-: May it please the Court, my name is Kevin Peters,
and I represent eight professors from Tufts University
who were granted tenure decades ago.
They filed a suit challenging the legality,
contractual legality, of compensation plans
and a lab allocation plan,
claiming that they were violations
not only of their tenure contracts
as they were formed at the time of their award,
but also a violation of principles guaranteed by tenure,
which include academic freedom and financial security.
The action was dismissed on summary judgment.
We're here appealing that decision.
In its simplest form,
this case really presents two questions.
First question is whether Tufts was within its rights
to impose fundraising obligations
on appellants all without their consent?
The second question is, if so, if they're entitled
to unilaterally modify an employment contract?
And whether the modifications impinge concepts
that are defined in the Academic Freedom and Tenure policy,
the AFTR policy that the Court will read or has,
because it impedes academic freedom and financial security.
Tenure in Massachusetts,
as this Court has set on multiple occasions-
-: Why do you take the position that academic freedom
and economic security
are not ambiguous terms?
-: For two reasons, number one,
the parties understand what academic freedom means.
In other words- -: Well, they dispute it.
-: No, no, my brother disputes it, okay?
But when I ask- -: Represents a party.
-: When I ask, Your Honor, an academic freedom,
academic freedom is defined as absolute freedom
to pursue whatever your research interests are.
There's no real debate at all what academic freedom means.
-: Well, there's no debate here
that they were allowed to pursue it.
The question is the consequences of it, right?
-: Well, no, Your Honor, they weren't,
because the question is whether or not-
-: Nothing prevented them from doing any research
they wanted to do.
They prevented them if they didn't generate income
to pay for their lab space, and everything else,
what the consequences were, right?
They could study, you know, whatever they felt like.
-: The impact, even slight, on academic freedom,
violates the policy, and the impact's undeniable,
and here's why.
NIH, if it were only the case,
and I would still claim that this is not a right
they have to unilaterally modify the contract,
but let's take the case
if it was only the case that they said,
"You must support half of your salary with research."
I have professors that do that.
They choose what they wanna research, they study it,
they write about it, and they make changes in the world.
The problem is, is when you put the 65% ICR piece in,
you've narrowed the field of available research.
If you take research,
every available source of research
and funding for that research, including private research,
this is a different argument and a different case.
-: I'm just confused what you're arguing though.
Are you saying that when those professors
were granted tenure, many of them 30 or 40 years ago,
they can't change their lab space ever?
They can't adjust their compensation in any negative way?
Kevin: No, that's not what I'm saying.
-: What are you saying? -: I'm saying that
economic security and academic freedom
are inextricably interrelated.
-: I understand they're interrelated.
The question though is the language
in the tenure principles talks about sufficient, right?
It doesn't just talk about you can't,
it doesn't say you can't lower anyone's salary, right?
-: No, and we don't argue that salaries can't be lowered.
What we argue, Your Honor, is salaries cannot be lowered
as a means to impose discipline
on an academic who doesn't pursue research
that is fundable by the NIH.
I'll give you an example, Judge.
-: But if a pharmaceutical company was willing
to pay the overhead,
that's perfectly fine, right?
If Novartis or one of these other major
pharmaceutical companies was gonna give them grants
that covered that amount, no problem, right?
-: If it's 65%, it's no problem, Your Honor.
The real question is a basic principle question.
I think it's undeniable that if we take all the research
that can be done in the world,
Judah Folkman, anti-angiogenesis, for example,
the Covid vaccine,
if we take all the research that can be done in the world
and we say you can only do that research,
which has a 65% ICR return,
then you're narrowing the field of available research
as a very practical matter in this context
given the competitiveness of trying to get these 65% grants.
-: But, again. -: Yes, sir.
-: They're running a university
with a confined amount of lab space too.
If you're occupying that lab space,
someone else is not occupying that lab space, right?
There's not an unlimited amount of lab space in Tufts.
That's one of the reasons they're shrinking your lab space
if you don't have grants to support it,
'cause somebody else may, right?
-: The problem with the analysis, Your Honor,
is that if you're using lab space as a causal
to enforce the obligation to fundraise,
which is what's going on here,
and specific fundraising, 65% ICR,
then what you're doing is you're using
what is a right of the professor.
I mean, this Court addressed this issue
on Hlatky v. Steward Health Care.
A professor has-
-: I know, but we're here because tenure is,
I mean, there are thousands of professors
in Massachusetts with tenure,
and we're trying to understand what,
and those principles appear in at least some background way
in every single tenure case, right?
-: Yes, sir. -: So we're trying
to understand what meaning they have
and how specific those requirements are, right?
-: Let me go to first principles then.
-: Okay, that would be helpful.
Because I can't figure out,
your brief seems to be an absolute brief
that shrinking their lab space,
diminishing their salary in any respect
is a violation of tenure,
at least that's the way I read it.
