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May it please the Court, my name is Kevin Peters,
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and I represent eight professors from Tufts University
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who were granted tenure decades ago.
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They filed a suit challenging the legality,
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contractual legality, of compensation plans
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and a lab allocation plan,
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claiming that they were violations
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not only of their tenure contracts
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as they were formed at the time of their award,
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but also a violation of principles guaranteed by tenure,
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which include academic freedom and financial security.
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The action was dismissed on summary judgment.
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We're here appealing that decision.
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In its simplest form,
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this case really presents two questions.
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First question is whether Tufts was within its rights
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to impose fundraising obligations
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on appellants all without their consent?
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The second question is, if so, if they're entitled
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to unilaterally modify an employment contract?
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And whether the modifications impinge concepts
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that are defined in the Academic Freedom and Tenure policy,
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the AFTR policy that the Court will read or has,
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because it impedes academic freedom and financial security.
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Tenure in Massachusetts,
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as this Court has set on multiple occasions-
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Why do you take the position that academic freedom
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and economic security
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are not ambiguous terms?
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For two reasons, number one,
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the parties understand what academic freedom means.
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In other words-
Well, they dispute it.
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No, no, my brother disputes it, okay?
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But when I ask-
Represents a party.
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When I ask, Your Honor, an academic freedom,
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academic freedom is defined as absolute freedom
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to pursue whatever your research interests are.
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There's no real debate at all what academic freedom means.
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Well, there's no debate here
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that they were allowed to pursue it.
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The question is the consequences of it, right?
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Well, no, Your Honor, they weren't,
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because the question is whether or not-
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Nothing prevented them from doing any research
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they wanted to do.
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They prevented them if they didn't generate income
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to pay for their lab space, and everything else,
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what the consequences were, right?
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They could study, you know, whatever they felt like.
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The impact, even slight, on academic freedom,
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violates the policy, and the impact's undeniable,
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and here's why.
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NIH, if it were only the case,
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and I would still claim that this is not a right
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they have to unilaterally modify the contract,
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but let's take the case
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if it was only the case that they said,
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"You must support half of your salary with research."
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I have professors that do that.
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They choose what they wanna research, they study it,
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they write about it, and they make changes in the world.
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The problem is, is when you put the 65% ICR piece in,
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you've narrowed the field of available research.
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If you take research,
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every available source of research
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and funding for that research, including private research,
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this is a different argument and a different case.
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I'm just confused what you're arguing though.
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Are you saying that when those professors
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were granted tenure, many of them 30 or 40 years ago,
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they can't change their lab space ever?
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They can't adjust their compensation in any negative way?
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No, that's not what I'm saying.
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What are you saying?
I'm saying that
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economic security and academic freedom
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are inextricably interrelated.
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I understand they're interrelated.
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The question though is the language
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in the tenure principles talks about sufficient, right?
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It doesn't just talk about you can't,
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it doesn't say you can't lower anyone's salary, right?
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No, and we don't argue that salaries can't be lowered.
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What we argue, Your Honor, is salaries cannot be lowered
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as a means to impose discipline
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on an academic who doesn't pursue research
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that is fundable by the NIH.
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I'll give you an example, Judge.
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But if a pharmaceutical company was willing
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to pay the overhead,
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that's perfectly fine, right?
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If Novartis or one of these other major
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pharmaceutical companies was gonna give them grants
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that covered that amount, no problem, right?
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If it's 65%, it's no problem, Your Honor.
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The real question is a basic principle question.
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I think it's undeniable that if we take all the research
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that can be done in the world,
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Judah Folkman, anti-angiogenesis, for example,
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the Covid vaccine,
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if we take all the research that can be done in the world
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and we say you can only do that research,
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which has a 65% ICR return,
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then you're narrowing the field of available research
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as a very practical matter in this context
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given the competitiveness of trying to get these 65% grants.
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But, again.
Yes, sir.
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They're running a university
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with a confined amount of lab space too.
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If you're occupying that lab space,
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someone else is not occupying that lab space, right?
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There's not an unlimited amount of lab space in Tufts.
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That's one of the reasons they're shrinking your lab space
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if you don't have grants to support it,
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'cause somebody else may, right?
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The problem with the analysis, Your Honor,
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is that if you're using lab space as a causal
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to enforce the obligation to fundraise,
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which is what's going on here,
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and specific fundraising, 65% ICR,
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then what you're doing is you're using
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what is a right of the professor.
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I mean, this Court addressed this issue
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on Hlatky v. Steward Health Care.
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A professor has-
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I know, but we're here because tenure is,
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I mean, there are thousands of professors
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in Massachusetts with tenure,
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and we're trying to understand what,
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and those principles appear in at least some background way
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in every single tenure case, right?
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Yes, sir.
So we're trying
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to understand what meaning they have
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and how specific those requirements are, right?
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Let me go to first principles then.
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Okay, that would be helpful.
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Because I can't figure out,
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your brief seems to be an absolute brief
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that shrinking their lab space,
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diminishing their salary in any respect
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is a violation of tenure,
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at least that's the way I read it.
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I may be misreading it.
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But what are they allowed to do
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consistent with those principles?
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And let me try to make this clear.
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I'm defending from the smallest space I can stand on.
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I am saying these policies, all right,
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the 2017 policy is modified in 2019,
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imposes an obligation that did not exist
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at the time they were granted tenure.
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Tufts' position is, is that they can do that, why?
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Because they maintain the right in the handbook
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to change personnel policies.
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So what Tufts does, if we wanna talk about ambiguity,
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and I think we must,
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is they take the term and they define it their own way.
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They say personnel policies means,
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"I can put a policy in place that,
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even though I have a contract with a professor
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that is full-time for life,
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that cannot be revoked except for malfeasance."
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But you say that's what it says.
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That's not what their tenure letters said.
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Their tenure letters, in order to get tenure,
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they had to be full-time.
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And to get tenure is a big deal.
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You win the trifecta, right?
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The trifecta is you have
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some continuous employment, some.
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You have some economic security,
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that's sufficient economic security.
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And you have academic freedom, that's the trifecta.
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That's why they pop the champagne bottles
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when you get tenure, right?
Or sue when they don't.
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But I don't understand.
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There are limits to that too, right?
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Limits to be contractual.
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I think we have to agree to that,
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because tenure's contractual.
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So the question is,
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what was the right when initially granted?
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And whether or not the university, which I can transpose-
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So what can they do with, again,
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your clients have been employed for 50 years, some of them.
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Some of them, their grants
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have almost completely disappeared.
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What can they do consistent with those tenure principles?
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Nothing? Or have they gone too far?
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They may have gone too far,
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but they must be able to do something, right?
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Yes.
And those principles,
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as Justice Wendlandt's point, are somewhat ambiguous.
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So what they do is they take a concept,
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and the concept is personnel policy.
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And they morph that personnel policy into,
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"We can do whatever we please."
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So can you answer this question?
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What can they do consistent with your view
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of their contractual obligations to your clients?
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If a professor is not seriously performing
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his or her obligations,
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they may be referred for tenure revocation
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pursuant to a Tenure Revocation policy
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that gives the professors-
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Where is that coming from?
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The Tenure Revocation policy is under-
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No, no, not the Tenure Revocation policy.
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The analysis as to what flexibility
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Tufts Medical School has in light of the tenure contracts.
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Doesn't that come from norms
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in the industry?
Yes.
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Where is it that you're finding, yes.
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Norms in the industry
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is a good place to start, Your Honor.
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Okay, and we only look to those under our canons
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of construction of a contract
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if the terms are ambiguous.
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Which is why I started my questions
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with are these terms ambiguous?
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And I was surprised to hear you say no.
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Because if they're not ambiguous,
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we don't look at the norms of the industry.
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There's two things.
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We have a situation where I think neither of us
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necessarily thinks the terms are ambiguous.
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I think maybe he thinks they're unenforceable.
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But we know what academic freedom is,
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and we know what the norms in the industry are.
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The American Association of University Professors
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submitted an amicus on this very thing.
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Okay, so they have to be ambiguous
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in order for me to look at the norms in the industry?
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Let's assume that academic freedom is ambiguous-
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Or the combination of that with economic security.
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Is ambiguous, then the question
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is you look to the industry itself.
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And this is on summary judgment.
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What is in the record about the industry norms?
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We have four or five expert affidavits
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that we submitted that discuss this very issue
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that are in the record.
Okay.
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Both of you agree that the AAUP,
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those principles are the norms in the industry.
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What they actually mean, you differ on.
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And the D.C. Circuit opinions,
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at least some of the amicus,
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refer to talk about those norms,
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that they're sort of the key norms in the industry,
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'cause academia is not really,
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although it's become more of an industry,
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at least when some of these people were given tenure,
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you know, it's a different era, but those are the norms.
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Right?
Right.
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How restrictive they are is what I find
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ambiguous and unclear.
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Except that, Your Honor,
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if we take the very basic principle, and that is academic.
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But I don't see how it gets you there.
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Sufficiently economic so that people of real intelligence
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stay in the profession.
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Your clients proved that.
No.
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They stayed at Tufts for 30 and 40 years.
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Their salary wasn't adjusted
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until they ran outta grant money.
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The argument is,
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actually the provision is different than that.
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00:12:12.630 --> 00:12:14.640
Mhmm, go ahead.
The provision is
268
00:12:14.640 --> 00:12:16.413
sufficiently attractive.
269
00:12:18.384 --> 00:12:19.980
There are two provisions.
270
00:12:19.980 --> 00:12:22.653
The economic one says sufficiently what?
271
00:12:23.850 --> 00:12:26.640
I'll do it, "A sufficient degree of economic security
272
00:12:26.640 --> 00:12:28.350
to make the profession attractive
273
00:12:28.350 --> 00:12:30.180
to men and women of ability."
274
00:12:30.180 --> 00:12:32.280
So it's not the negative.
275
00:12:32.280 --> 00:12:35.040
It's not that it has to be unattractive.
276
00:12:35.040 --> 00:12:36.362
The question is whether or not a-
277
00:12:36.362 --> 00:12:38.820
A sufficient degree of economic security.
278
00:12:38.820 --> 00:12:40.533
Your Honor, whether or not,
279
00:12:41.610 --> 00:12:42.870
I don't think it's ambiguous,
280
00:12:42.870 --> 00:12:47.870
whether or not someone who is applying for tenure
281
00:12:48.150 --> 00:12:50.820
is being told, "We're gonna give you this job,"
282
00:12:50.820 --> 00:12:53.077
okay, which is what happened,
283
00:12:53.077 --> 00:12:55.800
"full-time for life, no funding obligations,"
284
00:12:55.800 --> 00:12:58.050
that's what this contract is.
