By Robert J. Romano, St. John’s University, Division of Sports Management
Tenure is a term that causes junior faculty to tether themselves to their desk and frantically write with the hope of having their research published in scholarly journals. It’s when a college or university provides long-term job security to a professor, beyond that of a typical employment contract or employment-at-will position. The primary purpose of tenure is to preserve academic freedom in higher education (a necessity for those who teach), conduct research and publish in various academic and professional periodicals.
Tenure is a concept based upon the theory that “When faculty members can lose their positions because of their speech, publications, or research findings, they cannot properly fulfill their core responsibilities to advance and transmit knowledge.”[1] There can be no question that educating college-age students, coupled with the act of publishing research findings in the hopes of providing benefit to a society. However, society, in return, cannot benefit when a college professor is beholden to, or indebted to a business and corporate interests, religious concerns, other special interest groups, or even the government. Free thought, free inquiry, free expression, and open dissent are all critical aspects of a student learning experience and the advancement of knowledge.[2] Therefore, it is important to have a system that protects and defends academic freedom. The process of tenure should serve that purpose.[3]
Professor William Crenshaw was granted tenure in 1984 by Erskine College, a small, church-related liberal arts school located in Due West, South Carolina. This also happens to be the place where he began teaching in 1976.
On September 24, 2010, almost 35 years into his teaching career, a student in his Freshman Seminar on Critical Thinking class appeared disoriented and lethargic. She started “nodding off, like she was going to sleep.”[4] Other students in the class informed Professor Crenshaw that the disoriented student fell during lacrosse practice, hitting her head on both her lacrosse stick and the ground.Professor Crenshaw, a former paramedic, administered a “standard orientation test” EMS personnel purportedly give when there a “suspected head injury” occurs. Concluding that the injured student needed further medical attention, he contacted Robyn Agnew, Erskine’s Vice President for Student Services, to advise her of the situation and to have her arrange for an ambulance. Within minutes, EMS crew arrived and removed the student from the classroom.
After that class ended, Professor Crenshaw, noticing EMS was still on campus, approached the ambulance to check on his student. But before Professor Crenshaw had an opportunity to speak with the student, the paramedics informed him that Erskine’s athletic trainers and student guardian were advising her that she could refuse both medical treatment and transportation to the hospital. It was at this time that Professor Crenshaw and various members of the college’s athletic training staff began to disagree over whether the student should be transported to the hospital or not.[5]
That weekend, Professor Crenshaw and Adam Weyer, Erskine’s head athletic trainer, exchanged emails, some of them heated. During the interchange, Professor Crenshaw commented that the athletic department should re-evaluate its procedures for handling emergency medical situations. Specifically, Professor Crenshaw stated that the athletic department’s practice of having student athletes report to an athletic trainer before seeing a medical professional endangers the health and safety of the student. He went on to state that the athletic trainers were wrong when they delayed medical treatment for the injured student and when they suggested that she could refuse transportation to the hospital.[6]
Adam Weyer’s reply accused Professor Crenshaw of violating athlete department protocols that require faculty members to call athletic trainers before calling for EMS. Professor Crenshaw, who repeatedly asked for a copy of the protocol (but never received one), responded that the protocols conflicted with the nationwide emergency medical protocols for blunt closed head trauma. Crenshaw wrote, “The fact that you or your people were attempting to stop emergency transport when definitive diagnosis is beyond your capability is chilling, dangerous, and a lawsuit waiting to happen. When you endanger students, you bet I’m going to question the way you do your job.”[7]
As a result of the email exchange, Mr. Weyer filed a grievance against Professor Crenshaw accusing him of a) violating athletic department protocols, and b) slandering the athletic training staff through his online and in classroom remarks. The grievance was signed by both Adam Weyer and Mark Peeler, Erskine’s athletic director. The Chair of the College’s Department of Health and Human Performance, Gid Alston, also filed a grievance accusing Professor Crenshaw of potentially harming the athletic training program’s image by slandering the trainers. Each grievance was forwarded to Erskine’s faculty grievance committee for mediation and possible resolution. However, Adam Weyer, Mark Peeler and Gid Alston reportedly would not partake in the process and the matter was then forwarded to the College’s President, David Norman.
In November 2010, President Norman appointed a Special Faculty Grievance Committee to evaluate Professor Crenshaw’s conduct during the emergency situation, his professionalism, as well as collegiality during and after the event. Professor Crenshaw, who fully participated in the process, denied the allegations as presented. The Committee, however, was unable to resolve the matter and again referred the matter back to President Norman.[8] Norman ultimately terminated Professor Crenshaw for cause.[9]
Professor Crenshaw eventually filed suit against Erskine College and President Norman alleging a) wrongful discharge, b) breach of contract, and c) intentional infliction of emotional distress. The jury found for the Professor, awarding him $600,000 in damages, but the trial court granted Erskine College’s motion for judgment notwithstanding the verdict (JNOV), finding, as a matter of law, that Erskine did not breach its contract with Professor Crenshaw.
