Summary
holding that “a nontenured faculty member of a university has no entitlement to tenure on a de facto basis, where the university has a formal tenure system which provides that tenure may be obtained only by formal grant of such privilege”
Summary of this case from Waters v. DrakeOpinion
No. 88-536
Submitted April 5, 1989 —
Decided August 30, 1989.
Colleges and universities — Nontenured faculty member — No entitlement to tenure on a de facto basis, when — University has formal tenure system which provides that tenure is obtained only by formal grant of such privilege.
O.Jur 3d Schools § 281.
A nontenured faculty member of a university has no entitlement to tenure on a de facto basis where the university has a formal tenure system which provides that tenure may be obtained only by formal grant of such privilege.
APPEAL from the Court of Appeals for Franklin County, No. 86AP-966.
Cleveland State University ("CSU") operates as a state university under authority of R.C. Chapter 3344, with the governance of the university being vested in the board of trustees. The employment, fixing of compensation, and removal of teaching personnel are the province of the board, in addition to the performance of "all things necessary for the creation, proper maintenance, and successful and continuous operation of the university" under the statutory grant of power. R.C. 3344.03. At least since 1974, a written formal tenure system, adopted by the board, has been in effect. The instrument governing tenure is entitled "Faculty Personnel Policies" ("Policy"), and provides that tenure of teaching personnel can be granted only by formal action of the board of trustees.
Appellee, J. Dennis Omlor, was first employed by CSU as a part-time lecturer for the fall quarter of 1969 pursuant to a letter contract. He continued in the same capacity until September 1, 1972, as evidenced by eleven subsequent letter contracts. The twelve letter contracts pertaining to the position of part-time lecturer did not contain language regarding tenure.
Omlor was appointed to faculty status as a full-time instructor pursuant to a letter contract dated June 29, 1972, accepted by Omlor on August 7, 1972, and effective September 1, 1972. The contract provided in part:
"Faculty Personnel Policies provide that the probationary period for cumulative service as instructor and assistant professor should not exceed seven years. Failure to qualify for tenure by the conclusion of the probationary period disqualifies a faculty member thereafter from further employment in the University.
"* * *
"* * * Your probationary period as instructor and assistant professor would conclude on June 30, 1979, and you would be advised of the University's final decision with respect to your tenure not later than June 30, 1978. * * *"
This was the first in a series of seven full-time contracts for Omlor as instructor and as assistant professor. Beginning with the fifth contract, dated April 16, 1976, the contracts incorporated the Policy by reference. The fourth, fifth and sixth contracts stated that, with regard to tenure, "a decision will be made on or before January 15, 1978." The seventh and final contract, dated May 26, 1978, included the language, "this is to be considered a terminal contract." While the last contract was in effect, Omlor was considered for tenure pursuant to the Policy. He received favorable recommendation from the chairperson of his department and the dean of the College of Business. The Personnel Action Committee of the College of Business and the University Personnel Committee recommended against tenure. All recommendations were considered by the Vice President for Academic Affairs and ultimately by the president. The president did not recommend to the trustees that Omlor be granted tenure, and they did not grant tenure.
Omlor originally filed a complaint in the Cuyahoga County Court of Common Pleas. The complaint was dismissed, apparently for lack of jurisdiction, and the dismissal was affirmed by the court of appeals. Thereafter, Omlor filed the complaint in the matter sub judice in the Court of Claims in 1984, alleging that he had attained de facto professional tenure and that he had been denied formal tenure because of his exercise of First Amendment rights of free speech.
The then Chief Justice of the Supreme Court ordered the appointment of a three-judge panel in the Court of Claims to hear the matter pursuant to R.C. 2743.03(C)(1), as an action presenting novel or complex issues of law or fact.
The three-judge panel granted CSU's motion for summary judgment by entry of September 24, 1985, determining that there were no genuine issues of material fact and that CSU was entitled to judgment as a matter of law. The panel held that de facto tenure is not a legal doctrine that can be enforced by a nontenured professor when CSU has a formal, written tenure policy in effect. The panel additionally held that no constitutional protection attaches to an offensive ethnic remark or slur outside the context of legitimate public concern, and that even if the utterance was the sole basis for the denial of tenure, no judicial relief could be granted from such discretionary action by the CSU president.