285
00:12:58.050 --> 00:12:58.883
There's nothing in the agreement that-
286
00:12:58.883 --> 00:13:01.107
[Justice Wendlandt] Where does the contract say that?
287
00:13:01.107 --> 00:13:03.750
The contract letters do not reflect
288
00:13:03.750 --> 00:13:05.400
the obligation to raise funds.
289
00:13:05.400 --> 00:13:07.833
Right, but that's, again, not the negative.
290
00:13:09.450 --> 00:13:10.890
You're quibbling about the negative of this-
291
00:13:10.890 --> 00:13:12.260
Let's take it-
All they say
292
00:13:12.260 --> 00:13:13.347
is you have tenure.
Yeah.
293
00:13:13.347 --> 00:13:15.360
No, no, let's take it out of the context-
294
00:13:15.360 --> 00:13:16.193
Right? Right?
295
00:13:16.193 --> 00:13:18.427
When they got those letters, it said,
296
00:13:18.427 --> 00:13:21.270
"You are a tenured professor, congratulations."
297
00:13:21.270 --> 00:13:23.970
Right, and what does that mean?
298
00:13:23.970 --> 00:13:27.510
And then, I take it means those three norms,
299
00:13:27.510 --> 00:13:30.280
those three norms provide the background
300
00:13:33.076 --> 00:13:35.340
for academic freedom,
301
00:13:35.340 --> 00:13:37.980
an expectation of continued employment,
302
00:13:37.980 --> 00:13:40.770
and sufficient economic security
303
00:13:40.770 --> 00:13:44.520
that people of intelligence will stay as professors.
304
00:13:44.520 --> 00:13:46.710
Not stay, be attracted to it.
305
00:13:46.710 --> 00:13:48.847
Right, attracted.
That's different.
306
00:13:48.847 --> 00:13:50.677
"How are we gonna bring people in"?
307
00:13:50.677 --> 00:13:52.680
"How are we gonna make tenure
308
00:13:52.680 --> 00:13:54.097
something that attracts people"?
309
00:13:54.097 --> 00:13:56.580
[Justice Wendlandt] But what definition of attractive
310
00:13:56.580 --> 00:13:57.630
only means come?
311
00:13:57.630 --> 00:13:59.910
We can define what isn't attractive?
312
00:13:59.910 --> 00:14:02.190
I can't define what free speech is.
313
00:14:02.190 --> 00:14:03.780
I can define what it isn't.
314
00:14:03.780 --> 00:14:06.180
If someone tells me I'm not free to say something,
315
00:14:06.180 --> 00:14:07.800
then I don't have free speech.
316
00:14:07.800 --> 00:14:11.010
And the situation here is precisely the same.
317
00:14:11.010 --> 00:14:14.220
If I have the-
You have free speech,
318
00:14:14.220 --> 00:14:16.680
I mean, again, this relates to another issue I've got,
319
00:14:16.680 --> 00:14:18.993
which is these are med school professors,
320
00:14:20.340 --> 00:14:23.190
they're not French literature professors,
321
00:14:23.190 --> 00:14:27.360
or even people who work with computers who don't occupy,
322
00:14:27.360 --> 00:14:28.710
you know, lab space.
323
00:14:28.710 --> 00:14:30.930
These are a different group of people.
324
00:14:30.930 --> 00:14:32.673
Tenure is university wide.
325
00:14:33.840 --> 00:14:36.570
Tenure doesn't mean tenure for different people, it can't.
326
00:14:36.570 --> 00:14:39.570
You don't think there's a difference,
327
00:14:39.570 --> 00:14:41.490
because all these provisions apply
328
00:14:41.490 --> 00:14:43.470
to the lab scientists, right?
329
00:14:43.470 --> 00:14:44.970
Yes.
They don't apply
330
00:14:44.970 --> 00:14:49.260
to the person teaching French or the person
331
00:14:49.260 --> 00:14:52.200
teaching computer science.
Agreed.
332
00:14:52.200 --> 00:14:56.070
In other words, research is central to the whole model.
333
00:14:56.070 --> 00:14:59.460
Research is one of the three things
334
00:14:59.460 --> 00:15:02.550
that are required of a professor, and they're all equal.
335
00:15:02.550 --> 00:15:04.170
It's a three-legged bar stool.
336
00:15:04.170 --> 00:15:07.407
You have research, you have service to the community,
337
00:15:07.407 --> 00:15:09.120
and you have teaching.
338
00:15:09.120 --> 00:15:10.560
What they did in this instance is,
339
00:15:10.560 --> 00:15:13.260
is they elevated research to a point
340
00:15:13.260 --> 00:15:16.170
that if you don't comply with their fundraising obligations,
341
00:15:16.170 --> 00:15:17.910
even if you're an excellent teacher
342
00:15:17.910 --> 00:15:20.340
and an excellent member of the academic community,
343
00:15:20.340 --> 00:15:21.360
you get fired,
344
00:15:21.360 --> 00:15:22.600
or at least you can be referred for termination.
345
00:15:22.600 --> 00:15:24.510
Let me ask you this.
Yes, sir.
346
00:15:24.510 --> 00:15:27.750
If I have your argument right
347
00:15:27.750 --> 00:15:31.920
in its simplest terms for the word academic freedom
348
00:15:31.920 --> 00:15:33.870
not being ambiguous,
349
00:15:33.870 --> 00:15:38.760
are you saying that you can't have academic freedom
350
00:15:38.760 --> 00:15:43.080
if you're so limited in the type of grants
351
00:15:43.080 --> 00:15:45.330
that you can apply for,
352
00:15:45.330 --> 00:15:50.310
because you have to go for the big bucks with the NIH
353
00:15:50.310 --> 00:15:53.220
and that that's a limited type of pool,
354
00:15:53.220 --> 00:15:57.300
and so therefore is your unambiguous argument
355
00:15:57.300 --> 00:15:59.430
that because you're limited to that,
356
00:15:59.430 --> 00:16:01.440
you don't really have academic freedom?
357
00:16:01.440 --> 00:16:02.880
I'm saying exactly that.
358
00:16:02.880 --> 00:16:05.520
That if you take the full panoply of potential research
359
00:16:05.520 --> 00:16:08.460
and you say, "You make sure that you focus
360
00:16:08.460 --> 00:16:11.490
on the 65% ICR research,
361
00:16:11.490 --> 00:16:13.200
or else, if you don't support half your salary,"
362
00:16:13.200 --> 00:16:15.090
which is a challenging standard,
363
00:16:15.090 --> 00:16:17.820
you have to put in a lot of applications for that.
364
00:16:17.820 --> 00:16:20.250
Can they take away your lab?
365
00:16:20.250 --> 00:16:22.320
Yeah.
I mean, if you're studying
366
00:16:22.320 --> 00:16:26.080
something that has no financial remuneration
367
00:16:27.060 --> 00:16:28.653
and you're occupying lab space,
368
00:16:29.490 --> 00:16:30.929
they can take away your lab?
369
00:16:30.929 --> 00:16:33.570
No, not for failing
370
00:16:33.570 --> 00:16:34.437
to meet a fundraising obligation.
371
00:16:34.437 --> 00:16:36.090
So when you get tenure,
372
00:16:36.090 --> 00:16:39.540
you not only are guaranteed your salary,
373
00:16:39.540 --> 00:16:43.320
but you're guaranteed a lot of lab space too?
374
00:16:43.320 --> 00:16:46.110
No, not guaranteed a lot of lab space.
375
00:16:46.110 --> 00:16:47.760
These professors got lab space
376
00:16:47.760 --> 00:16:49.560
as part of their job responsibilities.
377
00:16:49.560 --> 00:16:50.784
Just like Dr. Hlatky did in the Steward case.
378
00:16:50.784 --> 00:16:53.610
So when they had the lab space 50 years ago,
379
00:16:53.610 --> 00:16:56.370
they get to keep that lab space forever?
380
00:16:56.370 --> 00:16:59.100
As long as they're doing their research,
381
00:16:59.100 --> 00:17:00.930
they should have a place to do their research.
382
00:17:00.930 --> 00:17:04.239
Yes, that is an inextricable aspect of tenure.
383
00:17:04.239 --> 00:17:08.160
What about all the younger professors who need lab space
384
00:17:08.160 --> 00:17:11.610
to do the kind of knowledge-based research
385
00:17:11.610 --> 00:17:13.560
that people want done?
386
00:17:13.560 --> 00:17:15.300
Those people are out of luck?
387
00:17:15.300 --> 00:17:16.710
I don't see anything in the record
388
00:17:16.710 --> 00:17:19.500
that suggests that the lack of lab space
389
00:17:19.500 --> 00:17:21.060
was the issue going on here.
390
00:17:21.060 --> 00:17:22.290
It's evident that what's going on
391
00:17:22.290 --> 00:17:26.190
is it's a punitive measure done to convince people
392
00:17:26.190 --> 00:17:28.560
to focus their efforts on ICR,
393
00:17:28.560 --> 00:17:30.810
excuse me, research that generates the highest ICR.
394
00:17:30.810 --> 00:17:34.140
Let me read, because I think it makes sense to understand
395
00:17:34.140 --> 00:17:36.390
what academic freedom means to Tufts,
396
00:17:36.390 --> 00:17:38.550
at least the limitations they're on.
397
00:17:38.550 --> 00:17:42.090
I asked Thomas Malone, who is the 30-B6 witness
398
00:17:42.090 --> 00:17:44.793
and the school's executive dean, this question,
399
00:17:48.127 --> 00:17:49.650
"Does Tufts believe it has the right
400
00:17:49.650 --> 00:17:52.893
to impact academic freedom, even a little bit,
401
00:17:53.880 --> 00:17:57.390
in plans that it establishes and policies it puts in place?"
402
00:17:57.390 --> 00:18:00.060
And the answer is "No," not even a little bit.
403
00:18:00.060 --> 00:18:02.400
So if we're talking about a policy.
404
00:18:02.400 --> 00:18:04.004
I don't know who this person is.
405
00:18:04.004 --> 00:18:07.050
He was the 30-B6 witness, and the person who just-
406
00:18:07.050 --> 00:18:08.730
We're looking at contract language.
