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6 Faculty Employment Issues

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Sec. 6.1. Overview

The legal relationship between a college and its faculty members is defined by an increasingly complex web of principles and authorities. In general, this relation- ship is governed by the common law doctrines, statutes, and constitutional pro- visions discussed in Chapter Four and Chapter Five. The particular applications of this law to faculty may differ from its applications to other employees, how- ever, because courts and administrative agencies often take account of the unique characteristics of institutional customs and practices regarding faculty (such as tenure) and of academic freedom principles that protect faculty members but not all other employees. Therefore, special protections for faculty may emanate from contract law (see especially Section 6.2), labor relations law (Section 6.3), employment discrimination law (Sections 6.4 & 6.5), and, in public institu- tions, constitutional law (see especially Sections 6.6 & 6.7) and public employ- ment statutes and regulations. Federal regulations also affect the faculty employment relationship (Section 13.2).

Sec. 6.2. Faculty Contracts

6.2.1. Overview. The special nature of the college’s relationship with its fac- ulty complicates the development and interpretation of faculty contracts. The college may enter formal written contracts with individual faculty members, or it may simply send an annual letter stating the faculty member’s teaching and other obligations for the year. The college may have a faculty handbook that discusses faculty governance rights and responsibilities, or it may have a detailed, collectively negotiated agreement with an agent of the faculty (or

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both). Particularly for faculty at private colleges, contracts are a very important source of faculty and institutional rights and responsibilities. Faculty at public colleges may enjoy rights created by statute, but public colleges are making increasing use of contracts to define and delimit faculty—and institutional— rights and responsibilities.

One development of interest to administrators (and concern to faculty) is the suggestion that renewable term contracts replace lifetime tenure. While most of the shifts from tenure policies to long-term contracts have occurred within the private college sector (Robin Wilson, “Contracts Replace the Tenure Track for a Growing Number of Professors,” Chron. Higher Educ., June 12, 1998, A12), some states have considered this alternative as well (“Footnotes,” Chron. Higher Educ., May 14, 1999, A14). (For a survey of alternatives to tenure at a variety of institutions, see William T. Mallon, “Standard Deviations: Faculty Appoint- ment Policies at Institutions Without Tenure,” in Cathy A. Trower, ed., Policies on Faculty Appointment: Standard Practices and Unusual Arrangements (Anker, 2000).)

Contracts are governed by common law, which may vary considerably by state. As is the case for nonfaculty employees (see Section 4.3.2), faculty hand- books and oral promises to faculty have been ruled to create binding con- tracts in some states, while other state courts have rejected this theory. For example, in Sola v. Lafayette College, 804 F.2d 40 (3d Cir. 1986), a faculty mem- ber sought to maintain a cause of action for tenure denial by relying on the fac- ulty handbook’s language concerning affirmative action. The court ruled that such language had contractual status and provided the faculty member with a cause of action. Similarly, in Arneson v. Board of Trustees, McKendree College, 569 N.E.2d 252 (Ill. App. Ct. 1991), the court ruled that the faculty manual was a contract; however, a state appellate court in Louisiana reached the opposite result in Marson v. Northwestern State University, 607 So. 2d 1093 (La. Ct. App. 1992). In Yates v. Board of Regents of Lamar University System, 654 F. Supp. 979 (E.D. Tex. 1987), an untenured faculty member who had no writ- ten contract challenged a midyear discharge, asserting that oral representations made by the institution’s officials constituted a contract not to be dismissed prior to the end of the academic year. The court, in denying summary judgment for the university, agreed that oral promises and policies could create an implied contract, citing Perry v. Sindermann (see Section 6.7.2.1). On the other hand, if the institution has a written tenure policy, a faculty member’s claim that he had gained tenure through an unwritten, informal “understanding” will not succeed (Jones v. University of Central Oklahoma, 910 P.2d 987 (Okla. 1995)).

Unless a faculty handbook, individual contract, or other written policy doc- ument promises tenure, courts may be hesitant to infer that a tenure system exists. In Tuomala v. Regent University, 477 S.E.2d 501 (Va. 1996), for example, the Supreme Court of Virginia ruled that faculty at Regent University did not have tenure. Three professors at Regent had filed declaratory judgment suits asking the court to declare that they had tenure, and could only be dismissed if they were in breach of their contracts or unless their academic unit was dis- banded. The university defended by stating that the individual contracts that

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the faculty had signed indicated that they were “three-year continuing contracts” that, under the terms of the faculty handbook, could be renewed annually. Determining that the language of both the contracts and the faculty handbook was ambiguous, the court reviewed testimony by members of the board of trustees concerning their intent vis-à-vis tenure. The board members denied that the university had a tenure system, stating that the three-year “continuing contracts” were a mechanism for cushioning the economic blow of job loss for a faculty member by ensuring two years of income after the faculty member’s services were no longer desired. Although the university president had stated, during an accreditation team visit by the American Bar Association, that the law school faculty members were tenured, the court ruled that the president did not have the discretion to modify the trustees’ determination that there would be no tenure system at Regent University.

Even if a university acknowledges that it has a tenure system, there may be a difference of opinion as to where the locus of tenure is. Is it in the position, the department, the school, or the institution as a whole? This issue is particularly significant when a reduction in force or program closure is initiated (see Sec- tion 6.8). In Board of Regents of Kentucky State University v. Gale, 898 S.W.2d 517 (Ky. Ct. App. 1995), the dispute involved whether Professor Gale’s tenure was in the endowed chair he held or whether it was in the department or the univer- sity. The court examined the offer letter that Gale had accepted; it offered him the position of professor of humanities occupying Kentucky State University’s Endowed Chair in the Humanities, and provided for tenure upon appointment to that position. When the university later attempted to remove Gale from the endowed chair, increase his teaching load, and reduce his salary, Gale sought a declaratory judgment and an injunction preventing the university from taking this action. Calling the university’s argument a “bait and switch” approach, the court ruled that both the literal terms of the offer letter and academic custom with respect to attracting faculty stars to endowed chairs supported Gale’s argument that his tenure was in the endowed chair. Had the university provided for a peri- odic review of Gale’s performance in the endowed chair position, or had it spec- ified that tenure was in the department and he would occupy the chair for a specific period of time, the result of the litigation would have been different.

Contracts may be used to limit the rights of faculty as well as to provide certain rights. For example, in Kirschenbaum v. Northwestern University, 728 N.E.2d 752 (Ct. App. Ill. 2000), the plaintiff, a tenured professor of psychiatry at Northwest- ern’s medical school, brought a breach of contract claim against the university for failure to provide him with a salary. The court examined the language of the four documents that comprised the professor’s contract. Two of the four documents specified that the professor’s “base salary” was zero, and that total salary would be recommended annually by the department chair. The plaintiff had not received a salary from the university, but had from its affiliated hospital and a faculty prac- tice plan. When the plaintiff’s salary was reduced by the affiliated organizations because he had not generated sufficient clinical revenue, he sued the university.

