De Facto Tenure (2005)

Donna R. Euben, AAUP Counsel*
July 2005

The 1940 Statement of Principles on Academic Freedom and Tenure, jointly authored by the American Association of University Professors (AAUP) and the Association of American Colleges, calls for a maximum period of probation not to exceed seven years of full-time faculty service, with service beyond the probationary period constituting continuous appointment or tenure. Upon continuance of full-time service beyond the maximum probationary period, faculty members who so serve should be recognized as having an entitlement to the procedural safeguards that accrue with tenure, even in the absence of institutional regulations to that effect or of specific action by a particular college or university. Courts have noted the adoption of that AAUP policy by universities:

Northwestern University adheres to the principles of the American Association of University Professors (AAUP) regarding the de facto grant of tenure. Tenure . . . is acquired de facto in the seventh year of a faculty member's full-time service in the tenure-accumulating ranks, unless the faculty member receives notice during the sixth year that the seventh year of employment will be "terminal." Tenure de facto is automatic. It is conferred without a tenure review solely by reason of the faculty member's appointment.

Schneider v. Northwestern University, 925 F. Supp. 1347, 1351 (N.D. Ill. 1996).

The U.S. Supreme Court in Perry v. Sindermann recognized that "[a] teacher . . . who has held his position for a number of years, might be able to show from the circumstances of this service--and from other relevant facts--that he has a legitimate claim of entitlement to job tenure." 408 U.S. 593, 602 (1972). Length of service typically gives rise to a claim of de facto tenure, but the issue has been litigated on other grounds, including conflicting standards of review and promises of permanent employment from college or university officials. Courts have been skeptical, however, about finding de facto tenure, especially in cases where college or university written guidelines delineate some type of tenure provision.

I. Some Recent Case Citations

Please note that the following is not an exhaustive list of those cases involving claims of de facto tenure. The cases should be read before they are used. They should also be updated ("Shepardized") to determine whether they remain viable after subsequent court decisions.

A. Federal Court Cases

Kakaes v. George Washington University 790 A.2d 581 (D.C.App. 2002)
Court ruled that it was within its discretion to refuse to grant reinstatement and tenure as a remedy for breach of a contract when the faculty handbook expressly allows for default tenure. Professor claimed that he was entitled to tenure according to a provision of the faculty code that provided for an automatic grant of tenure if no notice had been given by the end of the term. The court held that there was a public interest in avoiding grants of tenure by default, citing a body of case law "disfavoring enforcement of personal service contracts, particularly in the university employment area."

Meiners v. University of Kansas, 2002 WL 31296170 (D.Kan. 2002)
Court held that professor was not entitled to "tenure by default." Professor had tenure clock extended and was later denied tenure. Court found that no unwritten policy or procedure existed that would award de facto tenure to professor who had taught for the requisite time, but had her tenure review period extended due to two semesters where she worked part time.

Gray v. University System of Georgia, 150 F.3d 1347 (11th Cir. 1998), cert. denied, 526 U.S. 1065 (1999)
Faculty member fails in claim that university's custom and its institutional understanding confer tenure based on length of service in spite of president's testimony that he perceived faculty members serving beyond seven years as receiving "automatic tenure." Court required concrete experience with de facto tenure award beyond "one administrator's stated 'interpretation.'" Policy manual's provision for faculty untenured after seven years contrasted with state public school system's conferral upon teachers of a definite tenure right based on length of service.

Morrow v. Auburn University at Montgomery, 973 F. Supp. 1392 (M.D. Ala. 1997)
Because of university's de facto tenure policy, as described in faculty handbook, the university presented legitimate reason for issuing final contract to professor. University won summary judgment where professor claimed retaliation for filing sexual harassment complaints and professor submitted no evidence that applying policy was pretextual or that other faculty members who had not engaged in protected activity had appointments extended beyond maximum period.

Jones v. University of Central Oklahoma, 13 F.3d 361 (10th Cir. 1993)
Faculty member who failed to satisfy nineteen-point formalized tenure procedure claimed that he should have been evaluated under unwritten "local tenure" standard that administrators had led him to believe would apply. Court held that legitimate claim of entitlement to tenure in state university is defined solely through application of state contract and employment law. If faculty member can establish such right to continued employment under unwritten "local tenure" procedure--even though a different written procedure exists--his claim is legitimate and he has property interest protected by due process clause. On remand, district court certified to state supreme court question of whether claim for tenure could arise from informal, unwritten tenure policy purportedly existing alongside contrary written formal tenure policy. State supreme court ruled that under Oklahoma law, if formal written policy constitutes express contract between parties, contract covering same subject cannot be implied, because implied agreement cannot coexist with express contract. 910 P.2d 987 (Okla. 1995).

Colburn v. Trustees of Indiana University, 973 F.2d 581 (7th Cir. 1992)
Faculty members had no property interest in tenure under de facto system that they concede did not exist. Where there was a formal tenure system, it was unlikely that they could reasonably have relied on assurances that they would be reappointed.

