by Jacques J. Parenteau |M

Madsen, Prestley & Parenteau, LLC

With the exception of Senter v. Board of Trustees of Regional Community Colleges, 184 Conn. 339, 439 A.2d 1033 (1981), there is no appellate case in the State of Connecticut which addresses the claim of breach of the employment agreement when an academic employee claims harm from the denial of tenured status. This paper will explore some of the issues associated with representing an academic employee who claims the college or university employer has breached the employment agreement involving tenure, defined as “permanent or continuous” employment which “should be terminated only for adequate cause.” After reviewing the case law dealing with formation and interpretation of academic employment agreements, this paper will review the manner in which tenure decisions are made, will make suggestions regarding the development of an effective theory of the case and will point out the major obstacle in the law which denies success to many academic plaintiffs. Finally, this paper will make the case that the judiciary should not blindly defer to colleges and universities in decisions involving tenure.

There are other causes of action under state common law which may apply to the denial of tenure case, the most likely being the tort of negligent misrepresentation. There are statutory claims under federal and state law dealing with unlawful discrimination which may also be employed, both as a discovery vehicle and as a complement to a breach of contract claim. Indeed, procedural irregularities in the tenure decision process can be called upon in the McDonnell Douglas burden shifting analysis to assist in the proof that the decision was pretextual. As stated in one Second Circuit decision, “While we do not second-guess an employer’s hiring standards, the reasons for its employment decision, including its alleged reliance on such standards, are subject to scrutiny under Title VII, and ‘[d]epartures from procedural regularity,’ for example, ‘can raise a question as to the good faith of the process where the departure may reasonably affect the decision.’” Stern v. Trustees of Columbia University, N.Y., 131 F.3d 305, 313 (2^nd Cir. 1997), quoting Zahorik v. Cornell University, 729 F.2d 85, 93 (2^nd Cir. 1984).

Additionally, the existence of an expectation of continuous employment provided by the tenured status may also give rise to a property right sufficient to invoke Fourteenth Amendment Due Process protection when the college or university is a state actor. While discussion of the rights of nontenured faculty seeking tenure at public institutions is generally beyond the scope of this article, one must distinguish the claim to tenure based upon breach of contract from the property interest relied upon to invoke protection of the Fourteenth Amendment. Generally speaking, the contractual right to be considered for tenure does not confer a sufficient property interest under the Fourteenth Amendment to invoke any particular type of pre-tenure decision evaluation process. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2693, 33 L.Ed.2d 570 (1972), the professor established a sufficient property interest by claiming he had achieved de facto tenure in light of certain language in the faculty manual and because the college had no formal tenure process. A de facto tenure claim is rarely successful today. Nearly all reputable colleges and universities have incorporated specific, formal procedures for the tenure decision and the majority of courts have held de facto tenure is unavailable in the presence of a formal, written tenure policy. Marriott v. Morgan State University, 115 Md. App. 493, 694 A.2d 123 (1997) (A Faculty member employed for fifteen years and expressly denied tenure in the twelfth year could not make out de facto tenure claim.); Staheli v. University of Mississippi, 854 F.2d 121, 124 (5^th Cir. 1988) (“The institution of tenure has an inexorable logic: the very existence of a tenure system means that those teachers without tenure are not assured of continuing employment.”); Lovelace v. Southeastern Massachusetts University, 793 F.2d 419, 423 (1^st Cir. 1986) (The very purpose of a formalized hiring system is to avoid the type of de facto claim recognized in Perry v. Sindermann.); Haimowitz v. University of Nevada, 579 F.2d 526, 528 (9^th Cir. 1978) (The existence of a formal code governing the granting of tenure precludes reasonable expectation of continued employment absent extraordinary circumstances.)

The few cases where a property right has been established in the face of a formalized tenure system may be helpful to support a breach of contract claim by analogy. See, Jones v. University of Central Oklahoma, 13 F.3d 361 (10^th Cir. 1993) (Reversing and remanding judgment against a professor who, despite written tenure procedure, claimed “unwritten local tenure” procedure created implied contract, for determination of whether such an agreement is permitted under state law.); Upadhya v. Langenberg, 671 F. Supp. 521 (N.D. Ill. 1987) (Because letter of appointment was silent on length of appointment and oral assurances of full five year tenure track employment were given, expectation in continued employment for the length of tenure track established.); Harris v. Arizona Board of Regents, 528 F. Supp. 987 (D. Ariz. 1981) (Under terms contained in combined letters of Provost and Dean of the School of Liberal Arts which offered a position which would result in “automatic tenure” after three years, a professor established claim expectation in continued employment by apparent authority and/or ratification requiring due process to terminate employment.); Soni v. Board of Trustees of the University of Tennessee, 513 F.2d 347 (6^th Cir. 1975) (Expectation in continued employment shown by evidence that after receiving oral assurances of permanent employment, purchasing a home based upon representations of tenure and being treated as a tenured member of the department for three and a half years). De facto tenure claims and claims of expectations of continued employment sufficient to establish a legitimate property interest, like common law implied contract claims, must be grounded in the written and oral expressions of intent to form a contractual relationship. To this extent these cases may be helpful as precedent for establishing implied contracts relating to the tenure decision generally.

Given the complexity of the issues surrounding academic employment agreements, the focus of the discussion which follows will be on the formation, interpretation and performance of academic employment agreements centered on the tenure decision. Where possible this article will attempt to make comparisons to nonacademic employment contract claims. Cases referring to the separate breach of contract which may occur when a tenured professor is dismissed in violation of the procedures applicable to tenured status will be touched upon. A dismissal claim is obviously different than claim of breach in the denial of tenure. Thus, a full exploration of tenure dismissal cases is also beyond the scope of this discussion, as are the rights of faculty subject to collective bargaining agreements. Finally, discovery issues related to the peer review process involved in tenure decisions are not discussed here, but a helpful discussion on the subject of discover can be found at 85 A.L.R. Fed. 691 (1987).