Both the trial and appellate courts interpreted the contractual documents as providing for tenure but not for a salary. They found that the plaintiff was

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notified and understood that the relationship with the university involved tenure but no compensation, and that his compensation would be provided from other sources.

Even if written institutional policies are clear, administrators may make oral representations to faculty members or candidates for faculty positions that either contradict the written policies or that seem to create additional employment security that the institution may not have intended to provide. For example, in The Johns Hopkins University v. Ritter (discussed in Section 6.7.1), two faculty members with “visiting professor” titles failed to convince a state appellate court that they had tenured status on the basis of the department chair’s assurances to that effect. The court rejected that argument, stating that the chair lacked both actual and apparent authority to abrogate the university’s written tenure policies, which provided that only the board of trustees could grant tenure.

In Geddes v. Northwest Missouri State University, 49 F.3d 426 (8th Cir. 1995), a federal appellate court rejected a faculty member’s claim that nonrenewal of her contract was impermissible because she was tenured. Geddes had been hired as dean, without tenure, of the School of Communications. When that school was merged with the School of Fine Arts three years later, Geddes was not offered the deanship of the combined school, but was offered the opportu- nity to continue as a professor in the speech department. She received annual contracts each year. At the time of the merger, the university’s president had assured Geddes that she could teach at the university “for the rest of her life if she wanted to.” The faculty handbook stated, however, that oral promises did not have contractual status, and that tenure could be awarded only after the formal tenure review process and only by the board of regents. The court rejected Geddes’s tenure claim, stating that Geddes’s reliance on the president’s statement was not reasonable in light of the specificity of the annual contracts, the faculty handbook, and the university’s tenure policies.

Some contracts clearly state that another document has been incorporated into the terms of employment. For a postsecondary institution, such documents as the faculty handbook, institutional bylaws, or guidelines of the American Association of University Professors (AAUP) may be referred to in the contract. The extent to which the terms of such outside writings become part of the fac- ulty employment contract is discussed in Brady v. Board of Trustees of Nebraska State Colleges, 242 N.W.2d 616 (Neb. 1976), where the contract of a tenured pro- fessor at Wayne State College incorporated “the college bylaws, policies, and practices relating to academic tenure and faculty dismissal procedures.” When the institution dismissed the professor, using procedures that violated a section of the bylaws, the court held that the termination was ineffective:

There can be no serious question but that the bylaws of the governing body with respect to termination and conditions of the employment became a part of the employment contract between the college and [the professor]. At the time of the offer and acceptance of initial appointment . . . [the professor] was advised in writing that the offer and acceptance . . . constituted a contract honoring the policies and practices set forth in the faculty handbook, which was furnished to him at that time [242 N.W.2d at 230–31].

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A case litigated under New York law demonstrates the significance of an insti- tution’s decision to adopt certain AAUP policy statements and not to adopt oth- ers. Fordham University had adopted the AAUP’s “1940 Statement of Principles on Academic Freedom and Tenure” but not its 1973 statement “On the Imposi- tion of Tenure Quotas,” in which the AAUP opposed tenure quotas. (Both state- ments are included in AAUP Policy Documents and Reports (9th ed., AAUP, 2001), 3–10 and 47–49.) Fordham denied tenure to faculty whose departments would exceed 60 percent tenured faculty if they were awarded tenure. A pro- fessor of social service who had been denied tenure because of the quota pol- icy sued the university, claiming that the tenure quota policy violated both of the AAUP statements. In Waring v. Fordham University, 640 F. Supp. 42 (S.D.N.Y. 1986), the court, noting that the university had not adopted the 1973 Statement, ruled that the university’s action was appropriate and not a breach of contract.

But not all institutional policies are contractually binding. For example, in Goodkind v. University of Minnesota, 417 N.W.2d 636 (Minn. 1988), a dental school professor sued for breach of contract, stating that the institution’s pol- icy for searching for a department chair was part of his employment contract and that the university’s failure to follow the dental school’s written search pol- icy violated his contractual rights. The Minnesota Supreme Court disagreed, asserting that the search policy was a general statement of policy and not suf- ficiently related to the faculty member’s own terms and conditions of employ- ment to be considered contractually binding on the university.

A breach of contract claim brought by a professor found to have engaged in sexual harassment of students posed the novel idea that the student code of con- duct was incorporated into the faculty employment contract. In Maas v. Cornell University, 721 N.E.2d 966 (N.Y. 1999), the court rejected the plaintiff’s claim that the university’s student code of conduct, which included policies on how sexual harassment complaints would be investigated and adjudicated, could provide the basis for a breach of contract claim by a faculty member. The court stated:

[T]he University nowhere reflected an intent that the provisions of its Code would become terms of a discrete, implied-in-fact agreement. . . . While the Code and its attendant regulations promulgate the University’s sexual harass- ment policy and provide procedures for dealing with sexual harassment claims, Maas’ essential employment duties and rights are only indirectly affected by these provisions [721 N.E.2d at 970].

This result differs from the willingness of the court in McConnell v. Howard University, discussed in Section 6.2.3 below, to entertain a claim that the stu- dent code of conduct created a duty on the part of the college to protect the pro- fessor’s “professional authority” in a dispute over the professor’s right to maintain discipline in his classroom.

On occasion a court is asked to fill in the “gaps” in a written or unwritten contract by determining what the intent of the parties was, even if that intent was not directly or indirectly expressed. The parties’ intent may sometimes be

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ascertained from oral statements made at the time a hiring decision is made. In Lewis v. Loyola University of Chicago, 500 N.E.2d 47 (Ill. App. Ct. 1986), the plaintiff, a professor of medicine and chair of the pathology department at the university’s medical school, argued that two letters from the dean of the medical school, in which the dean promised to recommend Dr. Lewis for early tenure consideration as soon as he obtained a license to practice medicine in Illinois, constituted a contract and that the institution’s failure to grant him tenure breached that contract.

In 1980, the dean, as part of the process of recruiting Lewis as chair of the pathology department, wrote two letters in which he explicitly promised to rec- ommend Lewis for tenure. Lewis accepted the university’s offer, and his official appointment letter incorporated by reference the provisions of the faculty hand- book. Lewis served as chair for three years on one-year contracts; just before the expiration of the third one-year contract, he received notice relieving him of his duties as department chair and advising him that his next one-year contract would be a terminal contract.

The dean did not submit Lewis’s tenure candidacy at the time he had promised to, and several months later he resigned as dean and became a full- time faculty member. Before his resignation, the dean told Lewis orally that he had forgotten to submit his name for tenure and that he would do it the fol- lowing year. The dean assured Lewis that the oversight would not be harmful.