Upon appeal, the Court of Appeals for Franklin County reversed the decision of the three-judge panel and remanded the case for a trial on the merits, holding that summary judgment was improper both as to whether Omlor had de facto tenure and as to whether the ethnic utterance was a sufficient basis for denial of tenure. The court of appeals thereafter denied appellant's motion for reconsideration.
The cause is now before this court upon the allowance of appellant's motion to certify the record.
Friedman Chenette, Perry R. Silverman Co., L.P.A., Jeffrey H. Friedman and Perry R. Silverman, for appellee.
Anthony J. Celebrezze, Jr., attorney general, William J. McDonald and Simon B. Karas, for appellant.
Anthony J. Celebrezze, Jr., attorney general, Edward J. Elum and Daniel J. O'Loughlin, for amici curiae, the other fourteen state universities of Ohio.
The question to be here resolved is whether the trial court properly determined that there was no genuine issue of material fact that CSU was entitled to judgment as a matter of law within the standards of Civ. R. 56. We agree with the trial court.
I
The weight of authority regarding de facto tenure in academic institutions supports the argument of CSU that a nontenured faculty member of a university has no entitlement to tenure on a de facto basis, where the university has a formal tenure system which provides that tenure may be obtained only by formal grant of such privilege. We adopt that thesis. Scagnelli v. Whiting (M.D. N.C. 1982), 554 F. Supp. 77, 79, well states the near uniform present-day rationale:
"Although tenure need not always be acquired through formal procedures, Perry v. Sinderman, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972), it must be based on a mutually explicit understanding of the practices or customs which give rise to the claimed entitlement. Leis v. Flynt, 439 U.S. 438, 99 S. Ct. 698, 58 L. Ed. 2d 717 (1979); Roth v. Board of Regents, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). Where a university has published written procedures governing tenure, the legitimacy of a claim to tenure acquired outside those procedures is vitiated because there is no basis for mutuality. E.g., Beitzell v. Jeffrey, 643 F.2d 870 (1st. Cir. 1981); Haimowtiz v. University of Nevada, 579 F.2d 526 (9th Cir. 1978). See, also, Sheppard v. Board of Regents, 516 F.2d 826 (4th Cir. 1975)." (Emphasis added in part.)
The Sixth Circuit Court of Appeals in Plummer v. Bd. of Regents, Murray State University (C.A. 6, 1977), 552 F.2d 716, adopted the "published formal tenure procedures" doctrine by upholding the granting of summary judgment to a university which had a "well defined tenure system." See, also, Wells v. Bd. of Regents of Murray State Univ. (C.A. 6, 1976), 545 F.2d 15 (determining that under a written tenure policy, tenure could be granted only by formal action of the board of trustees). The Colorado Supreme Court has held that in view of the university's formal tenure system, no contract — whether de facto or based on some other contract theory — could come into being absent affirmative action by the university's board of trustees. Univ. of Colorado v. Silverman (1976), 192 Colo. 75, 555 P.2d 1155. See Loebeck v. Idaho State Bd. of Edn. (1975), 96 Idaho 459, 530 P.2d 1149; Rhine v. Internatl. Young Men's Christian Assn. College (1959), 339 Mass. 610, 162 N.E.2d 56.
It is obvious that a significant reason for universities to adopt formal tenure provisions is to prevent de facto tenure from being imposed upon them. See McElearney v. Univ. of Ill. at Chicago Circle Campus (C.A. 7, 1979), 612 F.2d 285; Cusumano v. Ratchford (C.A. 8, 1974), 507 F.2d 980.
