BY: TIM CARPENTER
Kansas Reflector
ESU administrators remain as defendants; state Board of Regents dismissed
TOPEKA — A U.S. District Court judge rejected a motion to dismiss the entirety of a federal lawsuit filed by former Emporia State University faculty challenging their dismissal under an expedited process that allegedly undermined their constitutional rights.
Judge Julie Robinson said in a memorandum Thursday the suit against ESU administrators could continue, but she dismissed current and former members of the Kansas Board of Regents named as defendants. The judge dropped three conspiracy claims made by plaintiffs, but left intact the plaintiffs’ claims of constitutional violation of due process, liberty interests, equal protection, freedom of association and a conspiracy to deprive employees of tenure rights.
The judge affirmed one of the plaintiffs’ central claims that tenure was viewed as a property right held by faculty in the state and the 10th Circuit of the U.S. Court of Appeals had previously affirmed property interests of tenured professors in Kansas.
The determination bolstered the argument by plaintiffs — 11 former ESU tenured professors — that they were terminated in violation of the U.S. Constitution.
“The court agrees with plaintiffs that it is clearly established under 10th Circuit law that tenured university faculty have a property interest deserving of the procedural and substantive protections of the 14th Amendment,” Robinson said in the order.
Topeka attorney Phillip Grayson, who represents the 11 plaintiffs, said in a Friday interview the decision by Robinson was welcomed by his clients.
“I consider that a very favorable ruling,” Grayson said. “It’s about academic freedom. The primary purpose of tenure is the preservation of academic freedom.”
A spokeswoman for Emporia State wasn’t available to comment on the judge’s rulings in the lawsuit. It is possible ESU could appeal portions of Robinson’s decision to the 10th Circuit Court of Appeals.
ESU and Board of Regents attorneys had asked the federal district court to dismiss the lawsuit based, in part, on a claim of qualified immunity. They argued there was no proof ESU professors were fired for unionizing efforts, political beliefs or advocacy work. Instead, the defendants said the terminations were reasonable because they were triggered by budget issues and enrollment declines accelerated by the COVID-19 pandemic.
Robinson said the separate legal action involving ESU and seven fired professors in state district court was insufficient to address constitutional issues raised by plaintiffs in the federal case.
“Defendants fail to demonstrate that the state courts are an adequate vehicle for the complete resolution of the issues presented by this case. The state court appeals are not parallel to this action,” Robinson said.
In 2021, the state Board of Regents formulated a policy allowing state universities to take extraordinary means to suspend, dismiss or terminate employees amid a financial emergency.
KBOR general counsel Julene Miller said the policy was in response to “extreme financial pressures that the state universities are facing due to the COVID-19 pandemic, decreased program and university enrollments, and the state’s declining fiscal support.”
Only ESU made use of the Framework for Workforce Management policy allowing for expedited firing of campus employees. In 2022, ESU administrators informed 33 employees, including 23 tenured professors, they would lose their jobs in 2023.
Faculty appeals were filed through the Kansas Office of Administrative Hearings, and some prevailed, but the 11 tenured professors who were dismissed pursued the lawsuit in federal court.
The American Association of University Professors denounced the employment decisions by ESU President Ken Hush as damaging to academic freedom and to due process rights of tenured faculty.
In wake of the faculty and staff dismissals, ESU administrators awarded more than $137,000 in bonuses to 68 faculty members remaining at the university.