Tenure's Value ... to Society

June 8, 2009

A judge ruled last week in Colorado that not only is tenure a good thing for the professors who enjoy it, it is valuable to the public. Further, the court ruled that the value (to the public) of tenure outweighed the value of giving colleges flexibility in hiring and dismissing. That is a principle that faculty members say is very important and makes this case about much more than the specific issues at play.

While noting "countervailing public interests" in the case, the judge wrote that "the public interest is advanced more by tenure systems that favor academic freedom over tenure systems that favor flexibility in hiring or firing." The ruling added that "by its very nature, tenure promotes a system in which academic freedom is protected" and that "a tenure system that allows flexibility in firing is oxymoronic."

The ruling came in a long legal battle over rules changes imposed by the board of Metropolitan State College of Denver on its faculty members in 2003. The changes -- made in a faculty handbook -- removed many of the rights of faculty members in cases of layoffs, where previous college policies had given such professors seniority rights to avoid layoffs in many cases, and the right to be hired back in many other cases. Metro State's board said that the changes were needed, some professors sued, and the case has been in the courts ever since.

The first ruling in the case, by a state district court in 2005, backed the college's board and not the faculty who sued. The judge ruled that the changes in the faculty handbook did not materially change tenure protections. But the professors appealed and, backed by the American Association of University Professors, won the next round. A state appeals court in 2007 ordered a new trial, at which the judge was to consider a series of questions, such as the public interest in tenure vs. flexibility, and the reasonable expectations of tenured faculty members that the faculty handbook that existed prior to 2003 represented a commitment on behalf of the college.

On these questions, Judge Norman D. Haglund ruled in favor of the professors. The decision noted that the college questioned whether its professors had specific expectations related to the old faculty handbook not changing. The judge indicated that the compelling evidence was not about Metro State's professors but the expert testimony about "industry-wide expectations of academic institutions and tenured faculty."

Rachel Levinson, senior counsel for the AAUP, called the ruling "fantastic," both for the individual faculty members and for professors elsewhere. Those who were at Metro State prior to the handbook changes will still have the protections they enjoyed at that time, she said.

"More broadly, what this does is reiterate the value of tenure and the importance of tenure, and that tenure itself can be a public interest," Levinson said. She noted that the college "was trying to argue that its flexibility was the sole public interest," and that a court endorsement of that idea could have been dangerous for many faculty members.

A spokeswoman for Metro State said that lawyers were still reviewing the ruling and that no decision had been made on whether to appeal.

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