407
00:18:08.730 --> 00:18:11.760
Right?
He's explaining what Tufts
408
00:18:11.760 --> 00:18:13.290
says the contract means.
409
00:18:13.290 --> 00:18:14.730
This is the meeting of the minds.
410
00:18:14.730 --> 00:18:15.780
I assume we're gonna have,
411
00:18:15.780 --> 00:18:17.287
he's gonna stand up and say,
412
00:18:17.287 --> 00:18:19.590
"The president of Tufts said this,
413
00:18:19.590 --> 00:18:22.740
and there are 18 other people who've qualified this."
414
00:18:22.740 --> 00:18:25.800
There are three other areas in the transcript,
415
00:18:25.800 --> 00:18:27.690
all of which are the other, there are three,
416
00:18:27.690 --> 00:18:29.850
three 30-B6 witnesses,
417
00:18:29.850 --> 00:18:32.250
three witnesses testified the same way,
418
00:18:32.250 --> 00:18:34.080
that any impact on academic freedom
419
00:18:34.080 --> 00:18:35.880
violates the AFTR policy.
420
00:18:35.880 --> 00:18:37.410
Which makes perfect sense, by the way.
421
00:18:37.410 --> 00:18:40.350
And when we read this deposition transcript,
422
00:18:40.350 --> 00:18:42.243
we're gonna hear that he's saying that,
423
00:18:42.243 --> 00:18:45.870
"'If you in any way impact my lab space
424
00:18:45.870 --> 00:18:50.040
or make me do research that basically I get reimbursed for,
425
00:18:50.040 --> 00:18:53.400
that's an interference with academic freedom at Tufts,'
426
00:18:53.400 --> 00:18:54.687
and we agree with that"?
427
00:18:56.339 --> 00:18:57.390
I'll be flabbergasted.
428
00:18:57.390 --> 00:18:58.860
They're not gonna admit that, Your Honor.
429
00:18:58.860 --> 00:19:01.320
The real question is what this Court can understand
430
00:19:01.320 --> 00:19:03.150
just as a practical matter, frankly,
431
00:19:03.150 --> 00:19:05.040
by judicial notice on some level,
432
00:19:05.040 --> 00:19:06.716
if I have a universe-
433
00:19:06.716 --> 00:19:09.020
But, I mean, I say you're citing to deposition testimony,
434
00:19:09.020 --> 00:19:11.160
30-B6 testimony, and again,
435
00:19:11.160 --> 00:19:12.750
I go back to my first question
436
00:19:12.750 --> 00:19:17.400
is I don't look at that unless the term is ambiguous.
437
00:19:17.400 --> 00:19:21.180
And your position in your brief is that it's not ambiguous.
438
00:19:21.180 --> 00:19:23.760
Well, Your Honor, because the way
439
00:19:23.760 --> 00:19:25.680
that it's defined in academia,
440
00:19:25.680 --> 00:19:28.560
just like free speech is defined under constitutional law,
441
00:19:28.560 --> 00:19:29.940
we know what it is.
442
00:19:29.940 --> 00:19:33.300
It is the freedom to pursue whatever your heart desires.
443
00:19:33.300 --> 00:19:35.820
It may sound counterintuitive, it may sound-
444
00:19:35.820 --> 00:19:37.560
No, it doesn't sound counterintuitive.
445
00:19:37.560 --> 00:19:40.110
It's just that you're citing to me things
446
00:19:40.110 --> 00:19:44.883
that require me to conclude that the term is ambiguous.
447
00:19:45.773 --> 00:19:48.090
And it's contrary to the position
448
00:19:48.090 --> 00:19:48.930
that you took in your brief.
449
00:19:48.930 --> 00:19:51.090
Well, this Court views this de novo.
450
00:19:51.090 --> 00:19:53.970
So even if the provision is ambiguous,
451
00:19:53.970 --> 00:19:55.770
the question is, whether or not it can be resolved
452
00:19:55.770 --> 00:19:57.420
on the record before the Court?
453
00:19:57.420 --> 00:19:59.190
And the answer is it can be,
454
00:19:59.190 --> 00:20:01.230
because there's no real debate
455
00:20:01.230 --> 00:20:03.180
that tenure is a full-time job.
456
00:20:03.180 --> 00:20:05.550
This novel idea that we can take-
457
00:20:05.550 --> 00:20:06.480
That was my other question.
458
00:20:06.480 --> 00:20:08.640
Are you asking us to vacate the lower court decision
459
00:20:08.640 --> 00:20:09.930
or are you asking us to affirm
460
00:20:09.930 --> 00:20:11.970
summary judgment on your behalf?
461
00:20:11.970 --> 00:20:14.430
B, I believe summary judgment in favor
462
00:20:14.430 --> 00:20:17.100
of the professor's is merited on the record.
463
00:20:17.100 --> 00:20:19.920
This is a question of law, fundamentally.
464
00:20:19.920 --> 00:20:23.553
And the question is, well, I proposed the questions.
465
00:20:25.380 --> 00:20:29.400
But the idea that Tufts can take a full-time position,
466
00:20:29.400 --> 00:20:31.597
and there can be no question that this is,
467
00:20:31.597 --> 00:20:32.850
"I am a professor.
468
00:20:32.850 --> 00:20:34.620
My obligations are not just research.
469
00:20:34.620 --> 00:20:36.960
I have to teach and I have to be part of the community."
470
00:20:36.960 --> 00:20:41.190
In fact, the 2017 compensation policy says exactly that.
471
00:20:41.190 --> 00:20:42.427
In the area where it says,
472
00:20:42.427 --> 00:20:44.580
"We can cut you down to half time," it's still-
473
00:20:44.580 --> 00:20:46.230
We're gonna ask your brother those questions.
474
00:20:46.230 --> 00:20:48.450
But your view is they can't do anything.
475
00:20:48.450 --> 00:20:50.340
They can't touch your lab space.
476
00:20:50.340 --> 00:20:52.200
They can't change your salary.
477
00:20:52.200 --> 00:20:53.110
They can't
478
00:20:55.830 --> 00:20:57.390
change your status in any way.
479
00:20:57.390 --> 00:21:00.480
You were tenured, and that's for life.
480
00:21:00.480 --> 00:21:02.130
They may not do that.
481
00:21:02.130 --> 00:21:02.963
I just wanna make sure,
482
00:21:02.963 --> 00:21:05.340
am I accurately describing your position?
483
00:21:05.340 --> 00:21:07.650
You're missing everything after the comma.
484
00:21:07.650 --> 00:21:10.710
But tell me what they can do.
485
00:21:10.710 --> 00:21:15.180
What can they do to someone who is not bringing in money?
486
00:21:15.180 --> 00:21:17.150
Nothing?
Well, first question is,
487
00:21:17.150 --> 00:21:18.480
is are they required to?
488
00:21:18.480 --> 00:21:20.340
And you're gonna have to struggle with that question
489
00:21:20.340 --> 00:21:21.420
because the answer is no.
490
00:21:21.420 --> 00:21:23.610
I would just love an answer to the question
491
00:21:23.610 --> 00:21:28.610
of what can you do to a tenured medical school professor?
492
00:21:29.340 --> 00:21:31.620
Not who's sexually harassing someone
493
00:21:31.620 --> 00:21:34.410
where there's for cause for termination,
494
00:21:34.410 --> 00:21:37.860
and not whose department is studying something
495
00:21:37.860 --> 00:21:40.470
that no one does anymore.
496
00:21:40.470 --> 00:21:44.640
What can you do to a professor who's tenured
497
00:21:44.640 --> 00:21:49.640
who no longer is bringing in money to support their lab?
498
00:21:49.980 --> 00:21:52.620
What you can do, Your Honor, is number one,
499
00:21:52.620 --> 00:21:55.530
you can refer that person
500
00:21:55.530 --> 00:21:58.380
to the Tenure Revocation Committee.
501
00:21:58.380 --> 00:22:00.480
And that process,
502
00:22:00.480 --> 00:22:02.940
which is described and contractually mandated,
503
00:22:02.940 --> 00:22:03.900
can be undertaken.
That's for the
504
00:22:03.900 --> 00:22:05.310
for cause discipline, right?
505
00:22:05.310 --> 00:22:06.930
That's what we're talking about,
506
00:22:06.930 --> 00:22:09.180
you can be disciplined for cause.
507
00:22:09.180 --> 00:22:11.070
You're saying that when someone
508
00:22:11.070 --> 00:22:14.130
becomes basically a scholar who can't generate money,
509
00:22:14.130 --> 00:22:15.750
a med school professor,
510
00:22:15.750 --> 00:22:18.300
their only way of impacting them
511
00:22:18.300 --> 00:22:20.550
is through the for cause disciplinary process.
512
00:22:20.550 --> 00:22:22.860
And I'm not saying that critically, I'm just asking,
513
00:22:22.860 --> 00:22:23.693
is that your point?
Yes.
514
00:22:23.693 --> 00:22:24.570
Retrospectively that's true,
515
00:22:24.570 --> 00:22:26.130
because that's what the contract is.
516
00:22:26.130 --> 00:22:28.950
Prospectively, they can do whatever they want.
517
00:22:28.950 --> 00:22:29.790
I mean, there's the point.
518
00:22:29.790 --> 00:22:33.120
If we wanna redefine what tenure is by putting in policies
519
00:22:33.120 --> 00:22:34.800
that require fundraising
520
00:22:34.800 --> 00:22:38.130
and that impose tenure revocation for not raising funds,
521
00:22:38.130 --> 00:22:39.240
they can do that.
522
00:22:39.240 --> 00:22:41.850
What they can't do is unilaterally modify the contract
523
00:22:41.850 --> 00:22:44.700
to impose those obligations retrospectively.
524
00:22:44.700 --> 00:22:46.560
That's what we're arguing here.
525
00:22:46.560 --> 00:22:48.330
So there's two things that can happen.
526
00:22:48.330 --> 00:22:49.950
They can be referred for tenure revocation,
527
00:22:49.950 --> 00:22:50.783
and then their peers will decide.
528
00:22:50.783 --> 00:22:52.170
Again, and we're going around,
529
00:22:52.170 --> 00:22:54.030
and I'm sure the Chief is gonna cut this off,
530
00:22:54.030 --> 00:22:57.810
but the letter of tenure
531
00:22:57.810 --> 00:23:00.420
provides them with tenure.