At its most basic level of formation, interpretation and performance, the employment relationship between an academic employee on tenure track (hereinafter sometimes referred to as “the academic”) and the college or university which employs the academic employee is no different from any other employment case. “[A]ll employer-employee relationships not governed by express contracts involve some type of implied ‘contract’ of employment. ‘There cannot be any serious dispute that there is a bargain of some kind; otherwise the employee would not be working’ 1 H. Perritt, Employee Dismissal Law and Practice (3d Ed. 1992) §4.32, p.326." Gaudio v. Griffin Health Services Corp, 249 Conn. 523, 532, 733 A.2d 197 (1999), quoting Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 13, 662 A.2d 89 (1995). Indeed, there are some similarities between the breach of contract claim centered on the denial of tenure and the employment claim which invokes the implied contractual term of “just cause” to prevent unilateral termination of employment. In both cases a handbook or manual may be referred to for the purpose of establishing the right of the employee to limit the discretion of the employer. “It is firmly established that ‘statements in an employer’s personnel manual may ... under appropriate circumstances ... give rise to an express or implied contract between employer and employee.” Gaudio v. Griffin Health Services Corp, 249 Conn. at 532, 733 A.2d at , quoting, Finley v. Aetna Life and Casualty Co., 202 Conn. 190, 198-99, 520 A.2d 208 (1987). Likewise, in nearly every employment dispute involving tenure, and in nearly every employment agreement which relies upon a handbook, the expressed written terms are rarely the subject of negotiation between employer and employee, and so the employment agreements which rely upon terms found in employer manuals are properly defined as “contracts of adhesion.” “The hallmark of a contract of adhesion is that its terms ‘are not subject to the normal bargaining processes of ordinary contracts.’” Dainty Rubbish Service, Inc. v. Beacon Hill Association, Inc., 32 Conn App. 530, 630 A.2d 115 (1993), quoting, Aetna Casualty & Surety Company v. Murphy, 206 Conn 409, 416, 538 A.2d 219 (1988). Under a contract of adhesion, if there is ambiguity associated with the expressed terms, and the language is susceptible to two reasonable interpretations, the interpretation favoring the academic employee will be adopted. See Schultz v. Hartford Fire Insurance Co.,213 Conn. 696, 702, 569 A.2d 1131 (1990).

There is broad support in the case law for the proposition that language in a faculty handbook or manual may be relied upon to determine the rights of the parties in the academic setting. See Brennan v. King, 139 F.3d 258, 270 (1^st Cir. 1998) (Relying upon Faculty Handbook the court enforces the requirement to pursue a grievance prior to initiation of a breach of contract claim in court.); Kyriakopoulos v. George Washington University, 866 F.2d 438, 444, 275 U.S. App. D.C. 237 (D.C. Cir 1989) (University bound to follow the procedures in Faculty Handbook when seeking to deny promotion to associate professor.); McConnell v. Howard University, 818 F.2d 58, 67, 260 U.S. App. D.C.192, 201 (D.C. Cir. 1987) (University bound to follow the procedures in Faculty Handbook when seeking to terminate a tenured professor for adequate cause.); Sola V. Lafayette College, 804 F.2d 40, 43 (3^rd Cir. 1986) (Faculty Handbook creates a unilateral contract right to full, fair, impartial and substantiated tenure decision.); University of Baltimore v. Iz, 123 Md. App. 135, 171, 716 A.2d 1107, 1125 (1998) (Academic was not an at-will employee but rather entitled to tenure review in accordance with the contract and University’s promotion and tenure policies.); Kakaes v. George Washington University, 683 A.2d 128, 130 (D.C. App. 1996) (“A proper understanding of this somewhat esoteric dispute requires familiarity with the applicable provisions of the Faculty Code.”); Moffie v. Ogelthorpe University, Inc., 186 Ga. App. 328, 329, 367 S.E.2d 112, 113 (1988) (Those portions of the Faculty Handbook dealing with consideration for appointment with tenure and of which plaintiff was aware form part of an employment contract.); Senter v. Board of Trustees of Regional Community Colleges, 184 Conn. 339, 439 A.2d 1033 (1981) (Personnel Policies for Professional Employees of the Regional Community College System provided that tenure would be attained upon completion of six years and the issuance of a seventh notice of appointment.) But see, Pourki v. Drexel University, 1999 WL 179755 (E.D. Pa. 1999) (Handbook afforded contractual right to procedural safeguards at initial stages of tenure consideration, but the lack of detailed procedures governing administration decision not sufficient to overcome the presumption of at-will employment under Pennsylvania law.); Romer v. Board of Trustees of Hobart & William Smith Colleges, 842 F. Supp. 703, 710 (W.D.N.Y. 1994) (Relying upon New York common law regarding employee handbooks which requires “an express limitation on the employer’s right to discharge,” the court finds the criteria for tenure listed in the faculty guidelines are not sufficient to establish contract claim.)

In tenure denial cases, as with other contract cases, the determination of what the parties intended with reference to the documents, and whether the procedures called for were followed, are questions of fact for the jury. “Absent a statutory warranty or definitive contract language, the determination if what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact.” Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 112-13, 544 A.2d 208 (1987). “Because it is an inference of fact, determining the intent of the parties is within the province of the jury: it is ‘the raison d’etre of the jury system.’” Gaudio v. Griffin Health Services Corp., 249 Conn. at 533, 733 A.2d at . See Nayar v. Howard University, 881 F. Supp. 15, 21-23 (D.D.C. 1995) (Questions of fact for the jury include whether the university applied the criteria listed in the handbook in the decision to deny tenure.).

The typical academic employment agreement does not exist as a fully integrated document signed by both parties. In the investigation of a denial of tenure dispute one frequently finds that the faculty handbook is not the only source of information which bears upon the tenure decision. More often than not the proof to support a claim for breach of an agreement relating to denial of tenure will involve multiple documents. In addition to the faculty manual, a breach of contract may be predicated upon notices which are issued in connection with the initial appointment of the academic employee to the faculty, or based upon documents which are incorporated by reference in the notice, or even grounded upon external sources which are commonly understood to apply to the tenure process.

It is common that upon the initial appointment to the faculty of a college or university will be documented by a one page letter or notice which identifies the rank held, the salary and benefits and the expected date of reappointment or review. More often than not the letter or notice of appointment will incorporate by reference the provisions in the faculty handbook or by-law relating to the tenure decision. Marriott v. Morgan State University, 115 Md. App. 493, 694 A.2d 123 (1997) (Faculty member unable to establish claim for tenure based upon faculty manual regulations in effect at the time of hire when later an addendum nullified claim for tenure by relying solely upon continuous appointment beyond probationary period.); Sawyer v. Mercer, 594 S.W.2d 696 (Tenn. 1980) (Notice of Appointment stated it was a contract which incorporated the Faculty-Staff Guide; Sawyer attained tenure based upon failure to provide required notice of nonrenewal despite fact he was never reviewed for by College as required for tenure decisions.) At times there will be a conflict between the language in the notice of appointment and the terms of the faculty manual or by-law. Clutts v. Southern Methodist University, 626 S.W.2d 334 (Ct. App. Texas 1982) (Notice of Appointment provided academic was appointed as “Associate Professor, without tenure” inconsistent with University By-law which provided rank of an associate professor includes tenure; court holds it is unreasonable to imply tenure contrary to express statements in annual notices.)

