Abramson v. Board of Regents, University of Hawaii

• Decision Date: 02 April 1976
• Docket Number: No. 5729,5729
• Citation: 548 P.2d 253,56 Haw. 680
• Parties: Joan ABRAMSON, Plaintiff-Appellant, Cross-Appellee, v. BOARD OF REGENTS, UNIVERSITY OF HAWAII, et al., Defendants-Appellees, Cross-Appellants.
• Court: Hawaii Supreme Court

Page 253

548 P.2d 253

56 Haw. 680

Joan ABRAMSON, Plaintiff-Appellant, Cross-Appellee, v. BOARD OF REGENTS, UNIVERSITY OF HAWAII, et al Defendants-Appellees, Cross-Appellants.

No. 5729.

Supreme Court of Hawai'i.

April 2, 1976.

Syllabus by the Court

1. In absence of any provision in faculty handbook respecting the manner in which the Board of Regents should dispose of tenure applications, delegation to the President of the University of authority to make negative decisions in tenure cases did not violate employment contract of instructor which incorporated handbook.

2. Faculty handbook incorporated into employment contract of instructor did not require formal consideration of tenure application by Board of Regents to make effective a notice of refusal of tenure given pursuant to authority of the Board.

3. Post-probationary employment of instructor by the University did not confer tenure, despite announced University policy against non-tenured employment after expiration of the probationary period, where the employment contract contained an express stipulation which negated tenure status.

4. In the absence of any written or unwritten University rule or policy creating an expectancy of employment, an instructor did not have a property interest in continued employment protected by the Fourteenth Amendment.

5. Where a hearing on a tenure application by an instructor was not required by law, the application did not create a contested case reviewable under the standards provided in the Hawaii Administrative Procedure Act, assuming the University to be an agency to which the Act applies in its employment relations.

6. Defendants, as prevailing parties, were entitled to be allowed their costs in the absence of any showing of fault on their part in the conduct of the litigation and the award of costs to Plaintiff exceeded the trial court's discretion.

John S. Edmunds, Honolulu, for plaintiff-appellant, cross-appellee.

Shirley Smith, Deputy Atty. Gen., State of Hawaii, Honolulu, for defendants-appellees, cross-appellants.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

Plaintiff sought in this action to establish or enforce a claim to academic tenure as a member of the faculty of the University of Hawaii. The trial court determined that tenure had not been acquired but directed the Board of Regents to consider Plaintiff's case. Upon compliance by the Board, the complaint was dismissed. Costs were awarded to Plaintiff. Both Plaintiff and Defendants appeal. On Plaintiff's appeal, we affirm. On Defendants' appeal, we reverse the award of costs to Plaintiff.

We deal in this case with an important aspect of the relationship between the University and its faculty. Plaintiff seeks the status of academic tenure, defined as 'the right to permanent or continuous service in the University which may be terminated only for adequate cause, retirement, or demonstrably bona fide financial exigencies.' Faculty Handbook, University of Hawaii (1969 Revision), Appendix A, Sec. 1(a). ¹ She contends that the University administration, while expressing an unwillingness to grant tenure, failed to follow prescribed procedures with the result that Plaintiff received tenure pursuant to her employment contract. She also asserts denial of procedural due process and of rights under the Hawaii Administrative Procedure Act. It is necessary to set forth the factual context of the dispute at some length in order to disclose the issues.

Plaintiff was appointed as a full-time instructor in the English Department of the University, in a C12 rank, for the academic years 1967-68, 1968-69, 1969-70 and 1970-71. Her only graduate degree was an M.S. degree in journalism. During the fall of 1970, she applied for tenure pursuant to the provisions of Appendix A of the Faculty Handbook (of which the relevant provisions are quoted below), ² which the parties have agreed contain the rules which govern the grant or denial of tenure by the University. The Chairman of the English Department recommended against tenure, stating that while Plaintiff's 'achievements and qualities are admirable, I can see no place for her in our department.' The Dean of the College of Arts and Sciences (within which the English Department was situated) transmitted this recommendation with his concurrence and that of the Personnel Committee of the College. The Faculty Personnel Committee then recommended that tenure be granted on the basis of 'demonstrated excellence in lower division teaching' and disagreement that there was no secure permanent place for her. The President determined that tenure should be denied, believing (as explained in his testimony) that the conclusion of the English Department with respect to whether there was room for Plaintiff in its future should prevail against the interest of the Faculty Personnel Committee in advancing the excellence of lower division teaching. The President's negative decision was reported to the members of the Board of Regents at an informal meeting along with other negative decisions in tenure cases, but no formal recommendation was made to the Board by the President with respect to tenure for Plaintiff and no formal action was taken by the Board thereon. On June 10, 1971, Plaintiff was advised by letter from the Dean of the College of Arts and Sciences that she would not be granted tenure.

