Today I’m proud to host a guest post by someone who has decreed me keeping his $35 payment a “6th Day of Hannukah Present.” This person is none other than The Honorable David Schuman, Judge of the Oregon Court of Appeals (soon to be His Honor, Retired), aka my dad. He was very interested in my Slate article about Stefan Veldhuis, and had this to say about the legal precedent for terminating “at-will” employees:
In an old (but still valid) case, Board of Regents v. Roth, 408 US 564 (1972), the Supreme Court held that a non-tenured university professor at a public institution had no right under the Due Process Clause to a hearing or an explanation when he was not rehired. The court explained under the terms of Roth’s appointment, his “property right” in continued employment ended when his year-to-year contract expired. “The terms of [Roth’s] appointment secured absolutely no interest in re-employment for the next year. [Nor], significantly, was there any state statute or University or policy that secured his interest in re-employment or that created any legitimate claim to it.” [Schuman Minor’s note: I would be interested to know the outcome had Roth been terminated mid-semester–RS.]
On the same day, the Court held in Perry v. Sindermann, 408 US 593 (1972), that an untenured professor did have a right to a hearing where he would be informed of the reasons for his non-retention, because lack of tenure “alone” didn’t mean that “his claim that non-renewal of his contract violated due process,” because, “though not secured by a formal contractual or tenure provision,” his expectation of continued employment was “secured by a no less binding understanding fostered by the college administration” that amounted to a “de facto program.”
Three things to note:
First, nobody has a Due Process right with respect to a private college; the Due Process Clause runs against only government institutions (“No state shall . . . .”).
Second, a professor in a public college would have a Due Process right only if either a contract or a “de facto” contract created the expectation of continued employment. [Such as a semester-long contract terminated mid-semester? –RS]
Third, if a professor wins one of these cases, she doesn’t necessarily get to keep her job; all she gets is a hearing where she can learn what the reasons for non-reemployment are, and make a case that the reasons are erroneous or illegal.
In Stefan’s case, he may be entitled to more than this, because his act of narc-ing out his co-worker might be considered “whistleblowing” (sexual activity on school property is considered lewd conduct because Chaffey’s classrooms are public, and the fact that Chaffey has night courses also means they had a reasonable expectation of being caught), and California has a whistleblower protection law.
Also, I am not calling for Stefan to be re-instated immediately (though I hope he is re-hired, or hired somewhere even better, because he is so beloved and I don’t believe, personally, that he did anything remotely wrong). I am calling for Chaffey to stop stonewalling everyone–the press, Stefan, Erin–and provide a documented reason for his mid-semester termination, as well as back pay for the weeks he missed. And I am calling for more human worker protection laws in the United States that require reason for termination.