Contract claims have been also be predicated upon written communications delivered to the academic employee during the probationary period or in the tenure process itself. Rafael v. Ithaca College, 241 A.D.2d 865, 867, 660 N.Y.S.2d 595, 598 (App. Div. 1997) (Memorandum by College Provost was sufficient express limitation on college’s discretion and allowed breach of contract claim.); Gladney v. Thomas, 573 F. Supp. 1232 (N. D. Ala. 1983) (Academic Vice-President’s letter to assistant professor advising of a deferral of the tenure decision for one year to allow for improvement in publications held sufficient to base a breach of contract claim for denial of tenure.)

Oral communications are usually insufficient to support breach of contract claims when written statements also govern the process and there is no legitimate claim to de facto tenure. The Johns Hopkins University v. Ritter, 114 Md. App. 77, 689 A.2d 91 (1996) (Oral assurances by Director of the Department of Pediatrics were not enforceable in absence of proof that the Director had actual or implied authority to circumvent written policies regarding tenure decision.); Romer v. Board of Trustees of Hobart & William Smith Colleges, 842 F. Supp. 703, 709 (W.D.N.Y. 1994) (Oral assurances are but one factor to consider along with the written standards and do not establish required contractual limitation on college’s discretion.)

There are also situations when the terms governing the employment relationship and the tenure decision will be implied by courts based upon custom and practice in the academic setting. “Contracts are written, and are to be read, by reference to the norms of conduct and expectations founded upon them. This is especially true of contracts in and among a community of scholars, which is what a university is.” Greene v. Howard University, 412 F.2d 1128, 1135 (D.C. Cir 1969). Accord, Kakaes v. George Washington University, 683 A.2d 128, 136 (D.C. App. 1996) (“Procedures utilized by the University with respect to cases in which the faculty and the administration have made conflicting recommendations may be properly considered to resolve any ambiguity in the Faculty Code...”); Howard University v. Best, 547 A.2d 144, 151 (D.C. App. 1988) (Custom and practice applicable to academic setting may be used to interpret terms of agreement but custom must be “definite, uniform, and well known, and it must be established by ‘clear and convincing evidence.’”); Bason v. The American University, 414 A.2d 522, 525 (D.C. App. 1980) (Interpretation of contract requires review of documents incorporated by reference, such as the “Bylaws of the Association of American Law Schools” and the “customs and practices of the University.”); Klinge v. Ithaca College, 167 Misc.2d 458, 462, 634 N.Y.S.2d 1000, 1002 (1995) (Court may take notice of implicitly accepted customs and practices to fill the gap.).

External sources, in particular authoritative statements of the American Association of University Professors (AAUP), are used by the courts in aid of interpretation of the academic employment agreement, even when the relevant documents do not make specific reference to the AAUP Statement. Krotkoff v. Goucher College, 585 F.2d 675, 679 (4^th Cir. 1978) (Court relies upon expert opinion referencing the AAUP’s 1940 Statement of Principles on Academic Freedom and Tenure to incorporate concept of “financial exigency” into employment agreement.) Browzin v. Catholic University of America, 527 F.2d 843, 847 (D.C. Cir. 1975) (“1968 Recommended Institutional Regulations on Academic Freedom and Tenure” propounded by the AAUP governed the question of whether University was obligated to make effort to find another “suitable position” for a tenured professor displaced by abandonment of program.); University of Baltimore v. Iz, 123 Md. App. 135, 163, 716 A.2d 1107, 1121 (1998) (Upon finding written tenure criteria “ambiguous” court implies “collegiality” as an additional unwritten term applicable to the tenure process based in part upon AAUP “Statement on Professional Ethics.”).

The decision to tenure a candidate is most often described as within the prerogative of the Board of Trustees of the institution in question. The Board may have a Tenure Committee which consults with the President of the institution. The President is the administration official who is delegated the task of making recommendations on behalf of the administration to the Board. It is almost universally recognized that the faculty is the body which is delegated the responsibility of judging the qualifications of those who would join the ranks of Associate Professor and Professor at the college or university. According to the AAUP’s Joint Statement on Government of Colleges and Universities, first published in 1966, at each step in the tenure decision process authority and responsibility is delegated to the group of individuals with the expertise to govern the decision. The AAUP’s Joint Statement sets forth a system of checks and balances where the initial level of review, usually by the department employing the candidate, assumes the expertise in judging the candidate’s qualifications and the succeeding levels of review provide oversight to assure that the institutions standards are being upheld. Ideally, oversight committees and administrators should not interfere with the department in judging the qualifications of the tenure candidate in matters where the department has special expertise, unless there are extraordinary circumstances or established irregularity in the process. Nevertheless, oversight by college-wide committees and the administration should act to prevent the promotion of candidates who truly lack merit, or allow for the promotion of candidates who have been held back for reasons unrelated to lack of qualification.

The variety of systems set up by colleges and universities to make the tenure decision is unlimited. Invariably, the tenure process will commence with a review of the candidate holding the rank of Assistant Professor at the departmental level with a recommendation to a college wide committee, sometimes referred to as an Advisory Committee. In the university setting the department’s recommendation may be forwarded to a tenure committee in the particular school or college, sometimes referred to as the Tenure and Promotion Committee of the School of ________, which will then forward the recommendation to the university wide Tenure and Promotion Committee. After the faculty committees have had their say, the Dean of the school, in the university, setting may pass judgment on the application for tenure to the Academic Vice President or Provost. In the college setting, the recommendation from the faculty committee will go directly to the Academic Vice President or Provost. The Academic Vice President or Provost reports directly to the President with a recommendation. The President’s decision is almost always adopted by the Board of Trustees.

In the event of a negative decision at any step in the process, the tenure candidate may have access to an appeal to a separate committee – sometimes referred to as grievance committee – or the appeal may be made to the President. It is usually the case that the grievance committee is limited to a review of the procedures employed, and the relief provided may be reconsideration by the same body which denied the candidate the first time. At each stage the parties will generate documents to support the decision made. From the lawyer’s point of view, the paper generated by academics in a contested tenure decision can be overwhelming, easily containing thousands of pages for the candidate’s own case. In those cases where a theory requires review of the tenure files of other candidates, the amount of paper to review multiplies accordingly. Therefore, those who become involved in tenure cases should be prepared to develop a system to keep track of the relevant information buried in a mountain of documents.