I may be misreading it.
But what are they allowed to do
consistent with those principles?
-: And let me try to make this clear.
I'm defending from the smallest space I can stand on.
I am saying these policies, all right,
the 2017 policy is modified in 2019,
imposes an obligation that did not exist
at the time they were granted tenure.
Tufts' position is, is that they can do that, why?
Because they maintain the right in the handbook
to change personnel policies.
So what Tufts does, if we wanna talk about ambiguity,
and I think we must,
is they take the term and they define it their own way.
They say personnel policies means,
"I can put a policy in place that,
even though I have a contract with a professor
that is full-time for life,
that cannot be revoked except for malfeasance."
-: But you say that's what it says.
That's not what their tenure letters said.
Their tenure letters, in order to get tenure,
they had to be full-time.
And to get tenure is a big deal.
You win the trifecta, right?
The trifecta is you have
some continuous employment, some.
You have some economic security,
that's sufficient economic security.
And you have academic freedom, that's the trifecta.
That's why they pop the champagne bottles
when you get tenure, right? -: Or sue when they don't.
-: But I don't understand.
There are limits to that too, right?
-: Limits to be contractual.
I think we have to agree to that,
because tenure's contractual.
So the question is,
what was the right when initially granted?
And whether or not the university, which I can transpose-
-: So what can they do with, again,
your clients have been employed for 50 years, some of them.
Some of them, their grants
have almost completely disappeared.
What can they do consistent with those tenure principles?
Nothing? Or have they gone too far?
They may have gone too far,
but they must be able to do something, right?
-: Yes. -: And those principles,
as Justice Wendlandt's point, are somewhat ambiguous.
-: So what they do is they take a concept,
and the concept is personnel policy.
And they morph that personnel policy into,
"We can do whatever we please."
-: So can you answer this question?
What can they do consistent with your view
of their contractual obligations to your clients?
-: If a professor is not seriously performing
his or her obligations,
they may be referred for tenure revocation
pursuant to a Tenure Revocation policy
that gives the professors-
-: Where is that coming from?
-: The Tenure Revocation policy is under-
-: No, no, not the Tenure Revocation policy.
The analysis as to what flexibility
Tufts Medical School has in light of the tenure contracts.
Doesn't that come from norms
in the industry? -: Yes.
-: Where is it that you're finding, yes.
-: Norms in the industry
is a good place to start, Your Honor.
-: Okay, and we only look to those under our canons
of construction of a contract
if the terms are ambiguous.
Which is why I started my questions
with are these terms ambiguous?
And I was surprised to hear you say no.
Because if they're not ambiguous,
we don't look at the norms of the industry.
-: There's two things.
We have a situation where I think neither of us
necessarily thinks the terms are ambiguous.
I think maybe he thinks they're unenforceable.
But we know what academic freedom is,
and we know what the norms in the industry are.
The American Association of University Professors
submitted an amicus on this very thing.
-: Okay, so they have to be ambiguous
in order for me to look at the norms in the industry?
-: Let's assume that academic freedom is ambiguous-
-: Or the combination of that with economic security.
-: Is ambiguous, then the question
is you look to the industry itself.
-: And this is on summary judgment.
What is in the record about the industry norms?
-: We have four or five expert affidavits
that we submitted that discuss this very issue
that are in the record. -: Okay.
-: Both of you agree that the AAUP,
those principles are the norms in the industry.
What they actually mean, you differ on.
And the D.C. Circuit opinions,
at least some of the amicus,
refer to talk about those norms,
that they're sort of the key norms in the industry,
'cause academia is not really,
although it's become more of an industry,
at least when some of these people were given tenure,
you know, it's a different era, but those are the norms.
Right? -: Right.
-: How restrictive they are is what I find
ambiguous and unclear.
-: Except that, Your Honor,
if we take the very basic principle, and that is academic.
-: But I don't see how it gets you there.
Sufficiently economic so that people of real intelligence
stay in the profession.
Your clients proved that. -: No.
-: They stayed at Tufts for 30 and 40 years.
Their salary wasn't adjusted
until they ran outta grant money.
-: The argument is,
actually the provision is different than that.
-: Mhmm, go ahead. -: The provision is
sufficiently attractive.
-: There are two provisions.
The economic one says sufficiently what?
-: I'll do it, "A sufficient degree of economic security
to make the profession attractive
to men and women of ability."
-: So it's not the negative.
It's not that it has to be unattractive.
The question is whether or not a-
Justice Kafker: A sufficient degree of economic security.
-: Your Honor, whether or not,
I don't think it's ambiguous,
whether or not someone who is applying for tenure
is being told, "We're gonna give you this job,"
okay, which is what happened,
"full-time for life, no funding obligations,"
that's what this contract is.