Edinger v. Board of Regents, Morehead State University, 906 F.2d 1136 (6th Cir. 1990)
Court declines to recognize de facto tenure. Tenure could be granted only through affirmative vote of majority of Board of Regents. Board did not ratify any contract stating that professor had tenure where Board never voted to grant tenure.

Cohen v. University of Medicine and Dentistry of New Jersey, 867 F.2d 1455 (3rd Cir. 1989)
Court rejects plaintiff's claim of de facto tenure for clinical professorship, despite university's failure to give timely notice of nonrenewal.

Staheli v. University of Mississippi, 854 F.2d 121 (5th Cir. 1988)
Professor denied tenure unsuccessful in contention that satisfactory annual evaluations and informal understandings with department head gave rise to de facto tenure, of which he was allegedly deprived in violation of Fourteenth Amendment when university denied de jure tenure.

Chinea v. Benitez, 702 F. Supp. 29 (D.P.R. 1988)
Court rejects plaintiff's claim of de facto tenure, disagreeing with her interpretation of regulation that faculty rendering satisfactory service for five years shall receive tenure.

Honore v. Douglas, 833 F.2d 565 (5th Cir. 1987)
Genuine issue of material fact precluded grant of summary judgment against professor's claim to de facto tenure under regulations that were in effect at time of his initial appointment.

Lovelace v. Southeastern Massachusetts University, 793 F.2d 419 (lst Cir. 1986)
Untenured professor had no due process property interest in reappointment based on "trivial tardiness" of alleged eight-day delay beyond deadline for notice of non-reappointment. Where written system exists of which employee is aware, employee generally may not rely on assurances outside formalized system to establish property interest.

Owens v. Board of Regents of Texas Southern University, 953 F. Supp. 781 (S.D. Tex. 1986)
Faculty manual adopted subsequent to plaintiff's appointment explicitly provided that tenure would be granted only upon affirmative action by governing board and would not be granted automatically. Factual question existed as to whether plaintiff had rights under earlier manual that administrator testified provided for tenure by default through length of service. Court denied university's motion for summary judgment.

LaVerne v. University of Texas System, 611 F. Supp. 66 (C.D. Tex. 1985)
Under the applicable university regents' rules, there was no tenure by default, de facto, or "common law" tenure. When university published written tenure procedures, "the legitimacy of a claim to tenure acquired outside the procedures is vitiated because there is no basis for mutuality." Because no entitlement to continued employment existed, no property or liberty interest existed.

Kovats v. Rutgers University, 749 F.2d 1041 (3rd Cir. 1984), cert. denied, 489 U.S. 1014 (1989)
Faculty member permitted to pursue claim in federal court alleging deprivation of property based on claim of de facto tenure, when prior state court ruling did not directly address whether length of service vests faculty with property interest but dismissed action based on collective bargaining agreement only.

Steinberg v. Elkins, 470 F. Supp. 1024 (D. Md. 1979)
Court acknowledges possibility of automatic tenure by length of service based on terms of contract existing alongside more formal tenure system.

B. State Court Cases

Marriott v. Cole, 694 A.2d 123 (Md.App. 1997)
Faculty member who was denied tenure claimed entitlement to tenure on basis of tenure policy in effect at time of her appointment. Court rejected claim, pointing out that de facto tenure is not available if institution has formal written tenure policy. An earlier policy providing for tenure after completion of seven years of service had been changed before plaintiff completed requisite service. Her annual contracts incorporated current version of policy, so she could not avail herself of earlier version. Faculty member served at institution from 1972 until 1996, when her appointment was terminated.

Healy v. Fairleigh Dickinson University, 671 A.2d 182 (N.J. App. Div. 1996), cert. denied, 519 U.S. 1007 (1996)
De facto tenure claim was mixed question of fact and law, with jury to decide number of semesters professor had been employed and judge to interpret handbook provision allegedly supporting tenure claim. Appellate court held that judge correctly ruled that neither handbook nor local collective bargaining contract provided for de facto tenure.

Dugan v. Stockton State College, 586 A.2d 322 (N.J. App. Div. 1991)
Faculty member claimed tenure by virtue of length of service. State law at time of appointment provided for tenure after five years of consecutive service. Regulation of state board of higher education limited tenure only to those affirmatively approved by board. Court found that regulation was contrary to statute and beyond board's authority.

Omlor v. Cleveland State University, 543 N.E.2d 1238 (Ohio 1989)
Nontenured faculty member has no entitlement to tenure on de facto basis where university has formal tenure system providing that tenure may be obtained only by formal grant of such status.

Howard University v. Best, 547 A.2d 144 (D.C. 1988)
Faculty member failed to establish entitlement to tenure under university regulation calling for tenure upon reappointment after previous appointment. Faculty member failed to prove that custom and usage of phrase "previous appointment" included ninety-day part-time non-teaching position.

Ozerol v. Howard University, 545 A.2d 638 (D.C. App. 1988)
Parol evidence rule precluded introduction of alleged oral contract that professor would receive tenure. Written contract and faculty handbook together constituted complete agreement.

Gottlieb v. Tulane University, 529 So.2d 128 (La. App. 1988)
Court rejected as unreasonable professor's reliance on alleged statement by chancellor that she would receive tenure in four years.