Regarding the contract issue alone, we are confronted with a matter of first impression in the instant cause. We do have pronounced law in a related matter in Matteny v. Frontier Local Bd. of Edn. (1980), 62 Ohio St.2d 362, 16 O.O. 3d 411, 405 N.E.2d 1041. Matheny involved the issue of right to continued employment of nontenured local school teachers who were working under limited yearly contracts which were not renewed. R.C. 3319.11 sets forth a formal tenure policy for Ohio school teachers which can be equated to the formal CSU policy. The Matheny court held that under the legislative tenure policy, "a nontenured teacher has no expectancy of continued employment past the term of his limited contract." Id. at 364, 16 O.O. 3d at 412, 405 N.E.2d at 1044. We therefore determine that the legislature's broad grant of authority to colleges and universities to create tenure policies pursuant to R.C. 3344.03 is equivalent to the policy of R.C. 3319.11, when a tenure policy is formally implemented by a college or university. It then follows that the CSU tenure Policy has the same legal status and effect as the statutory tenure system in Matheny, and the CSU faculty employment contracts during an employee's nontenured probationary period create no more right to continued employment than the limited contracts in Matheny.
We therefore conclude that in the instant matter the three contract letters indicating that a decision on tenure would be forthcoming on or before January 15, 1978 did not change the tenure rights of Omlor under the Policy. We also reject Omlor's argument that additional workload undertaken prior to appointment to faculty status changed his tenure rights. He was informed of the Policy, under which tenure could not be granted other than by its clear provisions. Omlor accepted full-time employment of faculty status under the terms of the Policy in his fifth contract for full-time employment, and accepted the seventh contract as a "terminal contract" pursuant to the Policy. The Policy's section 8.1.2(d)(4) specifically provides that even if a timely notice of termination is not sent, the employee is entitled only to one additional annual contract. Section 8.1.2(d)(6) states:
"A member of the faculty in the rank of assistant professor who is not to be promoted to associate professor with tenure at the beginning of his or her seventh year of full-time regular service shall receive notice by the third day after the spring commencement of his or her sixth year that the contract for a seventh year is a terminal contract unless she or he is promoted during that year. Failure to send appropriate timely notice does not obligate the University to grant promotion or tenure even though the faculty member is entitled to an eighth year terminal contract according to the provisions of Section 8.1.2(d)(4) above."
II
Our next consideration concerns what the trial court characterized as a disparaging ethnic slur uttered by Omlor. According to appellee he probably said something very similar to "I like Dean Smith, he's a good guy, for a Jew. I like about 40 percent of the Jewish people I meet."
Appellee contends, contrary to our holding supra, that he was a de facto tenured faculty member and was discharged for making the remark in violation of his constitutional right of free speech. We have determined that appellee was not tenured at the time of the remark. Further, two separate Policy-mandated review committees, comprising tenured faculty members, unanimously recommended against tenure based on Omlor's weak scholarly research and publication record months prior to the remark. The Policy, at Section 8.1.2(b)(1)(J), states:
"* * * The President shall recommend persons lacking faculty support only in rare instances and for compelling reasons which must be stated in detail to the faculty grouping prior to making such recommendations to the Board of Trustees."
CSU's president knew of the ethnic remark but stated that his decision not to recommend Omlor for tenure was based solely on failure to meet minimum standards and failure of faculty support, not on the remark.
Assuming arguendo that the president of CSU did base his decision against tenure on the remark, we determine such decision to be an exercise of authorized discretion. Appellee cannot claim the remark to be constitutionally protected free speech, as the uttered words cannot in any way be construed to be a matter of legitimate public concern. See Pickering v. Bd. of Edn. of Twp. High School Dist. 205, Will Cty. (1968), 391 U.S. 563; Givhan v. Western Line Consol. School Dist. (1979), 439 U.S. 410. Thus, if the president considered such remark in his decision, he cannot be legally second-guessed.
We therefore conclude that the trial court correctly granted summary judgment under the standards enunciated in Temple v. Wean United (1977), 50 Ohio St.2d 317, 4 O.O. 3d 466, 364 N.E.2d 267.
Accordingly, the judgment of the court of appeals is reversed.
Judgment reversed.
MOYER, C.J., HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
SWEENEY, J., dissents.
RUPERT A. DOAN, J., of the First Appellate District, sitting for RESNICK, J.