There's nothing in the agreement that-
-: [Justice Wendlandt] Where does the contract say that?
-: The contract letters do not reflect
the obligation to raise funds.
-: Right, but that's, again, not the negative.
You're quibbling about the negative of this-
-: Let's take it- -: All they say
is you have tenure. -: Yeah.
-: No, no, let's take it out of the context-
-: Right? Right?
When they got those letters, it said,
"You are a tenured professor, congratulations."
Kevin: Right, and what does that mean?
-: And then, I take it means those three norms,
those three norms provide the background
for academic freedom,
an expectation of continued employment,
and sufficient economic security
that people of intelligence will stay as professors.
-: Not stay, be attracted to it.
-: Right, attracted. -: That's different.
"How are we gonna bring people in"?
"How are we gonna make tenure
something that attracts people"?
-: [Justice Wendlandt] But what definition of attractive
only means come?
-: We can define what isn't attractive?
I can't define what free speech is.
I can define what it isn't.
If someone tells me I'm not free to say something,
then I don't have free speech.
And the situation here is precisely the same.
If I have the- -: You have free speech,
I mean, again, this relates to another issue I've got,
which is these are med school professors,
they're not French literature professors,
or even people who work with computers who don't occupy,
you know, lab space.
These are a different group of people.
-: Tenure is university wide.
Tenure doesn't mean tenure for different people, it can't.
-: You don't think there's a difference,
because all these provisions apply
to the lab scientists, right?
-: Yes. -: They don't apply
to the person teaching French or the person
teaching computer science. -: Agreed.
-: In other words, research is central to the whole model.
-: Research is one of the three things
that are required of a professor, and they're all equal.
It's a three-legged bar stool.
You have research, you have service to the community,
and you have teaching.
What they did in this instance is,
is they elevated research to a point
that if you don't comply with their fundraising obligations,
even if you're an excellent teacher
and an excellent member of the academic community,
you get fired,
or at least you can be referred for termination.
-: Let me ask you this. -: Yes, sir.
-: If I have your argument right
in its simplest terms for the word academic freedom
not being ambiguous,
are you saying that you can't have academic freedom
if you're so limited in the type of grants
that you can apply for,
because you have to go for the big bucks with the NIH
and that that's a limited type of pool,
and so therefore is your unambiguous argument
that because you're limited to that,
you don't really have academic freedom?
-: I'm saying exactly that.
That if you take the full panoply of potential research
and you say, "You make sure that you focus
on the 65% ICR research,
or else, if you don't support half your salary,"
which is a challenging standard,
you have to put in a lot of applications for that.
Justice Kafker: Can they take away your lab?
-: Yeah. -: I mean, if you're studying
something that has no financial remuneration
and you're occupying lab space,
they can take away your lab?
Kevin: No, not for failing
to meet a fundraising obligation.
-: So when you get tenure,
you not only are guaranteed your salary,
but you're guaranteed a lot of lab space too?
-: No, not guaranteed a lot of lab space.
These professors got lab space
as part of their job responsibilities.
Just like Dr. Hlatky did in the Steward case.
-: So when they had the lab space 50 years ago,
they get to keep that lab space forever?
-: As long as they're doing their research,
they should have a place to do their research.
Yes, that is an inextricable aspect of tenure.
-: What about all the younger professors who need lab space
to do the kind of knowledge-based research
that people want done?
Those people are out of luck?
-: I don't see anything in the record
that suggests that the lack of lab space
was the issue going on here.
It's evident that what's going on
is it's a punitive measure done to convince people
to focus their efforts on ICR,
excuse me, research that generates the highest ICR.
Let me read, because I think it makes sense to understand
what academic freedom means to Tufts,
at least the limitations they're on.
I asked Thomas Malone, who is the 30-B6 witness
and the school's executive dean, this question,
"Does Tufts believe it has the right
to impact academic freedom, even a little bit,
in plans that it establishes and policies it puts in place?"
And the answer is "No," not even a little bit.
So if we're talking about a policy.
Justice Kafker: I don't know who this person is.
-: He was the 30-B6 witness, and the person who just-
Justice Kafker: We're looking at contract language.
Right? -: He's explaining what Tufts
says the contract means.
This is the meeting of the minds.
-: I assume we're gonna have,
he's gonna stand up and say,
"The president of Tufts said this,
and there are 18 other people who've qualified this."
-: There are three other areas in the transcript,
all of which are the other, there are three,
three 30-B6 witnesses,
three witnesses testified the same way,
that any impact on academic freedom
violates the AFTR policy.
Which makes perfect sense, by the way.
-: And when we read this deposition transcript,
we're gonna hear that he's saying that,
"'If you in any way impact my lab space
or make me do research that basically I get reimbursed for,
that's an interference with academic freedom at Tufts,'
and we agree with that"?
I'll be flabbergasted.
