Tenure as Remedy for Discrimination (2003)

Court Cases involving Tenure as Remedy for Discrimination

by Donna R. Euben, AAUP Counsel*
April 2003

I. Introduction

This memorandum summarizes many of the cases in which courts have considered tenure as a remedy for discrimination. This memorandum first explains some legal terminology, next reviews  , the seminal "tenure as a remedy" case, and then summarizes pre- and post-Brown cases in which courts have considered awarding tenure as a remedy for discrimination.

Recognizing the complexity of the academic tenure process, courts usually "take special care to preserve the University's autonomy in making lawful tenure decisions." Brown v. Trustees of Boston University, 891 F.2d 337, 346 (1st Cir. 1989). As Judge Campbell noted in his concurring opinion in Kumar v. Board of Trustees, University of Massachusetts, 774 F.2d 1, 12 (1st Cir. 1985)(Campbell, C. J. concurring), cert. denied, 475 U.S. 1097 (1986):

Courts must be extremely wary of intruding into the world of university tenure decisions. These decisions necessarily hinge on subjective judgments regarding the applicant's academic excellence, teaching ability, creativity, contributions to the university community, rapport with students and colleagues, and other factors that are not susceptible of quantitative measurement. Absent discrimination, a university must be given a free hand in making such tenure decisions.

However, "once a University ha[s] been found to have impermissibly discriminated in making a tenure decision . . . the University's prerogative to make autonomous tenure decisions must be subordinated to the goals of Title VII." Gutzwiller v. Fenik, 860 F.2d 1317, 1333 (6th Cir. 1988). Courts tend to recognize that reinstatement with tenure is a "significantly more intrusive remedy than remedies ordinarily awarded in Title VII cases, such as reinstatement or seniority, because a judicial tenure award mandates a lifetime relationship between the University and the professor." Brown at 359. Nevertheless, "an employee's right not to be denied tenure for discriminatory reasons prevents insulating the tenure process from any judicial review." Id. at 346. In the end, courts award tenure as a "make whole" remedy in "exceptional cases" only. Id.

This material is meant solely as a general overview of the issue, and is not exhaustive. Individuals considering legal action should consult their own lawyers.

II. Legal Citation Terminology

Non-lawyers may wish to know that the term aff'd mem. means that an appeals court affirmed a trial court's decision without writing an opinion. The term reh'g denied indicates that a court has declined to rehear a case, and the term cert. denied means that a state's highest court or the United States Supreme Court declined to review an appellate court's decision. The term en banc means that all the judges of a court, not just a panel of judges, heard a case, a practice sometimes followed in important cases in which an earlier decision merits reconsideration. The term sub nom means that the court used a different name for the same case on appeal.

Readers should cite-check, or "Shepardize," cases listed in this memo for their current legal status before relying on them. Although the AAUP occasionally updates this list of cases, staff does not check the status of the cases—whether they might have been reversed, overruled, or affirmed—on a regular basis.

III. The Brown v. Trustees of Boston University Decision

Brown v. Trustees of Boston University, 891 F.2d 337 (1st Cir. 1989), cert. denied, 496 U.S. 939 (1990)
Trial court had ordered university to grant plaintiff position of associate professor with tenure, after jury had found that, but for sex discrimination, plaintiff would have immediately, upon consideration, been granted tenure. Federal appellate court upheld trial court's tenure award order. Court noted that tenure had been awarded only infrequently as a remedy for discrimination, but that "once a university had been found to have impermissibly discriminated in making a tenure decision . . . the University's prerogative to make autonomous tenure decisions must be subordinated to the goals of Title VII." Court reasoned that it was required to fashion most complete relief possible for victims of discriminatory employment decisions and that legislative history of Title VII supported tenure as appropriate remedy. Court found that no reason existed to deny professor relief that made her whole. Court rejected university's claim that judicial imposition of tenure violates academic freedom: "Academic freedom does not include the freedom to discriminate against tenure candidates on the basis of sex or other impermissible grounds."

