Personal Injury Law

Collegiality ? The Death of Tenure?

By Rod Heggy

American society seems to have accepted that one can be ?voted off the island.? But, should that be allowed in relation to government employment that is protected by due process rights?

The purpose of hedging governmental employment with due process rights is to prevent jobs from being used as patronage every time the political winds shift. On a university campus, such rights are often needed to protect free speech.

Indeed, in my law practice, I have been engaged to coach professors through various types of employment disputes without resorting to litigation. I have to admit that a warring faculty is a pretty cutthroat group to be among. It would probably take a sociologist rather than a trial lawyer to explain it, but I have seen it often enough to be impressed by it.

Along came the North Carolina Court of Appeals in Leonard Bernold v Board of Governors of the University of North Carolina, which affirmed the lower court and Board of Governors decision to terminate a professor on the grounds of ?lack of collegiality.?

I cannot imagine a more subjective basis for termination, short of taking a vote among a faculty to determine if a professor was ?liked? or ?disliked.? For this reason, I cannot imagine that such a basis for termination actually comports with the protections one thought would have been enshrined in due process rights. It should be noted that the lack of collegiality charge was dressed up with the allegation that it was disruptive to the faculty and had gone on for three out of five prior employment years. But, ?disruptive? is hardly less subjective. That it had gone on for awhile does not seem to alter the subjective nature of the charge.

There had been a full hearing and assuming there was a transcript, so it seems logical to conclude the court opinion simply left out the ?juicy? tidbits that might make the subjective into the objective, or at least more substantive. But, more likely, this is the direction we are headed with due process rights. We are, in fact, abolishing them by demoting them to the level of mere feelings.

[Hat tip to Professor Ross Runkel.]

Full post as published by Terra Extraneus on October 29, 2009 (boomark / email).