Boston Lawyer BlogSJC Clarifies How far Colleges and Universities can go in Reducing Salaries and Funding for Tenured Faculty Members
Tenure is a crucial foundation for academic freedom at colleges and universities. Once professors receive tenure, they have a lifetime job from which it is very difficult for them to be fired. Nonetheless, tenure alone does not insulate a faculty member from institutional pressure. After all, the school still sets pay and benefits, chooses recipients for grants and awards, sets teaching assignments and schedules, and more. Faculty members in the sciences, whose research depends on access to expensive labs and equipment, are particularly dependent on financial support from their institutions.
In a decision issued in early March in Henry Wortis v. Trustees of Tufts College, the Massachusetts Supreme Judicial Court took on the question of what protections tenure gives professors from pay cuts and loss of access to lab space. The case was brought by eight faculty members at the Tufts University School of Medicine—including Henry Wortis, a Professor of Immunology—who were granted tenure at various points between 1970 and 2009. In 2017 and 2019, Tufts adopted new policies under which professors who failed to cover a certain percentage of their salaries with external grants could have their pay reduced. These policies resulted in very significant decreases in compensation for the plaintiffs: Wortis’s annual salary, for instance, fell from approximately $190,000 to around $97,000. Many of the plaintiffs also had their appointments reduced to less than full-time, potentially exposing them to tenure revocation procedures. Additionally, in 2016, Tufts also adopted a policy tying the availability of lab space to the coverage of indirect costs by external grant funding brought in by faculty members. Several of the plaintiffs had their lab space reduced under this policy, impeding their ability to conduct research.
After pursuing an internal grievance procedure, the faculty plaintiffs sued the university in 2019 for breach of contract and other claims, based on both the reduction of the compensation and the loss of lab space. A Superior Court judge granted summary judgment to Tufts on all counts, and the plaintiffs appealed. In an opinion by Justice Scott Kafker, the SJC affirmed the judgement with respect to the lab space issue, but reversed on the issue of compensation, sending the case back to the trial court.
Consistent with Massachusetts higher-education law, the SJC evaluated the contractual relationship between the faculty members and Tufts by looking to the professors’ “reasonable expectations” based on not only their individual letters granting tenure but also a constellation of other written policies, including a faculty handbook. Particularly important was the Tufts Policy on Academic Freedom, Tenure, and Retirement, a document that incorporated much of the language from the famous 1940 Statement of Principles on Academic Freedom and Tenure issued by the American Association of University Professors. That statement, as quoted in the Tufts Policy, described tenure as a means to “freedom of teaching and research and of extramural activities” and to “a sufficient degree of economic security to make the profession attractive to men and women of ability.” The Tufts Policy did not, however, spell out the implications of these statements for salary or lab space.
The SJC held that “academic freedom” and “economic security” as used in the Tufts Policy were not merely “hortatory concepts” (as Tufts argued) but substantive, enforceable terms in the plaintiffs’ contracts. “To read economic security as merely hortatory would be to undermine an essential attribute of tenure, and why it is treasured in the academic world,” Justice Kafker wrote. “There is a reason champagne corks pop when tenure is awarded, and economic security is one of those obvious reasons.” That said, the SJC also found that “economic security” was ambiguous as a contractual guarantee. With respect to the salary reductions, the factual record on appeal was insufficiently developed for the SJC to decide whether the plaintiffs’ reasonable expectations of economic security as tenured faculty members were violated by their reductions in salary. That question remains to be decided in a future trial. With respect to the lab space issue, on the factual record before it, the SJC agreed with the judge below that the 2016 policy had not violated the plaintiffs’ reasonable expectations, either with respect to academic freedom or economic security.
Wortis v. Tufts will be a milestone in the law of higher education in Massachusetts and elsewhere. School policies that promise academic freedom are not just empty rhetoric—they can be legally binding contracts under the right circumstances. Because the decision focused largely on the handbook’s guarantee of “economic security,” however, the full contours of the meaning of “academic freedom” as a contractual term and what protections it affords tenured faculty remain to be developed in future cases.
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