Terminating Tenure: Rejecting Tenure Contracts in Bankruptcy

46 Pages Posted: 12 Apr 2018  

Matthew A. Bruckner

Howard University School of Law

Date Written: April 9, 2018

Abstract

Many institutions of higher education are in dire financial straits and will close, merge, or file for bankruptcy in the near future. This Article considers the effect of bankruptcy laws on the ability of higher education institutions to restructure their workforces and, in particular, the impact that a bankruptcy filing may have on tenured professors. It analyzes whether tenure is an executory contract, concluding that the answer is surprisingly unclear and depends heavily on whether courts adopt the Countryman definition of executory contracts. It also addresses how some tenured professors may be able to complicate their employer’s reorganization to their own strategic advantage by arguing, among other things, that tenure is a protected property right under the Fifth Amendment Takings Clause.

Keywords: higher education, tenure, executory contracts, takings, constitutional law, bankruptcy law, Fifth Amendment, college, universities, nonprofit, for-profit, Westbrook, Functional test, Countryman, distress

Suggested Citation

Bruckner, Matthew A., Terminating Tenure: Rejecting Tenure Contracts in Bankruptcy (April 9, 2018). Available at SSRN: https://ssrn.com/abstract=3159578

Matthew A. Bruckner (Contact Author)

Howard University School of Law ( email )

2900 Van Ness Street, N.W.
Washington, DC 20008
United States

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