Tenure Travails at the University of South Dakota

GREAT NEWS! SEE UPDATE AT END OF POST

Many TFL readers may know Associate Professor Myanna Dellinger, or be familiar with her work.  Myanna is the Editor-in-Chief of the ContractsProfBlog and a rising star in legal academia. She is the creator of the Global Energy and Environmental Law podcast (also available on iTunes), a frequent speaker at academic symposia and author of a dozen law review articles and many other publications.  

After graduating first in her class at the University of Oregon School of Law in 2008, she had two clerkships, including for the Hon. Procter Hug, Jr. on the U.S. Court of Appeals for the Ninth Circuit.  Myanna started her academic career as a Visiting Assistant Professor at Whitter Law School in 2010-11 and then accepted a tenure-track position at Western State College of Law in 2011-12.  She was promoted to Associate Professor in 2014, effective for the 2014-15 academic year.  In 2014, she was recruited by the University of South Dakota School of Law Dean Thomas Geu and offered a lateral position as an Associate Professor for the 2015-16 academic year, which she accepted.  Since arriving at USD, Myanna has continued to thrive. She has published four highly-regarded law review articles since joining the faculty there, and has consistently received outstanding teaching evaluations.  In 2016, she received a Fulbright Fellowship to the Institute for Advanced Sustainability Studies in Potsdam, Germany.  She is highly involved in service to the school, the community and the broader profession and has brought significant positive attention to the school.    

With credentials like this, one would think that the University of South Dakota would be thrilled to have her and would be doing everything to keep her, especially given the fact that the law school has only one tenured female faculty member and was cited by the ABA in its last site visit for its lack of gender diversity.   Unfortunately, that is not the case.  Although the law school has been strongly supportive of Myanna, the central University Administration seems to be doing everything they can to make her feel unwelcome.

Myanna’s problems started in her second year at the law school.  In 2016, Jim Moran, the Provost and Vice President of Academic Affairs, initiated an effort to strip Myanna of her title as Associate Professor and demote her to Assistant Professor.   The Provost apparently objected to the law school offering a lateral appointment as Associate Professor to Myanna without his prior approval, even though it was clearly within the Dean’s authority to do so, and the appointment was approved by the University President.  Myanna was forced to hire a local attorney, at considerable expense, to defend herself against that blatant attempt to breach her contract.  Ultimately, she was successful in retaining her title, but it became clear that the Provost would do everything within his power to prevent her from getting tenure in a timely fashion.

From the time that the law school recruited her, Myanna had been promised that she would be eligible for tenure consideration in her third year.   Under the law school’s tenure rules, it is standard procedure for Associate Professors to apply for tenure in their third year as Associate Professors.  At the start of this academic year, Myanna’s third at USD, Dean Thomas Geu reaffirmed his support for Myanna to apply for tenure this year and directed the Associate Dean of Academic Affairs to seek external reviews of Myanna’s scholarship for inclusion in her tenure package. Although her law school colleagues were strongly supportive, Myanna anticipated that she would encounter resistance from the Provost and President and might ultimately have to resort to legal action.  Accordingly, she retained my services to assist her in the tenure process.  The first step in the tenure process was to file a petition for prior service credit for to the USD Board of Regents.  This is also standard practice at USD.  According to the Board of Regents policy manual, “the Board strongly suggests that faculty members submit requests for prior service credit toward tenure only after the faculty member has assembled a complete portfolio for tenure review.”  Myanna submitted her petition, along with a complete tenure portfolio and other supporting materials, on time, in September.

In her petition, she requested that she be given three years of credit for her five years of teaching at ABA-Accredited law schools prior to joining the USD faculty.  Under law school tenure rules, associate professors are “normally” eligible for tenure in their sixth year of service (three years as an Assistant Professor, and three as an Associate Professor) so three years was all she needed to be ensure her unequivocal eligibility for tenure.  The petition was required to be reviewed by the Dean, Provost and President before submission to the Board of Regents.  Dean Geu wrote a detailed memorandum in support of the petition, explaining why Myanna deserved three years of prior service credit.  But the Provost and President refused to concur with the Dean’s recommendation.  They each wrote separate perfunctory memos to the Board recommending that Myanna receive only one year of prior service credit.  They offered no specific rationale for their recommendations. 