532
00:23:00.420 --> 00:23:05.420
Then we're directed to the AAUP principles and other things.
533
00:23:05.430 --> 00:23:08.070
'Cause none of this is in their tenure letter, right?
534
00:23:08.070 --> 00:23:10.177
They didn't sign a contract saying,
535
00:23:10.177 --> 00:23:12.270
"When you become tenured,
536
00:23:12.270 --> 00:23:17.250
you will be a full-time employee with your salary forever
537
00:23:17.250 --> 00:23:18.510
and lab space forever,"
538
00:23:18.510 --> 00:23:20.280
that was not in the contract.
539
00:23:20.280 --> 00:23:24.930
We need to dig through the AAUP principles
540
00:23:24.930 --> 00:23:26.220
and other things to determine
541
00:23:26.220 --> 00:23:28.710
what that original contract was, right?
542
00:23:28.710 --> 00:23:30.450
Yes, the original contract, Your Honor,
543
00:23:30.450 --> 00:23:32.910
I don't think there's much debate on this, is this.
544
00:23:32.910 --> 00:23:35.220
I never should say that,
545
00:23:35.220 --> 00:23:36.960
strike that, there's not much debate.
546
00:23:36.960 --> 00:23:40.620
The original contract was comprised of their award letters,
547
00:23:40.620 --> 00:23:42.480
were also comprised of the policies
548
00:23:42.480 --> 00:23:44.760
that were in place at the time
549
00:23:44.760 --> 00:23:46.380
that described what tenure was.
550
00:23:46.380 --> 00:23:48.900
One of those policies was the Basic Science policy,
551
00:23:48.900 --> 00:23:51.210
and one of those policies was the AFTR policy.
552
00:23:51.210 --> 00:23:52.710
Under the Basic Science policy,
553
00:23:52.710 --> 00:23:54.810
as my brother will tell you,
554
00:23:54.810 --> 00:23:58.770
the school has an expectation,
555
00:23:58.770 --> 00:23:59.910
a term that appears throughout
556
00:23:59.910 --> 00:24:02.610
that they use synonymously with a demand.
557
00:24:02.610 --> 00:24:05.190
But let's just say, they have an expectation
558
00:24:05.190 --> 00:24:07.500
that you be an independent researcher.
559
00:24:07.500 --> 00:24:10.830
Tufts has taken that term of independent researcher
560
00:24:10.830 --> 00:24:13.980
and has said, "Well, it must mean financially independent."
561
00:24:13.980 --> 00:24:15.270
When, if you look at the context,
562
00:24:15.270 --> 00:24:18.600
really what it means is consistent with academic freedom,
563
00:24:18.600 --> 00:24:20.340
you must have independent thought.
564
00:24:20.340 --> 00:24:21.960
You must do your own independent research.
565
00:24:21.960 --> 00:24:24.660
You must come to your independent ideas,
566
00:24:24.660 --> 00:24:25.493
and then pursue them.
567
00:24:25.493 --> 00:24:27.290
You can't be someone else's lab partner.
568
00:24:28.860 --> 00:24:31.830
Every one of my professors falls into that category.
569
00:24:31.830 --> 00:24:34.530
I've got Dr. Soto, for example, okay,
570
00:24:34.530 --> 00:24:39.530
who discovered the correlation between BPAs in plastics
571
00:24:39.750 --> 00:24:41.250
and birth injuries.
572
00:24:41.250 --> 00:24:42.900
There were warnings all over the world
573
00:24:42.900 --> 00:24:44.130
because of her research.
574
00:24:44.130 --> 00:24:47.880
Unfunded, too basic for NIH.
575
00:24:47.880 --> 00:24:50.760
That's what we're risking here, okay?
576
00:24:50.760 --> 00:24:53.647
Because if we have a policy in place that schools can say,
577
00:24:53.647 --> 00:24:57.360
"Look, we're gonna turn you into little revenue generators,"
578
00:24:57.360 --> 00:24:59.520
like my son's MathWorks might,
579
00:24:59.520 --> 00:25:04.520
or any other biotech company that hires an employee, right?
580
00:25:06.000 --> 00:25:07.170
No.
Okay.
581
00:25:07.170 --> 00:25:09.105
Excuse me.
All right, thank you.
582
00:25:09.105 --> 00:25:09.938
Thank you.
583
00:25:16.212 --> 00:25:18.270
May it please the Court, my name is Daryl Lapp,
584
00:25:18.270 --> 00:25:20.973
and I represent the trustees of Tufts College.
585
00:25:22.830 --> 00:25:24.810
The Superior Court got it right.
586
00:25:24.810 --> 00:25:27.210
Yeah, I'm not 100% sure of that.
587
00:25:27.210 --> 00:25:28.450
But can you tell us
588
00:25:31.710 --> 00:25:32.823
what can't you do?
589
00:25:33.660 --> 00:25:38.310
Under your view, does Tufts, what does tenure mean?
590
00:25:38.310 --> 00:25:40.890
I'm just trying to understand what it is.
591
00:25:40.890 --> 00:25:43.320
What tenure means is what it says
592
00:25:43.320 --> 00:25:47.190
in the Academic Freedom, Tenure, and Retirement policy,
593
00:25:47.190 --> 00:25:49.710
which is one of the documents that the parties agree
594
00:25:49.710 --> 00:25:53.130
is part of the plaintiff's employment contract.
595
00:25:53.130 --> 00:25:56.047
And what that document says is that,
596
00:25:56.047 --> 00:25:58.140
"When you achieve tenure,
597
00:25:58.140 --> 00:26:01.500
you have achieved a continuous appointment
598
00:26:01.500 --> 00:26:03.780
that is a lifetime appointment,
599
00:26:03.780 --> 00:26:06.750
which can be terminated only for certain specified reasons,"
600
00:26:06.750 --> 00:26:09.780
cause, financial exigency, program discontinuance,
601
00:26:09.780 --> 00:26:13.200
resignation, or retirement.
602
00:26:13.200 --> 00:26:15.930
That is what tenure means.
603
00:26:15.930 --> 00:26:18.210
Well, hold on, there's three components to tenure, right?
604
00:26:18.210 --> 00:26:19.260
Bear with me for a second,
605
00:26:19.260 --> 00:26:21.990
'cause your briefs are very good.
606
00:26:21.990 --> 00:26:24.510
We understand sort of the basics of your position.
607
00:26:24.510 --> 00:26:27.300
So there are three components to tenure.
608
00:26:27.300 --> 00:26:30.660
One is just what you said, continuous employment.
609
00:26:30.660 --> 00:26:32.730
You're no longer an assistant professor
610
00:26:32.730 --> 00:26:35.760
who they can get rid of at the end of the year.
611
00:26:35.760 --> 00:26:39.990
Two, you have sufficient economic security,
612
00:26:39.990 --> 00:26:42.300
whatever that vague language is.
613
00:26:42.300 --> 00:26:45.363
And three, you have academic freedom.
614
00:26:46.920 --> 00:26:48.030
You're not gonna be punished
615
00:26:48.030 --> 00:26:51.240
'cause you're studying something controversial.
616
00:26:51.240 --> 00:26:52.560
You're studying stem cells,
617
00:26:52.560 --> 00:26:55.500
you're not gonna be punished 'cause you're doing that,
618
00:26:55.500 --> 00:26:58.080
because the board of trustees doesn't like that.
619
00:26:58.080 --> 00:27:03.080
But can you reduce their salary to $3 under your view?
620
00:27:03.450 --> 00:27:06.360
It would not be a violation of the tenure policy to do so.
621
00:27:06.360 --> 00:27:07.193
Really?
622
00:27:07.193 --> 00:27:11.010
I mean, so that all those thousands of professors
623
00:27:11.010 --> 00:27:12.730
in Massachusetts who are tenured
624
00:27:15.000 --> 00:27:17.310
under these AAUP principles,
625
00:27:17.310 --> 00:27:21.030
your view is that they can reduce everybody to $4?
626
00:27:21.030 --> 00:27:25.563
The French professors, the computer scientists,
627
00:27:26.670 --> 00:27:30.030
tenure just means you get to stay, but for nothing?
628
00:27:30.030 --> 00:27:31.470
Well, couple of things.
Go ahead.
629
00:27:31.470 --> 00:27:33.420
First of all, Your Honor, please, the-
630
00:27:33.420 --> 00:27:34.410
Well, but that's the question.
631
00:27:34.410 --> 00:27:36.810
You said they can reduce it to $3, right?
632
00:27:36.810 --> 00:27:38.550
I'm saying it would not be a violation
633
00:27:38.550 --> 00:27:40.533
of the tenure policy to do that.
634
00:27:42.150 --> 00:27:46.470
The rights that one has as a tenured faculty member
635
00:27:46.470 --> 00:27:49.530
are whatever rights you have as a matter of contract.
636
00:27:49.530 --> 00:27:51.630
We've cited case after case-
637
00:27:51.630 --> 00:27:53.940
But the tenure norms
638
00:27:53.940 --> 00:27:56.820
are part of that contract, aren't they?
639
00:27:56.820 --> 00:27:59.790
Not where the parties agree,
640
00:27:59.790 --> 00:28:02.460
and they agreed, until this morning,
641
00:28:02.460 --> 00:28:04.860
that the contract is unambiguous.
642
00:28:04.860 --> 00:28:07.260
Whereas here, the parties are in agreement-
643
00:28:07.260 --> 00:28:08.915
But that's a legal determination.
644
00:28:08.915 --> 00:28:11.910
And so, well, you guys can agree to whatever you want to,
645
00:28:11.910 --> 00:28:13.260
I'm looking at these words
646
00:28:13.260 --> 00:28:15.870
and I'm thinking as a legal matter,
647
00:28:15.870 --> 00:28:19.470
I don't know exactly the contours
648
00:28:19.470 --> 00:28:21.120
of what academic freedom are,
649
00:28:21.120 --> 00:28:23.910
nor do I understand what academic freedom
650
00:28:23.910 --> 00:28:26.850
is in the context of economic security,
651
00:28:26.850 --> 00:28:29.820
which you agree are part of the contract
652
00:28:29.820 --> 00:28:33.180
that your clients made with their clients.
653
00:28:33.180 --> 00:28:37.470
I agree, Your Honor, that the relevant provisions
654
00:28:37.470 --> 00:28:40.860
of the AFTR policy are part of the contract.
