Introduction
Colleges and universities, like other employers, typically have in place policies that govern the employment relationship with their faculty. Many such policies—policies against employee misconduct or policies on accommodations for persons with disabilities—are comparable to what employees might encounter outside of academia. Most higher education institutions also have in place policies that are more unique to academia, such as policies establishing shared governance bodies, affirming academic freedom as a core value, or outlining procedures on the granting and revocation of faculty tenure. These faculty policies may be aggregated in a faculty handbook, published separately on the institution’s web site, or, in the case of public institutions, adopted through legislative enactment. It is often unclear, however, whether college or university commitments that have been adopted and published in such policy documents—referred to here for ease of reference as “faculty handbooks”—are contractually binding. The enforceability of faculty handbook policies is also central to establishing a faculty member’s property interest in continued employment for purposes of bringing a constitutional claim against a public employer.
The security of college and university faculty employment is more tenuous than it used to be. Although this is particularly true for untenured faculty, tenured faculty are not immune from employment insecurity. Tenure is not a lifetime guarantee of employment, and recent state measures aimed at weakening tenure have raised questions regarding the future of tenure in higher education. For example, Wisconsin stripped tenure protections from its state statutes in 2015, vesting in the university system’s regents authority over tenure policies, and broadening the grounds on which tenure could be revoked. In 2021, the University System of Georgia’s Board of Regents approved changes to the system’s post-tenure review policy, requiring tenured faculty to undergo a performance review every five years, mandating a “performance improvement plan” in response to unfavorable reviews, and requiring universities to “take appropriate remedial action” if the faculty member has made insufficient progress on the improvement plan. Florida’s new post-tenure review policy appears to go further to politicize the post-tenure review process, and even more extreme bills have been proposed in other states. Financial constraints precipitated by the COVID-19 pandemic prompted a number of institutions, including the University of Akron and the University of Kansas systems, to abrogate tenure.
Perhaps even more significant than these recent, politicized events is the shift in the makeup of higher education faculty that has occurred in the United States—from a majority of faculty on the tenure track, with a small minority of non-tenure-track faculty in 1970, to the reverse situation today, with tenured and tenure-track faculty in the minority. This shift has diminished the practical significance of tenure and weakened shared governance in colleges and universities.
These recent developments—state laws and regulations aimed at weakening tenure, the financial strain on institutions brought on by the COVID-19 pandemic, and fact that only a minority of college and university faculty are currently on the tenure track—have highlighted the importance of having in place reasonable and enforceable policies governing faculty termination. But the law on the enforceability of faculty handbook provisions (and other institutional policies), like the law on employee handbooks generally, can be confusing and often turns on the specific facts of the case at hand.
Using the lens of college and university faculty termination policies, this Article seeks to make sense of the law governing the enforceability of employee handbooks. Employing case examples from the higher education context, specifically faculty termination cases, this Article identifies distinct features of the employment relationship between faculty and higher education institutions. Unlike other employment relationships, faculty contracts, which tend not to be at will, uniquely illustrate why unilateral contract doctrine is unsuited to determining the enforceability of handbook policies. This Article supports an approach to enforcing handbook commitments that is less strictly grounded in contract doctrine. In the higher education context, such an approach would treat handbook commitments as contractually enforceable but afford colleges and universities flexibility to amend handbook policies so long as modifications are reasonable in light of academic custom, made with reasonable advance notice, and adopted consistent with principles of shared governance. Part I of this Article summarizes the differing approaches U.S. courts have taken to enforcing employment handbook policies. Part II addresses the distinct features of faculty contracts and makes the case for why adopting the approach of Toussaint v. Blue Cross & Blue Shield of Michigan and Bankey v. Storer Broadcasting Co. (In re Certified Question) makes sense in the context of enforcing college and university policies governing faculty termination.