-: They're not gonna admit that, Your Honor.
The real question is what this Court can understand
just as a practical matter, frankly,
by judicial notice on some level,
if I have a universe-
-: But, I mean, I say you're citing to deposition testimony,
30-B6 testimony, and again,
I go back to my first question
is I don't look at that unless the term is ambiguous.
And your position in your brief is that it's not ambiguous.
-: Well, Your Honor, because the way
that it's defined in academia,
just like free speech is defined under constitutional law,
we know what it is.
It is the freedom to pursue whatever your heart desires.
It may sound counterintuitive, it may sound-
-: No, it doesn't sound counterintuitive.
It's just that you're citing to me things
that require me to conclude that the term is ambiguous.
And it's contrary to the position
that you took in your brief.
-: Well, this Court views this de novo.
So even if the provision is ambiguous,
the question is, whether or not it can be resolved
on the record before the Court?
And the answer is it can be,
because there's no real debate
that tenure is a full-time job.
This novel idea that we can take-
-: That was my other question.
Are you asking us to vacate the lower court decision
or are you asking us to affirm
summary judgment on your behalf?
-: B, I believe summary judgment in favor
of the professor's is merited on the record.
This is a question of law, fundamentally.
And the question is, well, I proposed the questions.
But the idea that Tufts can take a full-time position,
and there can be no question that this is,
"I am a professor.
My obligations are not just research.
I have to teach and I have to be part of the community."
In fact, the 2017 compensation policy says exactly that.
In the area where it says,
"We can cut you down to half time," it's still-
-: We're gonna ask your brother those questions.
But your view is they can't do anything.
They can't touch your lab space.
They can't change your salary.
They can't
change your status in any way.
You were tenured, and that's for life.
Kevin: They may not do that.
Justice Kafker: I just wanna make sure,
am I accurately describing your position?
-: You're missing everything after the comma.
-: But tell me what they can do.
What can they do to someone who is not bringing in money?
Nothing? -: Well, first question is,
is are they required to?
And you're gonna have to struggle with that question
because the answer is no.
-: I would just love an answer to the question
of what can you do to a tenured medical school professor?
Not who's sexually harassing someone
where there's for cause for termination,
and not whose department is studying something
that no one does anymore.
What can you do to a professor who's tenured
who no longer is bringing in money to support their lab?
-: What you can do, Your Honor, is number one,
you can refer that person
to the Tenure Revocation Committee.
And that process,
which is described and contractually mandated,
can be undertaken. -: That's for the
for cause discipline, right?
-: That's what we're talking about,
you can be disciplined for cause.
-: You're saying that when someone
becomes basically a scholar who can't generate money,
a med school professor,
their only way of impacting them
is through the for cause disciplinary process.
And I'm not saying that critically, I'm just asking,
is that your point? -: Yes.
Retrospectively that's true,
because that's what the contract is.
Prospectively, they can do whatever they want.
I mean, there's the point.
If we wanna redefine what tenure is by putting in policies
that require fundraising
and that impose tenure revocation for not raising funds,
they can do that.
What they can't do is unilaterally modify the contract
to impose those obligations retrospectively.
That's what we're arguing here.
So there's two things that can happen.
They can be referred for tenure revocation,
and then their peers will decide.
-: Again, and we're going around,
and I'm sure the Chief is gonna cut this off,
but the letter of tenure
provides them with tenure.
Then we're directed to the AAUP principles and other things.
'Cause none of this is in their tenure letter, right?
They didn't sign a contract saying,
"When you become tenured,
you will be a full-time employee with your salary forever
and lab space forever,"
that was not in the contract.
We need to dig through the AAUP principles
and other things to determine
what that original contract was, right?
-: Yes, the original contract, Your Honor,
I don't think there's much debate on this, is this.
I never should say that,
strike that, there's not much debate.
The original contract was comprised of their award letters,
were also comprised of the policies
that were in place at the time
that described what tenure was.
One of those policies was the Basic Science policy,
and one of those policies was the AFTR policy.
Under the Basic Science policy,
as my brother will tell you,
the school has an expectation,
a term that appears throughout
that they use synonymously with a demand.
But let's just say, they have an expectation
that you be an independent researcher.
Tufts has taken that term of independent researcher
and has said, "Well, it must mean financially independent."
When, if you look at the context,
really what it means is consistent with academic freedom,
you must have independent thought.
You must do your own independent research.
You must come to your independent ideas,
and then pursue them.
You can't be someone else's lab partner.
Every one of my professors falls into that category.
I've got Dr. Soto, for example, okay,
who discovered the correlation between BPAs in plastics
and birth injuries.
There were warnings all over the world
because of her research.
Unfunded, too basic for NIH.
That's what we're risking here, okay?
Because if we have a policy in place that schools can say,
"Look, we're gonna turn you into little revenue generators,"
like my son's MathWorks might,
or any other biotech company that hires an employee, right?
