Krotkoff v. Goucher College

• Decision Date: 19 October 1978
• Docket Number: No. 77-2395,77-2395
• Parties: Hertha H. KROTKOFF, Appellant, v. GOUCHER COLLEGE, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 675

585 F.2d 675

Hertha H. KROTKOFF, Appellant, v. GOUCHER COLLEGE, Appellee.

No. 77-2395.

United States Court of Appeals, Fourth Circuit.

Argued June 9, 1978.

Decided Oct. 19, 1978.

Thomas Waxter, Jr. and David R. Owen, Baltimore, Md. (Mary Louise Smith, Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellant.

Francis D. Murnaghan, Jr., Baltimore, Md. (Nell B. Strachan, Baltimore, Md., on brief), for appellee.

(Laura Christian Ford, New Haven, Conn., on brief), for amicus curiae American Council on Education.

(Matthew W. Finkin, School of Law, Duke University, Dallas, Tex., on brief) , for amicus curiae The American Association of University Professors.

Before HAYNSWORTH, Chief Judge, and BUTZNER, Circuit Judge, and D. DORTCH WARRINER, United States District Judge for the Eastern District of Virginia, sitting by designation.

BUTZNER, Circuit Judge:

This appeal arises from the termination of Hertha H. Krotkoff's position as a tenured professor at Goucher College. ¹ Krotkoff sued Goucher, alleging that it violated the tenure provision of her contract. The college asserts that it eliminated Krotkoff's position and terminated her contract as part of a general retrenchment prompted by severe financial problems. The district court submitted the following issues to the jury, placing the burden of proof on the college in each instance (1) Was Goucher entitled to read into its contract of tenure with Krotkoff the condition of financial exigency; (2) Did the Trustees reasonably believe that a financial exigency existed at Goucher; (3) Did Goucher reasonably use uniform standards in selecting Krotkoff for termination; and (4) Did the College fail to make reasonable efforts to find Krotkoff alternate employment at Goucher? ²

The court instructed the jury that it must find in favor of Goucher on all four issues for the college to prevail; conversely, it instructed that if the jury found in favor of Krotkoff on any one of the four issues, Krotkoff should recover damages. The jury returned a general verdict of $180,000 for Krotkoff, but the district judge, perceiving error, stated that he would grant a new trial.

Subsequently, upon the representations of the parties that no additional evidence could be presented at a new trial, the court entered judgment for the college notwithstanding the verdict. In the alternative, should the judgment be reversed on appeal, the court granted the college's motion for a new trial on the ground that "the jury's verdict was against the overwhelming weight of the evidence." Satisfied that the college has met the stringent requirements for a judgment notwithstanding the verdict, we affirm. ³

I

Krotkoff began teaching German at Goucher in 1962 and was granted "indeterminate tenure" in 1967. In June of 1975, the college notified Krotkoff that because of financial problems, it would not renew her 1975-76 contract when it expired on June 30, 1976. The college acknowledges that Krotkoff has at all times been a fine teacher and that the termination was not based on her performance or behavior.

Goucher is a private, liberal arts college for women in Towson, Maryland. Beginning in 1968-69, the college operated at a deficit each academic year through 1973-74. The deficit for 1973-74 was $333,561, and the total deficit from 1968-69 through 1973-74 was $1,590,965. By the end of the 1973-74 year, the college's expendable endowment, which was used to cover these deficits, amounted to less than one-half of the 1973-74 deficit. In 1974-75, as a result of a substantial reduction in expenditures, the college showed a meager surplus of $1,482. This was increased to $5,051 in 1975-76, but, partially as a result of a revision of the curriculum to attract more students, the deficit in 1976-77 was anticipated to be in excess of $100,000. The college's enrollment fell every year from 1969-70 through 1976-77, reducing revenue generated by tuition and fees, a major source of income.

This financial situation convinced the trustees that action was needed to insure the institution's future. After a review of the finances and curriculum, the board adopted a more aggressive investment policy to seek a higher rate of return on endowment and promoted rental of the auditorium and excess dormitory space. It also froze salaries, cut administrative and clerical staffs, and deferred maintenance.

