Is Cooley Law School "Mac'n" it's professors with the perception of tenure but the reality of cleverly disguised year-to-year contracts of employment?  

I have always told people that the term "wrongfully terminated" is a misnomer because a "wrongful" termination does not - as many seem to believe - equate to an unlawful termination.  I never thought the word tenure belonged in the misnomer category.  Maybe it still does not, but after reading the 6th CC decision in the case of Lynn Branham v. Cooley Law School yesterday, I am beginning to question the alleged job protection provided by tenure.

Professor Branham appeared to become disgruntled with Cooley after they requested that the criminal law scholar teach courses in constitutional law and torts.  After initialing agreeing and teaching the courses as requested over the Spring Semester, she subsequently took a leave of absence over the Summer.  Upon returning during the Fall and again being asked to teach constitutional law, she refused and was terminated.  Let the tenure battle begin!

Professor Branham contended that tenure afforded her continuous and/or lifetime employment and that her termination was without just cause (she also made some disability discrimination allegations that were dismissed on summary judgment).  The district court refused to dismiss the case on the breach of contract claim and ultimately ruled that she was entitled to equitable relief.  Unfortunately, that relief was limited, pursuant to her employment contract, to a vote by the faculty on whether or not she should be (have been) terminated.  Apparently, when the Dean dismissed her, he skipped the step relative to a faculty vote.  Curiously, the court determined that a faculty vote on the issue, some three years after she was terminated, would provide her with sufficient relief under her employment agreement.

Of course, at the time this vote occurred, some of the faculty members who were working there when Professor Banham was there were no longer employed at Cooley (one could assume some of the departed faculty members may have voted against termination had the vote took place when it should have three years ago).  Further exacerbating her concern was the fact that new faculty members unfamiliar with her were permitted to vote on her petition against termination.  Faced with this issue and the fact that those that may have liked her three years ago might have grown indifferent towards her and her lawsuit against their employer over the years, it is not surprising that the faculty voted in favor of the termination.  Obviously unhappy with this result, she appealed.

The 6th Circuit Court affirmed the district court decision.  The court determined that the internal dispute mechanism within Cooley's policy was procedural fair, and that regardless of the notion of tenure both generally and as defined by the American Bar Association, the reality was that her employment contract clearly indicated that it was to last twelve months in duration.  While I can certainly understand the rationale for these decisions, I am somewhat perplexed at that fact that she was not at least provided a financial remedy pertaining to the fact that she was terminated before the end of the contract and without the benefit of a faculty vote at that time.  I believe it is clear that Cooley breached it's policy by failing to conduct the faculty vote pre-termination.  It seems reasonable that at minimum she should have been entitled to compensation for the remainder of that twelve month contract based on the breach.

While I cannot speak to Michigan law, it could be similar to Ohio law as it relates to employment handbooks and policies.  In Ohio it it clear that an employment handbook does not create a contract between employer and employee.  No matter how many wonderful guarantees and promises that an employer makes in their handbook, the employee cannot rely on these promises should the employer unilaterally decide against following any of them.  

So once, again we learn that life is not fair and the justice system is not always just.  It only guarantees an end to the dispute, not a fair, just or equitable conclusion.  I guess we have learned something new as well.  The word tenure is not created equal at all institutions.  A caution to professors, check your employment contracts!  You might be surprised to learn that your academic freedom is actually incarcerated...or at least on parole!