OR: Otero-Burgos v. Inter Am. Univ., 558 F.3d 1 (1st Cir. 2009) 

On January 25, 2008, the AAUP requested leave from the United States Court of Appeals for the First Circuit to file an amicus brief (.pdf) in support of Professor Edwin Otero-Burgos. Professor Otero-Burgos was dismissed in 2002 from Inter-American University (IAU), a private institution in Puerto Rico where he had taught for 28 years, nearly 10 of those as a tenured professor. Professor Otero-Burgos was terminated by IAU after appealing an administration decision that he believed violated his academic freedom.

Specifically, IAU overruled Otero-Burgos’s authority to determine the management of his course and the assignment of grades.  The university administration assigned another professor to prepare and administer an additional exam to one of Otero-Burgos’s students after the student requested that he receive a special opportunity not provided to other students to raise his grade. Otero-Burgos objected and appealed the decision, alleging a violation of his academic freedom. A Faculty Appeals Committee (FAC) ruled in his favor.  The campus’s chancellor rejected the ruling and instead appointed an Ad Hoc Committee to consider grounds for dismissing Otero-Burgos and the members of the FAC.  After the Ad Hoc Committee recommended that Otero-Burgos be terminated and the FAC members sanctioned, Otero-Burgos appealed again; a second FAC ruled in his favor, recommending that he be reinstated.  The chancellor again rejected the ruling, however, and terminated Professor Otero, giving rise to his lawsuit.
  
The U.S. District Court for the District of Puerto Rico concluded in a December 2006 opinion (.pdf) that although Professor Otero-Burgos’s termination may have violated the contractual relationship detailed in IAU’s faculty handbook, the only remedy available to Professor Otero-Burgos came from a Puerto Rico law called Law 80.  Law 80 provides that an employer who dismisses an employee without “just cause” need only provide a certain set percentage of the employee’s former salary, but is responsible for no other damages or reinstatement.

It is AAUP’s belief that Law 80, which protects at-will employees who would otherwise have no recourse at all from arbitrary firings, was not intended to limit so drastically the remedies available to tenured faculty members who are guaranteed permanent employment by the institution and the historical safeguards of tenure.  Such an application of Law 80, the AAUP contends in its brief, undermines academic freedom and the safeguards afforded by tenure to faculty as well as to institutional interests in stability and educational quality.  It also allows universities to pay only a small penalty for stripping professors of tenure without just cause, and effectively transforms tenured faculty members into at-will employees.

In its brief, AAUP urges the First Circuit to recognize that the district court’s decision starkly contradicts the appeals court’s and district court’s own precedent, as well as the intent of the Puerto Rico legislature in passing Law 80.

The law firm Covington & Burling provided pro bono support for the drafting and filing of the brief.

Update: On February 19, 2009, the First Circuit ruled in favor of Professor Otero-Burgos and vacated the district court’s opinion.  Citing approvingly to the AAUP’s amicus brief and AAUP policy, the appeals court agreed that Law 80 could not have been intended to apply to tenured faculty members, and that to apply it to Professor Otero-Burgos’s case would fatally undermine the meaning of tenure.

As the court observed:

“[T]enure as described in the Handbook is inherently incompatible with allowing a university to simply ‘buy’ the right to dismiss a tenured instructor for Law 80's modest severance payment. Indeed, that approach would mean that despite his tenured status, Otero-Burgos would, as a matter of law, have only the remedy he would be entitled to if he were an at-will employee serving at the university's pleasure.  Such an approach would ignore what we have described as the ‘substantial commitment’ that universities make to their tenured faculty, and that IAU made to Otero-Burgos by granting him tenure.  Amicus AAUP warns persuasively that affirming the district court's decision would ‘subvert the time-honored consensus as to the nature of tenure, undoing a careful balance between the respective interests of professors and universities,’ effectively ‘convert[ing] tenured professors into at-will employees . . . to the detriment of society and, indeed, of institutions of higher education.’”

Importantly, the court affirmed the relationship among tenure, economic security, and academic freedom, concluding that: “Contrary to the provisions of the Handbook, Otero-Burgos's tenure contract simply could not fulfill its function of safeguarding academic freedom and providing economic security if the severance payment were the only consequence faced by the university for firing him in violation of that contract.”