The most commonly accepted definition of tenure is found in the 1940 Statement of Principles on Academic Freedom and Tenure, published by the Association of University Professors, and adopted by nearly every major college and university, along with the Association of American Colleges. Academic Tenure is defined by the 1940 Statement as follows: “After the expiration of a probationary period, teachers or investigators should have permanent or continuous tenure, and their service should be terminated only for adequate cause, except in the case of retirement for age, or under extraordinary circumstances because of financial exigencies.” Five interpretative statements follow the definition of tenure in the 1940 Statement. These five statements further define what is considered to be acceptable academic practice. Included among them are two practices which are pivotal to representing a nontenured academic. The first statement is crucial to establishing a tenure claim. “The precise terms and conditions of every appointment should be stated in writing and be in the possession of both institution and teacher before the appointment is consummated.”(Emphasis added) The second important statement of good academic practice is that the probationary period should not exceed seven years, and that notice of non reappointment should be given at least one year prior to the expiration of the probationary period, if the teacher is not to be continued thereafter.

It stands to reason that explaining the terms of the tenure employment agreement should be a primary consideration in the presentation of a tenure case. One would expect the precise terms and conditions to be found in the faculty handbook would help explain the nature of the commitments undertaken by the parties. While most faculty handbooks set forth terms and conditions applicable to the tenure decision, precision is often lacking. The faculty manual will often state that the tenure decision will be made by taking into consideration the performance of the academic employee in three broad areas: (1) scholarship or intellectual contributions, (2) teaching and (3) service to the university and/or the community. The three broad criteria may be further defined in somewhat descriptive language which invariably invokes the concept of excellence. Who can argue with excellence as the benchmark standard for the appointment of a faculty member to what is nearly always described by counsel representing colleges in tenure cases as “lifetime employment?” It is a rare institution of higher learning which will aspire to mediocrity in its faculty, at least in its published standards. Excellence as a description of a standard of performance is, however, a meaningless term outside of context, and its application is subject to change depending upon whether one is dealing with an elite school or a community college. See Spiegel v. Trustees of Tufts College, 1987 WL 15874 (D. Mass. 1987) (Faculty Handbook’s broad definition of scholarship was merely descriptive of subjective criteria and placed no restrictions on the manner in which tenure evaluations were conducted or the University’s broad discretion in the absence of a violation of a positive rule of law.)

The place of employment may also make a difference in the application of the tenure criteria. It is said that in the university (as opposed to college) setting excellence in research and publication is emphasized more than teaching. In the university setting the teaching load is often much less burdensome and the professor has access to greater resources, along with Ph.D. candidates to assist in both research and teaching activities. On the other hand, some colleges expressly state that excellence in teaching is the primary consideration in the decision to grant tenure. Increasingly, with competition for students at a premium in the business of higher education, even the so called “teaching colleges” are attempting to hold academics to research expectations of universities, despite the heavier teaching loads and lack of research resources, yet the documents may not reflect this unstated standard.

Regardless of the place of employment the way in which the evidence is gathered to make the judgment follows a familiar pattern. The college or university judgment on scholarship is almost always made by the tenured colleagues in the department with the assistance of peer review from scholars at other colleges and universities in the field who are asked to review the candidate’s file and provide written comment. Therefore, the evidence on scholarship is likely to be more objective and less dependent upon employees of the college or university than is the evidence on teaching. The judgment on teaching is almost always more subjective because teaching is usually judged by reference to student evaluations and by reference to the course syllabi. One can always find something or negative to emphasize in the student evaluations of even the best teachers, even if the comment is not representative of the student evaluations as a whole. Although the better system of review would incoporate review of classroom performance by others in the department who would then provide written feedback to the assistant professor over time, it is hardly ever the case that such evidence is produced. As counsel to the academic it is imperative that one gains a full understanding of the terms and conditions and the manner in which scholarship and teaching are judged at the college or university in question.

While it is almost unheard of that service is ever relied upon to deny tenure to a candidate, there have been cases where the absence of “collegiality,” a factor which may not ever be mentioned in writing, has been relied upon to deny tenure. In one extreme case of appellate judicial interference with the jury’s finding in favor of the plaintiff employee, the appellate court implied the term of collegiality into the handbook, which did not mention the word, and nullified the trial judge’s decision to leave the question of fact concerning what the parties intended to the jury. University of Baltimore v. Iz, 123 Md. App. 135, 163, 716 A.2d 1107, 1121 (1998) ( Reversing a $425,000 verdict.)

One of the most challenging tasks in developing a tenure case is defining the theory of the case which is consistent with the “precise terms and conditions” governing the decision which “should [have been] stated in writing” at the commencement of the appointment, but which are often anything but precise and left to further definition as the six year probationary period continues. One way to more precisely define what “excellence” in scholarship or teaching means is to look at what has been done in the department in other cases. Comparison with other tenured academics may take the form of comparing the way in which the rules were applied to similarly situated candidates, Nayar v. Howard University, 881 F. Supp. 15, 21-23 (D.D.C. 1995) (Evidence that the University did not uniformly apply its tenure evaluation policies, and that a male candidate was treated more favorably in the tenure review process, is sufficient to establish a breach of contract claim and support a claim of pretext), or comparison of qualifications may be attempted to prove the decision was unfair or discriminatory based upon the superior qualifications of the one who was denied tenure. Indeed, comparison of qualifications was successful in one of the more famous tenure cases. Brown v. Board of Trustees of Boston University, 891 F.2d 337 (1^st Cir. 1989). Counsel for colleges and universities will protest every time you seek to discover the files of other candidates who succeeded in obtaining tenure, claiming that the decision in your client’s case was sui generis, and so the files of others are not relevant to anything. However, employment decisions are rarely made without an eye toward precedent. When the claim of gender or age discrimination, or even breach of the implied covenant of good faith and fair dealing, is centered on more favorable treatment to others, there is no other way to make the case and the files should be obtained. It helps to have specific candidates in mind when the request for other tenure files is being made so that it does not appear that the request is merely a “fishing expedition.” Counsel must be aware that in order to prevail on a comparison case the evidence will need to be compelling under the current state of the law, for reasons explained below in greater detail. “A court may not simply substitute its own views concerning the plaintiff’s qualifications for those of the properly instituted authorities; the evidence must be of such strength and quality as to permit a reasonable finding that the denial of tenure was ‘obviously’ or ‘manifestly’ unsupported.” Brown v. Board of Trustees of Boston University, 891 F.2d 337 346 (1^st Cir. 1989).