655
00:28:40.860 --> 00:28:44.190
The first part of Justice Kafker's trifecta
656
00:28:44.190 --> 00:28:45.780
is a part of the contract,
657
00:28:45.780 --> 00:28:48.690
a contract of continuous employment.
658
00:28:48.690 --> 00:28:52.020
The second part, academic freedom,
659
00:28:52.020 --> 00:28:55.200
is not inherent in tenure.
660
00:28:55.200 --> 00:28:57.480
The academic freedom-
Really?
661
00:28:57.480 --> 00:29:00.630
All faculty at Tufts enjoy academic freedom.
662
00:29:00.630 --> 00:29:02.940
This is not just a tenure policy.
663
00:29:02.940 --> 00:29:06.300
It's the Academic Freedom, Tenure and Retirement policy,
664
00:29:06.300 --> 00:29:09.330
some provisions of which are specific to tenure.
665
00:29:09.330 --> 00:29:10.890
You're not really arguing that tenure
666
00:29:10.890 --> 00:29:12.540
doesn't include academic freedom.
667
00:29:12.540 --> 00:29:16.680
'Cause if you're gutting, you know,
668
00:29:16.680 --> 00:29:19.740
the entire conception of tenure, if that's the case, right?
669
00:29:19.740 --> 00:29:23.010
I am not disputing that tenured faculty,
670
00:29:23.010 --> 00:29:25.500
like other faculty at Tufts,
671
00:29:25.500 --> 00:29:28.140
enjoy a promise of academic freedom.
672
00:29:28.140 --> 00:29:31.030
What that promise is we answer by looking-
673
00:29:31.030 --> 00:29:34.770
Because unlike the other faculty members,
674
00:29:34.770 --> 00:29:37.740
those assistant professors or adjunct professors
675
00:29:37.740 --> 00:29:39.423
they can get rid of at will.
676
00:29:41.190 --> 00:29:42.720
Or at least they can get rid of subject
677
00:29:42.720 --> 00:29:46.080
to these very limited contractual protections they have.
678
00:29:46.080 --> 00:29:49.560
But tenured professors are different.
679
00:29:49.560 --> 00:29:52.623
And if academic freedom has no role for them,
680
00:29:54.420 --> 00:29:58.920
all those corks that were popped were popped in error.
681
00:29:58.920 --> 00:30:00.333
The same thing with-
682
00:30:01.560 --> 00:30:03.000
Wait, are you, I'm sorry.
Yeah, go ahead.
683
00:30:03.000 --> 00:30:05.430
Are you saying academic freedom
684
00:30:05.430 --> 00:30:09.210
is not the exclusive provenance
685
00:30:09.210 --> 00:30:11.430
of the tenured professors?
686
00:30:11.430 --> 00:30:14.310
That it applies to them, as well as to others?
687
00:30:14.310 --> 00:30:15.143
Yes.
Okay.
688
00:30:15.143 --> 00:30:16.473
So it's part of the contract?
689
00:30:17.520 --> 00:30:19.830
Academic freedom is a promise
690
00:30:19.830 --> 00:30:21.840
that Tufts makes to all of its faculty.
691
00:30:21.840 --> 00:30:24.470
Right, another word for promise is a contract.
692
00:30:24.470 --> 00:30:26.490
So we have an agreement of the minds
693
00:30:26.490 --> 00:30:29.253
that you've promised academic freedom.
694
00:30:30.240 --> 00:30:32.970
And what is the contour of that promise?
695
00:30:32.970 --> 00:30:36.450
We have made a promise of academic freedom.
696
00:30:36.450 --> 00:30:39.510
That promise is not, as my brother would have it,
697
00:30:39.510 --> 00:30:41.040
academic freedom means being able
698
00:30:41.040 --> 00:30:43.320
to do whatever you want to do.
699
00:30:43.320 --> 00:30:44.400
To answer the question,
700
00:30:44.400 --> 00:30:47.010
what promise of academic freedom did we make?
701
00:30:47.010 --> 00:30:48.060
We look to the policy.
702
00:30:48.060 --> 00:30:50.257
And what it says is,
703
00:30:50.257 --> 00:30:53.340
"Academic freedom applies to teaching and research.
704
00:30:53.340 --> 00:30:55.830
It's important you enjoy it
705
00:30:55.830 --> 00:31:00.300
subject to the adequate performance of your other duties,"
706
00:31:00.300 --> 00:31:03.727
a point my brother neglects to mention.
707
00:31:03.727 --> 00:31:06.150
"And it provides that when a teacher speaks
708
00:31:06.150 --> 00:31:10.260
or writes as a citizen, not on behalf of the institution,
709
00:31:10.260 --> 00:31:12.150
they should be free from institutional
710
00:31:12.150 --> 00:31:14.190
censorship or discipline."
711
00:31:14.190 --> 00:31:15.930
That is what the contract says.
712
00:31:15.930 --> 00:31:17.930
That is the promise of academic freedom.
713
00:31:18.840 --> 00:31:23.840
Yes, and I get that he's overstating what it guarantees.
714
00:31:23.910 --> 00:31:28.410
But they have the ability
715
00:31:28.410 --> 00:31:31.260
to do research.
716
00:31:31.260 --> 00:31:33.240
I don't know, it seems to me that the fight here
717
00:31:33.240 --> 00:31:35.250
is not over academic freedom,
718
00:31:35.250 --> 00:31:37.470
although they're trying to link it to that.
719
00:31:37.470 --> 00:31:41.640
But economic security and continuous employment,
720
00:31:41.640 --> 00:31:46.640
which are two other components of being a tenured professor.
721
00:31:47.730 --> 00:31:50.430
As to the third part of Your Honor's trifecta,
722
00:31:50.430 --> 00:31:52.920
we say two things.
723
00:31:52.920 --> 00:31:55.200
First of all, the language in the policy
724
00:31:55.200 --> 00:31:59.130
about economic security is not of contractual effect.
725
00:31:59.130 --> 00:32:02.217
It is a prefatory statement.
Why?
726
00:32:02.217 --> 00:32:03.330
Can you explain that?
727
00:32:03.330 --> 00:32:05.190
Because it's not a specific promise.
728
00:32:05.190 --> 00:32:07.170
This is a contract case.
Yes.
729
00:32:07.170 --> 00:32:08.287
The plaintiffs are here saying,
730
00:32:08.287 --> 00:32:10.560
"We are here to enforce contractual promises
731
00:32:10.560 --> 00:32:11.820
under our employment agreements,
732
00:32:11.820 --> 00:32:14.160
which include the AFTR policy."
733
00:32:14.160 --> 00:32:16.140
Well, let's ask the question.
734
00:32:16.140 --> 00:32:20.460
Does the AFTR policy include a contractually binding promise
735
00:32:20.460 --> 00:32:22.290
about economic security?
736
00:32:22.290 --> 00:32:25.500
Other courts that have reached this issue have said no,
737
00:32:25.500 --> 00:32:26.333
as did the Superior Court, because-
738
00:32:26.333 --> 00:32:30.903
But the New York Court does, and it's heavily criticized.
739
00:32:31.740 --> 00:32:33.540
Sometimes people define,
740
00:32:33.540 --> 00:32:37.140
they can define tenure, that economic security,
741
00:32:37.140 --> 00:32:38.820
and redefine it in the contract.
742
00:32:38.820 --> 00:32:41.040
But it's a background norm for us
743
00:32:41.040 --> 00:32:43.503
to give meaning to this.
744
00:32:44.966 --> 00:32:47.790
This is not a case for the application
745
00:32:47.790 --> 00:32:49.650
of background norms.
Really?
746
00:32:49.650 --> 00:32:51.180
It is a case for the,
747
00:32:51.180 --> 00:32:55.620
the Court should respectfully follow the clear principles
748
00:32:55.620 --> 00:32:57.480
of Massachusetts contract law,
749
00:32:57.480 --> 00:32:58.737
interpret the contract language, and not-
750
00:32:58.737 --> 00:33:01.530
Okay, but we're gonna do that though.
751
00:33:01.530 --> 00:33:04.080
But that language is in the,
752
00:33:04.080 --> 00:33:08.160
by the way, the contract you both point to is the letter,
753
00:33:08.160 --> 00:33:11.160
the letter references tenure.
754
00:33:11.160 --> 00:33:13.740
And then, the only references to tenure
755
00:33:13.740 --> 00:33:15.453
that we have to draw on,
756
00:33:16.290 --> 00:33:21.060
which are in every faculty tenure around the country,
757
00:33:21.060 --> 00:33:23.100
is this principle.
758
00:33:23.100 --> 00:33:26.790
So we can't just ignore it and treat it as prefatory
759
00:33:26.790 --> 00:33:28.980
the way the trial court did,
760
00:33:28.980 --> 00:33:33.093
because it's language and it's clearly,
761
00:33:34.140 --> 00:33:36.660
it may be too ambiguous to give meaning to,
762
00:33:36.660 --> 00:33:39.273
but it's not prefatory.
763
00:33:40.110 --> 00:33:41.913
It's a part of the contract.
764
00:33:44.946 --> 00:33:46.440
It is prefatory,
765
00:33:46.440 --> 00:33:47.670
and it is, more importantly,
766
00:33:47.670 --> 00:33:51.390
too ambiguous to give meaning to, as other courts have held.
767
00:33:51.390 --> 00:33:54.150
And if it has any meaning,
768
00:33:54.150 --> 00:33:55.710
as the trial court found,
769
00:33:55.710 --> 00:33:58.470
and as other courts around the country have found,
770
00:33:58.470 --> 00:34:02.430
it is a reference to the one form of economic security
771
00:34:02.430 --> 00:34:05.280
that is actually referenced in the contract,
772
00:34:05.280 --> 00:34:07.170
which is continuous employment.
773
00:34:07.170 --> 00:34:08.580
There's nothing-
What is continuous
774
00:34:08.580 --> 00:34:11.370
employment if you're gonna pay somebody $3?
775
00:34:11.370 --> 00:34:12.870
Well, nobody's being paid $3.
776
00:34:12.870 --> 00:34:14.790
No, but, you know, that's the hypothetical,
777
00:34:14.790 --> 00:34:16.140
that's the extreme, right?
778
00:34:16.140 --> 00:34:18.930
Or nothing, you know.
What about the half FTE?
779
00:34:18.930 --> 00:34:21.240
That's not continuous employment, is it?
780
00:34:21.240 --> 00:34:25.023
It is continuous employment.
It's just not getting paid.