Although the university argued that the letters and the dean’s oral promises should not be considered part of Lewis’s employment contract, the court dis- agreed. Noting that “the record discloses conversations, meetings and corre- spondence over a period of a year,” the court asserted that “[it] cannot seriously be argued that a form contract for a teaching position . . . embodied the com- plete agreement and understanding of the parties” (500 N.E.2d at 50). Further- more, said the court, objective—rather than subjective—criteria were used to make the tenure decision at the medical school, and Lewis was able to demon- strate that deans’ tenure recommendations were rarely reversed. The court agreed with the trial judge’s finding of “ample evidence” to indicate that Lewis would have been tenured absent the dean’s oversight.

The opinion contains a useful discussion of remedies in academic breach of contract cases. The trial court had awarded Lewis the balance of his salary from the terminal contract (about $36,500) but had also awarded him $100,000 annu- ally until he became disabled, died, or reached age sixty-five. The appellate court reversed this latter award, stating that it was based on speculation about the probable length of Lewis’s employment had his contract not been breached. Thus, despite the finding of a contractual breach and the finding that Lewis should have been tenured, his damage award was relatively low. Furthermore, contractual remedies generally do not include reinstatement.

Challenges to tenure denials brought by faculty against private colleges are usually framed as breach of contract claims. Many of these cases involved alleged failure by the college or its faculty and administrators to follow written policies and procedures, such as in Berkowitz v. President and Fellows of Harvard College, 2001 Mass. Super. LEXIS 4 (Superior Ct. Mass., January 4, 2001). In Berkowitz,

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a professor denied tenure by Harvard brought a breach of contract claim, alleg- ing that Harvard had failed to follow its written grievance procedures as set forth in the faculty handbook. The court denied the college’s motion to dismiss the claim, stating that it was reasonable for the plaintiff to rely on the procedures in the handbook. The case is discussed in Section 6.7.3.

Although judicial review is often deferential in cases involving subjective judgments about faculty performance (see the discussions of judicial deference in Sections 2.2.5 & 6.4), the courts will apply standard tools of contractual inter- pretation if the terms of the contract are unambiguous. For example, in Ferrer v. Trustees of the University of Pennsylvania, 825 A.2d 591 (Pa. 2002), a jury found that the university had breached the plaintiff’s employment contract by punishing him for alleged research misconduct when he had been found inno- cent by a faculty investigative committee. Under the university’s policies, the finding of the committee was binding on the institution, but the dean and provost imposed sanctions on the plaintiff despite the finding of the committee. The jury awarded Ferrer $5 million in damages. The appellate court reversed, ruling that the standard of review for decisions by the leadership of a private university was deferential and that the punishment was reasonable. The Supreme Court of Pennsylvania reversed, rejecting the deferential standard of review. The high court reinstated the jury verdict, but reduced the damage award to $2.9 million. The court emphasized that ordinary principles of con- tract interpretation applied to its review of the institution’s compliance with its own rules and procedures. Although the court noted that it was not appropri- ate to review the correctness of the decision, review of the institution’s proce- dural compliance was within the competence of the court.

Breach of contract claims may be brought when a faculty member’s assign- ment or routine teaching responsibilities are changed against his or her will. For example, in Walker v. Board of Regents of the University System of Georgia, 561 S.E.2d 178 (Ct. App. Ga. 2002), a dean accused of sexual harassment by a fac- ulty member was removed from his administrative position, which provided for a twelve-month contract, and reassigned to a nine-month faculty position. The court rejected the former dean’s breach of contract claim, stating that he was given a nine-month contract on terms that were similar to contracts given to other tenured faculty at the university, despite the fact that the rest of the fac- ulty in the former dean’s department were employed on twelve-month contracts.

On occasion, an institution may wish to include a noncompete clause in the contract of a faculty member, particularly if it wishes to limit the faculty mem- ber’s ability to resign and establish a practice that competes with an institutional program. For example, in Albany Medical College v. Lobel, 745 N.Y.S.2d 250 (N.Y. App. Div. 2002), a state appellate court affirmed the finding of a trial court that a noncompete clause in a faculty member’s employment contract was enforceable. The faculty member, a physician, had been employed as a profes- sor and a member of the medical school’s practice group. He had signed an agreement not to practice medicine within 30 miles of the city of Albany for five years if he left the medical school’s employ. After a dispute with the medical school leadership, the faculty member left and set up a competing practice

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in Albany. The medical school sued, and the court enforced the noncompete clause because it was reasonably limited as to time and area, and the public was not denied access to medical care as a result of its enforcement.

Although tenured faculty are typically protected from termination without reasonable cause from their faculty positions, most faculty who also hold administrative positions do not have tenure in those administrative roles. Unless some written document provides for tenure in an administrative role, courts will reject breach of contract claims brought by tenured faculty who are ousted from administrative positions, as in Murtaugh v. Emory University, 152 F. Supp. 2d 1356 (N.D. Ga. 2001).

Even if a contractual provision would ordinarily bind the college or univer- sity, fraud on the part of the faculty member may result in a contractual rescis- sion, which means that the contract no longer exists. Cases involving rescission of contracts, including faculty contracts, are discussed in Section 4.3.3.5.

Contracts may not only specify faculty’s duties and rights but also may have additional requirements, such as acceptance of the tenets of a particular reli- gion (if the institution is affiliated with a religious organization) or a code of conduct. For example, several colleges and universities have promulgated poli- cies that forbid faculty from entering into sexual relationships with students who are in their classes or under their supervision.

Some states have enacted laws requiring that, as a condition of employment, faculty and graduate teaching assistants be competent in spoken English. In other states a statewide regulatory body or governing body has promulgated a similar requirement. Many of these laws or policies require that the institution certify the English proficiency only of nonnative speakers of English, a requirement that might be interpreted as discrimination on the basis of national origin (see Sec- tion 5.3.2). (For a discussion of these laws and policies, see P. Monoson & C. Thomas, “Oral English Proficiency Policies for Faculty in U.S. Higher Education,” 16 Rev. Higher Educ. 127 (1993).)

Given the rapid changes in state common law of contract and the interest of state legislators in the conditions of faculty employment, administrators and fac- ulty should continually be sensitive to the question of what institutional docu- ments or practices are, or should be, part of the faculty contract. Where ambiguity exists, administrators and faculty should decide whether there is some good policy reason for maintaining the ambiguity. If not, the contracts should be clarified. And both faculty and administrators need to understand how the law of their state interprets handbooks, policy manuals, and oral promises. Careful drafting and the use, if desirable, of disclaimers in documents that are not intended to afford contractual rights may protect the institution against liability for claims that arise from oral promises or policy documents in some states, although substantial differences exist among states in judicial atti- tudes toward disclaimers.