Another way to obtain greater precision relating to the “precise terms and conditions” applicable to the standard of scholarship or teaching in order to develop an effective theory of the case is through an examination of the conduct of the parties over the years. It is not unusual for the meaning associated with excellence in teaching or scholarship to change over the years one is employed in a probationary status, as such definitions depend upon which group of individuals is making the judgment. Therefore, it is necessary to understand how the standard has been applied to others in the recent past by gaining access to other tenure files, if possible. Additionally, one should determine to what extent the standard has been more clearly defined with respect to the academic in question by obtaining the entire tenure file of the candidate, including all of the so-called confidential peer review material from within and outside the college or university. In nearly all cases there will have been an ongoing process of annual review by the Department Chair and/or a process of reappointment by the college or university. At most schools the tenure candidate is formally reviewed at least once, sometimes more than once, along the path to the tenure decision. It many cases the reappointment review will approximate the type of review followed at the time of the tenure decision. A reappointment review typically provides the department, a college wide committee and Provost with an opportunity to state what is right and what is wrong with the candidate’s performance to date. It is imperative that the tenure candidate’s complete file, including all peer review documents, internal and external, be obtained so as to clarify how the standards of scholarship and teaching have been interpreted in connection with the agreement and the particular tenure candidate. Comparison of the files of other tenure candidates with the client’s file will reveal consistency in the application of the standard.

As can be seen, setting out the “precise terms” in the faculty handbook by reference to broad criteria and descriptive terms, like excellence, sets the stage for differing interpretations of what was meant at the time the academic commenced employment. Once all of the documents have been gathered and all of the ambiguities have been identified, along with possible solutions to resolve the ambiguities in your favor based on university custom and practice and the conduct of the parties, then the next level of uncertainty is at hand. As will be discussed in greater detail below, courts tend to defer to the somewhat subjective process which applies to the tenure decision at most institutions. This judicial reflex represents the greatest obstacle to the successful presentation of a tenure case. First and foremost, the lawyer representing a tenure candidate must educate the judge on the reasons why the tenure candidate deserves the same protection in a court of law which is provided to other litigants bringing contract claims.

Sometimes knowing what not to do helps to define the proper approach to a tenure case. The best example of the claim you never want to file in court is (with apologies to plaintiff’s counsel) Claggett v. Wake Forest University, 126 N.C. App. 602, 486 S.E.2d 443 (1997). Clagget was denied tenure after a probationary period. He was told his colleagues did support his application. Clagget sued for breach of a contract and alleged that there were objective policies, procedures and standards for achieving tenure which he met or exceeded. He further alleged that he was never informed that the defendant could deny him tenure solely within its discretion. He attached as exhibits to the complaint the portions of the Faculty Guidelines which governed the tenure decision, including the following typical language, “It must be clearly understood by all faculty members that tenure is granted, not merely earned. Accomplishment by itself does not justify tenure. A tenure recommendation should only be made when the trade off between flexibility of future hiring and the expectation of ongoing significant contributions to the School is in the best interest of the School.” In his breach of contract claim Claggett incorporated the tenure procedures by reference, stated all the procedures were followed and then, without further substantiation in the pleading, Claggett claimed the decision to deny him tenure was “arbitrary and capricious.” On what appears to be the equivalent to a motion to strike, the court accepted the allegations in the complaint as true – the college followed its procedures – and stated, “[T]he complaint discloses on its face that the defendant’s decision with respect to plaintiff’s application for tenure was not reached in violation of those policies, procedures and Guidelines and had a rational basis, so as not to have been arbitrary and capricious.” Claggett v. Wake Forest University, 126 N.C. App. at 609, 486 S.E.2d at 447.

Two fairly recent cases which discuss the standard of “arbitrary and capricious” in the context of employment decisions merit comment because defendants will urge that they apply to cases involving tenure denial when they do not. In Gaudio v. Griffin Health Services Corp, 249 Conn. 523, 532, 733 A.2d 197 (1999), the Supreme Court affirmed a jury’s verdict in favor of the employee who had been discharged in violation of the implied contract term that just or adequate cause was required for termination of employment. The requirement of just cause was implied from language in an employee manual outlining a grievance procedure and upon oral promises concerning continued job security so long as the employee continued to do a good job. The Court rejected the defendant’s and the dissent’s challenge that the trial court impermissibly allowed the jury to interfere with managerial discretion. The dissent’s theory of the law – which would have denied the jury a de novo review of management’s decision – sounds very much like the no “second-guessing rule” championed by defense counsel in tenure denial cases as discussed in detail below.

Justice Berdon wrote the opinion for the Court and approved a charge which stated, in part, “The [defendant] must provide a reason for the dismissal of an employee and cannot arbitrarily or capriciously terminate an employee...[A]n employer rightfully has managerial discretion in making such decisions and the right to make independent, good faith judgments. In making your decision, you cannot interfere with the legitimate exercise of managerial discretion.” Gaudio v. Griffin Health Services Corp, 249 Conn. at 539 (Emphasis in the original). The Court also reiterated: “It is well settled that ‘courts should not lightly intervene to impair the exercise of managerial discretion...’ Although ‘just cause substantially limits [managerial] discretion,’ this simply means that employers are ‘forbid[den]...to act arbitrarily or capriciously.’ In other words, an employer who wishes to terminate an employee for cause must do nothing more rigorous than ‘proffer a proper reason for dismissal.’” Id. (Citations omitted).

While just cause may be defined in terms of an arbitrary and capricious decision, it should not be the case that every breach of a contract claim predicated on just cause must meet the same standard. It is also important to distinguish the claim of denial of tenure from the claim of discharge without just cause. Tenured professors must be offered continuous and permanent employment unless there is adequate cause to terminate that employment, however, the failure to offer a continuing appointment to a probationary (tenure track) academic employee after a tenure review process is not a dismissal for cause. The distinction makes a difference in the standard of review because there are procedural requirements which must be met to dismiss a tenured professor which are not required to make the decision to deny the granting of tenure. Hill v. Talladega College, 502 So.2d 735 (Ala. 1987) (Refusing to apply the AAUP standards applicable to “dismissals” in the circumstance where nontenured assistant professors received “notice of non-renewal” prior to expiration of one year term contract.). Therefore, even if one must prove that a decision to terminate for cause was arbitrary and capricious, concepts surrounding just cause terminations should not automatically be applied to denial of tenure claims.