781
00:34:26.730 --> 00:34:28.233
As my brother has said,
782
00:34:29.250 --> 00:34:32.700
there were three dimensions to these folks' jobs,
783
00:34:32.700 --> 00:34:35.460
research, teaching, and service.
784
00:34:35.460 --> 00:34:39.270
They aren't doing half of their job,
785
00:34:39.270 --> 00:34:42.661
thus it's fully consistent with their contract rights.
786
00:34:42.661 --> 00:34:43.890
[Justice Wendlandt] Why do you say they're not doing
787
00:34:43.890 --> 00:34:44.850
half of their job?
788
00:34:44.850 --> 00:34:47.460
They're not succeeding in the role of being-
789
00:34:47.460 --> 00:34:49.880
Isn't the remedy to revoke tenureship?
790
00:34:51.720 --> 00:34:53.160
Tufts could do that.
791
00:34:53.160 --> 00:34:56.610
It also has every right under the party's contract
792
00:34:56.610 --> 00:35:00.030
to adjust their salaries pursuant to policies
793
00:35:00.030 --> 00:35:05.030
that Tufts had every ability and right to introduce.
794
00:35:05.190 --> 00:35:08.040
There's nothing about the plaintiff's employment contracts
795
00:35:08.040 --> 00:35:11.010
that says Tufts cannot adopt new policies
796
00:35:11.010 --> 00:35:12.780
that apply to tenured faculty
797
00:35:12.780 --> 00:35:13.808
after the moment they're granted tenure.
798
00:35:13.808 --> 00:35:14.820
Well, I guess I'm trying to figure out
799
00:35:14.820 --> 00:35:18.450
what the limits of Tufts' flexibility are.
800
00:35:18.450 --> 00:35:21.840
The limit, Your Honor, is that Tufts cannot violate
801
00:35:21.840 --> 00:35:24.390
any specific promise that it has made.
802
00:35:24.390 --> 00:35:27.870
So if they made a promise if academic freedom,
803
00:35:27.870 --> 00:35:32.043
and the policy is you have to bring in this much revenue,
804
00:35:32.940 --> 00:35:35.970
and if the practical reality
805
00:35:35.970 --> 00:35:37.830
is that the only way
806
00:35:37.830 --> 00:35:41.760
you're going to be able to do that is with the NIH,
807
00:35:41.760 --> 00:35:45.273
and so your pool of research is limited,
808
00:35:46.860 --> 00:35:49.920
then why doesn't that violate
809
00:35:49.920 --> 00:35:54.120
the contractual agreement for academic freedom?
810
00:35:54.120 --> 00:35:55.350
Several reasons, Your Honor.
811
00:35:55.350 --> 00:35:58.500
First of all, the promise of academic freedom
812
00:35:58.500 --> 00:36:01.830
is that you have freedom in research and teaching.
813
00:36:01.830 --> 00:36:03.630
You have full freedom in research
814
00:36:03.630 --> 00:36:07.440
subject to the adequate performance of your other duties.
815
00:36:07.440 --> 00:36:08.787
It's not that you get to do whatever you want.
816
00:36:08.787 --> 00:36:11.883
All right, so you're a rockstar professor,
817
00:36:13.890 --> 00:36:16.950
and you're at all the community cocktail parties
818
00:36:16.950 --> 00:36:17.820
with the students.
819
00:36:17.820 --> 00:36:21.660
You're a rockstar community professor.
820
00:36:21.660 --> 00:36:24.000
And you're doing really important research
821
00:36:24.000 --> 00:36:26.880
that's interesting, but the NIH has no interest,
822
00:36:26.880 --> 00:36:29.400
and you're not reaching the 65%.
823
00:36:29.400 --> 00:36:31.260
Why doesn't that violate
824
00:36:31.260 --> 00:36:35.460
the academic freedom contractual agreement?
825
00:36:35.460 --> 00:36:39.720
Because your duties include not only teaching
826
00:36:39.720 --> 00:36:41.100
and not only service,
827
00:36:41.100 --> 00:36:43.530
but also maintaining an independent lab,
828
00:36:43.530 --> 00:36:47.280
being an independent researcher doing meaningful science,
829
00:36:47.280 --> 00:36:50.970
one measure of which is peer review and external funding.
830
00:36:50.970 --> 00:36:53.190
The plaintiffs in this case all agree,
831
00:36:53.190 --> 00:36:55.980
there is no dispute of fact,
832
00:36:55.980 --> 00:36:59.190
that when they became basic science faculty at Tufts,
833
00:36:59.190 --> 00:37:02.460
they understood that generating external funding
834
00:37:02.460 --> 00:37:04.530
was a central part of their jobs.
835
00:37:04.530 --> 00:37:06.900
So independent, the equivalent vote means
836
00:37:06.900 --> 00:37:10.470
either self-funded, or,
837
00:37:10.470 --> 00:37:12.810
as counsel says,
838
00:37:12.810 --> 00:37:15.754
you know, on your own, basically.
839
00:37:15.754 --> 00:37:18.519
Do you have any context of who's right?
840
00:37:18.519 --> 00:37:20.403
I know, shockingly, you're gonna say you are.
841
00:37:20.403 --> 00:37:21.840
(Court laughs)
842
00:37:21.840 --> 00:37:24.357
Tell us what the record supports
843
00:37:24.357 --> 00:37:26.010
and what the case law supports.
844
00:37:26.010 --> 00:37:28.410
In our brief, we've cited specifically
845
00:37:28.410 --> 00:37:31.260
to the deposition testimony of the plaintiffs
846
00:37:31.260 --> 00:37:35.040
who all understood and agreed on this point.
847
00:37:35.040 --> 00:37:38.640
For example, Dr. Yee testified
848
00:37:38.640 --> 00:37:41.100
that when she applied to Tufts,
849
00:37:41.100 --> 00:37:43.620
she understood that there was an expectation
850
00:37:43.620 --> 00:37:45.780
she would be successful in generating grant funds
851
00:37:45.780 --> 00:37:47.220
to support her research.
852
00:37:47.220 --> 00:37:48.960
And that to be an independent investigator
853
00:37:48.960 --> 00:37:51.240
requires generating sufficient funding
854
00:37:51.240 --> 00:37:52.073
to support the research in her lab.
855
00:37:52.073 --> 00:37:54.270
But I'm sure you're gonna read us other portions
856
00:37:54.270 --> 00:37:57.150
of depositions that say similar things.
857
00:37:57.150 --> 00:38:01.410
But my question, again, is what are the limits
858
00:38:01.410 --> 00:38:03.480
on Tufts' ability to do that?
859
00:38:03.480 --> 00:38:06.630
And why hasn't this exceeded that limit?
860
00:38:06.630 --> 00:38:07.983
Making somebody a half FTE,
861
00:38:09.750 --> 00:38:12.483
making them responsible for half of their salary.
862
00:38:13.320 --> 00:38:15.660
You know, all of those things.
863
00:38:15.660 --> 00:38:17.670
What's my metric, right?
864
00:38:17.670 --> 00:38:19.860
Dr. Yee doesn't say this is okay.
865
00:38:19.860 --> 00:38:21.210
In fact, she's suing your client
866
00:38:21.210 --> 00:38:22.680
because she thinks it's not.
867
00:38:22.680 --> 00:38:24.127
Of course.
And she said,
868
00:38:24.127 --> 00:38:29.127
"I did great research for 30 years and I'm in a dry spell,
869
00:38:29.610 --> 00:38:31.830
therefore you're gonna wipe me out?"
870
00:38:31.830 --> 00:38:34.770
Well, Dr. Yee's been in a dry spell since 2014.
871
00:38:34.770 --> 00:38:36.840
But that's their argument.
872
00:38:36.840 --> 00:38:41.840
Well, the limit is that Tufts cannot breach
873
00:38:41.940 --> 00:38:44.850
any specific promise that it has made.
874
00:38:44.850 --> 00:38:46.213
And it has never made-
875
00:38:46.213 --> 00:38:48.990
But I'm confused by that.
876
00:38:48.990 --> 00:38:51.210
That's the sort of definition of breach of contract.
877
00:38:51.210 --> 00:38:53.850
The original contract you say is pretty vague.
878
00:38:53.850 --> 00:38:58.020
You have tenure, and let me pose a hypothetical.
879
00:38:58.020 --> 00:39:03.020
So Tufts decides they want their liberal arts faculty
880
00:39:03.630 --> 00:39:06.960
to publish at "Oxford University Press."
881
00:39:06.960 --> 00:39:09.990
And, you know, "Oklahoma University Press" no longer good.
882
00:39:09.990 --> 00:39:10.890
They're working hard,
883
00:39:10.890 --> 00:39:13.440
but they're not getting picked by "Oxford."
884
00:39:13.440 --> 00:39:15.690
Can they become halftime employees too,
885
00:39:15.690 --> 00:39:17.357
if you choose to do that
886
00:39:17.357 --> 00:39:19.953
'cause the tenure has no imitation on it?
887
00:39:21.450 --> 00:39:22.283
Why not?
888
00:39:24.630 --> 00:39:25.914
The hypothetical is that if someone-
889
00:39:25.914 --> 00:39:29.010
The hypothetical is in the, now we're shifting out,
890
00:39:29.010 --> 00:39:30.450
'cause both of you seem to say
891
00:39:30.450 --> 00:39:32.520
that med school doesn't matter.
892
00:39:32.520 --> 00:39:35.040
That tenure in medical school
893
00:39:35.040 --> 00:39:37.320
is similar to tenure in undergraduate,
894
00:39:37.320 --> 00:39:39.420
maybe I'm misreading the briefs.
895
00:39:39.420 --> 00:39:44.190
But I'm asking you if Tufts' president passes a new policy
896
00:39:44.190 --> 00:39:47.490
that says, "I want my liberal arts people
897
00:39:47.490 --> 00:39:51.150
to be publishing in only the best publishing houses.
898
00:39:51.150 --> 00:39:54.050
They've gotta get 'Oxford,'" or whatever it is these days.
899
00:39:55.447 --> 00:39:57.000
"If you don't publish there,
900
00:39:57.000 --> 00:40:00.453
I'm gonna reduce you to a 50% employee," is that okay?
901
00:40:01.470 --> 00:40:04.560
I would actually say that that does not violate
902
00:40:04.560 --> 00:40:07.233
any promise of academic freedom that Tufts has made.
