February 24, 2009

A court decision on Thursday offered a ringing endorsement of the economic basis for tenure and the interconnection among tenure, economic security, and academic freedom. In reaching its decision in Otero-Burgos v. Inter-American University, the U.S. Court of Appeals for the First Circuit relied heavily upon the AAUP's "friend of the court" brief as well as on AAUP policies.

Professor Edwin Otero-Burgos had been terminated from his tenured position at Inter-American University in Puerto Rico after appealing an administration decision that he believed violated his academic freedom. One of Otero-Burgos's students had requested a special opportunity to raise his grade; when Otero-Burgos refused, the administration assigned another faculty member to prepare and administer an additional exam. After Otero-Burgos filed several internal grievances and appeals, the campus's chancellor overruled multiple committee rulings in his favor and terminated Otero-Burgos's appointment.

The U.S. District Court for the District of Puerto Rico concluded in December 2006 that the only remedy for a violation of Otero-Burgos's contract came from a Puerto Rico law called Law 80, which grants a certain amount of severance payment - but nothing else -to an employee lacking a "fixed term" contract who is dismissed without just cause.

The AAUP filed an amicus brief arguing that the remedy afforded by Law 80 is "entirely inadequate" to vindicate tenure protections, and that the law "could not reasonably have been intended to apply to tenured faculty members." Even IAU appeared to envision secure protections for tenured faculty members, as its own Faculty Handbook provides that "a tenured appointment is normally for the rest of the appointee's working years" and refers to "the economic security and the professional satisfaction felt by the faculty member who is offered tenure."

In its decision, the First Circuit - which hears cases decided by federal district courts in New Hampshire, Maine, Massachusetts, Rhode Island, and Puerto Rico - recognized that applying Law 80 to tenured faculty members "would render the concept of tenure embodied in the Handbook meaningless." The court observed that:

Tenure as described in the Handbook is inherently incompatible with allowing a university to simply 'buy' the right to dismiss a tenured instructor for Law 80's modest severance payment. Such an approach would ignore what we have described as the 'substantial commitment' that universities make to their tenured faculty, and that IAU made to Otero-Burgos by granting him tenure. Amicus AAUP warns persuasively that affirming the district court's decision would 'subvert the time-honored consensus as to the nature of tenure, undoing a careful balance between the respective interests of professors and universities,' effectively 'convert[ing] tenured professors into at-will employees . . . to the detriment of society and, indeed, of institutions of higher education.'

The court concluded that "Otero-Burgos's tenure contract simply could not fulfill its function of safeguarding academic freedom and providing economic security if the severance payment were the only consequence faced by the university for firing him in violation of that contract." This decision vindicates the AAUP's early recognition, in the 1940 Statement of Principles on Academic Freedom and Tenure, that "freedom and economic security, hence, tenure, are indispensable to the success of an institution in fulfilling its obligations to its students and to society."

The AAUP is grateful to Seth Tucker and Ryan Calo, from the law firm Covington & Burling, whose assistance in drafting and filing the brief was instrumental.  
 

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