Philosophy professor Charles Emmer and 10 other employees have filed a federal lawsuit against Emporia State University, who terminated their employment last September.
The lawsuit includes allegations that the university engaged in wrongful termination and retaliation for efforts to organize a labor union.
On January 20, 2021, Emporia State University (ESU) enacted a temporary pandemic measure to address financial difficulties associated with the pandemic. According to the Kansas State Board of Regents, the policy allowed that:
…any state university employee, including a tenured faculty member, may be suspended, dismissed, or terminated from employment by their respective university.
The measures were set to expire July 1, 2022. Several weeks before this deadline, the measures were extended to December 31, 2022.
On September 15, 2022, three months prior to the expiration of the pandemic related measures, ESU laid-off 33 university employees under the pandemic measures, approximately 30 of whom were tenure or tenure-track at the time. A majority of the faculty affected were in the humanities, but faculty outside the humanities were also affected. Amongst those employees who were laid-off was philosophy Professor Charles Emmer, who was tenured at the time and is now party to the federal suit brought against ESU.
In addition to employee lay-offs, the university also engaged in restructuring of selected academic departments and programs, which largely involved the “cutting, merging, or downgrading” of those departments and programs. This included the (now defunct) philosophy department and philosophy minor (there was no philosophy major prior to the restructuring). The restructuring also left the university with only one philosophy professor, Charles Brown, to teach its philosophy courses.
The terminated ESU faculty appealed the decision through the Kansas Office of Administrative Hearing (OAH) who granted an initial reinstatement for five of the terminated instructors because ESU “failed to provide specific reasons for firing them” and later reinstated philosophy professor Charles Emmer. Other faculty were denied reinstatement, while still others await a decision from the OAH. Before the OAH announces a decision on the remaining faculty appeals, ESU petitioned the decision through the Lyons County District Court challenging all reinstatements by the OAH. Attorneys on both sides agreed to postpone any further decisions by the OAH until the district case is resolved.
Last month, 11 of the terminated faculty filed a federal lawsuit against ESU. The lawsuit summarizes the charges being brought against ESU by the terminated faculty as follows:
This action is brought pursuant to 42 U.S.C. § 1983, 1985 and 1988 to redress violations of Plaintiffs’ constitutional rights by Defendants. Specifically, Plaintiffs in this action possess the property right in tenure in connection with their employment at the Emporia State University (“ESU”). The Defendants, each of them, participated in a multitude of conspiracies to terminate Plaintiffs, and others of similar background and status as tenure. In addition, pursuant to Kansas law arising out of the same facts and circumstances, Plaintiffs assert State law claims against Defendants.
In total, the lawsuit advances 14 charges against ESU. The charges include violation of plaintiff’s federal constitutional rights to due process, liberty, equal protection, and freedom of association. The lawsuit also alleges that ESU violated sections 1 and 2 of the Kansas Constitution Bill of Rights, which focuses on due process and equal protection. 7 of the 14 charges are allegations related to civil conspiracy to commit the alleged acts.
In a further twist, the federal lawsuit against ESU alleges not just that ESU violated various constitutional rights interrelated to tenure, but also that ESU “had no rational basis in creating, adopting and implementing the [pandemic measures] other than an unlawful purpose”. That unlawful purpose was to eliminate tenured faculty who were perceived to be “problematic to ESU Administration”. The terminated faculty were labeled as problematic for several reasons, including active participation in Faculty Senate, expression of ESU critical views, efforts to organize a labor union, and a perception or belief that the faculty have “Democratic or liberal views”.
Several weeks before the filing of the federal lawsuit against ESU, the Kansas State Board of Regents announced a plan to evaluate and restructure the remaining six public universities within Kansas. There is speculation that the “ESU Model” will be applied in these other cases. Further, the decision appears to have support from state legislators. Dan Hawkins, Kansas Representative and Speaker of the House says:
Emporia State University has focused on investing in the programs that students and the employers who hire them want and need. As legislators, working with our higher education institutions to deliver the best value to their students and graduates will go a long way toward building up a robust worker pool, something I hear from across all industries that they are in desperate need of. The Emporia State Model is about ‘right-sizing’ for the needs of students and businesses in Kansas and I believe it is truly the way forward for all higher education institutions in our state.
ESU President, Mr. Ken Hush, is quoted as saying:
We assure you that academic freedom, the safeguard[s] of due process, and the tradition of tenure are as valuable now as they have always been to our institution, and the abrogation or abandonment of those principles played no part whatsoever in any of the decisions made, or processes followed, regarding the lay-off of any ESU employee on September 15, 2022.
Though the university’s actions have been defended by the Kansas State Board of Regents and Kansas legislators, the American Association of University Professors has chastised both the ESU Administration and Board of Regents as:
…having demonstrated through their actions an almost total disregard for the institution of tenure and the principle of academic freedom.
Updates to the article will be made as information becomes available.
If you would like to support the terminated professors’ legal defense, you can find their GoFundMe page here.