The Fifth Amendment to the U.S. Constitution states, as a command to the federal government, that no person shall be “deprived of life, liberty, or property, without due process of law.” Similarly, Section 1 of the Fourteenth Amendment extends the same principles of due process to state governments. Affording individuals or organizations “due process” basically means to conduct legal proceedings with fairness in both content and procedure. It is the Fourteenth Amendment and its connection to state governments that connects the due process clause to the work of public colleges and universities. In private colleges and universities, the principles of due process are usually governed by standards of good faith in adherence to provisions of contracts and handbooks. In light of the importance of due process protections for faculty and staff members who may be facing the loss of their jobs, this entry reviews the key legal dimensions of this topic.
Faculty and staff dismissals in higher education can be initiated by a variety of events. For example, dismissals for cause may be based on academics, such as the denial of tenure or being fired for academic misconduct in teaching or research. Dismissals may also be based on disciplinary misconduct, including such activities as embezzlement, misuse of institutional or grant-related funds, insubordination, neglect of duty, unprofessional conduct, immorality, or other good cause. Finally, dismissals may be caused not by the actions or inactions of faculty members and staff persons themselves but by the necessity of layoffs in times of financial hardship; this is commonly known as a reduction in force.
In all cases involving the dismissal of faculty members and staff persons, due process is a must. Due process at dismissal requires officials to employ fair and appropriate procedures when restricting the liberty or property of employees. While the particulars may vary depending on institutions and their policies, procedures typically include notice of the charges against the persons or statements of reasons for their dismissals, notification of the decision(s) to be made, and opportunities for faculty members or staff persons to be heard and to appeal resulting adverse employment actions.
Elements of Due Process
In due process analyses involving public institutions of higher education, two important questions apply. The first question considers whether the Fourteenth Amendment’s Due Process Clause applies, while the second addresses the level or amount of due process required.
Liberty and Property Interests
In determining whether the Due Process Clause applies, the question is whether liberty or property interests are implicated when institutional decision makers terminate contracts. In cases involving dismissal, both liberty and property should be involved. In higher education, traditional liberty interests include rights to speech, religion, assembly, and privacy. Yet much of the discussion of liberty interests in due process analyses involves the interest in persons’ good names, reputations, honor, and integrity. For example, stigmatizing statements made by college and university officials about faculty members may damage their reputations enough to implicate liberty interests. If the damages were to harm the faculty members’ ability to obtain employment or other lucrative opportunities, then the injured parties may have successful due process claims.
Property interests for faculty and staff can also be found in employment contracts. Moreover, when contracts are terminated, property rights are implicated, because employees who are in the middle of employment contracts have legitimate claims as to the salary and benefits attached to their jobs. Therefore, when college or university officials terminate contracts, they would, indeed, implicate property rights.
The Supreme Court’s analysis in Board of Regents of State College v. Roth (1972) offers a fine explanation of liberty and property. In Roth, the Court held that university officials did not violate the due process rights of a nontenured faculty member when they chose not to renew his contract after it expired. Concerning the liberty interests at stake in Roth, the Court explained that because in not rehiring the faculty member they did not make any charges against him that might have seriously damaged his standing and associations in his community, his good name, reputation, honor, and integrity were not at stake. The Court added that the dismissal did not impose a stigma on the faculty member that foreclosed his freedom to take advantage of other employment opportunities.
With respect to the property interest, the Supreme Court observed that because the faculty member’s contract had expired, leaving him no legitimate entitlement to property, the actions of university officials did not impair his reputation or his ability to obtain employment elsewhere. In contrast, in Perry v. Sindermann (1972), the Court affirmed that a faculty member who had been employed for 10 years on successive one-year contracts had a legitimate property interest and was denied due process when his contract was not renewed without an opportunity for a hearing. According to the Court, having such a written contract that included an explicit tenure provision was clearly evidence of a formal understanding in support of the faculty member’s claim of entitlement to continued employment unless officials could demonstrate sufficient cause to dismiss him from his position. The Court also pointed out that the absence of such an explicit provision in an employment contract may not always foreclose the possibility that faculty members have property interests in their positions. In this context, statements made by administrators, whether in writing or in oral conversation, for example, even outside the explicit terms of contract, may be enough to create a property right.
The Amount of Due Process
The second due process question to be asked considers the amount of process that is due in the event that the actions of university decision makers implicate the due process rights of faculty members. The level or amount of procedural due process afforded depends directly on the severity of the deprivation or loss. For example, the nonrenewal of a contract such as in Roth requires less formal process than the termination of employment, because the loss of liberty and property would be noticeably higher in cases of dismissal, especially if a firing were for some wrongdoing such as academic misconduct or sexual harassment of a student. Traditionally, courts distinguish between due process for discipline, which is formal, and due process for academic decisions, which is more often less formal and in which courts grant deferential treatment to decision makers in higher education under the doctrine of academic abstention. However, when contract termination is involved, due process generally tends to be detailed and formal.