The South Carolina Supreme Court reviewed the matter and in a 3-2 decision found that the trial court properly dismissed the lawsuit because a “claim for wrongful discharge does not exist in the abstract, but instead must be based on a contract, a constitutional provision, public policy, or some other identifiable provision of law.”[10]
Justice Few, writing the majority opinion, described the role of tenure in protecting academic freedom and as a guarantee against a professor being terminated without cause. Specifically, the opinion reads that, “tenure is a means to certain ends; specifically: a) freedom to teach and conduct research, and b) a sufficient degree of economic security to make the profession attractive to men and women of ability. Freedom and economic security, hence, tenure, are indispensable to the success of an institution in fulfilling its obligations to its students and to society.”[11]
However, Justice Few then described how this case was not about tenure. He argued, instead, that it was a typical breach of contract case. “This case is not about whether Erskine denied Crenshaw due process, academic freedom or free speech. This case is not about whether Crenshaw was correct that the student should be taken to the hospital for evaluation, or whether Erskine’s alleged ‘protocol’ was medically unsound, and Crenshaw was justified in criticizing it. Rather, this is an ordinary breach of contract case in which the terms of the contract are set forth in The College Faculty Manual.”
In dissent, Justice Kaye Hearn found that the majority transformed what was a matter of fact to be decided by a jury, into an issue of law to be decided by the judge. “In reaching its conclusion, the majority makes some unwarranted pronouncements about the concept of academic tenure. Consequently, the majority not only nullifies the jury’s verdict and strips Crenshaw of the benefits of tenure, but also effectively renders academic tenure meaningless in this state.” Justice Hearn maintained that whether the faculty manual constituted a contract at all, and the parameters of the contract were both matters of fact for a jury to decide. “The majority’s remarkable departure from this longstanding principle of appellate practice and procedure is wrong, and it effectively destroys the concept of academic tenure in this state. With the stroke of a pen, the majority has essentially transformed a tenured professor with a distinguished career spanning over thirty years into an at-will employee, despite the clearly supportable verdict of a jury in his favor.”[12]
The ramification of the South Carolina ruling is the ‘chilling effect’ it may cause when a professor suspects that a student may be or have been injured while participating in an intercollegiate sport. Indeed, a professor would be reluctant to aid a student-athlete when he or she attends class while appearing ‘disoriented and lethargic’, as in the case involving Professor Crenshaw, when that aid may lead to some form of repercussion, professionally, legally, or otherwise. In addition, why would a professor step in when another person or department within the institution engages in actions that could potentially harm a student?
In the Crenshaw case, the athletic trainers and student guardian were willing to allow a student with head injuries to make her own decision as to whether or not she needed further medical attention. Professor Crenshaw’s attempt to intervene was in the best interest of the student, but it was also what led to his eventual termination from the College.
Professors, nevertheless, should not be intimidated or influenced by the outcome in Crenshaw. Even though the ruling of the South Carolina Supreme Court may be alarming, professors should agree that it is their role to always do what is in the best interest of the student, no matter what the consequences may be.
[1] https://www.aaup.org/issues/tenure
[2] https://www.aaup.org/issues/tenure
[3] Statement of Principles on Academic Freedom and Tenure, American Association of University Professors (1940). The use of tenure for the pursuit of these ends for over 100 years has led to an extensive body of recorded thought on the theory of tenure and what it means to professors, institutions, and the rest of us. See generally Mayberry v. Dees, 663 F.2d 502, 513-19 (4th Cir. 1981) (the Fourth Circuit provides “a rather detailed description of the tenure concept”); Symposium, Freedom and Tenure in the Academy: The Fiftieth Anniversary of the 1940 Statement of Principles, 53 Law & Contemp. Probs., no. 3 (William W. Van Alstyne, ed., 1990).
In academia, the meaning of the word “tenure” as it relates to a professor’s enforceable job security is described in deceptively simple terms, even if every academic does not agree on precisely how it should be simply stated. In a 1971 Symposium on the subject, a former President of Yale University wrote, “The practical fact in most places . . . is that tenure is for all normal purposes a guarantee of appointment until retirement age.” Kingman Brewster Jr., On Tenure, 57 AAUP Bull. 381, 381 (1971). In a different article in the same Symposium—in apparent disagreement—a longtime Duke University Law School professor wrote, “Tenure, accurately and unequivocally defined, lays no claim whatever to a guarantee of lifetime employment. Rather, tenure provides only that no person continuously retained as a full-time faculty member beyond a specified lengthy period of probationary service may thereafter be dismissed without adequate cause.” William W. Van Alstyne, Tenure: A Summary, Explanation, and “Defense, ” 57 AAUP Bull. 328, 328 (1971).
[4] William Crenshaw vs. Erskine College, et al. – Opinion No. 27993 Filed September 9, 2020.
[5] Professor Crenshaw testified that the student was visibly upset, and the paramedics requested his help to calm the student. Because of this request, he then entered the ambulance where he discussed with the student whether she should refuse to be taken to the hospital or not.
[6] William Crenshaw – Opinion No. 27993 Filed September 9, 2020.
[7] Id.
[8] https://www.jdsupra.com/legalnews/think-your-evidence-is-solid-jury-judge-47631/
[9] There were a series of meetings between Professor Crenshaw and President Norman wherein the two tried to settle the matter – the detail of which is not necessary for our understanding of the situation.
[10] William Crenshaw – Opinion No. 27993 Filed September 9, 2020.
[11] Id.
[12] Id.