IV. Post-Brown Cases Involving the Consideration of Tenure as a Remedy

The cases below are listed in reverse chronological order:

DeSanto v. Rowan University, 2002 WL 31011231 (D.N.J. 2002)
Temporary replacement faculty member alleges discrimination and violation of due process after being denied tenure-track position and seeks, as equitable remedy for due process violation, to be awarded tenured position at university. Federal district court held that earlier court ruling, which found that faculty member was not entitled to tenure, precluded him from introducing evidence that he was entitled to tenure or possessed a constitutional property interest in tenure.

Honadle v. University of Vermont and State Agricultural College 56 F.Supp.2d 419 (D. Vt. 1999)
Unsuccessful candidate for tenured department chair sued university for racial discrimination, seeking reinstatement as remedy. Federal district court held that even if discrimination were found, second-choice candidate is not entitled to tenured position because that remedy would injure current department chair, inappropriately involve court in tenure decisions, impose working relationship between estranged parties, and cause undue harm to fledgling academic department.

Meling v. St. Francis College, 3 F.Supp.2d 267 (E.D.N.Y. 1998)
Professor alleged that she was dismissed in violation of Americans with Disabilities Act because of her disabilities stemming from automobile accident. Professor applied for tenure, but was denied reappointment before consideration of her candidacy. Jury found for professor and awarded compensatory and punitive damages. Professor was reinstated without tenure. Court stated that it had authority to reinstate professor with tenure but declined to do so, citing concerns with judicial intervention into academic matters and an inability to determine whether professor would have received tenure absent discrimination.

Thornton v. Kaplan, 937 F. Supp. 1441 (D. Colo. 1996)
Professor alleged discrimination in violation of Title VII when colleagues denied professor's tenure application. Jury ruled for professor and awarded monetary damages. Court declined to reinstate professor with tenure: "This Court is . . . unable . . . to make any determinations as to whether reinstatement with a corresponding order to grant tenure is an appropriate remedy. It is only a most extraordinary case that would compel this Court to entangle itself in those matters that are best left to the academic community."

Nelson v. University of Maine System, 944 F. Supp. 44 (D. Me. 1996)
Professor alleged that he was denied tenure in violation of Title IX in retaliation for speaking out on behalf of students who claimed that they were sexually harassed or were discriminated against based on gender. Jury found for professor and awarded monetary damages. In arbitration hearings preceding suit, arbitrator determined that university improperly used collegiality, a factor not contained in collective bargaining agreement, as criterion in professor's tenure denial. To remedy inclusion of collegiality in that tenure hearing, arbitrator suggested that professor reapply for tenure. Professor did not reapply for tenure or appeal arbitrator's decision. Court ruled that failure to mitigate damages by reapplying for tenure or appealing arbitrator's decision disqualified professor from reinstatement with tenure.

Roberts v. University of South Florida, No. 90-1588-CIV-T-99-C, 62 FEP 247 (M.D. Fla. June 3, 1993)
Court ruled that white assistant professor was disparately treated when she was hired at lower salary than male black professor with similar credentials for identical positions. Jury found for plaintiff on her Title VII claim and awarded monetary damages. Court denied granting tenure to plaintiff, citing Ford v. Nicks (see below): Tenure should be awarded "only in the most exceptional cases . . . [w]hen the court is convinced that a plaintiff reinstated to her former faculty position could not receive fair reconsideration . . . of her tenure application." Court ruled that opportunity to be awarded tenure still existed and that professor had only been delayed in obtaining tenure.

Kendrigan v. Michigan State University, File No. 86-55903-CL (MI Circuit Court for the County of Ingham, Sept. 27, 1991)
Plaintiff alleged that she was improperly denied tenure because of, among other reasons, sex discrimination. She brought suit under state civil rights act for monetary damages and injunctive relief. Jury verdict was in favor of professor. State trial court upheld jury's finding of sex discrimination and concluded that, but for the discrimination, plaintiff would have been awarded tenure. It therefore held that "in order to make Plaintiff whole and to prevent the various abuses so prevalent in this case, Plaintiff must be reinstated with tenure."

