New Amicus Brief Supports Right of Tenure at Canisius College

This week, the AAUP filed an amicus brief in an important legal case concerning the ability of a college to terminate tenured faculty appointments due to the institution’s purported financial difficulties. The AAUP filed its brief on behalf of four individuals who were tenured professors at Canisius College in Buffalo, New York. The college’s faculty handbook expressly incorporated language from the AAUP’s 1940 Statement of Principles on Academic Freedom and Tenure concerning tenure and financial exigency. Among other things, the handbook stated that faculty “should have permanent or continuous tenure, and their service should be terminated only for adequate cause, . . . or under extraordinary circumstances because of financial exigencies,” and that “[t]ermination of a continuous appointment because of financial exigency should be demonstrably bona fide.” In July 2020, the college notified the professors that their employment would be terminated due to expected budget deficits. It is disputed whether a genuine financial exigency existed at the college, but it is not disputed that the college, in imposing the terminations, did not fully consult with the faculty and that it did not allow for adequate input or appeal of the termination decisions. The professors sued the college for breach of contract in New York state court, but the trial judge rejected their suit, ruling that the college was not required to declare financial exigency in order to terminate them and discounting the procedures required by the 1940 Statement. The case is now on appeal in the Fourth Appellate Division of the New York Supreme Court.

The AAUP’s amicus brief argues that when the college granted the professors tenure, it “bound itself as a matter of contract law to not terminating [their] service except under certain narrow circumstances recognized by the longstanding custom and practice of the academic community.” As the brief explains, AAUP statements provide authoritative guidance regarding the content of that custom and practice, and courts routinely recognize that the AAUP is a leading authority on the meaning of tenure and related principles. As the 1940 Statement and several later AAUP statements explain, a tenured faculty appointment may be terminated “under extraordinary circumstances because of a demonstrably bona fide financial exigency.” Substantively, this requires severe financial difficulties that “cannot be alleviated by less drastic means” than the termination of faculty appointments. Procedurally, faculty terminations due to financial exigency require processes that safeguard basic due process rights and that maintain respect for the principle of shared governance by ensuring meaningful participation by the faculty. At a bare minimum, the brief emphasizes, such processes “must feature meaningful involvement by the faculty in assessing whether the claimed financial exigency actually exists and whether it necessitates faculty terminations, as well as faculty participation in questions concerning the implementation of any truly necessary terminations.”

The brief urges the appellate court to recognize that close adherence to these basic substantive and procedural requirements is essential to the preservation of tenure, which in turn safeguards academic freedom and ensures that colleges are able to fulfill their purpose of furthering the common good. Leaving decisions regarding the termination of tenured faculty appointments due to “financial exigency” to the unfettered discretion of college administrations would render tenure an empty promise and would have disastrous consequences for higher education. In the case of Canisius College, the college never adequately demonstrated that its purported financial difficulties met the exacting requirements necessary to justify the plaintiffs’ termination. In addition, the college failed to respect basic procedural requirements before terminating the plaintiffs, including by failing to properly declare and demonstrate the existence of a bona fide financial exigency.

A longer summary of the case with the full brief is available here.