Lawsuits – Not the Best Way Forward at First

Many of my potential clients indicate that they want to apply for tenure and/or promotion, get denied, and then sue.  That is likely not a good way forward for the vast majority of faculty.  Why not?

Most importantly, if your goal is to obtain tenure and a promotion, there are very strict university rules for how to accomplish that.  These include publishing the right amount of research findings in the “right” journals, earning citations, getting sufficiently acceptable student feedback, teaching a certain number of classes of a sufficient level of difficulty, serving on committees, and rendering service to the local community.

Photo by Hansjörg Keller on Unsplash 

However, even if you have met the professional expectations of you, other issues such as the current economic environment for educational institutions may play a role.  Even though an institution has not officially declared a “financial exigency” - which is a long and relatively drastic step to take - the institution might still have legitimate reasons for not taking certain economic decisions now.  Tenure and promotion may well fall under that umbrella. Internal rules govern the issue at first. You should exhaust your administrative remedies before potentially filing suit.

Of course, other things may weigh in your favor.  Universities must have very specific reasons listed in faculty handbooks and elsewhere to be able to reject faculty who seek promotion and tenure.  Regular employment attorneys often do not understand this.  You should seek out specialized faculty counsel for your dispute.

It may seem like suing is a way of setting boundaries and obtaining what you want by indicating, at the outset, where you are coming from.  But not only do you run the “up or out” risk if applying, you also risk biting off more than you can chew with a lawsuit if you don't get what you want.  The university will, to be sure, notify and use its general counsel.  It will also typically hire an external law firm with multiple lawyers, paralegals, and secretaries.  To successfully counter that is going to cost you very significant amounts of money and result in a significant risk of a loss.  Judges and juries often simply do not understand tenure and promotion if you case should go to trial.  In today’s environment, they may just consider you to be a disgruntled employee.  Your case may also not be as strong as you think.  Even if you do get what you want by filing suit, you may be ill liked and disfavored in future internal contexts.  All this can be very traumatic for a very long time.

Instead, using a specialist attorney who can help you get to the result you want, but using internal procedures, negotiations, and sufficient pressure on university decision-makers can much better lead to the results you want.  Constitutional law applies. By exhausting internal routes before potentially filing suit, you will spend much less money, suffer less stress, and be more likely to continue to have acceptable working relations with your department and the greater university after your case is over.

A good tenure lawyer or faculty lawyer can help you evaluate your case from a neutral point of view.  She or he can guide you towards a win over weeks or months.  This is typically well worth it even if, at first, it seems like a trial would be better.  Again, it very likely is not and will take an equal, if not longer, amount of time. Regular employment attorneys are often not sufficiently informed in this highly specialized area of the law. The risk is yours.

Secure your faculty rights for the longer term in the best way possible!  Talk to an expert faculty attorney now.  Myanna has more than twenty years of experience in academia, has practiced law for seventeen years, and has successfully represented college and university faculty for several years.