Judge dismisses UA professors' lawsuit on policy

Board protected by immunity

A lawsuit filed by three University of Arkansas System professors alleging a new board policy violated faculty due-process rights has been dismissed by a federal judge, although the professors can refile their claims.

U.S. District Judge James M. Moody Jr. dismissed the lawsuit, concluding that the board of trustees are protected by sovereign immunity in the state's constitution and that the professors were unable to prove that harm from the policy was imminent.

The board of trustees' policy revision, which went into effect July 1, 2018, allows trustees and administrators to use annual reviews of faculty members to be the basis for termination, which was not previously allowed, the lawsuit states. It further provides more "grounds" that an administrator could cite in firing someone, the lawsuit states. That effectively changed the terms of faculty's contracts without their permission, they argued.

Michael Moore, the UA System's vice president for academic affairs, said in March 2018 that "despite some public comments to the contrary, nothing in the proposed changes undermine academic freedom or the value that the University of Arkansas System places on tenure."

At the time, UA System President Donald Bobbitt recommended approval of the revision, describing the update as part of a larger project to ensure policies "are appropriate for the rapidly-changing landscape" of higher education.

The professors sought class-action status for their lawsuit.

Tenure is defined by the UA System as the right of continuous appointment. Professors gain tenure based on their job performance over several years but still undergo annual reviews.

Three faculty members at three UA institutions filed the lawsuit: Philip Palade, a pharmacology and toxicology professor at the University of Arkansas for Medical Sciences; Gregory Borse, an associate professor of English and philosophy at the University of Arkansas at Monticello; and J. Thomas Sullivan, a distinguished professor of law at the W.H. Bowen School of Law at the University of Arkansas at Little Rock.

Attorneys for the board contended that the board was protected by sovereign immunity and that the professors' claims were "unripe."

Moody dismissed three of the claims related to sovereign immunity. He also found the professor's claims "unripe" because no injury from the revision appeared to be imminent.

He wrote that "the policy changes here did not make changes to historically disputed benefits, but instead changed definitional language which may or may not be applied in the future in a manner different from the original policy definition or in a manner which violates federal law. ... Plaintiffs' allegations of possible, but not threatened, enforcement of the Revised Policy in a manner that might but might not violate federal law is insufficient to establish injury in fact."

Information for this article was contributed by Jaime Adame of the Arkansas Democrat-Gazette.

Metro on 03/19/2020