6.2.2. Statutory versus contract rights in public institutions. A public institution’s legal relationship with faculty members may be defined by

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statute and administrative regulation as well as by written employment contract.1 Tenure rights, for instance, may be created by a state tenure statute rather than by the terms of the employment contract; or pay scales may be established by a board of regents or state personnel rules rather than by the employment contract. The distinction between statutory rights and contract rights can be critical. A right created by statute or by administrative rule can be revoked or modified by a subsequent statute or rule, with the result that the public institution has no further obligation to recognize that right. A contract right, however, usually cannot be revoked or modified by subsequent statute or rule unless the parties have made provision for such changes in the contract itself, or unless the modification satisfies the requirements of the Constitution’s contracts clause.

The Supreme Court’s test for compliance with the contracts clause was created in United States Trust Co. v. New Jersey, 431 U.S. 1 (1977). In Gardiner v. Tschechtelin, 765 F. Supp. 279 (D. Md. 1991), a federal trial judge applied the United States Trust criteria to determine whether the state could abrogate tenure contracts with college faculty. In 1989, by act of the state legislature, the State of Maryland had assumed ownership of a municipal college, the Commu- nity College of Baltimore, because of the college’s serious financial problems and a strong concern about the quality of the curriculum and the faculty. That legis- lation abolished faculty tenure and provided that faculty employed at the college would be employed only through the end of 1990. All faculty were sent termi- nation notices. The faculty sued under Section 1983 of the Civil Rights Act (see Section 3.4 of this book), claiming that the legislation violated the Constitution’s contracts clause (see Section 4.3.4 of this book) because their tenure was guar- anteed by contract.

Under United States Trust Co., the court was required to determine whether the legislation served a “legitimate public purpose” and whether the faculty con- tracts were private or public contracts. If the contracts were public, the court’s standard of review would be higher, since the state’s “self-interest” was at stake (765 F. Supp. at 288, citing 431 U.S. at 26). Because the faculty contracts were public, the court also was required to determine whether the legislation was “reasonable and necessary.”

The judge determined that the legislature’s concerns about the financial via- bility and quality of education at the college were legitimate, and that the state had chosen a less drastic means to try to improve the college than it could have by retaining all the faculty for one year and providing that those evaluated as above average or excellent teachers would receive additional annual contracts. Given the legislature’s decision to continue supporting the college for only three

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1Cases related to faculty rights under tenure statutes are collected in Annot., “Construction and Effect of Tenure Provisions of Contract or Statute Governing Employment of College or University Faculty Member,” 66 A.L.R.3d 1018; James Timothy Payne, Annot., “Sufficiency of Notice of Intention to Discharge or Not to Rehire Teacher Under Statutes Requiring Such Notice,” 52 A.L.R.4th 301; Dale A. Linden, Annot., “Who Is ‘Teacher’ for Purposes of Tenure Statute,” 94 A.L.R.3d 141.

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years, pending an evaluation of the appropriateness of continuing its existence, the court ruled that the abrogation of tenure and the dismissal of some of the faculty was “reasonable and necessary to serve an important public purpose” (765 F. Supp. at 290) and therefore did not violate the contracts clause.

Budgetary pressures have persuaded the legislatures of several states to imple- ment “pay lags” or brief “furloughs” in which public employees either lose pay or sustain a delay in receiving their pay. With one exception, the courts have found these practices to conflict with the contracts clause if those employees’ pay rights are protected by collective bargaining agreements. For example, in Uni- versity of Hawaii Professional Assembly v. Cayetano, 183 F.3d 1096 (9th Cir. 1999), a federal appellate court upheld a preliminary injunction issued against the State of Hawaii, ruling that the state’s “pay lag” law violated the contracts clause. The law provided that the employees would be paid several days later than provided for in their collective bargaining agreement (through consistent past practice over several decades), and also provided that the pay lag was not subject to negotiation. The court ruled that the “pay lag” law would impose a substantial hardship on employees. In its ruling, the court cited Massachusetts Community College Council v. Commonwealth of Massachusetts, 649 N.E.2d 708 (Mass. 1995), a state court opinion nullifying a state law creating an “employee furlough,” which required employees to take unpaid days off in order to meet a budget crisis. Because the affected employees were covered by collective bar- gaining agreements, the court ruled that the furlough law violated the contracts clause. A contrary ruling by the U.S. Court of Appeals for the Fourth Circuit in Baltimore Teachers Union v. Mayor of Baltimore, 6 F.3d 1012 (4th Cir. 1993) was criticized by subsequent courts in similar cases, and in “Recent Case: Fourth Cir- cuit Upholds City’s Payroll Reduction Plan as a Reasonable and Necessary Impairment of Public Contract,” 107 Harv. L. Rev. 949 (1994).

But if there is no contract protecting the employees (or former employees), the contracts clause is not at issue. The Supreme Court of Rhode Island was asked to rule on whether the state legislature had authority to change the terms under which retired faculty were reemployed by public institutions in the state. In Retired Adjunct Professors of the State of Rhode Island v. Almond, 690 A.2d 1342 (R.I. 1997), professors who had retired from state institutions argued that, at the time they retired, state law allowed them to be employed by the state for the equivalent of seventy-five days without losing their pension benefits. In 1994, the Rhode Island legislature changed the law to provide that pension ben- efits would be suspended for the period of time that the retired professors were paid by the state.

The law was later amended to permit them to earn up to $10,000 per year without suspending their pension benefits. The retired professors claimed that the action by the legislature violated the contract clauses of both the state and federal constitutions. A state trial court judge agreed and permanently enjoined the application of the new law to these plaintiffs.

The state supreme court reversed, ruling that there had been no contract between the state and the retired professors to reemploy them. Reemployment was discretionary on the part of the state institutions, and thus, the legislature

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could change the terms upon which state institutions made these discretionary employment decisions without implicating constitutional protections. The court added that a statutory public pension benefit plan such as the one at issue in this case is not a “bargained-for” exchange that characterizes a contract. Furthermore, the legislature needed the freedom to modify the state pension system when financial or other policy considerations dictated.

Even if particular rights emanate from statutes or regulations, they may become embodied in contracts and thus be enforceable as contract rights. The contract may provide that certain statutory rights become part of the contract. Or the statute or regulation may itself be so written or interpreted that the rights it creates become enforceable as contract rights. This latter approach has twice been dealt with by the U.S. Supreme Court in cases concerning tenure laws. Phelps v. Board of Education of West New York, 300 U.S. 319 (1937), concerned a New Jersey Act of 1909, which provided that teachers employed by local school boards could only be dismissed or subject to reduced salary for cause. By an Act of 1933, the state enabled the school boards to fix and determine salaries. When one board invoked this authority to reduce salaries without cause, teachers claimed that this action impaired their contracts in violation of the Constitution’s contracts clause. The Court held that there was no constitutional impairment, since the Act of 1909 did not create a contract between the state and the teachers. The Court agreed with the New Jersey court that the statute established “a legislative status for teachers” but failed to establish “a contractual one that the legislature may not modify.” Thus, “although the Act of 1909 prohibited the board, a creature of the state, from reducing the teacher’s salary or discharging him without cause, . . . this was but a regulation of the conduct of the board and not a continuing contract of indefi- nite duration with the individual teacher” (300 U.S. at 323).