-: No. -: Okay.
-: Excuse me. -: All right, thank you.
-: Thank you.
-: May it please the Court, my name is Daryl Lapp,
and I represent the trustees of Tufts College.
The Superior Court got it right.
-: Yeah, I'm not 100% sure of that.
But can you tell us
what can't you do?
Under your view, does Tufts, what does tenure mean?
I'm just trying to understand what it is.
-: What tenure means is what it says
in the Academic Freedom, Tenure, and Retirement policy,
which is one of the documents that the parties agree
is part of the plaintiff's employment contract.
And what that document says is that,
"When you achieve tenure,
you have achieved a continuous appointment
that is a lifetime appointment,
which can be terminated only for certain specified reasons,"
cause, financial exigency, program discontinuance,
resignation, or retirement.
That is what tenure means.
-: Well, hold on, there's three components to tenure, right?
Bear with me for a second,
'cause your briefs are very good.
We understand sort of the basics of your position.
So there are three components to tenure.
One is just what you said, continuous employment.
You're no longer an assistant professor
who they can get rid of at the end of the year.
Two, you have sufficient economic security,
whatever that vague language is.
And three, you have academic freedom.
You're not gonna be punished
'cause you're studying something controversial.
You're studying stem cells,
you're not gonna be punished 'cause you're doing that,
because the board of trustees doesn't like that.
But can you reduce their salary to $3 under your view?
-: It would not be a violation of the tenure policy to do so.
-: Really?
I mean, so that all those thousands of professors
in Massachusetts who are tenured
under these AAUP principles,
your view is that they can reduce everybody to $4?
The French professors, the computer scientists,
tenure just means you get to stay, but for nothing?
-: Well, couple of things. -: Go ahead.
Daryl: First of all, Your Honor, please, the-
-: Well, but that's the question.
You said they can reduce it to $3, right?
-: I'm saying it would not be a violation
of the tenure policy to do that.
The rights that one has as a tenured faculty member
are whatever rights you have as a matter of contract.
We've cited case after case-
-: But the tenure norms
are part of that contract, aren't they?
-: Not where the parties agree,
and they agreed, until this morning,
that the contract is unambiguous.
Whereas here, the parties are in agreement-
-: But that's a legal determination.
And so, well, you guys can agree to whatever you want to,
I'm looking at these words
and I'm thinking as a legal matter,
I don't know exactly the contours
of what academic freedom are,
nor do I understand what academic freedom
is in the context of economic security,
which you agree are part of the contract
that your clients made with their clients.
-: I agree, Your Honor, that the relevant provisions
of the AFTR policy are part of the contract.
The first part of Justice Kafker's trifecta
is a part of the contract,
a contract of continuous employment.
The second part, academic freedom,
is not inherent in tenure.
The academic freedom- -: Really?
-: All faculty at Tufts enjoy academic freedom.
This is not just a tenure policy.
It's the Academic Freedom, Tenure and Retirement policy,
some provisions of which are specific to tenure.
-: You're not really arguing that tenure
doesn't include academic freedom.
'Cause if you're gutting, you know,
the entire conception of tenure, if that's the case, right?
-: I am not disputing that tenured faculty,
like other faculty at Tufts,
enjoy a promise of academic freedom.
What that promise is we answer by looking-
-: Because unlike the other faculty members,
those assistant professors or adjunct professors
they can get rid of at will.
Or at least they can get rid of subject
to these very limited contractual protections they have.
But tenured professors are different.
And if academic freedom has no role for them,
all those corks that were popped were popped in error.
The same thing with-
-: Wait, are you, I'm sorry. -: Yeah, go ahead.
-: Are you saying academic freedom
is not the exclusive provenance
of the tenured professors?
That it applies to them, as well as to others?
-: Yes. -: Okay.
So it's part of the contract?
-: Academic freedom is a promise
that Tufts makes to all of its faculty.
-: Right, another word for promise is a contract.
So we have an agreement of the minds
that you've promised academic freedom.
-: And what is the contour of that promise?
We have made a promise of academic freedom.
That promise is not, as my brother would have it,
academic freedom means being able
to do whatever you want to do.
To answer the question,
what promise of academic freedom did we make?
We look to the policy.
And what it says is,
"Academic freedom applies to teaching and research.
It's important you enjoy it
subject to the adequate performance of your other duties,"
a point my brother neglects to mention.
"And it provides that when a teacher speaks
or writes as a citizen, not on behalf of the institution,
they should be free from institutional
censorship or discipline."
That is what the contract says.
That is the promise of academic freedom.
-: Yes, and I get that he's overstating what it guarantees.
But they have the ability
to do research.
I don't know, it seems to me that the fight here
is not over academic freedom,
although they're trying to link it to that.
