I have represented Colleges and Universities for 33 years and I love the work. I was an adjunct at the University of Baltimore Law School for 30 years and I loved that too. The unique things that happen in the world of higher education never cease to amaze me. So, through that lens, let’s take a look at a recent decision from the Third Circuit, which provides a variety of teachable moments regarding interaction among faculty, a university’s response to a challenging situation and, while we are at it, faculty unions and the arbitral process. Kenny v. Denbo, No. 17-2342 (3d Cir. May 3, 2018) (unpublished), affirming No. 16-8578 (D.N.J. May 5, 2017) (unpublished).
This is how Judge Bibas starts the appellate court’s opinion: “Adjunct Professor Robert Kenny substituted for Professor Susan Denbo while she was on sabbatical. After an arbitration, he was suspended for borrowing her syllabus. Kenny’s borrowing resulted from an excusable misunderstanding. Only later did evidence come out that Denbo had passed along that syllabus specifically for the adjunct to use.”
Professor Denbo, who has tenure at Rider University, is a professor of sports management, marketing, and legal studies. Yep, legal studies. Anyway, she became irate when she learned that Kenny (then an adjunct at Rider for 16 years) planned to use her syllabus for the course that he had been asked to cover for her while she was on sabbatical: Legal and Ethical Aspects of Management. Yep. Read the course title again. What Denbo neglected to mention when this all went down (and as Judge Bibas pointed out) was that she had given the syllabus to the department chair precisely so that Kenny could use it.
But (again in the words of Judge Bibas): “Denbo was ‘outraged!!!!!’ . . . . In a series of emails to Rider administrators, she accused Kenny of ‘EXTREME unethical behavior,’ fuming that he had accessed ‘MY ENTIRE BLACKBOARD!!!’ using the guest access permitted by her Blackboard privacy settings. Denbo also fulminated that Kenny’s syllabus ‘is IDENTICAL to my syllabus and references all of my Blackboard materials.’ In follow-up emails, she continued her tirade, deploying such punctuation-peppered interjections as ‘UGH!!!!’ and ‘REALLY?????????’ Even though she conceded that ‘he assured me that he had not posted anything yet,’ she suggested that Kenny never teach at Rider again.” I guess you’ve got to be impressed when a university professor uses such expressive language with capital letters as well as this many exclamation points and question marks.
Kenny apologized, reworked the syllabus, did not post any of Denbo’s student resources, and did not use any of her assignments. So, the students certainly benefited there. Or not. Because that’s what it’s all about, right? Student success?
Rider faculty – both full time and adjunct – are in a bargaining unit represented by the American Association of University Professors (AAUP). The AAUP collective bargaining agreement (CBA) is over 250 pages long. Really. Among other things (obviously), the CBA contains an arbitration clause and Kenny’s grievance first went that route. But after hearing opening statements, the arbitrator suggested that the parties should try to resolve the matter without going through testimony and exhibits and briefing and all that makes an arbitration an arbitration (this is not an unusual approach for most arbitrators).
And so that is what occurred. The “settlement” was that Kenny would be suspended from teaching at Rider for the fall semester and provide a written apology to Denbo. Neither side admitted wrongdoing. Kenny claims that the union representative presented this suspension not as a choice to be considered, but “as a fait accompli.” But, after the one semester suspension, Kenny has never again been asked back to teach at Rider. And, to add insult to injury, when Kenny applied for unemployment, Rider told the state unemployment commission that he had been suspended for misconduct.
Kenny did not go quietly into the night. He’s apparently a lawyer (again with the law stuff) by training. He sued Denbo in state court for libel and Rider for alleged breach of the settlement agreement for its statements to the unemployment commission. It was only then, in discovery in the state court lawsuit, that the fact Denbo had given her syllabus to the department chair to be used by Kenny became known.
One wonders how this could be? Did Denbo, or someone else, purposely keep that information hidden during the grievance and arbitration process? If so, why? Did the union (which was in the awkward situation of having two members of its bargaining unit on different sides of the issue) know about it and therefore pushed the arbitration settlement? Was fixer Michael Cohen involved? Was someone behind the grassy knoll? The mind reels at the possibilities.
Regardless, with this discovery, Kenny then added the AAUP to his lawsuit claiming breach of the duty of fair representation. The case was removed to federal court based on labor law preemption. And, eventually – now five years after the great syllabus fiasco – the district court judge granted summary judgment to all defendants. Kenny appealed.
Writing for the panel, Judge Bibas affirmed dismissal saying in masterful understatement “[a]lthough Rider’s and Denbo’s behavior was perhaps overheated and uncalled for in light of the actual conduct at issue, no reasonable juror could find that it crossed the line into legal wrongs.” And, as we have already seen, he had choice words for all involved. The judge ended the opinion noting that “[a]s the District Court suggested, Kenny had to endure not only the “outrage!!!!!” of tenured Professor Denbo, but also a ‘University [that] overreacted . . . in order to placate [that] overwrought tenured professor.’”
So, let’s unpack a few things here. First, according to the Third Circuit’s ruling one issue is that syllabi are viewed as “intellectual property” under the CBA. So, Denbo (said the court) was “not completely unreasonable” in believing that passing her syllabus along to the department chair for Kenny to use, did not mean he could use it verbatim. At the same time, it does stretch the boundaries of credulity just a bit to think that this whole mess was really about “intellectual property.”
Second, according to the court’s opinion, Kenny apologized – more than once – and did not use Denbo’s materials. He did teach Legal and Ethical Aspects of Management in the Spring semester. He’d taught at Rider for 16 years, apparently (at least from the public documents) without prior incidents of any sort. Yet, despite his union representation and the purported protections of a union contract, that spring course he covered for Professor Denbo was his last at Rider. No good deed goes unpunished. Why the scorched earth approach here?
Third, one of the persistent criticisms of tenure is that it enables individuals to have outsized leeway in their interactions with others for which they cannot be easily held accountable. Perhaps that is a little of what we see here. As the Third Circuit noted, Rider was dealing with an “overwrought” tenured faculty member. How could Kenny’s apology to Denbo not be sufficient?
This story is, frankly, such a shame on so many levels. A total waste of judicial resources; an adjunct who, while maybe not treated illegally, was treated shabbily; and a process that served no one. But who knows, maybe Professor Denbo feels good about it? OUTRAGEOUS!!!!! (capital letters and exclamation points used without asking her permission).