A year after Phelps, the Supreme Court came to a contrary conclusion in a sim- ilar impairment case. Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938), dealt with Indiana’s Teachers Tenure Act, adopted in 1927. The Act provided that, once a teacher had tenure, his or her contract “shall be deemed to be in effect for an indefinite period.” Sometime after the Act was amended in 1933 to omit town- ship school corporations, the job of the plaintiff, a tenured teacher, was termi- nated. The Court found that the Act of 1927 created a contract with the teacher because the title of the Act was “couched in terms of contract,” the “tenor of the Act indicates that the word ‘contract’ was not used inadvertently or in other than its usual legal meaning,” and the state courts had previously viewed the Act of 1927 as creating a contract. The Court then held that the 1933 amendment unconstitutionally impaired the contracts created by the Act of 1927.

Given the fundamental distinction between contract and statutory rights, and the sometimes subtle relationships between them, administrators of public insti- tutions should pay particular attention to the source of faculty members’ legal rights and should consult counsel whenever the administrators are attempting to define or change a faculty member’s legal status.

6.2.3. Academic custom and usage. As a method of contractual inter- pretation, a court may look beyond the policies of the institution to the manner

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in which faculty employment terms are shaped in higher education generally. In these cases the court may use “academic custom and usage” to determine what the parties would have agreed to had they addressed a particular issue. This interpretive device is only used, however, when the contract is ambiguous, or when a court believes that a significant element of the contract is missing. If the intent of the parties is clear, the court will not look beyond the words of the contract. (See, for example, Kashif v. Central State University, 729 N.E.2d 787 (Ct. App. Ohio 1999). For a general discussion of academic custom and usage as an “internal” source of law, see Section 1.4.3.3.)

If a contract’s wording is alleged to be unclear, a court may be persuaded to look to external writings or statements for help in interpreting the parties’ intent. For example, in Katz v. Georgetown University, 246 F.3d 685 (D.C. Cir. 2001), the appellate court referred to writings of experts and to policy statements of the American Association of University Professors to define the meaning of “tenure” in the university’s faculty handbook. And in Greene v. Howard University, 412 F.2d 1128 (D.C. Cir. 1969), the court looked to outside writings to determine the customs and usual practices of the institution and interpret the contract in light of such custom and usage. The plaintiffs in Greene were five non- tenured professors who had been fired after a university investigation purported to find that they had been involved in disorders on campus. When the university ter- minated the professors as of the close of the academic year, the professors asserted that the university had breached a contractual obligation to give appropriate advance notice of nonrenewal or to provide a hearing prior to nonrenewal. The court concluded: “The contractual relationship existing here, when viewed against the regulations provided for, and the practices customarily followed in, their administration, required the university in the special circumstances here involved to afford the teachers an opportunity to be heard” (412 F.2d at 1131).

The court derived the institution’s customary practices from the faculty hand- book, buttressed by testimony in court, even though the handbook was not specif- ically incorporated by reference and even though it stated that the university did not have a contractual obligation to follow the notice-of-nonreappointment procedures. The professors were found to be relying “not only on personal assur- ances from university officials and on their recognition of the common practice of the university, but also on the written statements of university policy contained in the faculty handbook under whose terms they were employed.” The court reasoned:

Contracts are written, and are to be read, by reference to the norms of con- duct and expectations founded upon them. This is especially true of contracts in and among a community of scholars, which is what a university is. The readings of the marketplace are not invariably apt in this noncommercial context. . . . The employment contracts of [the professors] here comprehend as essential parts of themselves the hiring policies and practices of the university as embod- ied in its employment regulations and customs [412 F.2d at 1135].

Courts may also look to an institution’s customary practice for assistance in understanding the reasonable expectations of the parties to the contract. For

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example, in Brown v. George Washington University, 802 A.2d 382 (Ct. App. D.C. 2002), a faculty member denied tenure and promotion asserted that the uni- versity had breached her employment contract because the department’s written policy provided that the candidate(s) for promotion would be invited to appear before the promotion committee “to provide additional information as may appear relevant.” Departmental members testified that the department had a past practice of interpreting this language as discretionary, and had, in fact, excluded other candidates for promotion from the same meeting. The court ruled that the department faculty’s interpretation of this policy was reasonable and not a breach of contract.

A court may look to the recommendations of an internal committee to aid in interpreting unclear or missing contractual provisions. In Tacka v. Georgetown University, 193 F. Supp. 2d 43 (D.D.C. 2001), a faculty member filed a breach of contract claim when the university refused to halt his tenure review process to deal with a claim of plagiarism against the tenure candidate. As part of the tenure review process, the department chair had solicited an evaluation of the candi- date’s research by an external expert. The external expert’s evaluation accused Tacka of plagiarism in a paper he had published. The faculty handbook provided that any charges of academic misconduct were to be referred to the university’s Research Integrity Committee. Before the department chair referred the plagia- rism charge to that committee, however, the department voted to deny Tacka tenure. Tacka sued, saying that the department should have suspended the tenure review pending the outcome of the Research Integrity Committee’s deliberations. (Several months after Tacka was denied tenure by the university, the Research Integrity Committee exonerated him; Tacka underwent a second tenure review the following year and was awarded tenure.)

Although the university argued that the faculty handbook did not require that the tenure process be suspended while an allegation of academic misconduct was reviewed, the court disagreed. The court was persuaded by the handbook’s language requiring that such charges be reviewed and resolved promptly. The court also found relevant a memo from the chair of the Research Integrity Com- mittee to the academic vice president, stating that the tenure review process should have been put on hold until the committee had completed its review of the allegations of academic misconduct. The views of these committee mem- bers, according to the court, are relevant “to construe the terms of the contract created by the Faculty Handbook in accordance with the University’s under- standing” (193 F. Supp. 2d at 48).

Another possible source of contractual protection for faculty could be the code of student conduct. In McConnell v. Howard University, 818 F.2d 58 (D.C. Cir. 1987), a professor refused to meet his class because the administration would not remove a disruptive student from the class. When the professor was discharged for failure to perform his professional duties, he sued for breach of contract, claiming that both the faculty handbook and the code of student con- duct created a duty on the part of the university to protect his professional authority. The court ruled that he should have the opportunity to demonstrate that the university owed him this duty. A decade later, however, the highest

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court of New York rejected a similar theory in Maas v. Cornell University, discussed in Section 6.2.1.

