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Court Finds Trustees Overstepped
By Rachel B. Levinson
In March, the Colorado Court of Appeals ruled that trustees at Metropolitan State College of Denver could not unilaterally modify substantive and vested rights of faculty as delineated in the faculty handbook. The court further ruled that professors’ rights to procedural due process were violated by handbook provisions that allowed the president to both initiate dismissals of tenured faculty members and serve as the final judge on dismissal cases. The decision came in the case Saxe v. Board of Trustees of Metropolitan State College of Denver, which arose from the unilateral adoption by the college board of trustees of a new faculty handbook in 2003. The plaintiffs, five tenured faculty members at the institution and the Colorado Federation of Teachers, sought a declaration from the court that provisions in the 2003 handbook “establish conditions under which employment of tenured faculty members can be terminated or their compensation reduced,” thus illegitimately eviscerating the meaning of tenure.
In May 2005, the state trial court ruled that the administration had not breached the tenure protections afforded by the faculty handbook, but the plaintiffs appealed. In an amicus brief to the appeals court, the AAUP made two arguments: first, that the changes in the faculty handbook eliminated the rights that the previous handbook had afforded tenured professors duringa reduction-in-force—specifically, retention priority in cases of layoff and the right to be relocated elsewhere in the institution if at all possible—and second, that the new provisions governing hearings failed to afford due process to affected faculty members. The amicus brief is available in the Legal section of the AAUP Web site.
The court of appeals decision held that the burden of proving whether a faculty member’s dismissal was proper must remain with the president, not the faculty member. In addition, invoking points made in the AAUP’s amicus brief, the appeals court sent the case back to the trial court for reconsideration, directing the trial court to determine whether the priority and relocation provisions of the older handbook were vested rights (in which case their elimination by the board of trustees was improper) and to balance what the appeals court termed competing public interests: the right to academic freedom and the need for flexible staffing decisions. The appeals court also held that, even though none of the plaintiffs had yet been affected by the new provisions, they could challenge them on due process grounds because they had entered into employment with the college in reliance on the old provisions and now “face substantial uncertainty as to the terms of the contract.” Finally, the court ordered that the hearing officer in a dismissal would be required to “issue a decision stating, at a minimum, the reasons for that decision and the evidence relied upon.”
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