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A Study of Tenure Denial Litigation Cases in Which Higher Education Institutions Did Not Wholly Prevail

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A Study of Tenure Denial Litigation Cases in Which Higher Education Institutions Did Not Wholly Prevail University of Tennessee, Knoxville TRACE: Tennessee Research and Creative Exchange Doctoral Dissertations Graduate School 5-2012 Judicial Influence on Academic Decision-Making: A Study of Tenure Denial Litigation Cases in which Higher Education Institutions Did Not Wholly Prevail Julee Tate Flood University of Tennessee - Knoxville, [email protected] Follow this and additional works at: https://trace.tennessee.edu/utk_graddiss Part of the Education Law Commons Recommended Citation Flood, Julee Tate, "Judicial Influence on Academic Decision-Making: A Study of enurT e Denial Litigation Cases in which Higher Education Institutions Did Not Wholly Prevail. " PhD diss., University of Tennessee, 2012. https://trace.tennessee.edu/utk_graddiss/1293 This Dissertation is brought to you for free and open access by the Graduate School at TRACE: Tennessee Research and Creative Exchange. It has been accepted for inclusion in Doctoral Dissertations by an authorized administrator of TRACE: Tennessee Research and Creative Exchange. For more information, please contact [email protected]. To the Graduate Council: I am submitting herewith a dissertation written by Julee Tate Flood entitled "Judicial Influence on Academic Decision-Making: A Study of Tenure Denial Litigation Cases in which Higher Education Institutions Did Not Wholly Prevail." I have examined the final electronic copy of this dissertation for form and content and recommend that it be accepted in partial fulfillment of the requirements for the degree of Doctor of Philosophy, with a major in Higher Education Administration. E. Grady Bogue, Major Professor We have read this dissertation and recommend its acceptance: Joan M. Heminway, Jimmy G. Cheek, Terry L. Leap Accepted for the Council: Carolyn R. Hodges Vice Provost and Dean of the Graduate School (Original signatures are on file with official studentecor r ds.) Judicial Influence on Academic Decision-Making: A Study of Tenure Denial Litigation Cases in which Higher Education Institutions Did Not Wholly Prevail A Dissertation Presented for the Doctor of Philosophy Degree The University of Tennessee, Knoxville Julee Tate Flood May 2012 ii Copyright © 2012 by Julee Tate Flood All rights reserved. iii DEDICATION This dissertation is dedicated to my mother, Dorothy Mills Tate, who taught second grade for over 40 years in the public school system of Florida, nurtured generations of children and families, and exemplified that teaching and learning are privileges to be pursued with excellence. iv ACKNOWLEDGMENTS Many deserve thanks for their contributions to this interdisciplinary dissertation and to my doctoral education experience. I begin by thanking Dr. E. Grady Bogue, who serves as the Chair of my Supervisory Committee. Dr. Bogue has left an indelible influence on me through his teaching and mentoring. It is a privilege to have studied with Dr. Bogue, and I hope to continue his legacy of stellar scholarship and commitment to the students of higher education. I also appreciate the contributions of the other members of the committee. Chancellor Jimmy G. Cheek, who serves as both Chancellor and a faculty member in the Department of Educational Leadership and Policy Studies, has exemplified boldness and vision in institutional leadership. Distinguished Professor of Law Joan M. Heminway—a renowned expert in business law and a campus leader— has challenged me to think critically about the legal and policy issues raised by this study. I especially appreciate her encouragement to delve more deeply into issues touched on in this study, as well as her support for my interdisciplinary professional goals. Finally, Dr. Terry L. Leap, who sits at the helm of the Department of Management, has inspired my vision for interdisciplinary work. His scholarship on tenure, employment law, deviant organizational behavior, and white collar crime has demonstrated the interconnectedness between departments, studies, and venues. To learn from such accomplished scholars is humbling; I will endeavor to reflect their many lessons as I move forward. I would also like to thank all the faculty and staff of the Department of Educational Leadership and Policy Studies who served during my doctoral program, some who remain in their positions and others whose careers have taken them elsewhere. In particular, I thank Dr. Joe Johnson, President Emeritus and an affiliate faculty member, whose leadership wisdom v and “do what’s right” lessons arise out of his exceptional career of service to higher education. I also thank Dr. Norma M. Mertz for furthering my understanding of theoretical frameworks, inviting me to serve on faculty search committees, and being an inspiration; Dr. Sonja McNeely for patiently teaching about the research process and how to blend disparate parts into a seamless whole; and Dr. Margaret W. Sallee for providing thought-provoking courses and inviting me to co-author my first published article in higher education scholarship. And I especially appreciate Ms. Karen Crumley and Ms. Constance Honorable, who help bring to fruition the many purposes of the department and Higher Education Administration program. I have learned from you all. I also value each and every one of my classmates and peers who have deeply enriched this experience through friendship, wise counsel, and stimulating discussions. I offer special thanks to Shay, Crystal, Colber, and Karen for being true comrades and lifelong friends. To my extended family, I offer heartfelt thanks for your support. Your words of encouragement and computer expertise have made this project far more bearable. And to Tim—my husband, dearest friend, and cheerleader—words insufficiently express my gratitude for your love and devotion. vi ABSTRACT This study examined judicial influence on academic decision-making by identifying factors in the tenure process that have induced courts to rule against higher education institutions in litigation stemming from tenure denials. Many interdisciplinary legal and educational studies have been conducted pertaining to tenure related litigation using qualitative, quantitative, and legal research methodologies. Empirical studies have been directed at varied issues, such as the peer review process; specific claims, such as discrimination; types of institutions; or time periods. Much of this scholarship has noted the importance of judicial deference to decisions made in academia. Unique to this study was the application of dual conceptual frameworks of shared governance and judicial deference as to decisions made in the academic tenure denial process. The study was also unique in that it was limited to tenure litigation cases in which institutions did not wholly prevail. Included in the study were published judicial opinions from the period of 1972 to 2011 from the U.S. Supreme Court, U.S. Courts of Appeal, and states’ highest appellate courts. The study sought to determine first, the policies and procedures employed in public and private colleges and universities that have contributed to federal and state appellate courts’ unfavorable rulings against institutions in tenure denial litigation; second, the remedies granted to faculty plaintiffs who prevail in tenure denial litigation; and finally, the steps that colleges and universities can take to minimize and mitigate tenure denial litigation. vii Complementary legal and qualitative research methods yielded evidence that courts were highly deferential to academic decision-making and that courts ruled against institutions’ tenure decisions when the decisions were contrary to law. Courts granted legal and equitable remedies when institutions infringed upon a professor’s rights, discriminated against a professor, or breached a contract with a professor. Based on the analysis of case law, this study proposed steps that institutions could take to avoid or mitigate tenure denial litigation. By gaining a better understanding of potential flaws in the tenure process and why courts have substituted judicial decisions for those of institutional decisions, this study contributes to our understanding as to how to decrease the influence of the courts on decisions made in academia. viii TABLE OF CONTENTS DEDICATION .............................................................................................................. iii ACKNOWLEDGMENTS .............................................................................................. iv ABSTRACT ................................................................................................................... vi LIST OF TABLES ....................................................................................................... xiv CHAPTER 1 INTRODUCTION .................................................................................... 1 Background and Context ...................................................................................... 1 Statement of the Problem ..................................................................................... 6 Purpose of the Study ............................................................................................ 8 Research Questions .............................................................................................. 9 Conceptual Framework ........................................................................................ 9 Governance Theory .................................................................................. 9 Doctrine of Judicial Deference ..............................................................
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