The foregoing summary does not include all of the committee and other consideration given to Plaintiff's tenure request prior to June 30, 1971, but is confined to those steps which appear to be relevant to the procedures outlined in Appendix A. The differences of opinion with respect to Plaintiff's tenure application reflected policy disagreements as to the desirable course of development of the English Department, specifically as to the tenuring of instructors without terminal degrees, with no substantial dispute as to Plaintiff's qualifications. During this period, it was the practice of the Board of Regents to refrain from considering tenure applications where the President did not recommend that tenure be granted, and negative recommendations were not submitted to the Board by the President.

In October, 1971, subsequent to the notification to Plaintiff of the denial of tenure, the University Faculty Senate Committee on Privilege and Tenure recommended that tenure be granted to Plaintiff. Plaintiff then met with the President, and asserted that review of her case had failed to consider whether she was discriminated against because of her sex. The President referred this question to the University's Commission on the Status of Women. ³ The parties are in disagreement whether the reference was pursuant to an agreement, it being Plaintiff's contention that the President agreed to be bound by the Commission finding. The Commission reported equivocally, indicating that denial of tenure appeared to have resulted from sex discrimination. ⁴ The President concluded that the decision with respect to Plaintiff should not be reversed, and Plaintiff was so advised in May, 1972.

Plaintiff was employed for the academic year 1971-72 under a 'terminal year' contract, in conformity with Sec. 2 of Appendix A, in a full-time instructional position. Plaintiff was employed for the academic year 1972-73 as an instructor, under a contract providing for only 91.667% of full-time, although Plaintiff contends that fulltime service was rendered The contract specified that the position was not tenured. She was not given a contract for the 1973-74 academic year, although she performed services for several months during discussions respecting her status.

Plaintiff brought this action against the Board of Regents, its individual members and the President of the University, seeking an order which would compel Defendants to grant tenure or, in the alternative, to consider her application de novo in accordance with proper procedure, and also seeking a declaratory judgment determining that she is presently tenured or that Defendants are estopped from denying her tenure. Plaintiff's complaint originally included a count alleging sex discrimination in violation of Section 4, Article I of the Hawaii Constitution. This count was dismissed with prejudice, by stipulation, upon Plaintiff's representation that she wished to preserve her cause of action under Title 7 of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). The trial court dismissed all of the remaining counts of the complaint as unsupported by the evidence, but amended the complaint to add an additional count founded upon the failure of the President to forward the recommendations of the English Department, the College of Arts and Sciences and the Faculty Personnel Committee, together with his own recommendation as to Plaintiff's tenure, to the Board of Regents in accordance with the procedure outlined in Section 12 of Appendix A. By judgment filed April 18, 1974, the court directed the President to forward these recommendations to the Board, and directed the Board to make its decision whether or not Plaintiff should be granted tenure, retaining jurisdiction until compliance with these directions, at which time the action was to be dismissed. A final judgment was filed on August 7, 1974, reciting that the Board of Regents had complied with the judgment of April 18, 1974, and dismissing the complaint, but awarding costs to Plaintiff.

I

Plaintiff's principal contention is that pursuant to the provisions of Appendix A of the Faculty Handbook, Plaintiff acquired academic tenure by reason of an alleged failure of the Board of Regents to give notice of the refusal of tenure by June 30 of her final year of probation. Defendants stipulated at the trial that Appendix A contained the rules which governed the granting and awarding or the denial of tenure to Plaintiff. There being no showing of compliance with the rule-making procedures of the Hawaii...