To answer the question of how much process is due, courts engage in a balancing of rights. On one hand, courts examine the interests of the faculty members or staff affected by allegedly adverse employment actions, because the interests impacted in dismissals are more substantial than those involving the nonrenewal of contracts. On the other hand, courts also look at the interests of colleges or universities. In an example of a denial of tenure, institutional interests may include academic integrity, academic standards, and deference to the expertise of faculty committees that offered negative recommendations and reviews of the affected faculty member. As to dismissals for disciplinary infractions, institutional interests may include safety of students and staff, appropriate public responses, and consistency of policy application from one case to the next.
In this overall balance, it is important to consider the risk of wrongful deprivation of due process rights of those whose employment is at stake. For instance, if university officials were to fail to afford procedural due process and then erroneously terminate the employment of a faculty member, they will undoubtedly have violated the person’s rights to due process. The provision of procedural due process, which ensures that all sides of a story are heard, minimizes this risk. In cases of employment termination, due process usually entails notice of the reasons for the dismissals and meaningful opportunities to be heard in the presence of fair and impartial thirdparty decision makers. The hearings are most often formal, allowing faculty members or staff persons the opportunity to present witnesses and evidence to fact-finding committees or appeals panels before considering whether to pursue judicial relief.
Alternatives to Termination
Employment termination is, of course, not the only option available to college and university officials. Usually outlined in specific institutional policies, disciplinary options available to officials include written reprimands, restitution, reassignment of duties, denials of merit raises, suspension without pay and/or benefits, and demotion in rank or salary. Sometimes, institutional policies adopt systems of “progressive discipline” where, barring extreme or egregious incidents, a single instance of misconduct usually results in a written reprimand, and penalties increase only on successive infractions involving the same employee. These policies might also include definitions or examples of misconduct that could result in dismissals. Policies might list activities such as neglect of duty, incompetence, unprofessional conduct, insubordination, and immorality as grounds for contract termination. These grounds should be sufficiently defined so as to guide conduct of faculty members, staff, and administrators. Moreover, policies should include a general phrase such as “other good or just cause,” because it is all but impossible to identify all forms of inappropriate employee behavior in advance.
Courts most often grant college and university officials deference in the administration of their policies as long as the definitions are not vague or overbroad and the application of policies is not arbitrary, capricious, reckless, or in bad faith. Examples of terminable conduct on the part of faculty members and staff include a lack of collegiality, harassment, refusal to follow reasonable rules and regulations, intellectual dishonesty, concealed and exploited conflicts of interest, neglect of job responsibilities, and lack of competency in teaching and research (Beckham, 2005).
Due process is important not only once decisions to terminate employment are made but also well in advance of such judgments. To this end, dismissals for repeated failures to follow rules and regulations may not be warranted if faculty members or staff persons never received notice of their original failures or opportunities to correct their behaviors. This example assumes that each failure was not extreme in and of itself, but the collection of misdeeds was substantial enough to warrant dismissal. Such a situation might arise; for example, a faculty member’s failure to submit grading materials at the end of a semester may not be a terminable offense, but not having done so after several semesters of requests may be sufficient to warrant dismissal. On the other hand, a single instance of sexually harassing conduct with a student could be sufficient for dismissal without more evidence justifying, if possible, an individual’s behavior. In any event, due process demands that college and university officials offer employees notice of alleged rule violations and, where possible, opportunities to correct their behavior.
Another situation where advance notice of rules violations or employment deficiencies is important for due process is annual reviews of employee performances. This is important because college and university officials typically employ some practice of annual review for faculty members and staff such as those used during probationary periods for individuals who are on the tenure track. Often, faculty members on probationary tenure track appointments are involved in mentoring programs and have senior colleagues visit their classrooms to give feedback on job performance. In addition, annual reviews and merit reviews ordinarily involve committees of senior faculty who review work performance. Without a process in place to guide such performance, such as annual suggestions for improvement of teaching, research, or service, the ability of university officials to defend the denial of tenure several years later is greatly diminished. Negative summative evaluation without decent, detailed formative evaluation could be met with successful legal challenges if officials render adverse tenure decisions at a later date.
Dismissals Not for Cause
Not all contract dismissals are targeted to misconduct on the part of faculty members and staff. In some cases, dismissal is necessary due to financial exigency, loss of program funding, reconfigurations, or other program cuts. Under these circumstances, due process is still important and necessary, because property interests are still implicated even if liberty interests are not. Aware of these principles, college and university officials should draft institutional policies to afford due process to those who may be affected by such reductions in force. Of course, these policies should also be kept up-todate by periodic reviews. It is important that college and university officials apply financial exigency policies and other reduction-in-force provisions closely. Finally, readers should consult their institutional policies for the due process provisions contained therein regardless of whether they are dealing with dismissals for cause or not for cause.
Patrick D. Pauken
- Beckham, J. (2005). Faculty. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 89–130). Dayton, OH: Education Law Association.
- Legal Information Institute. (n.d.). Due process. Retrieved from http://topics.law.cornell.edu/wex/due_process
- Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985).
- Board of Regents of State College v. Roth, 408 U.S. 564 (1972).
- Perry v. Sindermann, 408 U.S. 593 (1972).