Here is a Chronicle piece with more on the case.

Federal Appeals Court Upholds Financial Protections of Tenure in Case From Puerto Rico
By PETER SCHMIDT 
 
Tenure affords college faculty members distinct income protections, a federal appeals court ruled on Thursday in a decision denying a Puerto Rican private college the ability to rid itself of a professor by simply paying him the minimum severance package required under a commonwealth law.

Deciding against the Inter American University of Puerto Rico in its dispute with Edwin Otero-Burgos, a tenured professor of business it had fired in 2002, a three-judge panel of the U.S. Court of Appeals for the First Circuit held that Mr. Otero-Burgos's tenure contract "simply could not fulfill its function of safeguarding academic freedom and providing economic security if the severance payment were the only consequence faced by the university for firing him in violation of that contract."

The appeals court's opinion overturns a federal district court's decision to dismiss the breach-of-contract lawsuit filed by Mr. Otero-Burgos, who had taught business at the university's Barranquitas campus, and says he is entitled to pursue his complaint that the university had violated his tenure protections by firing him without adequate cause.

Rachel Levinson, senior counsel for the American Association of University Professors, hailed the decision as perhaps the most explicit statement by a federal court that the protections offered by tenure are partly financial.

"It says that without some economic protection for tenure, or some economic basis for tenure, tenure itself does not have a lot of meaning," Ms. Levinson, whose organization had filed a friend-of-the-court brief on Mr. Otero-Burgos's behalf, said on Thursday.

Much of the case focused on a Puerto Rican statute, Law 80, which the university cited in arguing that it had acted properly in dismissing the professor. That measure holds that an employer can fire at-will employees without just cause as long as it pays them a severance package calculated according to a mandated formula.

A federal district judge in Puerto Rico had accepted the university's argument that Law 80 covered its dismissal of Mr. Otero-Burgos. If the appeals court had agreed, Mr. Otero-Burgos, who had worked at the university for 28 years, would have been entitled to less than a year's pay.

Among the key issues that the appeals court had to resolve was whether the tenured professor was technically an at-will employee, defined under Puerto Rican law as serving "without a fixed term." Mr. Otero-Burgos argued that his tenure contract covered a fixed period, "the professional lifetime of a professor." But the university argued that, because it could fire him under certain circumstances such as financial exigency or his being found guilty of gross misconduct, his employment there should not have been considered to have a fixed end point.

The appeals court concluded that there are clear differences between workers who can be fired for any reason and tenured professors who presume they will work until retirement.

Also at issue was the intent of Law 80. The appeals court held that Puerto Rico had passed the measure to offer greater protections to at-will employees-by providing monetary penalties for employers who fire them without just cause-and that the university was violating the spirit of the measure by citing it in paying Mr. Otero-Burgos less than he was due under his tenure contract.

-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Virginia G Maurer
Sent: Tuesday, February 24, 2009 4:15 PM
To: [log in to unmask]
Subject: Re: Tenure issue

Was it a breach of contract case?

________________________________

From: Academy of Legal Studies in Business (ALSB) Talk on behalf of Lee Reed
Sent: Tue 2/24/2009 3:49 PM
To: [log in to unmask]
Subject: Tenure issue



Hi, All.  Here is an account of an interesting tenure deprivation case from Rachel Levinson, senior AAUP counsel. I have a question about it for all of you: Does tenure represent a property interest which the state (public university) would be unable to deprive you of without just compensation, the small pittance being offered under the statute hardly qualifying as just. Lee