OR: Saxe v. Bd. of Trs. of Metro. State College of Denver, 179 P.3d 67 (Colo. Ct. App. 2007) 

On January 6, 2006 the AAUP filed an amicus brief before the Colorado Court of Appeals in Saxe v. Board of Trustees of Metropolitan State College of Denver.  The case arises from actions taken in 2003 by the college's board of trustees in unilaterally adopting a new faculty handbook.  The plaintiffs, which include five tenured faculty members at the institution and the Colorado Teachers Federation, sought a declaratory judgment seeking a judicial declaration that the 2003 handbook provisions "establish conditions under which employment of tenured faculty members can be terminated or their compensation reduced," thus eviscerating the meaning of tenure in the academic community.  In May 2005 the state trial court granted the college administration’s motion for summary judgment. The court ruled that the administration had not breached the tenure protections afforded by the faculty handbook.  In an amicus brief, the AAUP argued, first, that the faculty handbook changes unilaterally imposed by the college’s board abrogated the rights inhering in tenure during retrenchment, and second, that new handbook provisions governing retrenchment failed to afford due process to affected faculty members.  The AAUP policies implicated in this case include the 1940 Statement of Principles on Academic Freedom and Tenure, various AAUP  statements and committee reports on retrenchment, and AAUP investigating reports on reductions in force. Read the amicus brief (pdf).

Update: On March 8, 2007, the Colorado Court of Appeals reversed the decision of the trial court on most of the important points and sent the case back to the trial court level for further proceedings based on the appeals court’s decision.  The appeals court first noted and endorsed the trial court's ruling that the burden of proving that a faculty member’s dismissal was proper must remain with the president, rather than the faculty member being responsible for showing that the dismissal was improper.  Second, the appeals court considered the breach of contract claim, and concluded that the Board of Trustees could not modify on its own any rights in the previous handbook that were both substantive and vested.  Invoking both AAUP policy and the expert testimony of Matthew Finkin, a former General Counsel for the AAUP and former Chair of Committee A, the court determined that tenured faculty members’ rights to priority and relocation during retrenchment were substantive, but that most of the changes made to the dismissal hearing process in the 2003 handbook were procedural.  The appeals court therefore remanded to the trial court to determine whether the priority and relocation provisions of the older handbook were vested rights, in which case the Board’s unilateral changes to them would have been improper.  The appeals court directed the trial court to balance two potentially competing public interests as it made its determination: the right to academic freedom and the need for flexible staffing decisions.  

The appeals court also agreed with the tenured professors that even though none of them had been subject to employment decisions as a result of the new handbook, they could still bring due process claims related to the new provisions.  The court held: “Here, Professors already work under the employment contract.  They entered into the contract in reliance upon the terms stated in the contract and face substantial uncertainty as to the terms of the contract.”  On the specific due process violations, the appeals court agreed with the professors that the provision in the 2003 handbook giving the president final authority to dismiss a tenured faculty member was a violation of the professors’ right to procedural due process, because the president could both initiate and resolve a dismissal with no right to an appeal of the final decision.  The court further ordered that any “simple unelaborated statement” of the decision of the dismissal hearing officer (a position that replaced the previous hearing committee) would be sufficient only if the officer “issue[d] a decision stating, at a minimum, the reasons for that decision and the evidence relied upon.”  Read the opinion. (.pdf)

On June 1, 2009, the trial court found that the Board of Trustees’ unilateral changes to the faculty handbook constituted retrospective changes of vested rights and were therefore unconstitutional under the Colorado constitution.  In deciding whether the rights in the 1994 handbook were vested, the court used a three-factor test: (1) whether the public interest was advanced or retarded by the modifications; (2) whether modification of the rights as embodied in the 1994 handbook gave effect to or defeated the bona fide intentions or reasonable expectations of the affected individuals; and (3) whether the 2003 handbook “surprised” individuals who had relied on contrary provisions of the 1994 handbook.

The court, relying heavily on Matthew Finkin’s expert testimony, reached several important findings. (.pdf) The court first concluded that the public interest was damaged by the modifications.  As the court stated, “the public interest is advanced more by tenure systems that favor academic freedom over tenure systems that favor flexibility in hiring and firing.  By its very nature, tenure promotes a system in which academic freedom is protected.  Further . . . inherent in a tenure system is inflexibility in firing decisions; if the College wanted a more flexible system of employment, the College should not have utilized a tenure-based system.  This weighs the public interest strongly in favor of academic freedom.  The Court recognizes that the public interest is served by a public college with flexible hiring and firing policies.  However, such policies are in direct conflict with the fundamental tenets of a tenure system.  Indeed, a tenure system that allows flexibility in firing is oxymoronic.”

On the second point, although there was no evidence of the intentions of the affected individuals, the court determined that it is reasonable to consider industry-wide standards and that the industry-wide expectations are that tenure will be abrogated only as a matter of last resort.  This was the case even though the college did not actually adopt AAUP policies.  The court reasoned that “evidence of industry standards may be used to demonstrate the parties’ intent. . . .  Mr. Finkin testified that the core notion of tenure is that the tenured faculty member will be terminated only as a last resort after all other avenues of reductions in force are exhausted.  Mr. Finkin testified that questions of reductions in force are central to the notion of tenure, and tenured faculty members should be retained in preference to probationary appointees.  Mr. Finkin testified that if termination is unavoidable, relocation, if possible, is an inherent expectation.  Finally, Mr. Finkin concluded by testifying that the 2003 Handbook provisions regarding priority and relocation did not give effect to the reasonable expectations of tenured faculty.”  Because no other evidence regarding the plaintiffs’ expectations was produced by the plaintiffs or the defendants, the court concluded that the 1994 handbook, not the revised 2003 handbook, gave effect to the reasonable expectations of the faculty members.

Finally, although there was no direct evidence that the faculty members were surprised by the changes in the 2003 handbook, the court concluded that there was enough circumstantial evidence to suggest surprise.  Relying in part on the expert testimony regarding the reasonable expectations of tenured professors, the court inferred that the plaintiffs must have been surprised by the 2003 handbook changes.

The changes in the 2003 Handbook pertaining to priority and relocation were therefore “retrospective changes of vested rights” and were invalid under the Colorado Constitution.