S.C. Supreme Court Addresses Faculty Handbooks and Tenure
The South Carolina Supreme Court speaks only rarely on issues directly relevant to higher education. However, last week’s decision in Crenshaw v. Erskine College has significant implications for colleges and universities. While the lengthy opinion is likely to influence a wide variety of legal decisions concerning colleges for years to come, the central holding of the case relates to tenure and the status of a college’s faculty handbook. In a nutshell, the Court ruled 3-2 that – at least for tenured faculty – a faculty manual or handbook constitutes a contract between the college and the faculty member, even if the handbook or manual includes an otherwise valid disclaimer that the manual is not an employment contract. For more on the facts of the dispute and the Court’s reasoning, read on.
The case arose in September 2010, when William Crenshaw, a professor of English at Erskine since 1976 (with tenure since 1984) and former paramedic, became involved in an incident in which one of his students, a lacrosse player, appeared ill in his classroom after suffering a head injury during practice. EMS was called to the scene and the student was treated in an ambulance. After class, Crenshaw went to assess the situation, interacting with Erskine personnel and the student. Grievances were later filed against Crenshaw for these interactions, and the matter escalated from there, with Erskine later accusing Crenshaw of “bullying” colleagues who were asked to review the grievances and of creating a hostile working environment. While the grievance process was ongoing, Crenshaw also posted on Facebook comments critical of Erskine, its administration, and its ties to the Associate Reformed Presbyterian Church. In August 2011, Erskine’s president informed Crenshaw that Erskine was beginning termination proceedings. That September, after Crenshaw failed to request a termination hearing as provided in the Faculty Manual, Erskine informed Crenshaw that he was terminated.
Crenshaw filed suit against Erskine in 2014, alleging numerous claims, but only his breach of contract claim survived to trial. Following trial, a jury found for Crenshaw and awarded damages of $600,000, but the trial judge granted Erskine’s motion for a judgment notwithstanding the verdict. The S.C. Court of Appeals reversed the trial court and reinstated the verdict in 2018. Last week the S.C. Supreme Court reversed the Court of Appeals, ruling for Erskine.
As noted above, the Supreme Court’s decision contains a number of rulings of great importance for South Carolina colleges and universities. The most significant is the Court’s holding as a matter of law that a faculty manual or handbook constitutes an employment contract with a tenured faculty member, even if the handbook contains a disclaimer stating that it is not a contract. The Court explained that in the unique context of tenure, where institutions induce faculty to rely on the promises of tenure, the manual or handbook setting out the tenure provisions and any process for termination of tenure is a contract as a matter of law. The Court acknowledged that for non-tenured faculty or staff, the question of whether a manual or handbook with a disclaimer constituted a contract would be for the jury.
The Court also found that there was no evidence Erskine had failed to follow the procedures in its Faculty Manual in terminating Crenshaw. The Court noted that Crenshaw had not availed himself of some of the Manual’s safeguards, including his right to a termination hearing and the right to appeal any decision made in that hearing to the College’s Board of Trustees. In assessing the procedures Erskine followed, the Court quoted extensively from provisions in the Manual addressing expectations for tenured faculty, and what sort of behavior was cause for termination.
The Court also held that scattered references in the Faculty Manual to “due process” did not obligate the College to supply process beyond those particular rights expressly set out the manual, and in particular did not embrace the concept of “constitutional due process,” which would need to be followed at public institutions in any termination proceedings. (Despite this, we would note that imprecise references to “due process” in handbooks and policies create an unnecessary risk of a claim that “court-like” rights have been promised when “due process” is mentioned.)
As we have noted, the opinion in Crenshaw v. Erskine is lengthy, and those of us who work in this area will be studying it for some time to come. But a clear and immediate lesson from Crenshaw for Administrators and HR Departments is that Faculty Handbooks must be drafted, and revised, with great care. At least some provisions of those handbooks are going to constitute enforceable contracts, with at least some faculty members. How you draft your handbook could have substantial implications for which provisions are enforceable, and for which faculty members can enforce them.
Wade S. Kolb III
Wade leads Wyche’s Education Practice Group, which serves as outside general counsel to numerous colleges, universities, and secondary schools in South Carolina. Wyche frequently advises clients on a host of education-related issues, including Title IX and FERPA compliance, HR matters, student discipline, and honor code enforcement. Wyche also serves as counsel in education-related litigation before all courts in South Carolina.
