Illustration by Justin Morrison / Inside Higher Ed
Welcome back to “The Academic Worker,” where we explore the academic workplace through a legal lens.
Let’s pick up last month’s discussion of tenure. I promise that every column won’t focus on academia’s most infamous employment practice, but tenure’s notoriety triggers confusion and misconceptions about what it is. There’s a lot to set straight.
Many professors might know that tenure is a type of just-cause contract. They might even know that just-cause contracts represent a carve-out from the default rule of at-will employment—that a just-cause employee (such as a tenured professor) can only be fired for a good reason.
But what counts as a good reason? What type or level of cause justifies termination? These questions bring us right back to the heart of the controversy perpetually surrounding tenure: Does it go too far in protecting faculty?
Defining just cause isn’t just a matter for academics. It’s also important outside academia because so many nonfaculty workers are also employed under just-cause contracts. All employees want to know how to avoid termination and the negative consequences it brings (income loss, career damage, emotional hardship). Meanwhile, employers want to know when and why they can terminate a relationship without inviting litigation.
Surprisingly, despite how important it is to both employees and their bosses, there is no single understanding of just cause.
We’re not totally in the dark, though. Across sectors, arbitrations of employment disputes are often informed by the arbitrator Carroll Daugherty’s famous Seven Tests, which ask a series of questions to determine if adequate cause for termination existed in a particular situation. Courts and legal scholars may also know the 1985 article by law professors Roger Abrams and Dennis Nolan, which lays out four elements of satisfactory employee behavior: (1) regular attendance, (2) obedience to reasonable work rules, (3) a reasonable quantity and quality of work, and (4) noninterference in the employer’s business operations. The idea is that, if these four elements are met, there will probably be no just cause for termination. In my employment law class, I distill the concept even further by telling my students that satisfactory work is usually anything that avoids the three i’s: incompetence, insubordination and illegal behavior.
Whether it’s the seven elements of Daugherty’s test, the four of Abrams and Nolan’s analysis, or my three i’s, the point remains the same: Just cause for termination likely encompasses behavior that most of us would recognize as being self-evidently undesirable in the workplace.
That might sound simpler than you were expecting, but remember our baseline: The at-will rule stipulates that “good reason, bad reason or no reason” are all equally acceptable motivations for terminating employment. Just cause is raising the bar for employers who are looking to terminate employees, but the at-will starting point was exceptionally low.
Tenure takes things a step further. It strengthens the garden-variety just-cause protections that may exist in other industries. The AAUP’s 1940 Statement says that “service should be terminated only for adequate cause” and its Recommended Institutional Regulations further specify that adequate cause “will be related, directly and substantially, to the fitness of faculty members in their professional capacities as teachers or researchers.”
You could argue that this recommendation falls within Abrams and Nolan’s third category—a reasonable quantity and quality of work—or my first i, incompetence. But the inclusion of qualifiers like “directly and substantially” provides some additional protection to professors. Limiting the attention to professors’ “professional capacities as teachers or researchers” adds even more guardrails because, as I say in The War on Tenure, faculty are now multihyphenates expected to fulfill several divergent roles.
Faculty handbooks provide additional insight on just cause and how it might be more protective in academia than in the general labor force. For instance, at my current institution, the faculty handbook says that tenured professors may only be removed for “moral delinquency, neglect of academic duty, incompetence, permanent physical or mental incapacity for which there is no reasonable accommodation, or other such adequate cause.” My prior institution’s handbook goes further, specifying that adequate cause consists of (among other things): consistent failure to maintain standards of sound scholarship and/or competent teaching; willful failure to discharge fundamental obligations as a teacher, colleague and member of the wider community of scholars; and gross neglect of established university obligations appropriate to the appointment.
Again, note the qualifiers: consistent failure, willful failure and gross neglect. These are all significant improvements on the at-will rule, and even on standard just-cause protections.
Despite the strength of academic just-cause policies, especially when we compare them to at-will employment, they don’t always hold up in court. That’s partly because courts give great deference to all employers when adjudicating wrongful-termination claims and university employers are no different. Even in just-cause contexts, where a bad reason to fire someone isn’t enough to avoid liability, courts often don’t want to act like super-personnel managers by second-guessing employer choices. It’s hard—not impossible, but hard—to win wrongful-termination claims in this country.
Where tenure really proves its value is in the due process it requires. Terminating a person with tenure comes with additional requirements, including notice, a fair hearing and peer evaluation.
Consider the case of Darren Michael, a professor at Austin Peay State University and one of many faculty members terminated because of their social media commentary responding to Charlie Kirk’s assassination. Michael was reinstated in January—but not because his speech was found to be protected. Instead, Michael won his job back (along with damages and reimbursements) because his institution ignored its own pretermination procedures for tenured faculty. As part of the settlement, APSU agreed to “issue a statement acknowledging regret for not following the tenure termination process in connection with the Dispute.”
So where does this leave just cause, much less tenure?
It means that just cause isn’t the ironclad protection it’s often assumed to be—instead, it creates common-sense security in working relationships. Tenure provides further protections in the form of a little more specificity and heightened thresholds for dismissal. Really, though, tenure’s procedural safeguards are what make it special. Faculty should guard the promises of advance notice, fair hearing and peer evaluation that are central to tenure’s due-process assurances. University leaders, for their part, should respect these protections. And both sides should remember that these processes take time—that this deliberate pace is a feature, not a bug. Thorough pretermination procedures are an important part of what differentiates tenure (and just cause more broadly) from the at-will rule.
Finally, both faculty and administrators should remember that the protections of just-cause employment aren’t limited to tenure-stream professors. Long-term contract faculty are often just-cause employees, too, with many (though not all) of the protections available to tenure-stream professors.