Hill v. Talladega College, 502 So.2d 735 (Ala. 1987)
College regulations called for award of tenure only by express action of board. Incorporation of 1940 Statement of Principles on Academic Freedom and Tenure calling for tenure after seven years does not render regulations ambiguous. Faculty member who served ten years not entitled to de facto tenure where board had not acted.

Lewis v. Loyola University of Chicago, 500 N.E.2d 47 (Ill. App. 1986)
Dean's letters and oral representations to professor assuring early recommendation for tenure are incorporated into employment contract. Dean's admittedly forgetting to submit nomination and provost's testimony that objectively qualified candidates recommended by dean typically win tenure provide sufficient evidence that professor would have been granted tenure but for dean's oversight.

Storrer v. University of South Carolina, 343 S.E.2d 664 (S.C. 1986)
University regulations at time of professor's initial appointment called for automatic tenure if notice of termination was not given by beginning of fourth year of service. Professor whose tenure application was rejected and who was given notice was subsequently reinstated because of procedural violations; he did not acquire de facto tenure by virtue of length of service. Notice of termination was not nullified by later reinstatement.

Stuckey v. University of South Carolina, 325 S.E.2d 709 (S.C. Ct. App. 1985)
Under terms of faculty manual, de facto tenure available if university failed to give notice of termination one year before beginning of year following sixth year of service. When a faculty member received notice, then was reinstated and subsequently terminated, the original notice was adequate.

Adelson v. Regents of University of California, 128 Cal.App.3d 891 (Cal.App.Dist. 1982)
Position of psychology professor was discontinued after fourteen years when grant funds were consolidated. Administration rejected faculty committee's recommendation of reinstatement. Appeals court found that administration's decision was not supported by committee's undisputed findings and that trial court improperly denied professor's injunction against university for reinstatement. Issue as to whether faculty committee made findings or recommendation on de facto tenure; professor did not seek tenure but rather recognition of entitlement to continued employment in light of continued grant funding and assurances given to him.

Sawyer v. Mercer, 594 S.W.2d 696 (Tenn. 1980)
Faculty member not notified in timely manner of nonrenewal of appointment was found to be tenured under contract and faculty handbook provisions for "automatic tenure" after fourth year.

II. Some Older Case Citations

A. Federal Decision

Willens v. University of Massachusetts, 570 F.2d 403 (1st Cir. 1978)
Haimowitz v. University of Nevada, 579 F.2d 524 (9th Cir. 1978)
Davis v. Oregon State University, 591 F.2d 493 (9th Cir. 1978)
Tyler v. College of William and Mary, 429 F. Supp. 29 (E.D. Va. 1977)
Markwell v. Culwell, 515 F.2d 1258 (5th Cir. 1975)
Soni v. Board of Trustees of University of Tennessee, 513 F.2d 347 (6th Cir. 1975), cert. denied, 426 U.S. 919 (1976)
Seitz v. Clerk, 524 F.2d 876 (9th Cir. 1975)
Stebbins v. Weaver, 396 F. Supp. 104 (W.D. Wis. 1975), aff'd, 537 F.2d 631 (7th Cir. 1976), cert. denied, 429 U.S. 1041 (1977)
Buhr v. Buffalo Public School District, 509 F.2d 1196 (5th Cir. 1974)
Cotten v. Regents of Georgia, 395 F. Supp. 388 (D.Ga. 1974), aff'd, 515 F.2d 1098 (5th Cir. 1975)
Watts v. Board of Curators, 363 F. Supp. 883 (W.D. Mo.), aff'd, 495 F.2d 384 (8th Cir. 1974)
Chung v. Park, 377 F. Supp. 524 (M.D. Pa. 1974), aff'd, 514 F.2d 382 (3rd Cir. 1975), cert. denied, 423 U.S. 948 (1975)
Toney v. Reagan, 326 F. Supp. 1093 (N.D. Cal. 1971)

B. State Decisions

Eads v. Humphries, 562 S.W.2d 805 (Tenn. 1978)
Bruno v. Detroit Institute of Technology, 215 N.W.2d 745 (Mich.App.1974)

III. SECONDARY SOURCES

Annotation, "Construction and Effect of Tenure Provisions of Contract or Statute Governing Employment of College or University Faculty Member," 66 A.L.R.3rd 1018 (1975 & 2004 Supp.)

Annotation, "Sufficiency of Notice of Intention to Discharge Teacher, or Not to Renew Contract, under Statute Requiring Such Notice," 52 A.L.R.4th 301 (1987 & 2004 Supp.)

W. Kaplin & B. Lee, The Law Of Higher Education 279-288 (2000 Supp.)

P. McKee, "Tenure by Default: The Nonformal Acquisition of Academic Tenure," 7 Journal of College and University Law 31-56 (1980-81)

M.A. Olivas, The Law And Higher Education 357-372 (1989 & 1993 Supp.)
Office of Staff Counsel

* Special thanks to Ramon Santra, AAUP law fellow, for his assistance in updating this document.