Although academic custom and usage can fill in gaps in the employment con- tract, it cannot be used to contradict the contract’s express terms. In Lewis v. Salem Academy and College, 208 S.E.2d 404 (N.C. 1974), a professor had been employed from 1950 to 1973 under a series of successive one-year contracts. The college had renewed the contract the last two years, even though the pro- fessor had reached age sixty-five, but did not renew the contract for the 1973–74 academic year. The professor argued that he had a right to continue teaching until age seventy because that was a usual and customary practice of the col- lege and an implied benefit used to attract and retain faculty. The college’s fac- ulty guide, however, which was incorporated into all faculty contracts, had an explicit retirement policy providing for continued service beyond sixty-five to age seventy on a year-to-year basis at the discretion of the board of trustees.2 The court held that custom and usage could not modify this clear con- tract provision.

Similarly, an attempt to convince a court to consider academic custom and usage in determining whether tenure survives the affiliation or merger of two colleges failed because the court found that the terms of the faculty handbook were clear. The case, Gray v. Mundelein College, 695 N.E.2d 1379, appeal denied, 705 N.E.2d 436 (Ill. 1998), is discussed in Section 6.8.2.

Selective incorporation of AAUP policies into handbooks or other policy doc- uments will bind the college (and the faculty) only with respect to those poli- cies that are clearly incorporated (Jacobs v. Mundelein College 628 N.E.2d 201 (Ill. Ct. App. 1993)). Furthermore, the college may decide to incorporate AAUP policies that regulate faculty conduct (such as its Statement on Professional Ethics), but not those that protect the faculty member’s rights under other AAUP policy statements (Barham v. University of Northern Colorado, 964 P.2d 545 (Ct. App. Colo. 1997)).

While academic custom and usage as a device for interpreting contracts is use- ful under some circumstances, both the faculty and the college are better served by contracts that are specific and clear with respect to their protections for each party. If the parties wish AAUP statements or other recognized sources of academic custom and usage to be used as interpretation devices, incorporating these into faculty handbooks, policy documents, or other sources of contractual rights (see Section 6.2.1) will provide more predictability in their later interpretation by courts.

6.2.4. Part-time faculty. Facing ever-increasing financial constraints, many colleges and universities have increasingly turned to part-time faculty to pro- vide instruction at considerably lower cost than hiring a full-time faculty mem- ber. Part-time faculty often are paid on a per-course basis, and generally are not entitled to employee benefits such as medical insurance or pensions.

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The status of part-time faculty members in postsecondary institutions has received attention within and outside the postsecondary community (see, for example, Judith Gappa & David Leslie, The Invisible Faculty: Improving the Status of Part-Timers in Higher Education (Jossey-Bass, 1993); Howard Bowen & Jack Schuster, American Professors: A National Resource Imperiled (Oxford University Press, 1986); David Leslie, ed., The Use and Abuse of Adjunct Faculty (New Directions in Higher Education no. 104, 1998)). The number and percent- age of part-time faculty members in the academic workforce has increased sub- stantially over the past decades. Data collected by the U.S. Education Department in 1999 reveal that part-time faculty accounted for 42 percent of all faculty across institutional types, but there are sharp differences by institutional type and con- trol. In 1999, 65 percent of the faculty at public community colleges were employed part time, while 27.5 percent of the faculty at public four-year colleges taught part time. Percentages of part-time faculty at private four-year and two- year colleges in 1999 were 41 and 47.5 percent respectively. Women comprise nearly half (47 percent) of part-time faculty across institutional types, while they comprise only 37 percent of full-time faculty overall. Legal issues concerning this large and important faculty group are likely to demand special attention.

The questions being raised about part-time faculty involve such matters as pay scales, eligibility for fringe benefits (life insurance, health insurance, sick leave, sabbaticals, retirement contributions), access to tenure, rights upon dis- missal or nonrenewal, and status for collective bargaining purposes. (For a description of a successful attempt by a union of part-time faculty to gain job security, higher wages, expanded benefits, and eligibility for academic leave, see John Gravois, “Both Sides Say Agreement at the New School Sets a Gold Standard for Adjunct-Faculty Contracts,” Chron. Higher Educ., November 2, 2005, available at http://chronicle.com/daily/2005/11/2005110207n.htm.) Each of these questions may be affected by two more general questions: (1) How is the distinction between a part-time and a full-time faculty member defined? (2) Are distinctions made between (or among) categories of part-time faculty members? The initial and primary source for answering these questions is the faculty contract (see Section 6.2.1). Also important are state and federal statutes and administrative rulings on such matters as defining bargaining units for collective bargaining (see University of San Francisco and University of San Francisco Faculty Association, 265 NLRB 1221 (1982), approving part-time faculty unit, and see also Section 6.3.1), retirement plans, civil service classifi- cations, faculty tenure, wage-and-hour requirements, and unemployment com- pensation. These statutes and rulings may substantially affect what can and cannot be provided for in faculty contracts.

Two lawsuits brought by part-time faculty in the state of Washington high- light the difficult financial and policy issues related to the heavy reliance of col- leges on part-time faculty. In the first, Mader v. Health Care Authority, 37 P.3d 1244 (Super. Ct. Wash. 2002), a group of part-time faculty members appealed the denial of their claim for paid health care coverage during the summer. The faculty plaintiffs acknowledged that they did not teach during the summer, but based their claim on language in state regulations that provided for paid health

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care during the summer to “seasonal” employees. The court rejected that argu- ment because the language of the regulation explicitly excluded employees such as the plaintiffs. The plaintiffs’ second claim was equally unsuccessful. A state regulation provides that employees who teach for two consecutive academic terms are entitled to paid health care benefits; it provides that the intervening summer between the spring and fall terms does not break the consecutive nature of the teaching. The court rejected the plaintiffs’ claim that this language entitled them to paid health benefits during the summer if they had taught during the spring term.

The state supreme court reversed both rulings of the superior court, stating that the state’s Health Care Authority was required to make an individualized determination, based upon the employee’s actual work circumstances, as to whether the employee was eligible for employer contributions to their health care coverage (70 P.3d 931 (Wash. 2003)).

The same group of plaintiffs brought a second lawsuit against the state, this time claiming that the state had miscalculated the number of hours they had taught and thus had not contributed the appropriate amount to their retirement plans. They sought adjusted contributions back to 1977, and a ruling that future contributions would be made correctly. The parties settled this case for $12 mil- lion; $8.3 million for the underpayment of retirement benefits, and $3.6 million in attorney’s fees (Mader v. State of Washington, King Co. Cause No. 98-2-30850 SEA settlement agreement, discussed in Daniel Underwood, “Adjunct Faculty and Emerging Legal Trends,” Presentation to the 24th Annual National Confer- ence on Law and Higher Education, Stetson University College of Law, Febru- ary 16–18, 2003).

Another case brought in Washington state court involved an attempt by a group of part-time faculty to be paid overtime wages. In Clawson v. Grays Harbor College District No. 2, 61 P.3d 1130 (Wash. 2003), the state supreme court rejected that argument, stating that the college’s practice of paying part-time fac- ulty for the number of in-class instructional hours did not render the employees nonexempt for purposes of the state wage and hour law. The court ruled that the faculty were professionals, and that despite the fact that their compensation was calculated with reference to the number of hours they taught, it was a salary, not a wage.