As a part of its retrenchment, the college did not renew the contracts of 11 untenured and four tenured faculty members, including Krotkoff. These professors were selected largely on the bases of the dean's study of enrollment projections and necessary changes in the curriculum. In addition, the faculty elected a committee to review curricular changes suggested by the administration. Among the administration's proposals were elimination of the classics department and the German section of the modern language department which were staffed exclusively by tenured professors. The classics department was dropped, but the faculty committee recommended that the college continue a service program in German staffed by one teacher for students majoring in other disciplines who needed the language as a research skill. The administration accepted this recommendation.

The German faculty consisted of Krotkoff, who taught mostly advanced literature courses, and another tenured teacher, Sybille Ehrlich, who taught chiefly introductory language courses. The dean, concurring with the chairman of the department, recommended retention of Ehrlich primarily because she had more experience teaching the elementary language courses that would be offered in a service program and because she was also qualified to teach French. The president followed this recommendation.

The faculty grievance committee, to which Krotkoff then turned, applied the criteria by which the college faculty were regularly evaluated and recommended her retention. The committee, however, did not suggest that Ehrlich's appointment be terminated, and it did not address the problem of keeping both tenured professors. The president declined to accept the committee's recommendation, and the trustees sustained her decision. The president also rejected a suggestion that both teachers be retained by assigning Krotkoff to teach the German courses, dismissing an assistant dean, and designating Ehrlich as a part time French teacher and a part time assistant dean.

Goucher sent Krotkoff a list of all positions available for the next year. Krotkoff insisted that any new position carry her present faculty rank, salary, and tenure. She expressed interest in a position in the economics department, but the school declined to transfer her because the department's chairman estimated that she would need two to four years of training to become qualified.

In accordance with its notice of June 1975, the college terminated her appointment on June 30, 1976.

II

The primary issue is whether as a matter of law Krotkoff's contract permitted termination of her tenure by discontinuing her teaching position because of financial exigency.

The college's 1967 letter to Krotkoff granting her "indeterminate tenure" does not define that term. The college by-laws state:

No original appointment shall establish "tenure," i. e., the right to continued service unless good cause be shown for termination. Reappointment as Professor or Associate Professor, after three years of service in either rank, or appointment or reappointment to any professorial rank after five years of service as Instructor or in any higher rank, shall establish tenure. The term "service" as used in this section shall mean instructional service in full-time appointments.

The by-laws also specify that the college may terminate a teacher's employment at age 65 or because of serious disability or cause. The parties agree that Krotkoff's appointment was not terminated for any of these reasons. Financial exigency is not mentioned in the by-laws, and the college concedes that it is not considered to be a ground of dismissal for cause. ⁴

The national academic community's understanding of the concept of tenure incorporates the notion that a college may refuse to renew a tenured teacher's contract because of financial exigency so long as its action is demonstrably bona fide. Dr. Todd Furniss, Director of the Office of Academic Affairs of the American Council on Education, testified on behalf of Goucher The (common) understanding was that the person who held tenure would be employed for an indeterminate or indefinite period up to retirement, unless two conditions held. The first condition would be some inadequacy on that person's part, either incompetency or neglect of duties or moral turpitude.

In that instance, the person was guaranteed that he would not be dismissed without the institution's being ready to submit formal charges and the opportunity to answer those charges, if he desired in a hearing, with the burden of proving the charges upon the institution.

Now, that is instance number one.

The second instance under which the tenure contract might be terminated is a group that includes, of course, death, includes disability, includes resignation, obviously, but chiefly includes what has been called financial exigency.

Dr. Furniss based his opinion in part on the 1940 Statement of Principles on Academic Freedom and Tenure which was developed by the Association of American Colleges and the American Association of University Professors. This statement was later adopted by a number of professional organizations. With respect to the security afforded by tenure, the statement explains:

After the expiration of a probationary period, teachers or investigators should have permanent or continuous tenure, and their services should be terminated only for adequate cause, except in the case of retirement for age, or under extraordinary circumstances because of financial exigencies.

In the interpretation of this principle it is understood...