Challenge to the Power of Tenure

U.S. court ruling involving unusual law in Puerto Rico could endanger faculty rights, AAUP warns.
January 29, 2008

If a faculty member has his or her tenure rights violated, one recourse may be to file a suit -- where an aggrieved professor could seek not only damages but reinstatement. While most professors might not want to go to court, the knowledge that they have that as an option gives them an important protection.

What if a state law said instead that tenure violations could be settled with a small sum of money and no reinstatement -- and that such minimal compensation is all you could get? Obviously that would be much less protection, and that's why the American Association of University Professors is seeking to intervene in an unusual dispute involving a professor who was dismissed from a tenured job at the Inter-American University of Puerto Rico. A federal district court ruled that even if the professor could win on the merits of his suit, he would be entitled only to compensation under Puerto Rico's Law 80, which provides victimized employees with three months of salary, plus a week of salary for every year of service, for those who have worked 15 years or more. (The professor had worked 28 years, so he would end up with less than a year of pay, with no chance at getting his job back.)

The professor, Edwin Otero-Burgos, has numerous claims in his suit against the university, which deals in part with his argument that the university denied him the right to manage his course and assign grades. But the legal dispute -- now before a federal appeals court, where decisions set precedents beyond the case at hand -- is on whether Law 80 can effectively become the only protection in a tenure case. The AAUP is seeking the right to intervene in the case, arguing in a brief that the application of Law 80 undercuts tenure protections.

University officials and its outside lawyer did not respond to phone calls seeking comment on the case and the AAUP's brief.

Beyond the Otero-Burgos case, the AAUP brief states that the broad legal question is whether "a particular statutory remedy -- namely limited salary relief -- may substitute for the protections of academic tenure." Upholding the lower court's ruling, the brief says, would "eviscerate the important guarantees that accompany, underpin and define tenure."

The AAUP makes several arguments against the lower court's ruling. One is that the law was written for "at will" employees, who may be dismissed at any time. While tenured faculty members may not work on hourly or yearly contracts, they are "by definition" not at-will employees, the AAUP says in its brief. It cites other decisions in Puerto Rico that have found tenure protections to be equivalent to contractual obligations.

While colleges and universities are not legally required to offer tenure, the AAUP brief notes that Inter-American does so, and specifically outlines tenure procedures in its faculty handbook. In this context, the AAUP says, applying Law 80 makes it possible for a university to get rid of a tenured professor -- for no justifiable reason -- as long as the university is willing to pay a modest sum (less than half a year's salary for someone who has taught for 15 years). If the lower court's decision is upheld, the court said, the protections of tenure would be largely eliminated.

"Such a holding, if not reversed, would subvert the time-honored consensus as to the nature of tenure, undoing a careful balance between the respective interests of professors and universities," the brief says. "It would effectively convert tenured professors into at-will employees, removing their incentives to develop special expertise and chilling their academic pursuits -- to the detriment of society and, indeed, of institutions, of higher education."

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