Another issue relevant to the status of part-time faculty is whether full-time faculty at a community college engaged in a reduction in force can “bump” part- time faculty from the courses that faculty to be laid off are qualified to teach. In Biggiam v. Board of Trustees of Community College District No. 516, 506 N.E.2d 1011 (Ill. App. Ct. 1987), the court was required to determine whether the Illinois Community College Tenure Act and/or the collective bargaining agreement between the faculty and the board afforded tenured faculty the right to bump any instructor or just full-time faculty members. The court agreed with the board’s argument that full-time faculty could bump nontenured or less senior faculty from “positions,” but that part-time instructors were not “faculty” and did not have “positions,” but only taught courses. Thus, faculty could not bump instructors from courses. Although this case rested on interpretation of a

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state law, it may have relevance to institutions in other states that need to reduce the number of full-time faculty.

As the proportion of part-time faculty continues to increase in relation to the proportion of full-time, tenure-track faculty, the scholarly debate continues about the propriety of using part-timers to avoid the long-term financial com- mitment of tenure. The January–February 1998 issue of Academe, the journal of the AAUP, includes several articles that discuss the use of part-time faculty (including graduate teaching assistants). The AAUP has developed statements and guidelines regarding the use of part-time faculty, such as “The Status of Non-Tenure-Track Faculty,” AAUP Policies and Documents (2001), 77–87, which contains a discussion of the status of part-time and non-tenure-track faculty and offers recommendations for their employment. The AAUP has also developed “Guidelines for Good Practice: Part-Time and Non-Tenure-Track Faculty,” avail- able at http://www.aaup.org/Issues/part-time/Ptguide.htm. The American Federation of Teachers has also issued standards for the treatment of part-time faculty members, entitled “Standards of Good Practice in the Employment of Part-Time/Adjunct Faculty.” The statement can be found at http://www. aft.org/higher_ed.

To respond effectively to issues involving part-time faculty, administrators should understand the differences in legal status of part-time and full-time fac- ulty members at their institutions. In consultation with counsel, they should make sure that the existing differences in status and any future changes are ade- quately expressed in faculty contracts and institutional rules and regulations. Administrators should also consider the extent and clarity of their institution’s legal authority to maintain the existing differences if they are challenged or to change the legal status of part-timers if changes are advisable to effectuate new educational policy.

6.2.5. Contracts in religious institutions. In religious institutions, employment issues involving the interplay between religious doctrine and civil law have been litigated primarily in cases construing state and federal employ- ment discrimination laws (see Section 5.5); however, when the faculty member is a member of a religious order or when the institution makes employment decisions on religious grounds, complex questions of contract law may also arise.

The contract made between a faculty member and a religious institution would normally be governed by state contract law unless the parties explicitly or implicitly intended that additional sources of law be used to interpret the con- tract. Some religiously affiliated institutions require their faculty to observe the code of conduct dictated by the doctrine of the religious sponsor; others incor- porate church law or canon law into their contracts. Judicial interpretation of contracts is limited by the religion clauses of the First Amendment (see Section 1.6.2).

Several cases have addressed the nature of the contract between a religious institution and a faculty member. The religious institution typically argues that the U.S. Constitution’s First Amendment prevents the court from reviewing the

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substance of the employment dispute. Both the free exercise and the establish- ment clauses have been invoked by religious colleges seeking to avoid judicial review of these employment disputes. In some of these cases, the courts have determined that the issues involved religious matters and that judicial inter- vention would be unconstitutional; in others, the court determined that only secular issues were involved and no constitutional violation was present.

In Curran v. Catholic University of America, Civ. No. 1562-87, 117 Daily Wash. L.R. 656 (D.C. Super. Ct., February 28, 1987), a tenured professor of Catholic theology filed a breach of contract claim when the university prohibited him from teaching courses involving Catholic theology. Curran had taken a public stand against several of the Catholic Church’s teachings, and the Holy See had ruled him ineligible to teach Catholic theology. The university’s board of trustees then withdrew Curran’s ecclesiastical license, which is required of all faculty who teach in departments that confer ecclesiastical degrees. Although the uni- versity attempted to place Curran in another, nontheological teaching assign- ment, Curran argued that the university had constructively discharged him without a finding that he was not competent to teach Catholic theology. He also argued that the university had incorporated protections for academic freedom into his contract and that the treatment afforded him because of his scholarly beliefs constituted a violation of those protections.

The court was faced with three potential sources of contract law: District of Columbia common law, canon law, and explicit or implied contractual promises of academic freedom that were judicially enforceable (see Section 6.2.2). The court saw its duty not to interpret canon law, which it was forbidden to do by establishment clause principles, but to determine whether the parties had intended to be bound by canon law, a question of fact. The court found that, even though his contract did not explicitly mention canon law or its require- ments, Curran knew that ecclesiastical faculties were different from noneccle- siastical faculties, that the Holy See could change the requirements for ecclesiastical faculties, and that the university was obligated to accede to those changes. In fact, the Apostolic Constitution of 1979 required ecclesiastical fac- ulties to have a “canonical mission,” meaning that such faculty were required to teach in the name of the Catholic Church and not to oppose its doctrine. The court noted:

[I]f the court had come to the opposite conclusion on this issue [that Curran was contractually required to maintain a canonical mission], it would have been squarely presented with a substantial constitutional question [the Establishment Clause problem]. . . . In light of the court’s conclusion that Professor Curran’s contract required him to have a canonical mission as a condition of teaching in the Department of Theology, it is unnecessary to reach the University’s “canon law defense” [the argument that the Constitution prohibited the court from interpreting canon law] [Civ. No. 1562-87, opinion, at 19].

The court ruled that the university had the right to require faculty who taught theology to meet the requirements of the Holy See, since that body could with- draw the university’s authority to award ecclesiastical degrees if the university

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failed to comply with its requirements. Because the university had a special rela- tionship with the Holy See, the court found implied in Curran’s contract with the university an obligation to abide by the Holy See’s requirements. The court also found that, whatever academic freedom Curran was due, his academic free- dom could not limit the Holy See’s authority to determine which ecclesiastical faculty were qualified to teach theology. (For a discussion of academic freedom in religious institutions, see Section 7.8.)