903
00:40:07.233 --> 00:40:12.233
Does it violate the economic security for provision
904
00:40:12.990 --> 00:40:15.600
and the continuous employment provision?
905
00:40:15.600 --> 00:40:17.340
It does not.
Wow.
906
00:40:17.340 --> 00:40:20.070
In the hypothetical, we haven't taken away anyone's job.
907
00:40:20.070 --> 00:40:24.270
Tenure to you is, what is it limited?
908
00:40:24.270 --> 00:40:26.700
It's limited to full-time employment,
909
00:40:26.700 --> 00:40:28.713
but nothing to do with your salary.
910
00:40:30.652 --> 00:40:33.510
And what else do you get?
911
00:40:33.510 --> 00:40:35.070
You get to study whatever you want,
912
00:40:35.070 --> 00:40:38.850
but you don't have any promise of compensation.
913
00:40:38.850 --> 00:40:40.890
You do not have any promise of compensation.
914
00:40:40.890 --> 00:40:43.320
Court, after court, after court-
915
00:40:43.320 --> 00:40:45.393
I read those cases carefully.
916
00:40:46.290 --> 00:40:49.800
They're much more fact specific
917
00:40:49.800 --> 00:40:53.160
and contractual language specific.
918
00:40:53.160 --> 00:40:57.180
They all try to, a couple do what you say.
919
00:40:57.180 --> 00:40:59.433
The New York Court says it's prefatory.
920
00:41:00.360 --> 00:41:02.677
The D.C. Circuit, Judge Skelly Wright says,
921
00:41:02.677 --> 00:41:05.217
"These are norms we have to provide meaning on."
922
00:41:06.870 --> 00:41:09.273
Some of the other courts do something similar.
923
00:41:10.170 --> 00:41:14.400
I submit, Your Honor, that the cases are consistent
924
00:41:14.400 --> 00:41:17.370
in two fundamental principles.
925
00:41:17.370 --> 00:41:19.590
They are consistent in the principle
926
00:41:19.590 --> 00:41:22.590
that absent a specific promise,
927
00:41:22.590 --> 00:41:26.730
it is not a contract violation for a university
928
00:41:26.730 --> 00:41:29.250
to change a tenured faculty member's compensation
929
00:41:29.250 --> 00:41:30.540
or lab space.
930
00:41:30.540 --> 00:41:32.400
It's a contract case.
931
00:41:32.400 --> 00:41:33.660
And the plaintiff has to prove
932
00:41:33.660 --> 00:41:35.040
that they have a contractual promise
933
00:41:35.040 --> 00:41:36.840
that those things won't happen to them.
934
00:41:36.840 --> 00:41:40.260
And absent a specific promise, they have no contract claim.
935
00:41:40.260 --> 00:41:42.630
The cases are consistent on that point.
936
00:41:42.630 --> 00:41:43.710
The cases are also consistent on-
937
00:41:43.710 --> 00:41:46.140
What cases do you rely on?
938
00:41:46.140 --> 00:41:48.420
The lab space I see is a totally different issue.
939
00:41:48.420 --> 00:41:51.213
What cases say that you can,
940
00:41:52.170 --> 00:41:53.827
besides the cases that say,
941
00:41:53.827 --> 00:41:55.470
"When they gave you your tenure letter,"
942
00:41:55.470 --> 00:41:57.480
like the case out of Illinois.
943
00:41:57.480 --> 00:41:59.287
When they gave the person a tenure letter that says,
944
00:41:59.287 --> 00:42:01.707
"You have a guaranteed salary of $1,"
945
00:42:05.010 --> 00:42:07.740
that's one case that they were careful,
946
00:42:07.740 --> 00:42:09.950
that university, to do that.
947
00:42:09.950 --> 00:42:12.210
No one else seems to do that.
948
00:42:12.210 --> 00:42:13.620
The cases that we rely on
949
00:42:13.620 --> 00:42:15.750
are at pages 32 to 34 of our brief.
950
00:42:15.750 --> 00:42:16.950
I read every one of them.
951
00:42:16.950 --> 00:42:18.840
Which case does what you want,
952
00:42:18.840 --> 00:42:22.740
which says you can reduce a faculty member's salary
953
00:42:22.740 --> 00:42:24.263
who has tenure to $1?
954
00:42:26.520 --> 00:42:28.770
There's not a $1 case in the same way
955
00:42:28.770 --> 00:42:31.950
that Tufts has not reduced anybody's salary to $1.
956
00:42:31.950 --> 00:42:34.977
The lowest salary of any of the plaintiffs is $77,000.
957
00:42:34.977 --> 00:42:36.000
[Justice Wendlandt] So that's my question again,
958
00:42:36.000 --> 00:42:36.873
what's the limit?
959
00:42:38.670 --> 00:42:43.260
The limit would be any reduction that is commensurate
960
00:42:43.260 --> 00:42:47.280
with a faculty member's failure to do the job
961
00:42:47.280 --> 00:42:49.657
that qualified them to get tenure.
962
00:42:49.657 --> 00:42:51.960
[Chief Justice Budd] But what about the economic security?
963
00:42:51.960 --> 00:42:55.290
I'm just confused about how,
964
00:42:55.290 --> 00:42:56.610
it sounds like tenure's not such
965
00:42:56.610 --> 00:43:00.123
a great deal at Tufts.
At least not at Tufts.
966
00:43:02.662 --> 00:43:05.070
With all respect, I represent a lot of universities,
967
00:43:05.070 --> 00:43:07.670
and I'm confident they would all take this position.
968
00:43:08.760 --> 00:43:10.113
Tenure is important.
969
00:43:11.040 --> 00:43:15.180
But what tenure consists of, what it gets you,
970
00:43:15.180 --> 00:43:18.330
is defined by what is in the tenure policy
971
00:43:18.330 --> 00:43:19.470
of the university.
972
00:43:19.470 --> 00:43:23.400
It's not some abstract, overarching principle.
973
00:43:23.400 --> 00:43:25.260
It's not a philosophical exercise.
974
00:43:25.260 --> 00:43:29.283
It is sure not what the AAUP says it means.
975
00:43:30.240 --> 00:43:32.697
It's what the contract says, and what Tufts-
976
00:43:32.697 --> 00:43:36.480
But what is economic security though to your client?
977
00:43:36.480 --> 00:43:39.540
I don't understand how it could be $77.
978
00:43:39.540 --> 00:43:43.410
We have, as just about every university does,
979
00:43:43.410 --> 00:43:46.890
we have quoted from introductory language
980
00:43:46.890 --> 00:43:48.690
in that 1940 statement,
981
00:43:48.690 --> 00:43:53.690
which mentions why tenure in some respects is desirable.
982
00:43:53.760 --> 00:43:55.860
Tenure is a good thing
983
00:43:55.860 --> 00:44:00.810
because it can be a means to economic security.
984
00:44:00.810 --> 00:44:03.000
Is that a contractual promise
985
00:44:03.000 --> 00:44:05.550
or a prefatory ambiguous statement?
986
00:44:05.550 --> 00:44:07.200
It is the latter.
987
00:44:07.200 --> 00:44:10.260
There is nothing in that language that says
988
00:44:10.260 --> 00:44:12.060
anything about salary, much less a-
989
00:44:12.060 --> 00:44:13.740
What do you get?
990
00:44:13.740 --> 00:44:16.323
I thought that you got academic freedom,
991
00:44:17.220 --> 00:44:19.320
economic security...
992
00:44:19.320 --> 00:44:21.903
And full-time employment.
And full-time, no.
993
00:44:24.960 --> 00:44:26.030
You don't get full-time employment.
994
00:44:26.030 --> 00:44:29.880
Lifetime employment.
Yeah, lifetime employment
995
00:44:29.880 --> 00:44:31.800
subject to termination for the five reasons
996
00:44:31.800 --> 00:44:33.120
that we mentioned.
997
00:44:33.120 --> 00:44:37.200
And, like other faculty, you enjoy academic freedom,
998
00:44:37.200 --> 00:44:40.200
the contours of which are,
999
00:44:40.200 --> 00:44:41.700
you get freedom in research
1000
00:44:41.700 --> 00:44:45.030
subject to doing the rest of your job,
1001
00:44:45.030 --> 00:44:47.550
and you aren't gonna be censored
1002
00:44:47.550 --> 00:44:48.960
for things that you say-
1003
00:44:48.960 --> 00:44:49.793
I've heard that.
1004
00:44:49.793 --> 00:44:52.503
What about the economic security part?
1005
00:44:53.640 --> 00:44:56.610
Our position is clear, there is not a contractual,
1006
00:44:56.610 --> 00:45:00.000
tenure does not come with a contractual promise
1007
00:45:00.000 --> 00:45:01.070
of economic security.
1008
00:45:01.070 --> 00:45:04.833
So the contract is the letter plus the handbook?
1009
00:45:06.619 --> 00:45:07.452
The plaintiff's employment contract,
1010
00:45:07.452 --> 00:45:09.450
and I think we actually agree on this,
1011
00:45:09.450 --> 00:45:10.950
the plaintiff's employment contract
1012
00:45:10.950 --> 00:45:13.680
comprises their appointment and promotion letters
1013
00:45:13.680 --> 00:45:17.250
and the relevant provisions of the faculty handbook,
1014
00:45:17.250 --> 00:45:21.090
which includes the university's AFTR policy
1015
00:45:21.090 --> 00:45:22.830
and the Basic Science policy,
1016
00:45:22.830 --> 00:45:24.930
which is another important part of the contract,
1017
00:45:24.930 --> 00:45:27.360
which makes clear the centrality
1018
00:45:27.360 --> 00:45:28.920
of being an independent researcher
1019
00:45:28.920 --> 00:45:32.400
to the very jobs that these plaintiffs hold.
1020
00:45:32.400 --> 00:45:34.530
And all Tufts has done
1021
00:45:34.530 --> 00:45:37.717
is to enact a policy that says,
1022
00:45:37.717 --> 00:45:41.850
"If you don't do a fundamental aspect of your job,
1023
00:45:41.850 --> 00:45:43.650
that can have consequences in terms
1024
00:45:43.650 --> 00:45:45.011
of compensation and lab space."
1025
00:45:45.011 --> 00:45:47.070
That doesn't need encapsulation.
1026
00:45:47.070 --> 00:45:48.990
Is that in the language by the way?
