A rare court victory that protected 4 professorial positions has been overturned. Here’s Why.

The College of Saint Rose did not violate its own policy when it fired four tenured faculty members, a New York appeals court ruled Thursday. The unanimous ruling overturns a lower court’s ruling last year that reinstated four professors.

One expert said that while the decision is specific to New York, it offers a model for other institutions trying to lay off faculty.

In a previous ruling, a New York Supreme Court judge ruled that a private college in Albany violated its faculty handbook by firing four longtime members of its music department. Saint Rose told professors in December 2020 that they and about 30 other tenured faculty members would be laid off in 2021 as part of a cost-cutting plan that included the elimination of 25 academic programs and $5.97 million in academic expenses. The college had retained less senior faculty members in what Albany County Superior Court Judge Peter A. Lynch called a “selective, narrow and erroneous interpretation” of the faculty handbook that appeared to be “designed.”

It was a resounding and rare legal victory for tenured faculty who are being laid off. But it was also short-lived.

Yvonne Chavez Hansbrough, Robert S. Hansbrough, Bruce C. Roter and department head Sherwood W. Tark found Saint Rose not in violation of its faculty handbook Thursday after a hearing last month, the state’s highest court found. The five-judge panel, whose decision was written by Justice Molly Reynolds Fitzgerald, noted that the handbook states only that the college should first consider “all reasonable alternatives before resorting to program reductions and attendant staff reductions.” Fitzgerald said Saint Rose gave the professors timely notice of their layoffs and allowed them to appeal through a faculty review board, writing that the decision “was supported by a rational basis, was not unreasonable, arbitrary and capricious, and was not made in bad faith.” The court’s ruling also prevents the professors from holding the college in breach of contract. to sue after.

The court’s decision to defer to Saint Rose’s interpretation of its faculty handbook is consistent with New York’s specific judicial precedent that gave rise to the case, said William A. Herbert, executive director of the National Center for Collective Bargaining Studies. in Higher Education and Careers from Hunter College, City University of New York. “It’s not about the sanctity of the handbook, it’s more about how to interpret it and what interpretation the court is trying to find,” Herbert said. Under the terms of this legal framework, known as the Article 78 procedure, the court will only have to determine whether the institution’s interpretation of its teaching handbook was “arbitrary and capricious”, which it described as a “relatively low standard”.

If, for example, a similar case arose with a layoff policy codified by a collective bargaining agreement, the arbitrator would not accord the same deference, but would interpret the case independently based on the testimony.

This is certainly a blow to the rights of tenured professors.

Matthew W. Finkin, a professor of labor and employment law at the University of Illinois College, said the specificity of the Article 78 process, which is “very respectful of the institution,” makes it difficult to make broad generalizations about the decision’s impact on tenure. legislator and labor arbitrator. Finkin said New York’s judicial system is “disconnected from the weight of judicial power on tenure law.”

While Thursday’s decision shouldn’t have wider ramifications outside of New York, Finkin said it sets a precedent for other institutions trying to lay off faculty. Finkin said the decision puts the onus on future plaintiffs to educate the court that while the New York decision would support the institution, the decision would not be supported more broadly. “There’s case after case that says you have to read academic tenure rules in terms of their history, what they’re intended to accomplish, and how they’ve been read and generally understood at tenure-track institutions,” he said. said. “The court refuses to do that. It’s just looking at the plain text of the rule.

In the statement that Chronicle, Jennifer Gish, vice president of marketing and communications, said the college has “followed a process of reducing academic programs and that process has been upheld by the courts. These decisions were difficult and the contributions of affected faculty members will not be forgotten. Details on when faculty members’ employment will officially end are pending,” Gish added. still under development and that “our focus is on students and maintaining continuity of instruction and their academic success.”

Meredith Moriarty, a lawyer for the professors, said she was disappointed by the court’s precedent. “This is certainly a blow to the rights of tenured professors,” Moriarty said. “I think it’s a blow to academic freedom, to be honest, because the opinion essentially says that the courts must give deference to colleges in interpreting their contracts in all of their decisions.”

Roter, one of the professors, said in a statement Chronicle that he was “deeply disappointed” by Thursday’s decision. “I believe this decision will have a chilling effect on higher education, particularly regarding tenure and the enforceability of faculty handbooks,” he wrote. “This decision puts another nail in the coffin of tenure, a system that has allowed educators to speak and teach with academic freedom unencumbered by fear of termination.”

Roter and his colleagues may appeal their case to the New York Court of Appeals, but have not yet decided whether to do so, Moriarty said.

A secret counter-proposal

Thursday’s ruling is likely to rankle faculty rights and due process advocates, including the American Association of University Professors, which already censured Saint Rose in 2016, a year after cutting 14 tenures and 27 academic programs.

After the recent cuts, AAUP Director of Academic Freedom, Tenure and Governance Gregory F. Scholtz sent a letter of concern to Saint Rose President Marcia J. White about the fall 2021 layoffs, saying the college had acted in accordance with the AAUP’s widely accepted principles of academic freedom and tenure. against the principles for not declaring financial needs before the teaching staff was laid off. Although Saint Rose’s faculty handbook allows the college to terminate faculty positions due to “anticipated program reductions,” Scholtz wrote in the letter that “AAUP does not consider the mere expectation of program reductions a legitimate basis” for laying off tenured faculty members. (Scholtz was not available for comment on Thursday’s ruling.)

The process that led to the layoffs of four music professors began when college chairs were asked to submit budget reduction proposals. Wise, the music department chair, presented a plan that cut more than $500,000. But a joint task force of faculty and administrators that reviewed the proposals adopted a different plan that Wise and his colleagues say was influenced by a secret counterproposal they were unaware of. The proposal was written by faculty members who taught at Saint Rose’s music industry concentration, the lawsuit says. Their plan called for the elimination of the entire music program—and the plaintiffs’ jobs—and to spare the concentration of the music industry and its faculty.

With one exception, none of the music industry professors who kept their jobs were as senior as any of the laid-off faculty. An Albany judge agreed with the plaintiffs’ contention that Saint Rose’s faculty handbook requires the college to prioritize faculty first based on tenure, then seniority and then rank, but an appeals court rejected that Thursday.

The professors appealed their layoffs to an internal review board, which ruled in their favor and recommended their reinstatement. But White — the college’s interim president — dismissed the complaint, prompting them to go to court.

Meanwhile, the financial situation that led to the layoffs has become even more dire. Bond rating agency Fitch Ratings cut Saint Rose’s outlook to negative this month, citing a “significant multi-year decline in the college’s already limited enrollment” that is expected to continue through this fall despite “comprehensive programmatic and enrollment management restructuring.” it was supposed to stabilize the institution’s reception. The rating agency noted that Saint Rose’s enrollment took a particularly hard hit during the pandemic, dropping 15 percent in fall 2020 and 18 percent more in fall 2021.

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