But economic security and continuous employment,
which are two other components of being a tenured professor.
-: As to the third part of Your Honor's trifecta,
we say two things.
First of all, the language in the policy
about economic security is not of contractual effect.
It is a prefatory statement. -: Why?
Can you explain that?
-: Because it's not a specific promise.
This is a contract case. -: Yes.
-: The plaintiffs are here saying,
"We are here to enforce contractual promises
under our employment agreements,
which include the AFTR policy."
Well, let's ask the question.
Does the AFTR policy include a contractually binding promise
about economic security?
Other courts that have reached this issue have said no,
as did the Superior Court, because-
-: But the New York Court does, and it's heavily criticized.
Sometimes people define,
they can define tenure, that economic security,
and redefine it in the contract.
But it's a background norm for us
to give meaning to this.
-: This is not a case for the application
of background norms. -: Really?
-: It is a case for the,
the Court should respectfully follow the clear principles
of Massachusetts contract law,
interpret the contract language, and not-
-: Okay, but we're gonna do that though.
But that language is in the,
by the way, the contract you both point to is the letter,
the letter references tenure.
And then, the only references to tenure
that we have to draw on,
which are in every faculty tenure around the country,
is this principle.
So we can't just ignore it and treat it as prefatory
the way the trial court did,
because it's language and it's clearly,
it may be too ambiguous to give meaning to,
but it's not prefatory.
It's a part of the contract.
-: It is prefatory,
and it is, more importantly,
too ambiguous to give meaning to, as other courts have held.
And if it has any meaning,
as the trial court found,
and as other courts around the country have found,
it is a reference to the one form of economic security
that is actually referenced in the contract,
which is continuous employment.
There's nothing- -: What is continuous
employment if you're gonna pay somebody $3?
-: Well, nobody's being paid $3.
-: No, but, you know, that's the hypothetical,
that's the extreme, right?
Or nothing, you know. -: What about the half FTE?
That's not continuous employment, is it?
-: It is continuous employment. -: It's just not getting paid.
-: As my brother has said,
there were three dimensions to these folks' jobs,
research, teaching, and service.
They aren't doing half of their job,
thus it's fully consistent with their contract rights.
-: [Justice Wendlandt] Why do you say they're not doing
half of their job?
-: They're not succeeding in the role of being-
-: Isn't the remedy to revoke tenureship?
-: Tufts could do that.
It also has every right under the party's contract
to adjust their salaries pursuant to policies
that Tufts had every ability and right to introduce.
There's nothing about the plaintiff's employment contracts
that says Tufts cannot adopt new policies
that apply to tenured faculty
after the moment they're granted tenure.
-: Well, I guess I'm trying to figure out
what the limits of Tufts' flexibility are.
-: The limit, Your Honor, is that Tufts cannot violate
any specific promise that it has made.
-: So if they made a promise if academic freedom,
and the policy is you have to bring in this much revenue,
and if the practical reality
is that the only way
you're going to be able to do that is with the NIH,
and so your pool of research is limited,
then why doesn't that violate
the contractual agreement for academic freedom?
-: Several reasons, Your Honor.
First of all, the promise of academic freedom
is that you have freedom in research and teaching.
You have full freedom in research
subject to the adequate performance of your other duties.
It's not that you get to do whatever you want.
-: All right, so you're a rockstar professor,
and you're at all the community cocktail parties
with the students.
You're a rockstar community professor.
And you're doing really important research
that's interesting, but the NIH has no interest,
and you're not reaching the 65%.
Why doesn't that violate
the academic freedom contractual agreement?
-: Because your duties include not only teaching
and not only service,
but also maintaining an independent lab,
being an independent researcher doing meaningful science,
one measure of which is peer review and external funding.
The plaintiffs in this case all agree,
there is no dispute of fact,
that when they became basic science faculty at Tufts,
they understood that generating external funding
was a central part of their jobs.
-: So independent, the equivalent vote means
either self-funded, or,
as counsel says,
you know, on your own, basically.
Do you have any context of who's right?
I know, shockingly, you're gonna say you are.
(Court laughs)
Tell us what the record supports
and what the case law supports.
-: In our brief, we've cited specifically
to the deposition testimony of the plaintiffs
who all understood and agreed on this point.
For example, Dr. Yee testified
that when she applied to Tufts,
she understood that there was an expectation
she would be successful in generating grant funds
to support her research.
And that to be an independent investigator
requires generating sufficient funding
to support the research in her lab.
-: But I'm sure you're gonna read us other portions
of depositions that say similar things.
But my question, again, is what are the limits
on Tufts' ability to do that?
And why hasn't this exceeded that limit?
Making somebody a half FTE,
making them responsible for half of their salary.
You know, all of those things.
What's my metric, right?
Dr. Yee doesn't say this is okay.
