When is a mailed employment agreement from a university a binding contract for a tenure-track professor?
That is the heart of a breach-of-contract case making its way through the Kentucky Court of Appeals. The case involves the University of Louisville, which typically hires tenure-track professors through letter agreements, but contends such agreements do not constitute contracts.
How universities handle employment agreements “really varies from place to place,” said Barmak Nassirian, director of federal relations and policy analysis at the American Association for State Colleges and Universities.
Nassirian told Insider Louisville that at some institutions letter agreements serve as the employment contracts.
At other universities, however, such agreements merely highlight certain working conditions and expectations but are followed up by negotiations and elaborate employment contracts. Some institutions also rely on “custom, habit and tradition,” he said.
“There is no standard practice,” Nassirian said.
In court proceedings, UofL is arguing that a letter agreement it had with Matt Bohm, a former assistant professor of mechanical engineering at UofL’s J.B. Speed School of Engineering, does not constitute a contract.
Bohm’s attorney, Charles Miller, managing partner with Louisville-based Miller & Falkner Attorneys, told Insider that he believes the university’s argument may undermine its reputation and ability to attract top teaching talent.
Bohm had filed a lawsuit against UofL in 2016, accusing the institution, a former department chair and a retired dean of breaching his contract and making fraudulent misrepresentations when they hired him.
The university had asked a court to dismiss the suit, but a judge has allowed one of three original claims to move forward.
Bohm argues that the university breached its contract with him when it failed to offer him promised support, including funds for a graduate student.
In the suit, he said that a “doctoral student is essential to allow a professor to allocate time to other pursuits that are expected of the professor in order to obtain tenure.” Those include publishing research and obtaining grants.
But the university did not provide the support until Bohm’s fourth year, and, as a result, the professor contends, he was denied tenure and had to leave the university. Bohm is now an associate professor at Florida Polytechnic University in Lakeland, Fla., between Tampa and Orlando.
Miller said, “We claim that the university promised certain things … the main thing being the promise to provide timely doctoral support, and they failed to do that in a reasonably timely fashion.”
UofL spokesman John Karman told Insider via email that the university does not comment on pending litigation.
Bohm, a native of Carthage, Mo., said he was on a nontenure track at Oregon State University in 2009 when he applied to about 20 schools, including UofL. He interviewed with UofL, visited Louisville, liked the city and accepted an offer of employment.
The university’s fiscal struggles at the time, at the height of the recession, are well-documented: The university said that between 2002 and 2009, the state reduced higher education funding nearly every year, and UofL raised its tuition an average 9 percent annually. Faculty and staff saw their salaries remain frozen from 2008 through 2010.
Nonetheless, the lawsuit asserts that the university told Bohm in writing that in offering the professor a position, it intended to make available critical resources, including laboratory space, three-year support for a doctoral student and a university fellow — though other documents from around the time indicate the department had no funds to pay for the doctoral students.
Bohm has told Insider that when the university did not provide the promised support, he asked for help, but ran into a “circle of ‘Nos.’ ” He said he complained to his department chair, who told him to talk to the dean, who told him to talk to the chair.
When Bohm was denied a tenured position, the major factors the university cited included the failure to graduate a doctoral student, produce enough journal publications and obtain sufficient research grants, all of which, Bohm argues, he could not pursue properly because the university failed to provide its promised support.
Bohm resigned from the university on July 20, 2016.
Miller, who is a UofL graduate, said in an interview that the University of Louisville’s practices toward professors and their labor agreements undermined its reputation and ability to attract to top teaching talent.
Tenure-track professors who may consider coming to UofL probably would think twice about transferring to UofL if they knew that letter agreements they get from the institution do not constitute contracts in the eyes of the university’s leaders, Miller said.
“It’s very concerning to me,” he said. “If I were a tenure-track professor, it would be a big red flag to me.”
While some high-profile positions, such as the head basketball coach, have “finely crafted employee contracts,” most professors have only the same documents that Bohm had, Miller said.
The university should be trying to help tenure-track professors, he said, but instead is fighting them tooth and nail.
“(It’s) disappointing,” Miller said.
Bohm has asked the court to compensate him for past and future lost wages, personal indignity and humiliation, loss of opportunity, unnecessary relocation expenditures and damages to his reputation.
Bohm’s current institution, FPU, does not have a tenure track and, according to the lawsuit, pays “substantially less than (Bohm’s) expected salary at the University of Louisville upon becoming tenured.” UofL also is significantly bigger, as it has more professors than FPU has students.
The university sought to have the suit dismissed at least in part because it claimed sovereign immunity, which, Miller said, is a legal concept that dates back to feudal times and essentially means that the king (or state) cannot be sued unless the king consents to be sued, which, in this case, the king (UofL) doesn’t.
Franklin Circuit Court Judge Thomas D. Wingate agreed with the university that sovereign immunity bars one of the claims filed by Bohm, and wrote that a second claim fails as a matter of law.
However, the third, breach of contract, can go forward, the judge said.
“The Court finds that the letter agreements constitute a written contract (and that the) letters serve as the agreement between the parties that constituted an offer of employment,” the judge wrote. “On its face the letter constituted a written agreement that Plaintiff may seek to enforce in this Court.”
The university’s claim of sovereign immunity also prolonged the proceedings. Typically, when at least part of a suit survives a motion to dismiss, Miller said, the surviving claim moves forward to litigation or trial. However, as the university claimed sovereign immunity, the institution is allowed to — and did — appeal immediately to the Kentucky Court of Appeals.
Miller told Insider that a decision from the appeals court likely is months away. And if the court sides with Bohm, the university could immediately appeal to the Kentucky Supreme Court.
CORRECTION: This post was updated to correct the timing of Bohm’s lawsuit and his title at Florida Poly.