The news today that the Kansas Board of Regents has voted to impose a temporary policy allowing any employee – including one with tenure – to be “suspended, dismissed or terminated from employment by their respective university” is chilling.
We can expect to see more of the same as colleges and universities across the country, both public and private, struggle to address the economic burden of the COVID-19 pandemic and its effect on enrollment and tuition revenue.
But can they do that? Can universities dismiss even tenured faculty? And what recourse do faculty members have when they get notice of an action like the one the Kansas Board of Regents took this week?
For faculty at public institutions, the Supreme Court has said that tenured faculty members have a property interest in their employment. Non-tenured faculty may also be able to establish their property interest if they are able to show a “mutual understanding” – between them and their institution — that supports their claim that they are entitled to employment. This may be a written contract, or it may be an understanding implied in statements or actions taken by the university. Of course, proving a property interest does not win a professor or instructor her job back – but it would compel university officials to grant a hearing and an opportunity for the faculty member to challenge the basis for her termination.
Institutions, whether public or private, may not use the pretext of economic duress to eliminate faculty because of their age or disability, race or color, gender or religion, or veteran status. The recognized economic crisis cannot be used to disguise illegal discrimination and reshape a faculty for racist or sexist or retaliatory reasons. The best way to learn whether the terminations are discriminatory is simply to get a list of all who have been terminated and review whether the terminations disproportionately affect one protected class or another. Is everyone being terminated old? Or are they people of color? Muslims? Women? Disabled? Veterans? Does the list of those eliminated reflect institutional priorities (e.g., Engineering stays; Classics goes), or does it reflect discrimination in intent or effect? Under federal law – and the law of most states — discrimination is illegal and faculty terminations, even in an economic crisis, that have a disproportionate effect on one protected group or another, are open to challenge and may be overturned. (The EEOC’s advice to employers planning mass layoffs can be found here.)
Most private colleges and universities are subject to the WARN Act (29 U.S.C. § 2101 et seq.). This requires employers to give 60-day notice before mass layoffs of employees due to financial hardship. Your college or university must tell you whether the layoff is permanent or temporary (less than six months). It must give you the date of the layoff and when you will be separated. It must explain whether you have the right to bump into a subordinate position because of your seniority. And it must give you the name and contact information for a person at the institution who can provide additional information.
News of the Kansas Board of Regents’ decision is decidedly unsettling. Faculty members uncertain about their rights might find it helpful to read some of the protections federal law may afford them and consult an attorney.