Arbitrary and capricious decision making can be the standard applicable to the dismissal of students, but an academic employee on tenure track is not a student. In Gupta v. New Britain General Hospital, 239 Conn 574, 687 A.2d 111 (1996), the plaintiff was a resident physician who had been dismissed during the final year of his residency training program. The relationship was governed by a “Resident Physician Agreement.” Gupta contended that the trial court, in granting summary judgment to the Hospital, improperly characterized the agreement as an educational, rather than employment relationship, and therefore “mischaracterized his dismissal as an academic decision, to which courts should normally defer, rather than a termination of employment, which would have limited the scope of the hospital’s discretion.” Gupta v. New Britain General Hospital, 239 Conn. at 582

Justice Peters, writing for the Court, reviewed the applicable case law and acknowledged that the relationship was somewhat of a hybrid, mixing elements of employment with elements of education. In the final analysis, however, the residency program was held to be comparable to a graduate student program, leading the Court to conclude, “[A]ccordingly, ...the hospital’s decision to dismiss the plaintiff for poor clinical performance constituted an academic, rather than an employment, decision.” Gupta v. New Britain General Hospital, 239 Conn. at 558. After conceding that the dismissal could be viewed on “academic” grounds, the plaintiff challenged the decision as one which resulted from “arbitrary, capricious and bad faith conduct.” The Court rejected the challenge on this standard, while stating the plaintiff’s burden was a heavy one, for lack of evidence to support the claim. In order “to prevail” on an arbitrary, capricious or bad faith standard, the plaintiff in an educational dismissal case “must show that the hospital’s decision had no ‘discernable rational basis.’”Gupta v. New Britain General Hospital, 239 Conn. at 596.

The case law cited in Gupta v. New Britain General Hospital, to support the arbitrary and capricious standard of review consists mainly of Fourteenth Amendment cases where the least protection is afforded to nondisciplinary student dismissals. Unfortunately, unsophisticated lawyers and judges may automatically apply an arbitrary and capricious standard to the claim of breach of a contract in the denial of tenure, because the denial of tenure will be inappropriately and loosely referred to as an “academic” decision when it is, without a doubt, an employment decision involving an employee working in the academic field.

The presentation of the Claggett v. Wake Forest University, in juxtaposition to Gaudio v. Griffin Health Services Corp. and Gupta v. New Britain General Hospital case is instructional because it highlights two basic rules which apply to the presentation of all academic tenure cases, and which may have general application to all employment cases. Rule # 1: Always allege a violation of policies and procedures, even if it appears that the fault with the decision is one of substance. No decision made in a process is ever strictly substantive or procedural in nature. The tenure claim which attempts to challenge the substantive decision directly is the weakest of all claims, because it invites defense counsel to suggest to the judge that the plaintiff is attempting to have the nonexpert jury “second-guess” the college or university decision. While it is misleading to state there is something inappropriate with having a jury review (“second-guess”) a breach of contract claim, even one which directly challenges the substance of a tenure decision, this argument has great appeal to judges who would rather not get involved in a complex employment case which on the surface seems to represent a decision deliberately made. As with any theory of a case, employment or otherwise, the lawyer should keep the theory simple. The simple claim is simply stated as follows: “The college failed to follow its rules.” Rule #2: Never rely upon the concepts of “arbitrary, capricious and bad faith” to support a claim that the other party to a contract broke its promise. While it is more probable than not that all bad faith, arbitrary and capricious decisions support a claim of breach of a contract, not every rational and good faith decision is inconsistent with a claim of breach of the agreement. A rational decision by the institutional employer may still violate a promise made to the academic employee. Arbitrary and capricious conduct is simply one way to prove a breach of contract. Similarly, proof of a breach of the implied covenant of good faith and fair dealing does not require proof of bad faith. Defeating the other party’s reasonable expectations based upon the language in the agreement is sufficient to prevail. Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566-67, 479 A.2d 781 (1984). Do not allow the defendant to require you to prove bad faith conduct in order to prevail on a breach of contract claim. Bad faith is the prerequisite conduct for the award of tort-like damages in connection with the separate tort of breach of the duty of good faith and fair dealing. “[T]his court recognizes an independent cause of action in tort arises from an insurer’s common law duty of good faith.” Buckman v. People’s Express, Inc, 205 Conn. 166, 170, 530 A.2d 596, 598 (1987) According to the Appellate Court in Connecticut tort damages are not available in breach of employment contract cases. Barry v. Posi-Seal International, Inc., 40 Conn. App. 577, 672 A.2d 514 (1996).

Unless the plaintiff pleads the arbitrary and capricious standard, as was done in Claggett v. Wake Forest University, or unless the faculty manual makes arbitrary and capricious the standard of judicial review, the review of tenure decisions applying the arbitrary and capricious standard are reserved to those cases invoking state action, substantive due process and the Fourteenth Amendment, Babbar v. Ebadi, 36 F. Supp.2d 1269, 1283 (D. Kan. 1998), or to state statutory schemes which provide for a writ of mandamus or a writ certiorari to invoke judicial review of an administrative decision. In those cases, the courts employ a form of judicial deference to administrative decisions. Pomona College v. Superior Court ex rel Corin, 45 Cal.App.4th 1716, 53 Cal.Rptr.2d 662 (1996) (Judicial review of tenure decisions in California is limited to evaluating the fairness of the administrative hearing in an administrative mandamus action); Bennett v. Wells College, 219 A.D.2d 352, 641 N.Y.S.2d 929 (App. Div. 1996) (Management of educational institutions belongs to professional educators and court has limited authority to review determination of private college whether to grant tenure, but court may determine whether college’s action denying tenure violated college’s rules and was arbitrary and capricious in an Article 78 proceeding.) Ganguli v. University of Minnesota, 512 N.W.2d 918 (Ct. App. 1994) (Certiorari review of quasi-judicial decision such as denial of tenure invokes examination of whether the determination was arbitrary, oppressive, unreasonable, fraudulent, made under an erroneous theory of law, or without any evidence to support it.). Therefore, although managerial discretion will always be implicated in every employment decision, including those which involve adequate cause to terminate employment and those which involve the decision to offer tenure, the arbitrary and capricious standard is not the default rule of law applicable to employment decisions, but merely represents one way in which an employment agreement may be breached.

Employing an arbitrary and capricious standard of review as is done in statutory proceedings in New York and California represents but one way in which the judiciary defers to the university or college administrators on the decision to tenure an academic employee. Judicial deference to university decisions involving denial of tenure does not spring from any established principle of contract law, nor is deference expected as a part of the employment agreement. The whole concept of judicial deference appears to have been conceived as a reaction to the tenure denial discrimination claims brought after Congress amended Title VII to allow cover universities and colleges. Because the 1972 Amendment to the Civil Rights Act of 1964 allowed discrimination claims to be brought to federal court for trial before federal judges, federal courts were called upon to decide whether illegal discrimination tainted the decision to deny tenure. The initial cases seemed to have set the wrong precedent.

