Court Upholds College Tenure Changes

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TALLAHASSEE (NSF) – Nearly two years after the Florida Board of Education approved the changes, an appeals court Monday upheld a plan aimed at revamping the way faculty members get tenure-like contracts at state colleges.

The 1st District Court of Appeal, in a 2-1 decision, rejected a challenge by the United Faculty of Florida, which argued, at least in part, that the state board overstepped its legal authority in approving the changes. Administrative Law Judge June C. McKinney also ruled against the faculty group in December 2013.

The dispute centered on what are known as "continuing contracts," which are a form of tenure in the state-college system. In the past, the state-college system was known as the community-college system.

In 2013, the state board approved a rule that made significant changes to continuing contracts. For instance, the rule increased the required period of time from three to five years of service for instructors to qualify for continuing contracts, according to Monday's decision. Another example is that the rule required colleges to develop criteria to measure "student success" and to use the criteria in evaluating the performances of faculty members.

The legal challenge involved questions about whether the board had authority under state law to make the changes --- or whether such changes should be made by the Legislature.

But a majority of the appeals court sided with the board. The majority opinion, written by Judge T. Kent Wetherell and joined by Judge Scott Makar, cited other cases in finding that it isn't necessary for "the statutes to delineate every aspect of tenure that the board is authorized to address by rule; instead, all that is necessary is for the statutes to specifically authorize the board to adopt rules for college faculty contracts and tenure, which the statutes clearly do."

In a dissent, Judge Nikki Ann Clark argued that state law does not "explicitly" authorize the board to determine issues such as whether certain faculty members should receive continuing contracts and the eligibility requirements, qualifications and performance criteria for continuing contracts. She wrote that state law does not "explicitly allow the (board) to create public policy on tenure."

"The lack of explicit legislative authorization for the adoption of this comprehensive rule is fatal to its validity,'' Clark wrote.

The News Service of Florida's Jim Saunders contributed to this report.