Terminating Tenure: Rejecting Tenure Contracts in Bankruptcy
46 Pages Posted: 12 Apr 2018
Date Written: April 9, 2018
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: Suggested Citation