The New Jersey Supreme Court was faced with two cases involving the inter- play between religious doctrine and civil contract law. In Alicea v. New Brunswick Theological Seminary, 608 A.2d 218 (N.J. 1992), an untenured assis- tant professor of theology who was an ordained minister claimed that the seminary’s president offered him a non-tenure-track position with the promise of an eventual tenured position. When that promise was not acted upon, Alicea resigned, claiming constructive discharge and breach of contract. The ecclesi- astical body that governed the seminary, the Reform Church’s Board of Theo- logical Education (BTE), had reserved to itself all final decision power regarding the hiring and retention of faculty. Alicea claimed that the BTE had impliedly ratified the promise made to him by the president, and that the president had the apparent authority to make such promises. The court ruled that it could not determine whether the seminary had breached an implied contract with an untenured professor because such an inquiry would constitute an inquiry into ecclesiastical polity or doctrine. Although the court refused to adopt a per se rule that courts may not hear employees’ lawsuits against religious institutions, the court noted that “governmental interference with the polity, i.e., church gov- ernance, of a religious institution could also violate the First Amendment by impermissibly limiting the institution’s options in choosing those employees whose role is instrumental in charting the course for the faithful” (608 A.2d at 222). Explaining further, the court said:

When State action would impose restrictions on a religious institution’s decisions regarding employees who perform ministerial functions under the employment relationship at issue, courts may not interfere in the employment relationship unless the agreement between the parties indicates that they have waived their free-exercise rights and unless the incidents of litigation— depositions, subpoenas, document discovery and the like—would not unconstitutionally disrupt the administration of the religious institution [608 A.2d at 222].

The court noted that because Alicea taught theology and counseled prospective ministers, he performed a ministerial function. Therefore, although the case involved issues of church governance (rather than doctrine, as in the Curran case), the court was similarly required to abstain from exer- cising jurisdiction.

Although the faculty handbook contained a grievance provision, which the seminary had not honored, the court refused to order the parties to use the pro- cedure, because it was “optional” in light of the BTE’s reservation of full author- ity. The court stated: “Enforcement of the ministerial-employment agreement

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would have violated the Free Exercise Clause whether based on actual or appar- ent authority” (608 A.2d at 224). In other words, the court could suggest that the parties abide by the manual but could not enforce the manual because its provisions were “vague and clearly optional” (608 A.2d at 224).

The court outlined the analysis to be applied to such cases:

[A] court should first ascertain whether, because of the ministerial role played by the employee, the doctrinal nature of the controversy, or the practical effect of applying neutral principles of law, the court should abstain from entertaining jurisdiction. . . . In assessing the extent to which the dispute implicates issues of doctrine or polity, factors such as the function of the employee under the rela- tionship sought to be enforced, the clarity of contractual provisions relating to the employee’s function, and the defendant’s plausible justifications for its actions should influence the resolution of that threshold question. . . . If neither the threat of regulatory entanglement, the employee’s ministerial function, nor the primarily-doctrinal nature of the underlying dispute mandates abstention, courts should effectuate the intent of the parties to the contract [608 A.2d at 223–224].

The court explained that, if compliance with the contract could be deter- mined through the application of “neutral principles of law,” then courts could enforce promises to comply with religious doctrine, or waivers of rights to act in compliance with religious beliefs. Examination of the text of the contract or handbook, on the type of employees supervised by the individual seeking judi- cial review, and the parties’ positions as church officials would be relevant, as well as the apparent intent of the parties to seek judicial review of disputes aris- ing under the contract.

The same court decided a case with similar issues on the same day as Alicea. In Welter v. Seton Hall University, 608 A.2d 206 (1992), two Ursuline nuns who had taught for three years at Seton Hall, a Catholic university, filed breach of contract claims when their contracts were not renewed. The university claimed that the sisters’ order, the Ursuline Convent of the Sacred Heart, had refused permission for the sisters to continue teaching at the university, and that the court lacked jurisdiction to entertain the breach of contract claims.

The New Jersey Supreme Court ruled against the university on several grounds. First, the sisters did not perform a ministerial (pastoral) function— they taught computer science. Second, the dispute did not implicate either doc- trinal issues or matters of church polity; the university simply refused to honor its contractual obligation to give the untenured sisters twelve months’ notice (a one-year terminal contract) before discharging them. The contract included no mention of canon law, nor did it require the sisters to obtain the permission of their religious superiors before accepting employment. It was the same contract that the university used for lay faculty. Furthermore, when the Ursuline convent requested that the university forward the sisters’ paychecks directly to it, the university refused and advised the sisters to open a checking account and deposit their paychecks.

There was substantial evidence that the university desired to terminate the sisters’ employment because of dissatisfaction with their performance. Instead

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of issuing the terminal contracts, university administrators contacted the sisters’ religious superiors and asked that they be recalled. The university then termi- nated the sisters’ employment without the required notice. The university admit- ted that the issue would be a completely secular one if the sisters were not members of a religious order. In deciding this case, the court applied a two-part test. First, the court analyzed whether the sisters performed any ministerial func- tions for the university, and found that they did not. Second, the court assessed whether the sisters could have contemplated that canon law would have super- seded the procedural safeguards of the contract, and found no such evidence:

The purely secular nature of plaintiffs’ employment obligations; the absence of a contractual provision imposing religious obligations on plaintiffs; Seton Hall’s rejection of the Ursulines’ prior request regarding plaintiffs’ paychecks; and the absence of any religious connotations behind the hiring of, tenure of, or decision to terminate plaintiffs all plainly indicate the contrary [608 A.2d at 216].

Courts have also been asked to construe the authority religiously affiliated colleges to require lay faculty to adhere to religious doctrine in their teaching. In McEnroy v. St. Meinrad School of Theology, 713 N.E.2d 334 (Ct. App. Ind. 1999) (also discussed in Section 7.8), a professor of Catholic theology and doc- trine at a seminary that trains candidates for the priesthood signed a statement opposing the pope’s teachings on the ordination of women as priests. After learning that Professor McEnroy had signed this statement, the head of the sem- inary removed her as a professor. McEnroy sued for breach of contract and sev- eral related tort claims. The seminary sought dismissal of the case on First Amendment grounds, arguing that judicial review of the complaint would require the court to “decide religious issues regarding the Church’s good faith motivation and doctrinal basis for removing [the plaintiff] under canon law” (713 N.E.2d at 336). The trial court agreed with the seminary’s argument, and a state appellate court affirmed. Two years later, the U.S. Conference of Catholic Bishops issued “Guidelines Concerning the Academic Mandatum in Catholic Universities” (June 15, 2001), which specifies that all faculty who teach “theological disciplines” in a Catholic college or university must receive a mandatum (an acknowledgment by church authority that a Catholic profes- sor of a theological discipline is teaching “within the full communion of the Catholic Church”).

In another case, a lay faculty member was discharged by a Baptist seminary for failing to adhere to the “lifestyle and behavior” expected of a faculty mem- ber at the seminary. In Patterson v. Southwestern Baptist Theological Seminary, 858 S.W.2d 602 (Tex. Ct. App. 1993), the faculty member filed a wrongful dis- charge claim, alleging that his contractual rights had been violated. The faculty handbook required each faculty member to be an “active and faithful member of a Baptist church” and to “subscribe in writing to the Articles of Faith” of the Southern Baptist Convention. The court ruled that the explicit inclusion of these requirements in the faculty handbook made it evident that the seminary “makes employment decisions regarding faculty members largely upon religious criteria”

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