1027
00:45:48.990 --> 00:45:51.000
That if you don't do the fundamental,
1028
00:45:51.000 --> 00:45:54.540
I take it we could interpret you and say you win,
1029
00:45:54.540 --> 00:45:59.220
because a fundamental aspect of a medical school professor
1030
00:45:59.220 --> 00:46:03.843
is to generate enough income to support their labs.
1031
00:46:04.957 --> 00:46:06.180
"And if they're not doing that,
1032
00:46:06.180 --> 00:46:10.110
we can reduce their lab space and their compensation."
1033
00:46:10.110 --> 00:46:12.300
I take it that that's whole different
1034
00:46:12.300 --> 00:46:14.130
from a lot of other things you're arguing,
1035
00:46:14.130 --> 00:46:15.693
that seems more reasonable.
1036
00:46:16.590 --> 00:46:19.800
But where do we find this fundamental
1037
00:46:19.800 --> 00:46:21.390
and how it's defined anywhere?
1038
00:46:21.390 --> 00:46:24.840
Or is that your sort of gloss on this?
1039
00:46:24.840 --> 00:46:27.600
If you look at the Basic Science policy,
1040
00:46:27.600 --> 00:46:30.090
which is a part of the party's contract,
1041
00:46:30.090 --> 00:46:34.530
it makes clear the centrality of being an independent,
1042
00:46:34.530 --> 00:46:36.870
impactful researcher as fundamental
1043
00:46:36.870 --> 00:46:40.800
to an initial appointment in basic science faculty,
1044
00:46:40.800 --> 00:46:42.840
any promotion in the basic science faculty,
1045
00:46:42.840 --> 00:46:43.673
and the award of tenure in the basic science faculty.
1046
00:46:43.673 --> 00:46:45.360
And is there equivalent on,
1047
00:46:45.360 --> 00:46:47.820
because we're writing a tenure decision.
1048
00:46:47.820 --> 00:46:49.067
Maybe we would only have to analyze it
1049
00:46:49.067 --> 00:46:51.060
in the medical school context.
1050
00:46:51.060 --> 00:46:53.250
But is there an equivalent on the other side
1051
00:46:53.250 --> 00:46:57.360
of the, you know, university law for the humanities,
1052
00:46:57.360 --> 00:47:01.110
and math, and other things?
1053
00:47:01.110 --> 00:47:03.780
'Cause I'm just worried that your description
1054
00:47:03.780 --> 00:47:04.980
of what is fundamental
1055
00:47:04.980 --> 00:47:08.793
is hard to define on the humanities side.
1056
00:47:11.190 --> 00:47:14.130
Each school has their own criteria for appointment,
1057
00:47:14.130 --> 00:47:15.720
promotion, and tenure.
1058
00:47:15.720 --> 00:47:18.010
It's obviously gonna differ in some humanities departments.
1059
00:47:18.010 --> 00:47:21.240
The standards for promotion and tenure are clear.
1060
00:47:21.240 --> 00:47:24.390
It's the consequences that you seem to be fighting over.
1061
00:47:24.390 --> 00:47:27.600
To be a tenured professor I bet you two agree
1062
00:47:27.600 --> 00:47:30.540
that you need to be a distinguished blankety blank.
1063
00:47:30.540 --> 00:47:33.570
You know, it's the consequences
1064
00:47:33.570 --> 00:47:35.730
of what happens after you get tenure
1065
00:47:35.730 --> 00:47:36.840
that you're fighting about.
1066
00:47:36.840 --> 00:47:38.010
That's exactly right.
1067
00:47:38.010 --> 00:47:41.340
And the premise of the plaintiff's case
1068
00:47:41.340 --> 00:47:45.840
is that if you stop doing the job
1069
00:47:45.840 --> 00:47:48.480
that justified the award of tenure,
1070
00:47:48.480 --> 00:47:50.130
there can be no consequence for that
1071
00:47:50.130 --> 00:47:53.010
without it being a violation of academic freedom
1072
00:47:53.010 --> 00:47:55.710
or this amorphous language about economic security,
1073
00:47:55.710 --> 00:47:58.020
which says nothing about salary, or lab space,
1074
00:47:58.020 --> 00:48:00.360
or FTE status, or the like.
1075
00:48:00.360 --> 00:48:03.930
Our position is this is a contract case.
1076
00:48:03.930 --> 00:48:04.974
It's not a philosophical-
1077
00:48:04.974 --> 00:48:06.090
I think his position's a little different.
1078
00:48:06.090 --> 00:48:09.450
He says, "If you don't live up to your obligations,
1079
00:48:09.450 --> 00:48:10.283
you have an option,
1080
00:48:10.283 --> 00:48:13.230
which is this for cause termination provision,"
1081
00:48:13.230 --> 00:48:16.620
which generally applies if you're doing bad things
1082
00:48:16.620 --> 00:48:21.150
as opposed to not being as good a researcher
1083
00:48:21.150 --> 00:48:23.010
as you were before.
1084
00:48:23.010 --> 00:48:25.320
But they're saying that's your only option.
1085
00:48:25.320 --> 00:48:27.810
You're saying, "I got this whole other option,
1086
00:48:27.810 --> 00:48:29.640
which is I can do whatever I want
1087
00:48:29.640 --> 00:48:33.930
if I don't think you're living up to what got you tenure."
1088
00:48:33.930 --> 00:48:37.050
The university can adopt policies
1089
00:48:37.050 --> 00:48:40.770
that apply to tenured faculty and other employees
1090
00:48:40.770 --> 00:48:43.980
so long as those policies do not violate
1091
00:48:43.980 --> 00:48:46.143
any promise that was made.
1092
00:48:48.076 --> 00:48:49.620
And in that regard,
1093
00:48:49.620 --> 00:48:54.060
universities are no different from any other employer.
1094
00:48:54.060 --> 00:48:55.217
Employers change their policies.
1095
00:48:55.217 --> 00:48:57.540
Tenure doesn't exist anywhere else in the world
1096
00:48:57.540 --> 00:48:59.223
except maybe the judiciary.
1097
00:49:01.920 --> 00:49:03.170
I have a form of tenure
1098
00:49:04.320 --> 00:49:06.030
as an equity partner in a law firm.
1099
00:49:06.030 --> 00:49:08.882
Yeah, I bet you don't.
Yeah, I bet you don't.
1100
00:49:08.882 --> 00:49:11.040
I bet you don't, and you know you don't.
1101
00:49:11.040 --> 00:49:14.370
Well, I'm trying to illustrate a point.
1102
00:49:14.370 --> 00:49:15.660
But I don't think you're making the point
1103
00:49:15.660 --> 00:49:16.517
you think you're making.
1104
00:49:16.517 --> 00:49:19.683
Well, if I came to you and said,
1105
00:49:20.527 --> 00:49:24.990
"The firm is violating my contract rights as a partner
1106
00:49:24.990 --> 00:49:27.117
because they reduced my compensation."
1107
00:49:28.290 --> 00:49:30.547
I submit that the first thing the Court would say is,
1108
00:49:30.547 --> 00:49:32.610
"Well, what does the partnership agreement say?"
1109
00:49:32.610 --> 00:49:35.167
We would look to-
I bet it says expressly,
1110
00:49:35.167 --> 00:49:37.470
"We can reduce your compensation."
1111
00:49:37.470 --> 00:49:39.183
And this doesn't say that.
1112
00:49:42.039 --> 00:49:44.010
If I was claiming a breach of contract,
1113
00:49:44.010 --> 00:49:46.833
we're on the same page in this regard, Your Honor.
1114
00:49:48.510 --> 00:49:52.020
You doubt that my partnership agreement
1115
00:49:52.020 --> 00:49:56.490
includes protection for me against compensation reduction,
1116
00:49:56.490 --> 00:49:58.080
and you'd be right.
1117
00:49:58.080 --> 00:50:01.620
And our position is this is a contract.
1118
00:50:01.620 --> 00:50:05.190
They say, until today, it's an unambiguous contract.
1119
00:50:05.190 --> 00:50:07.410
So we look to the language of that contract.
1120
00:50:07.410 --> 00:50:11.403
We don't import terms that the parties have not expressed.
1121
00:50:12.300 --> 00:50:16.410
Is there a promise, is there a guarantee that salary,
1122
00:50:16.410 --> 00:50:19.140
lab space, FTE status would never be reduced?
1123
00:50:19.140 --> 00:50:20.340
Just like that kind of promise
1124
00:50:20.340 --> 00:50:22.200
isn't in my partnership agreement,
1125
00:50:22.200 --> 00:50:23.910
that promise is not in their employment
1126
00:50:23.910 --> 00:50:24.743
contract with Tufts.
1127
00:50:24.743 --> 00:50:27.356
So you're saying tenures, like anything else,
1128
00:50:27.356 --> 00:50:30.810
and that's your position.
1129
00:50:30.810 --> 00:50:33.270
That's fine, it's okay.
1130
00:50:33.270 --> 00:50:35.268
It is my position, Your Honor.
1131
00:50:35.268 --> 00:50:36.960
Okay.
As court after court
1132
00:50:36.960 --> 00:50:41.340
has said, "The meaning of tenure is found
1133
00:50:41.340 --> 00:50:45.900
in the tenure contract, it's not found in space,
1134
00:50:45.900 --> 00:50:49.403
it's not found abstractly, and It's not found in what the-"
1135
00:50:49.403 --> 00:50:50.600
[Justice Wendlandt] In industry practices and norms.
1136
00:50:50.600 --> 00:50:54.240
In industry practices, unless,
1137
00:50:54.240 --> 00:50:55.620
and there's a couple cases like this,
1138
00:50:55.620 --> 00:50:57.840
this point is developed in our opposition,
1139
00:50:57.840 --> 00:51:01.050
not our opposition, our response to the amici filings.
1140
00:51:01.050 --> 00:51:04.230
Unless the institution has stipulated
1141
00:51:04.230 --> 00:51:07.320
to the application of AAUP's pronouncements.
1142
00:51:07.320 --> 00:51:09.060
Or cross-referenced them
1143
00:51:09.060 --> 00:51:10.710
in the contractual document.
1144
00:51:10.710 --> 00:51:12.720
No, no, no, no, Your Honor, please,
1145
00:51:12.720 --> 00:51:15.330
with all respect, not that simple reference
1146
00:51:15.330 --> 00:51:17.940
to the 1940 general principles,
1147
00:51:17.940 --> 00:51:22.940
but has actually adopted the AAUP's statements as a whole.
1148
00:51:23.580 --> 00:51:25.323
And that has not happened here.