In fact, she's suing your client
because she thinks it's not.
-: Of course. -: And she said,
"I did great research for 30 years and I'm in a dry spell,
therefore you're gonna wipe me out?"
-: Well, Dr. Yee's been in a dry spell since 2014.
Justice Kafker: But that's their argument.
-: Well, the limit is that Tufts cannot breach
any specific promise that it has made.
And it has never made-
-: But I'm confused by that.
-: That's the sort of definition of breach of contract.
-: The original contract you say is pretty vague.
You have tenure, and let me pose a hypothetical.
So Tufts decides they want their liberal arts faculty
to publish at "Oxford University Press."
And, you know, "Oklahoma University Press" no longer good.
They're working hard,
but they're not getting picked by "Oxford."
Can they become halftime employees too,
if you choose to do that
'cause the tenure has no imitation on it?
Why not?
-: The hypothetical is that if someone-
-: The hypothetical is in the, now we're shifting out,
'cause both of you seem to say
that med school doesn't matter.
That tenure in medical school
is similar to tenure in undergraduate,
maybe I'm misreading the briefs.
But I'm asking you if Tufts' president passes a new policy
that says, "I want my liberal arts people
to be publishing in only the best publishing houses.
They've gotta get 'Oxford,'" or whatever it is these days.
"If you don't publish there,
I'm gonna reduce you to a 50% employee," is that okay?
-: I would actually say that that does not violate
any promise of academic freedom that Tufts has made.
-: Does it violate the economic security for provision
and the continuous employment provision?
-: It does not. -: Wow.
-: In the hypothetical, we haven't taken away anyone's job.
-: Tenure to you is, what is it limited?
It's limited to full-time employment,
but nothing to do with your salary.
And what else do you get?
You get to study whatever you want,
but you don't have any promise of compensation.
-: You do not have any promise of compensation.
Court, after court, after court-
-: I read those cases carefully.
They're much more fact specific
and contractual language specific.
They all try to, a couple do what you say.
The New York Court says it's prefatory.
The D.C. Circuit, Judge Skelly Wright says,
"These are norms we have to provide meaning on."
Some of the other courts do something similar.
-: I submit, Your Honor, that the cases are consistent
in two fundamental principles.
They are consistent in the principle
that absent a specific promise,
it is not a contract violation for a university
to change a tenured faculty member's compensation
or lab space.
It's a contract case.
And the plaintiff has to prove
that they have a contractual promise
that those things won't happen to them.
And absent a specific promise, they have no contract claim.
The cases are consistent on that point.
The cases are also consistent on-
-: What cases do you rely on?
The lab space I see is a totally different issue.
What cases say that you can,
besides the cases that say,
"When they gave you your tenure letter,"
like the case out of Illinois.
When they gave the person a tenure letter that says,
"You have a guaranteed salary of $1,"
that's one case that they were careful,
that university, to do that.
No one else seems to do that.
-: The cases that we rely on
are at pages 32 to 34 of our brief.
Justice Kafker: I read every one of them.
Which case does what you want,
which says you can reduce a faculty member's salary
who has tenure to $1?
-: There's not a $1 case in the same way
that Tufts has not reduced anybody's salary to $1.
The lowest salary of any of the plaintiffs is $77,000.
-: [Justice Wendlandt] So that's my question again,
what's the limit?
-: The limit would be any reduction that is commensurate
with a faculty member's failure to do the job
that qualified them to get tenure.
-: [Chief Justice Budd] But what about the economic security?
I'm just confused about how,
it sounds like tenure's not such
a great deal at Tufts. -: At least not at Tufts.
-: With all respect, I represent a lot of universities,
and I'm confident they would all take this position.
Tenure is important.
But what tenure consists of, what it gets you,
is defined by what is in the tenure policy
of the university.
It's not some abstract, overarching principle.
It's not a philosophical exercise.
It is sure not what the AAUP says it means.
It's what the contract says, and what Tufts-
-: But what is economic security though to your client?
I don't understand how it could be $77.
-: We have, as just about every university does,
we have quoted from introductory language
in that 1940 statement,
which mentions why tenure in some respects is desirable.
Tenure is a good thing
because it can be a means to economic security.
Is that a contractual promise
or a prefatory ambiguous statement?
It is the latter.
There is nothing in that language that says
anything about salary, much less a-
-: What do you get?
I thought that you got academic freedom,
economic security...
-: And full-time employment. -: And full-time, no.
-: You don't get full-time employment.
-: Lifetime employment. -: Yeah, lifetime employment
subject to termination for the five reasons
that we mentioned.
And, like other faculty, you enjoy academic freedom,
the contours of which are,
you get freedom in research
subject to doing the rest of your job,
and you aren't gonna be censored
for things that you say-
-: I've heard that.
What about the economic security part?
