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East Stroudsburg University must uphold an arbitrator’s decision that it reinstate and reimburse for lost wages a professor denied tenure by the university president, according to a Pennsylvania Commonwealth Court decision.
John Freeman, a former assistant professor of chemistry at East Stroudsburg, appealed through his union the president’s determination that he did not deserve tenure because he hadn’t sufficiently progressed as a scholar. (He was denied tenure by the previous president two years earlier and was allowed to reapply, when he was again reject by the new president, Marcia Welsh.) As dictated by the Association of Pennsylvania State College and University Faculty-negotiated union contract, Freeman’s case eventually went to arbitration. The arbitrator decided that the university had violated the contract when Welsh denied Freeman tenure without reviewing the recommendations of the department chair and the universitywide tenure and promotion committee, and also by improperly consulting the provost.
The arbitrator said Freeman should be reinstated as a professor with the ability to reapply for tenure, to be determined by a neutral third party. The university challenged the arbitrator’s decision in court, which found that the president had indeed violated the terms of the contract by not consulting previous reviewers’ recommendations and by consulting with the provost.
The collective bargaining agreement “prescribes a detailed procedure by which faculty committees and department chairpersons are to submit written tenure recommendations to the president within specific time frames,” Judge Rochelle S. Friedman wrote in her opinion. “While the president may ultimately disagree with those recommendations, he or she cannot make a decision without first considering them. … [The contract] expressly permits the president to ‘act independently’ on a tenure decision only ‘if the committee(s) fail [sic] to act within the time limits specified’” for submitting recommendations to the president. Friedman also rejected East Stroudsburg’s claim that limiting the president’s authority would violate public policy.
A university spokesperson said administrators were reviewing the decision and had no immediate comment. William H. Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College of the City University of New York, said via email the decision’s major takeaway is that it “rested on the negotiated language concerning the tenure review procedures in the collective bargaining agreement. The excerpt of the at-issue contract provision, set forth in the court’s decision, supports the conclusion that a final decision to grant or deny tenure is to be based, in part, on a review of the positive recommendations.”
