Contract Renewal When the Funds Aren't There: What Can You Do?
December 24, 2003
May a college legally refuse, for budgetary reasons, to renew the contracts of non-tenured faculty? The New Mexico Court of Appeals has held that the College of Santa Fe could do so without breaching faculty contracts. Bauer v. College of Santa Fe, 78 P.3rd 76 (N.M. 2003).
Two non-tenured professors in the Contemporary Music Program had taught for two academic years at the College. One had a year and the other two years of credit toward tenure; neither had any performance problems that would have led to dismissal under ordinary circumstances. Faced with an operating deficit of $2.2 million, the new president, however, decided to eliminate four faculty positions. After attrition took care of two positions, the president timely notified the two non-tenured professors that their jobs were being abolished at the end of the current academic year. The Contemporary Music Program in which they taught had the highest cost per major and the lowest number of full-time students.
The Faculty Handbook for the College stated that “[f]aculty members will be appointed or reappointed subject to their professional qualifications, as evidenced by … demonstrated performance at the College.” Relying on that provision, the two professors who were denied tenure argued that the Handbook required renewing their contracts because they had the required “professional qualifications.” The court, however, found that the handbook provision did not set limits on non-renewal; it set only standards faculty must meet for appointment or re-appointment. There was no breach of contract, said the court, because the College simply refused to renew the contractual arrangements with the two professors.
In fact, the handbook permitted denial of tenure or termination of either a tenured or non-tenured faculty member before the end of his or her appointment because of financial exigency. Thus, according to the court the argument of the two professors was unreasonable.
In this day of budgetary constraints on education from pre-kindergarten through graduate and professional programs, the professors’ position lacks common sense. Institutions of higher education must be able to cut programs and faculty where there are insufficient funds to maintain the program or pay the faculty. As long as the institution follows its own rules and acts in a timely manner, any legal challenge of this nature should fail.
For more information, e-mail Mary Ann Oakley at maryann.oakley@hklaw.com or call toll free, 1-888-688-8500.
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