professor *1353 remaining employed beyond probationary period did not acquire tenure
How later courts described this case
- professor *1353 remaining employed beyond probationary period did not acquire tenure
- professor remaining employed beyond probationary period did not acquire tenure
- “Repeated contract renewals do not, by themselves, create a reasonable expectation of permanent employment.”
Written by the judges who cited it.
The opinion
MERRITT, Chief Judge,
dissenting.
Because in my view Dr. Edinger held a protectable property interest deserving of further due process inquiry into the constitutionality of Morehead State’s termination procedures, I respectfully dissent from the Court’s opinion.
As the majority recognizes, the University, after promoting Dr. Edinger to full professor upon his completion of the customary five-year, pre-tenure probationary period, subsequently renewed his contract on four separate occasions from 1984 to 1987, each for a one-year term. This course of dealings, coupled with the fact that Dr. Edinger’s 1985-86 contract, signed by the Vice-President of Academic Affairs, was marked “tenured,” gave rise to a sufficiently strong set of expectations to constitute a “mutually explicit understanding” that Dr. Edinger had in fact been granted tenure. See Perry v. Sindermann, 408 U.S. 593, 601 , 92 S.Ct. 2694, 2699 , 33 L.Ed.2d 570 (1972). Such an “understanding,” which in this case flows from both the expectation created by repeated contract renewals and explicit contractual language that tenure had been conferred, flows from a theory of implied contract, recognized by the Supreme Court in analogous circumstances. Id. at 601-02 , 92 S.Ct. at 2699 -2700 (citing 3 Corbin on Contracts §§ 561-72A (1960)); see Regents of the *1142 Univ. of Mich. v. Ewing, 474 U.S. 214 , 223-24 n. 9, 106 S.Ct. 507 , 512-13 n. 9, 88 L.Ed.2d 523 (1985) (quoting Sindermann, 408 U.S. at 601 , 92 S.Ct. at 2699 ); Leis v. Flynt, 439 U.S. 438, 442 , 99 S.Ct. 698, 700 , 58 L.Ed.2d 717 (1979) (same); Bishop v. Wood, 426 U.S. 341, 344 , 96 S.Ct. 2074, 2077 , 48 L.Ed.2d 684 (1976) (“A property interest in employment can, of course, be created by ordinance, or by an implied contract.”) (footnote omitted); Board of Regents v. Roth, 408 U.S. 564, 577 , 92 S.Ct. 2701, 2709 , 33 L.Ed.2d 548 (1972) (property interests flow from “rules or understandings that secure certain benefits”); Connell v . Higgenbotham, 403 U.S. 207, 208 , 91 S.Ct. 1772, 1773 , 29 L.Ed.2d 418 (1971) (per curiam) (public employee’s summary dismissal violated implied promise of continued employment). Such an “implied contract” may be created by a course of dealing between the parties which gives rise to an actual contract, or by conduct and statements by one party which give rise to a reliance interest sufficient to establish an estoppel or the right to restitu-tionary relief.
Other conduct on the University’s part further reinforced the existence of an implied contract. At the end of his probationary period, Dr. Edinger received his 1984-85 contract, which was marked “tenure-track.” Believing that “tenure-track” reflected a clerical error, Dr. Edinger inquired of the University as to why the contract was not instead marked “tenured.” The University’s failure to respond to his written inquiry, followed by its issuance of his 1985-86 “tenured” contract and two more post-probationary contract renewals, only served to enhance Dr. Ed-inger’s reliance interest in his status as a permanent employee. 1
Given the Supreme Court’s recognition that “property interests subject to procedural due process protection are not limited by a few rigid, technical forms,” Sindermann, 408 U.S. at 601 , 92 S.Ct. at 2699 , but instead may arise out of the course of dealings which, both expressly and impliedly, create for a public employee a heightened reliance interest in continued employment, I decline to join the majority in their conclusion that the University is entitled to judgment as a matter of law. I express no view, however, as to whether, under the next stage of procedural due process analysis, the procedures afforded Dr. Edinger were constitutionally sufficient under Zinermon v. Burch, — U.S. -, 110 S.Ct. 975 , 108 L.Ed.2d 100 (1990) and Hudson v. Palmer, 468 U.S. 517 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984). That inquiry would be best pursued by the District Court following a remand order. Rather, I write separately only to express my view that the University, however inadvertently, created in Dr. Edinger an expectation sufficient to constitute a protectable property interest in his continued employment as a university professor.
Accordingly, I respectfully dissent.
. The two lower court decisions from other jurisdictions cited by the majority are distinguishable. Although in Sabet the Fourth Circuit held that the plaintiff possessed no protectable property interest, the medical school-employer in that case had no formal tenure policy. Instead, the school’s clearly established policy was to restrict faculty appointments to "explicit two-, three-, or five-year limitations." Sabet, 775 F.2d at 1268. No conduct on the part of school administrators led the plaintiff there to believe otherwise.
Similarly, in Doscher, a 1974 case decided by a Texas district court, plaintiff there, unlike Dr. Edinger, was not operating in a system that customarily grants tenure to employees that survive the requisite probationary period. As the court stated, because “[pjlaintiff recognized that her contracts were only for one year,” school officials did little to enhance her expectations. Doscher, 377 F.Supp. at 1171. Although the district court went on to say that contract renewals alone do not constitute de facto tenure, the absence of a probationary window or school officials’ affirmative steps (e.g. a letter from the vice president conferring tenure) heightening the plaintiff's expectations distinguishes that case from ours.