The United States Court of Appeals for the Sixth Circuit has ruled against professor Lynn Branham who challenged her firing as violating her guarantee of tenure. The case, Branham v. Thomas M. Cooley Law Sch., No. 10-2305 (August 6, 2012) 2012 U.S. App. LEXIS 16266, contains some interesting language on the tenure and when it is more rhetorical and real. Ironically, Branham has relocated to the faculty of St. Louis Law School — just time for its dean to resign over the “disrespect” shown her by the University president. Cooley Law School has been getting a fair level of trial practice recently — as a defendant, plaintiff, or witness (here and here and here). That leaves the impression of a type of perpetual legal machine, producing lawyers who produce lawsuits in an endless loop of litigation.

Branham sued Cooley for breach of contract, intentional infliction of emotional distress and violating the Americans with Disabilities Act. Here are the facts as found by the Court:

Branham was a tenured law professor at Cooley at the time of her termination. She began teaching there in 1983, and primarily taught courses in criminal law. She suffered from seizures on occasion. She signed an employment contract dated December 21, 2005, for a twelve-month employment period beginning January 1, 2006. For the spring semester of 2006, Branham was assigned to teach classes in constitutional law and torts. Branham told Cooley Dean Donald LeDuc that she did not want to teach either class, citing health reasons and her preference for, and greater experience with, teaching criminal law-related courses. Despite her complaint to LeDuc, she taught the courses she was assigned through the spring semester of 2006. During the summer of 2006, Branham sold her house in Michigan, moved to Champaign, Illinois, and requested and was granted a leave of absence from Cooley. Though she was assigned to teach constitutional law after her return from leave, she refused to do so, instead asking to be assigned a criminal law class.

LeDuc dismissed Branham from her position in December 2006. Her employment contract required a process by which his decision to dismiss Branham would be voted upon by the Cooley faculty. That process was not initially followed—the Cooley faculty did not vote on her dismissal.

Branham insisted that she was fired in retaliation for opposing the school’s hiring of the husband of a board member. The hiring of the husband of board member Jane Markey, a judge on the Michigan Court of Appeals, produced a rift in the school with faculty contesting the husband’s qualification and was the result of a conflict of interest, according to her complaint.

It is surprising to see the failure to comply with the faculty vote by the Dean of a law school. That decision led to a four-day trial and a decision in favor of Branham that she was denied her contractual rights of a faculty vote. The district court ordered the law school to comply with its own rules. I am not sure why the school wanted to litigate such a question and did not comply with the rules from the outset.

The faculty was finally given the case under court order. “The faculty concurred with LeDuc’s decision to dismiss Branham, and the Board of Directors unanimously upheld the faculty’s decision. The district court then ruled that Cooley had complied with the process due Branham under her contract and that the process complied with Michigan law. The district court entered final judgment against Branham.” However, Barnham was not allowed to call witnesses and offer additional evidence before the faculty ruled. She also objected that faculty were allowed to vote by proxy (a highly unusual practice in such matters) and that some voting members were not actually faculty members at the time.

At issue on appeal is the meaning of “tenure.” That term in law schools generally means life time employment subject to terminations for serious wrongdoing or misconduct. However, the Court noted that in a legal conflict the term must be defined by the underlying contract. Such a review shows a disconnect with provisions of the contract.

Branham noted that Cooley’s Policy 201 is expressly incorporated in her employment contract and that policy as well as the American Bar Association’s Appendix 1 to its Standards and Rules of Procedure for Approval of Law Schools that reaffirm life time appointments. Appendix 1 to the American Bar Association’s Standards, titled Statements on Academic Freedom and Tenure, states that “teachers . . . should have permanent or continuous tenure, and their services should be terminated only for adequate cause.” However, American Bar Association Standard 405 notes that Appendix 1 “is an example [of a tenure policy] but is not obligatory.”

For its part, Policy 201 states:

No tenured faculty member shall be dismissed . . . prior to the expiration of the term of his appointment, except for good cause shown and in accordance with the following procedure:

(a) Notice in writing by the dean of the reasons and grounds for dismissal shall be served on the faculty member at least fourteen days prior to a meeting of the faculty conference at which the removal is to be considered, as provided in subparagraph (b) herein.

(b) The Dean shall thereafter cause a meeting of the faculty conference to be convened for the purpose of considering removal of the faculty member.

(c) If the faculty conference shall concur in removal, the faculty member shall be removed, subject to appeal to the academic committee of the Board of Directors.

The Court found that the contract and the cited sources does not actually guarantee tenure in the sense of permanent employment:

Branham’s contract, including Policy 201, which refers to the concept of tenure but does not go so far as to define tenure as a right to continuous employment, does not create an obligation of continuous employment: her contract expressly limits its term to a single year. While Branham may have had “tenure” in the sense that she had academic freedom, and that she and Cooley generally expected that they would enter a new employment contract in subsequent years, nothing in her employment contract, or the documents incorporated by reference therein, provides for a term of employment greater than one year. The district court did not err in concluding that Branham is due only the employment protection and process specified in her contract.

The record does indicate that the administration made a perfect mess out of this process. I have reservations about the due process shown Branham. I take no position on the merits, of course. However, from the outset, the process seemed to cut corners on faculty rights.

Branham is considering whether to take further action.

Here is Professor Branham’s bio as a visiting law professor at St. Louis:

Lynn Branham is a member of the American Bar Association’s Criminal Justice Section Council, chaired the ABA’s Prison Litigation Reform Act Task Force, and chaired the ABA’s Subcommittee on Effective Prison Oversight, which developed recommendations on the external oversight of correctional facilities approved by the ABA in 2008. She represented the ABA for eleven of her thirteen years as a member of the Commission on Accreditation for Corrections and received the American Correctional Association’s Walter Dunbar Award for her efforts to improve the ACA accreditation process. Professor Branham has provided training to federal appellate, district, and magistrate judges about the PLRA at nineteen workshops sponsored by the Federal Judicial Center. Her many publications include a casebook on correctional and sentencing law and policy, a study for the American Bar Association on the use of incarceration, and a technical-assistance manual for courts, correctional officials, and attorneys general on pro se inmate litigation. Professor Branham received her undergraduate degree from the University of Illinois and her J.D. from the University of Chicago Law School.

Source: National Law Journal