-: Our position is clear, there is not a contractual,
tenure does not come with a contractual promise
of economic security.
-: So the contract is the letter plus the handbook?
-: The plaintiff's employment contract,
and I think we actually agree on this,
the plaintiff's employment contract
comprises their appointment and promotion letters
and the relevant provisions of the faculty handbook,
which includes the university's AFTR policy
and the Basic Science policy,
which is another important part of the contract,
which makes clear the centrality
of being an independent researcher
to the very jobs that these plaintiffs hold.
And all Tufts has done
is to enact a policy that says,
"If you don't do a fundamental aspect of your job,
that can have consequences in terms
of compensation and lab space."
-: That doesn't need encapsulation.
Is that in the language by the way?
That if you don't do the fundamental,
I take it we could interpret you and say you win,
because a fundamental aspect of a medical school professor
is to generate enough income to support their labs.
"And if they're not doing that,
we can reduce their lab space and their compensation."
I take it that that's whole different
from a lot of other things you're arguing,
that seems more reasonable.
But where do we find this fundamental
and how it's defined anywhere?
Or is that your sort of gloss on this?
-: If you look at the Basic Science policy,
which is a part of the party's contract,
it makes clear the centrality of being an independent,
impactful researcher as fundamental
to an initial appointment in basic science faculty,
any promotion in the basic science faculty,
and the award of tenure in the basic science faculty.
-: And is there equivalent on,
because we're writing a tenure decision.
Maybe we would only have to analyze it
in the medical school context.
But is there an equivalent on the other side
of the, you know, university law for the humanities,
and math, and other things?
'Cause I'm just worried that your description
of what is fundamental
is hard to define on the humanities side.
-: Each school has their own criteria for appointment,
promotion, and tenure.
It's obviously gonna differ in some humanities departments.
-: The standards for promotion and tenure are clear.
It's the consequences that you seem to be fighting over.
To be a tenured professor I bet you two agree
that you need to be a distinguished blankety blank.
You know, it's the consequences
of what happens after you get tenure
that you're fighting about.
-: That's exactly right.
And the premise of the plaintiff's case
is that if you stop doing the job
that justified the award of tenure,
there can be no consequence for that
without it being a violation of academic freedom
or this amorphous language about economic security,
which says nothing about salary, or lab space,
or FTE status, or the like.
Our position is this is a contract case.
It's not a philosophical-
-: I think his position's a little different.
He says, "If you don't live up to your obligations,
you have an option,
which is this for cause termination provision,"
which generally applies if you're doing bad things
as opposed to not being as good a researcher
as you were before.
But they're saying that's your only option.
You're saying, "I got this whole other option,
which is I can do whatever I want
if I don't think you're living up to what got you tenure."
-: The university can adopt policies
that apply to tenured faculty and other employees
so long as those policies do not violate
any promise that was made.
And in that regard,
universities are no different from any other employer.
Employers change their policies.
-: Tenure doesn't exist anywhere else in the world
except maybe the judiciary.
-: I have a form of tenure
as an equity partner in a law firm.
-: Yeah, I bet you don't. -: Yeah, I bet you don't.
Justice Kafker: I bet you don't, and you know you don't.
-: Well, I'm trying to illustrate a point.
-: But I don't think you're making the point
you think you're making.
-: Well, if I came to you and said,
"The firm is violating my contract rights as a partner
because they reduced my compensation."
I submit that the first thing the Court would say is,
"Well, what does the partnership agreement say?"
We would look to- -: I bet it says expressly,
"We can reduce your compensation."
And this doesn't say that.
-: If I was claiming a breach of contract,
we're on the same page in this regard, Your Honor.
You doubt that my partnership agreement
includes protection for me against compensation reduction,
and you'd be right.
And our position is this is a contract.
They say, until today, it's an unambiguous contract.
So we look to the language of that contract.
We don't import terms that the parties have not expressed.
Is there a promise, is there a guarantee that salary,
lab space, FTE status would never be reduced?
Just like that kind of promise
isn't in my partnership agreement,
that promise is not in their employment
contract with Tufts.
-: So you're saying tenures, like anything else,
and that's your position.
That's fine, it's okay.
-: It is my position, Your Honor.
-: Okay. -: As court after court
has said, "The meaning of tenure is found
in the tenure contract, it's not found in space,
it's not found abstractly, and It's not found in what the-"
-: [Justice Wendlandt] In industry practices and norms.
-: In industry practices, unless,
and there's a couple cases like this,
this point is developed in our opposition,
not our opposition, our response to the amici filings.
Unless the institution has stipulated
to the application of AAUP's pronouncements.
Justice Kafker: Or cross-referenced them
in the contractual document.
-: No, no, no, no, Your Honor, please,
with all respect, not that simple reference
to the 1940 general principles,
but has actually adopted the AAUP's statements as a whole.
And that has not happened here.