for very different categories of employees than tenured faculty members, who should be entitled to sue for damages if unfairly dismissed.

The American Association of University Professors viewed the lower court's ruling as a significant blow to the rights of tenured professors, because it would enable universities to get rid of tenured faculty members by paying a relatively low price. The AAUP filed a brief urging the appeals court to make the kinds of distinctions it made Thursday.

Rachel Levinson, senior counsel for the AAUP, praised the appeals court's decision and said she saw two significant aspects to the decision. "First, the opinion recognizes that for tenure to have meaning, it must have an economic foundation," she said. "That is, tenure is basically hollow if there aren't real remedies for violations of tenure protections." Second, she said that the appeals court "unmistakably recognizes the connection among economic security, tenure, and academic freedom -- not only is there no tenure without economic guarantees, but there's no academic freedom without those either."

The original lawsuit in the case was brought by Edwin Otero-Burgos against the Inter-American University of Puerto Rico. Otero-Burgos makes numerous claims in his suit, which deals in part with his argument that the university denied him the right to manage his course and assign grades. The appeals court's ruling doesn't focus on the merits of the case, but on Otero-Burgos's right to sue for damages. The lower court rejected that right, stating that he had to settle for compensation under Puerto Rico's Law 80, which provides victimized employees with three months of salary, plus, for those who have worked 15 years or more, a week of salary for every year of service.

The law was intended for "at will" employees -- those who can be fired at any time. The lower court found that tenured professors belonged in that category because they don't have fixed terms of employment for a set number of years.

But the appeals court, accepting the argument of the professor and the AAUP, said that this totally distorted the concept of tenure at the university. "There is a clear difference between a worker whose employment is not subject to a specific temporal limitation, but who may be fired for any reason, and Otero-Burgos, who, under the terms of his tenure contract, presumptively retains his job until retirement," the decision said.

And directly addressing the concern faculty members had about the lower court's ruling, the decision of the appeals court went on to say that "a legal regime that did not grant Otero-Burgos any remedies beyond those provided by Law 80 would render the concept of tenure embodied in the [faculty handbook] meaningless."

 

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