One of the most cited cases calling for judicial deference is Lieberman v. Gant, 630 F.2d 60, 67 (2^nd Cir 1980). Lieberman v. Gant was brought to trial in the District of Connecticut on April 20, 1976 and concluded on May 26, 1978. The trial “produced a transcript of nearly 10,000 pages and almost 400 exhibits and consumed 52 days of court time.” Id. at 62. Briefs were due on July 31, 1978, but defendants did not file until March 5, 1979 and plaintiff’s counsel never filed proposed findings of fact and conclusions of law. “Despite the difficulties arising from the length of the trial, the long gap between its end and the filing of defendant’s brief, and the plaintiff’s failure to submit any proposed findings or conclusions or a brief....” Judge Clarie issued a decision on August 2, 1979. Id. Judge Friendly identified the problem in a footnote as follows:

We do not understand how either the federal courts or universities can operate if the many adverse tenure decisions against women or members of a minority group that must be made each year are regularly taken to court and entail burdens such as those here incurred. This is not the first case of this sort. See, e.g., Johnson v. University of Pittsburgh,.435 F. Supp. 1328 (W.D. Pa. 1977) (dismissing complaint alleging refusal to grant promotion and tenure was discriminatory after 74 days of trial, 12,085 pages of testimony, 73 witnesses and nearly 100 exhibits.

Id. at 62, n.1. Against this background of evident frustration with what had occurred and hoping to preempt similar cases in the future, Judge Friendly declared providing full scale trial of cases like Dr. Lieberman’s could not have been what Congress intended.

The Congress that brought educational institutions within the purview of Title VII could not have contemplated that the courts would sit as “Super-Tenure Review Committee(s)”, Keddie v. Pennsylvania, 412 F. Supp. 1264, 1270 (M.D. Pa. 1976; their role was simply to root out discrimination. Chief Judge Claire thus did not err in declining plaintiff’s invitation to engage in tired-eyed scrutiny of the files of successful male candidates for tenure in an effort to second-guess the numerous scholars at the University of Connecticut who had scrutinized Dr. Lieberman’s qualifications and found them wanting, in the absence of independent evidence of discriminatory intent or a claim that the plaintiff’s qualifications were clearly and demonstrably superior to those successful males, a claim which was not made by Dr. Lieberman because it could not have been sustained.

Lieberman v. Gant, 630 F.2d at 67-8 (Emphasis added).

Along with other decisions such as Kumar v. Board of Trustees, University of Massachusetts, 774 F.2d 1, 12 (1^st Cir. 1985) (Courts must be extremely wary of intruding into the world of university tenure decisions.); Kunda v. Muhlenberg College, 621 F.2d 532, 548 (3^rd Cir. 1980) (“[I]t is clear that courts must be vigilant not to intrude into that determination, and should not substitute their judgment for that of the college with respect to the qualifications of faculty members for promotion and tenure.”); Faro v. New York University, 502 F.2d 1229, 1231-32 (2d Cir. 1974) (“Of all fields, which the federal courts should hesitate to invade and take over, education and faculty appointments at a University level are probably the least suited for federal court supervision.”) and Keddie v. Pennsylvania, 412 F. Supp. 1264, 1270 (M.D. Pa. 1976) (Courts should not sit as Super-Tenure Review Committees.), Lieberman v. Gant provided precedent for repeated pronouncements by the Second Circuit Court of Appeals, and others federal courts reviewing discrimination cases, that judges should not act as “Super Tenure Committees” and should be cautious not to “substitute their judgment” when “second-guessing” the soundness of personnel decisions involving tenure. Fisher v. Vassar College, 70 F.3d 1420, 1434-35 (2^nd Cir. 1995); Zahorik v. Cornell University, 729 F.2d 85, 92 (2^nd Cir. 1984) (“We have previously noted that tenure decisions in an academic setting involve a combination of factors which tend to set them apart from employment decisions generally.” and “Courts, moreover, are understandably reluctant to review the merits of the tenure decision.” citing Lieberman v. Gant); Peterson v. The City College, The City University of New York, 32 F. Supp.2d 675, 684-85 (S.D.N.Y. 1999) (Courts should not second guess or sit as super tenure committee.); Jalal v. Columbia University, 4 F. Supp.2d 224, 241 (S.D.N.Y. 1998); (Courts should not sit as super tenure committee.); El-Ghori v. Grimes, 23 F. Supp.2d 1259, 1268 (D. Kan. 1998) (Rational basis test for equal protection does not permit judge or jury simply to second-guess University officials’ academic judgment concerning a tenure decision.); Cherry v. Burnett, 444 F. Supp. 324, 332 (D. Md. 1984) (It is not the function of the federal courts to second-guess the decision of a school official on discretionary matters which do not rise to the level of a constitutional dimension.); Baker v. Lafayette College, 350 Pa. Super 68, 504 A.2d 247, 257 (1986), aff’d 516 Pa. 291, 532 A.2d 399 (1987) (Engrafting a right to judicial second-guessing of the soundness of personnel decisions made under contracts would inhibit decision-making freedom.). This dictum has even been repeated by one court as a statement of public policy. Pomona College v. Superior Court ex rel Corin, 45 Cal.App.4th 1716, 53 Cal.Rptr.2d 662 (1996).

Counsel representing colleges and universities in breach of contract claims involving the denial of tenure do not hesitate to repeat the admonishment not to “second-guess” administrators frequently and at each stage of the litigation. Like most simplistic attempts to deal with complex problems, the notion that the judiciary can avoid “second-guessing” the determination of whether a particular employment decision violates the law fails at logic and reason. “Second-guessing,” otherwise known as judicial review comparing the legitimacy of the decision against a standard, whether that standard is discrimination, or breach of contract, including the implied covenant of good faith and fair dealing, is precisely the role of the judge and jury in our system of justice. Every court which repeats the no “second-guessing” rule does a disservice to the system of justice, especially since in each case the court must in fact review and “second-guess.”

The question remains should courts blindly defer to university or college decisions involving tenure? The parties to the academic employment agreement never expressly state that a subsequent reviewing entity should defer to one of the parties to the contract and presume the correctness of the decision. If universities and colleges truly believed that unlimited discretion and judicial deference to their decisions was good public policy, then the colleges and universities should be up front about it and make “no second-guessing” an expressed term of the implied contract of employment between the academic employee and the institution. The reason the “no second guessing” term is not expressed can easily be understood: no assistant professor worth hiring would ever apply for the job.

Why has the judiciary chosen to defer to the party to the contract which has the most bargaining power? There should not be a judge made law resulting in a “no second-guessing exception” for employment decisions made in the college and university setting. What profession or field would next be entitled to the same deference? Should employment decisions which are made at the partner level in law firms and accounting practices be entitled to the same judicial deference in a breach of contract claim? Should the courts defer to every employment decision which is the by-product of consultation between two or more persons or committees? Judicial deference to university and college personnel decisions implicates fundamental fairness in our system. Courts should not abandon their role as guardians of the rule of law fairly applied to all litigants, which is not always the case in the university or college setting. Courts should be vigilant in providing equal access to justice to all who seek it.

