New Jersey Tenure Decisions at Private, as Well as Public Colleges and Universities, Examined by Appeals Court Decision

Under New Jersey employment law, tenure provides college, university and school faculty great protection.  However, this protection is not unlimited.  A New Jersey appeals court explained how courts should review decisions to terminate a tenured college professor in the case of Chee Ng v. Fairleigh Dickinson University.

 

Background

Dr. Chee Ng was a professor of finance at the Silberman College of Business at Fairleigh Dickinson University.  He was granted tenure in 2003, and promoted to full professor in 2007.  In 2009, ten of his students complained to the school regarding Dr. Ng’s conduct in class.  They alleged that he made discriminatory comments in class, mistreated students, and was generally rude.  Similar complaints were made again in 2010.  The department chair counseled him, but similar complaints were made by more students in 2012.  More counseling was held.  Complaints were again received in Fall 2013 and Spring 2015; again, he was counseled.  Dr. Ng then took a sabbatical during the Fall 2015 and Spring 2016 semesters.  However, more student complaints were received upon Dr. Ng’s return.  The complaints were investigated, and the Dean met with Ng and advised him that if there were more upheld student complaints, there would be more severe consequences.

In Fall 2017, nine students complained about Dr. Ng’s conduct.  At this point, the University commenced dismissal proceedings in accordance with the University’s faculty handbook.  The matter was forwarded to the University’s grievance committee, which found that there was adequate grounds for dismissal as enumerated in the faculty handbook, including  “[f]ailure to perform professional responsibilities, either through gross incompetence, gross negligence, or willful disregard of scholarly and professional standards…, [w]illful acts which directly and seriously subvert the rights and welfare of members of the University community,” but recommended he be placed on probation.  The President of the University, however, determined that termination was appropriate, and forwarded this recommendation to the Board of Trustees.  The Board determined that clear and convincing evidence, indeed voluminous evidence, demonstrated that Dr. Ng had engaged in willful misconduct, and terminated Dr. Eng’s employment with the University.

 

Dr. Ng’s Lawsuit

Dr. Ng filed suit in the Superior Court of New Jersey, alleging that the University did not meet the burden of proving his alleged misconduct by clear and convincing evidence as required by the faculty handbook.  The judge disagreed and dismissed Dr. Ng’s lawsuit on summary judgment.  Dr. Ng then appealed to the Appellate Division of the Superior Court of New Jersey.

 

The Appeal

The Appellate Division affirmed the trial judge’s dismissal of Dr. Ng’s lawsuit.

As a preliminary matter, the court explained that the New Jersey Supreme Court had reviewed the standard of review for tenure decisions in public universities in the case of Snitow v. Rutgers University.  In that case, the Supreme Court explained that public universities needed discretion to make decisions on how to best achieve their academic mission, and this included “the decision to hire, promote, and retain teaching faculty.”  Therefore, courts should not overturn such a decision unless it was arbitrary, capricious or unreasonable.  The Appellate Division then held that this deference should govern the review of faculty employment decisions by private New Jersey colleges and universities.  (This deference does not apply to lawsuits for discrimination, whistleblower retaliation, or violation of other statutory or common law employee protections.)

The Court then explained that this deference also applies to grievance procedures which a university has agreed to with its faculty.  Since the faculty handbook was negotiated between the University and its faculty, this deference applied in this case.

Applying that standard to Dr. Ng’s appeal, the Appellate Division found that the judge’s dismissal of his lawsuit was based by voluminous evidence over a long period of time which supported Fairleigh Dickinson’s decision.  The Appellate Division refused to relitigate the University’s decision, but rather affirmed because it was neither arbitrary, capricious nor unreasonable.

 

The Takeaway

Colleges and universities need discretion to fulfill their academic mission.  Therefore, New Jersey employment law provides that their decisions on tenure or discipline of tenured faculty will be given great deference, provided they do not involve discrimination, retaliation or violation of other employee protections.  Therefore, it is important to effectively challenge adverse decisions at the university level.  And, of course, to do that you should document, document, document.

 

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