Watlington v. University of Puerto Rico, 751 F. Supp. 318 (D. P.R. 1990)
Professor alleged that university failed to renew his full-time teaching contract and also rejected his application for tenure-track position because of age discrimination. Jury returned verdict for professor. Trial court then upheld portion of verdict pertaining to renewal of contract, but ruled that professor was not entitled to appointment to tenure-track position. Concluding that professor had not established a prima facie case of discrimination with regard to tenure-track position, court found that to order appointment to tenure-track position would place plaintiff in better position than he had been in at the time his full-time contract was not renewed. In addition, court held that combination of award of liquidated damages and plaintiff's subsequent earnings, which exceeded salary of his full-time contract, rendered placement in tenure-track position unnecessary to return professor to economic status he would have occupied but for university's failure to renew his full-time contract.

V. Pre-Brown Cases Involving the Consideration of Tenure as a Remedy

The cases below are listed in reverse chronological order:

Gutzwiller v. Fenik, 860 F.2d 1317 (6th Cir. 1988)
Professor alleged denial of tenure resulted from sex discrimination. Jury found for professor, but trial court dismissed her claims and denied relief. Appellate court affirmed portions of trial court's holdings but reversed dismissal of professor's Title VII claim and remanded for determination of proper equitable relief. Court noted that reinstatement is a "presumptively favored equitable remedy," but that here, plaintiff desired not only reinstatement, but reinstatement with tenure. Court held that such an award would "entangle the courts in matters best left to academic professionals. Accordingly, such relief should be provided in only the most exceptional cases. Only when the court is convinced that a plaintiff reinstated to her former faculty position could not receive fair reconsideration . . . of her tenure application should it order reinstatement with tenure." Court was unable to determine whether this was an "exceptional case."

Fields v. Clark University, 817 F.2d 931 (1st Cir. 1987), on remand, 59 FEP 124
(D. Mass. 1991), aff'd, 966 F.2d 49 (1st Cir. 1992), cert. denied, 506 U.S. 1052 (1993)
Federal district court had held that sex discrimination was significant factor in denial of tenure. Rather than award tenure as remedy, however, court ordered faculty member reinstated to probationary appointment. After two years she was to have been reevaluated for tenure in nondiscriminatory manner. Appellate court reversed and remanded for new trial by another district court judge. On remand, district court held that professor failed to establish prima facie case of discrimination (having failed to show by preponderance of evidence that she was sufficiently qualified for tenure), and appellate court affirmed.

State ex. rel. Norton v. West Virginia Board of Regents, unpublished per curiam order granting tenure (W.Va. S.Ct. 4/3/86) sub nom. State ex rel. Norton v. Stone, 313 S.E.2d 456 (W. Va. 1984)
After faculty member at West Liberty State College was twice denied tenure through improper evaluations, state supreme court granted "extraordinary relief" of tenure in light of "ample evidence . . . to justify award of tenure." Second review had been conducted, pursuant to court order, by president of another state college appointed for limited purpose of evaluating faculty member for tenure. In second review, however, no "identifiable tenure standard or criteria" had been employed. Rather than order third review, court awarded tenure.

Pyo v. Stockton State College, 603 F. Supp. 1278 (D. N.J. 1985)
Trial court denied college's motion to strike judicial award of tenure as a possible remedy in case that involved denial of tenure to female assistant professor. Court engaged in lengthy discussion of why judicial award of tenure might be appropriate, concluding: "[D]iscrimination in the tenure process is not a simple concept. Depending on the type of discrimination (the substantive evaluation of a candidate's merits versus the decision on how to treat one with a particular set of evaluations) and the level at which the discrimination occurred, a judicial award of tenure may or may not be appropriate. Since, in this case, 'discrimination' has not been clearly defined by the college, the court cannot rule out an award of tenure."

Briseno v. Central Technical Community College, 739 F.2d 344 (8th Cir. 1984)
Where professor had not yet met tenure qualifications, trial court's order directing college to reinstate professor in permanent position was modified to reinstatement as probationary faculty member.