In truth, behind every tenure decision there exists a power struggle in which the tenure candidate is the weakest player. The unwritten law which affects every tenure decision is almost too obvious for words. The tenure decision is a political decision involving many constituencies and it is made over a six-year period. The decision involves the interaction of the tenure candidate with the people within the department itself, and the interaction between the people in the department and their colleagues on the other committees which may be involved. Beneath the surface of the rules written in the faculty handbook there is an age-old battle between the faculty and the administration over which constituency is the proper body to decide who will be appointed to the faculty. Despite the delegation of authority by the Board of Trustees to faculty bodies, such as the department and other college wide committees, to make recommendations regarding the tenure candidate, ultimately the university or college, acting through its administration, will seek to retain unlimited discretion to make employment decisions involving tenure. At the same time, the college or university solicits employees fresh from graduate school programs holding out seemingly objective criteria which create reasonable expectations in tenure candidates that the college or university will follow the rules it publishes and grant tenure when the candidate has performed as promised. Under these circumstances there should not be a judicial presumption that multiple decision makers following a set of procedures will produce the right result. Process is not a substitute for justice. As was said by a Professor of Law teaching at Yale Law School, “Hell is a place with no justice, but where due process is strictly observed.”

One of the most enlightened decisions on this subject of deference appears in McConnell v. Howard University, 818 F.2d 58, 260 U.S. App. 192 (D.C. Cir. 1987). Relying upon language in the Faculty Handbook which declared that the decision of the Board of Trustees in a tenure dismissal case “shall be final,” the trial court determined the standard of review would require proof that the “Board’s decision was arbitrary, or the plaintiff has proffered evidence of improper motivation or irrational action.” Id. at 201. Judge Harry T. Edwards responded, “Such a reading of the contract renders tenure a virtual nullity. Faculty members like Dr. McConnell would have no real substantive right to continued employment, but only certain procedural rights that must be followed before their appointment may be terminated. We find this to be an astonishing concept, and one not compelled by a literal reading of the Faculty Handbook.” McConnell v. Howard University, 818 F.2d at 67, 260 U.S. App. At 201. After further review Judge Edwards declared, “On remand, the trial court must consider de novo the appellant’s breach of contract claims; no special deference is due the Board of Trustees once the case is properly before the court for resolution of the contract dispute.” Id. at 68, 202 (Emphasis added). In response to the University’s claim that its decision was entitled to deference because all the processes below made it similar to an agency decision, Judge Edwards stated, “Here ...there is a contract to review, and it has been brought into issue by the appellant’s legal complaint. The reasonableness of the University’s actions is relevant only insofar as the actions of are consistent with the parties’ contract. It would make no sense for a court blindly to defer to a university’s interpretation of a tenure contract to which it is an interested party.” Id. at 69, 203 (Emphasis added). Finally, Howard University urged the court to follow the lead of the District Court “that a federal court should hesitate before significantly intruding in the administration of university affairs.” Judge Edwards provided the following response:

We find no support for this argument in this case. This is not a ‘three-cornered dispute;’ rather, what is at stake are the contractual rights of Dr. McConnell. However, taking the point more broadly, we do not understand why university affairs are more deserving of judicial deference than the affairs of any other business or profession. Arguably, there might be matters unique to education on which courts are relatively ill equipped to pass judgment. However, this is true in many areas of the law, including, for example, technical, scientific and medical issues. Yet, this lack of expertise does not compel courts to defer to the view of one of the parties in such cases. The parties can supply such specialized knowledge through the use of expert testimony. Moreover, even if there are issues on which courts are ill equipped to rule, the interpretation of a contract is not one of them. We find no precedent in the District of Colombia for the District Court’s view, nor do we find persuasive precedent in any other jurisdiction.

Id. 69-70, 203, 204 (Emphasis added). The holding in McConnell v. Howard University has been extended beyond the dismissal context. “McConnell’s reasoning readily encompasses the promotion setting as well as the disciplinary one. We can discern no principled reason why it should be delimited to the latter setting, which gave rise to the McConnell litigation... As we see the issue, the University cannot claim the benefit of the contract it drafts but be spared the inquiries designed to hold the institution to its bargain.” Kyriakopoulos v. George Washington University, 866 F.2d 438, 447, 275 U.S. App. 237, 246 (D.C. Cir. 1989) (Starr, J.). The Kyriakopoulos court was also quick to point that the decision did not reach “judicial recalculation” of the University evaluation of scholarly merit.

Having argued against judicial deference to college and university tenure decisions, it is still true that no plaintiff in an academic employment case should ever ask the judge or jury to substitute their opinion on what is adequate scholarship. Making such decisions is properly the role of the faculty and other peers of the tenure candidate. On the other hand, just because it is undoubtedly the case that the college or university has the right to make the judgment in the first instance does not mean that the decision is not subject to judicial review, even when that decision involves academic expertise. As Judge Edwards noted, courts know how to obtain expertise, that’s what experts do in court every day. Indeed the use of expert testimony was referred to with approval in Kyriakopoulos, supra. Expert testimony comparing Julia Brown’s qualification to similarly situated males who received tenure at Boston University was sufficient to establish discrimination and an award of tenure. The court in Gladney v. Thomas, 573 F. Supp. 1232 (N. D. Ala. 1983) relied upon the testimony of scholars in the field to find that the college breached the contract when it refused to award tenure after Professor Gladney made efforts to “improve her scholarship.” In each of these cases, what may be characterized as “second-guessing” is also properly referred to as enforcing the agreement of the parties by holding the college or university to the promise it made at the inception of the six-year probationary period. Yet, there still exists a reluctance to force a university to accept an employee, possibly for thirty years, unless the case is compelling.

If a college or university has the last word on whether the contract has been breached, then the right of the employee to claim protection in our courts will become illusory. There is no good reason for the judiciary to blindly defer to the college or university decision involving tenure. There are not enough courts speaking up about the investment the academic employee makes in the tenure process. Frequently, the academic will have but one opportunity at tenure after investing six years of his or her career. The denial of tenure can be a stigmatizing event which prevents employment elsewhere in the same field on tenure track. Therefore, the risk of harm is real and enduring. Judges should not so easily align themselves with the university in the tenure contest, and abandon the party who is most often least capable of protecting his or her interest in a court of law. As lawyers, it is imperative that in representing the tenure track employee who has been denied tenure we develop theories which will appeal to a judiciary which is predisposed against these employment claims. Only the best cases should be brought challenging the substantive decision by comparison of qualifications with those who received tenure. The most successful approach will require an understanding of the law, a solid grasp of the facts and a theory of the case which centers on the failure of the college or university to follow its own rules in the application of the substantive criteria.