Ford v. Nicks, 741 F.2d 858 (6th Cir. 1984), cert. denied, sub nom. Nicks v. Ford, 469 U.S. 1216 (1985), on remand 703 F. Supp. 1296 (M.D. Tenn. 1988), aff'd in part, rev'd in part, 866 F.2d 865 (6th Cir. 1989)
Lani Ford and William Ford contended that the terminations of their faculty appointments violated Title VII. Trial court awarded back pay and reinstatement to them with tenure. Appellate court affirmed trial court's decision with respect to William, and reversed and remanded for new trial as to Lani. The court relied on state law providing tenure automatically after five years, a state law since amended to abolish automatic tenure. On remand, trial court found in favor of Lani, ordering that she be appointed to full professorship with tenure. Appellate court held that evidence supported finding of discrimination and reinstatement as assistant professor, but that trial court abused its discretion in ordering reinstatement with tenure. Since state law no longer provided for automatic tenure, to make an award of tenure would entangle court in a matter "best left to academic professionals." Citing its decision in Gutzwiller (see above), court did not consider the case to be one of those "most exceptional cases."

Kumar v. Board of Trustees, University of Massachusetts, 566 F. Supp. 1299 (D. Mass. 1984), rev'd on other grounds, 744 F.2d 1 (1st Cir. 1985)
District court awarded back pay but not lifetime cash equivalent of tenure, where candidate received excellent peer ratings and unanimous departmental support but was denied tenure because of poor student evaluations. Appellate court reversed finding of liability and, therefore, provided no remedy.

Claim of Linda DeBeau-Melting (Rajender v. University of Minnesota) (Special Master's File No. 0000027 A&B and Magistrate's decision, Civ. No. 4-82-194 (D. Minn. Dec. 19, 1984))
Special Master had ordered award of tenure to professor because of overwhelmingly positive peer support and impossibility of subsequent unbiased review. Master's order was reversed by magistrate on grounds that, because of mixed record and professional opinion as to plaintiff's teaching effectiveness, research, and writing, professor had not proved that she was denied tenure because of her sex.

Gladney v. Thomas, 573 F. Supp. 1232 (D. Ala. 1983)
Court awarded tenure where university had earlier denied tenure because of plaintiff's lack of publications. Court found that university had then given professor a year to remedy this deficit, and that she had done so.

Felton v. California State Universities and Colleges, 708 F.2d 1507 (9th Cir. 1983)
Court affirmed dismissal of university's counterclaim that arbitrator should not have awarded tenure.

Kunda v. Muhlenberg College, 621 F.2d 532 (3rd Cir. 1980)
Faculty member deemed otherwise qualified by faculty committees and dean was denied tenure solely because of lack of advanced degree. Court found discrimination in college's failure to advise faculty member of degree requirement and ordered that, should she obtain advanced degree within two years, she should receive tenure.

Countiss v. Trenton State College, 77 N.J. 590 (Sup. Ct. 1978)
State's highest court declined to reinstate assistant professor with tenure under state statutory scheme because tenure denial was based on her failure to have a doctorate. In so ruling, court noted: "It is not necessary for us here to decide that reinstatement with tenure could never constitute an appropriate remedy in a college discrimination case. We may leave for determination in a pertinent case a situation, for example, of direct denial of a tenure appointment to an apparently qualified applicant because of race, sex, etc."

Younus v. Shabat, 336 F. Supp. 1137 (N.D. Ill. 1971), aff'd mem., 6 FEP 314 (7th Cir. 1973)
Tenure awarded by court after duly constituted faculty committees had reviewed qualifications of professors and recommended tenure, where sole reason for denial was plaintiffs' status as resident aliens.

VI. Secondary Sources

Kathryn R. Swedlow, "Suing for Tenure: Legal and Institutional Barriers," 13 Review of Litigation 557-595 (Summer 1994)

45B Am. Jur. 2d Job Discrimination § 793 (2002)

"Remedies in Promotion and Tenure Cases," Employment Discrimination Coordinator (Treatise) § 36,020 (2002 Supp.)

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We ask that you forward to us additional cases that are relevant to this topic for inclusion in future updates. Please contact our Legal Department, AAUP, 1012 Fourteenth St., NW, Suite 500, Washington, DC 20005-3465.

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* Special thanks to Marguerite Martel, AAUP law fellow, for her assistance in updating this document.

Updated 8/06