The Board of Regents met in October, and, following the “University’s recommendation” granted Myanna only one year of prior service credit towards tenure.  When I inquired as to whether the Board had actually reviewed Myanna’s petition on the merits or had simply followed the President’s recommendation, I learned that the University had not actually forwarded Myanna’s petition and supporting materials to the Board, so the Board had never had the opportunity to consider them.  I filed a grievance with the University protesting this gross procedural failure.  The President initially denied the grievance, but then agreed to an informal settlement conference.  During the conference, I asked him why he opposed Myanna’s petition, and he explained that it had nothing to do with her personal merits, but that he was personally philosophically opposed to any new faculty member receiving tenure without an extended period of service in residence at the University of South Dakota. He agreed to write a new recommendation to the Board, recommending an additional year of prior service credit (but still not the two additional years we were requesting), and explaining that his recommendation was not based on the specific merits of Myanna’s petition but rather on his personal views in general regarding how long a professor should have to be in residence at USD before they should be given tenure. He also agreed to forward Myanna’s full original petition and supporting materials and any additional materials that she or I wished to include for the Board’s reconsideration in support of our request for two more years.

Meanwhile, the Faculty Retention, Promotion and Tenure (RPT) Committee had already begun to review Myanna’s tenure application.   With a deadline looming for the RPT Committee to complete their work and Myanna’s prior service credit petition still under consideration, the Committee inquired whether Myanna still wished to move forward with her application.  She replied that she did.  Indeed, from the beginning of the process, Myanna made it clear that she was not relying solely on the prior service credit process to establish her eligibility for tenure.  The Law School and University tenure rules make clear that while six years of service is the “normal” period for tenure consideration, outstanding candidates who met the standards for tenure early could apply early under an exception to policy.  Myanna had checked the box on the University’s required standard tenure application form indicating that she wished to be considered under this exception.  Understanding this, the RPT Committee unanimously voted to recommend Myanna for tenure, and presented a thorough report and recommendation to the Dean which was strongly supportive of her candidacy.  

While the Dean was reviewing Myanna’s tenure package and preparing his recommendation, the Board of Regents met again and reconsidered Myanna’s prior service credit petition.  Again, the Board followed the President’s recommendation and awarded her with one additional year of prior service credit.  The Dean asked Myanna if she still wished to proceed with her application, as it would be considered early based on the Board’s decision. He advised her that if she was denied on the merits that she would then receive a terminal year contract.  Myanna reaffirmed to the Dean that she wished to move forward with her application.  The Dean then prepared his recommendation.  Like the RPT Committee, he strongly endorsed her application, reporting that “her records contain overwhelming evidence that she exceeds the standards for tenure based on her accomplishments at USD Law.”  The Dean noted that he was applying the University’s  exceptional circumstances exception for early tenure for those “faculty members who have established records clearly worthy of tenure and promotion with outstanding potential.”   The Dean noted that, although nominally considered early, Myanna was, in fact in her eighth year of law teaching overall, her seventh on the tenure track, her fourth as an associate professor and her third as an associate professor at USD law school, “which is the ‘normal’ time in service as an associate professor.”  The Dean’s report was submitted to the Provost on January 30, 2018. 

Over a month later, Myanna received a brief, one paragraph memorandum from the Provost stating that she was “not eligible to be considered for tenure” because a “decision to recommend tenure normally will be made during the faculty member’s sixth year of service at the law school” and “the Board of Regents awarded her only two years of prior credit.” The Memo concluded “we are returning your materials to you. Please note that this is not a judgement one way or the other on the merits of your candidacy.”

Although it is not entirely clear why the Provost and President are so opposed to Myanna receiving tenure, there have been some disturbing signs that there are other factors at play in Myanna’s case beyond these administrators’ professed belief that lateral hires should not be promoted on the same schedule as homegrown faculty members.  In 2016, Myanna published an article in the Columbia Journal of Environmental Law Trophy Hunting Contracts - Unenforceable for Reasons of Public Policy, 41 Colum. J. Envtl. L. (2016) (SSRN Link) that was highly critical of trophy hunting.  Although the article was very well-received in the legal academy, the article was very controversial in South Dakota, where hunting, including big-game hunting, is still a popular activity.   The article ignited considerable controversy in South Dakota and the law school was criticized for allowing Myanna to publish it. Rather than encouraging Professor Dellinger’s colleagues to come to her support, the law faculty were directed not share their views externally and not to respond to comments posted on the USD Law listserv.  The Provost’s unsuccessful efforts to demote Myanna began shortly thereafter.

Based on the Provost’s pattern of hostility to Myanna, we were disappointed but not surprised by his latest action of refusing to process her tenure file.  However, it is not at all clear under what authority the Provost purports to be acting.  The Law School Tenure Rules do not specify any role for the Provost in the tenure process and the University tenure rules and Board of Regents tenure policy clearly state that the Law School has the authority to establish its own tenure rules.  Although the Provost was plainly hoping that Professor Dellinger would simply give up on her tenure application and wait to apply for tenure next year, Professor Dellinger decided she was not willing to give up without a fight.  Thus, on Friday, March 9, Myanna and I filed a Motion for Declaratory Judgment (link to Motion)(link to Motion Exhibits) in the South Dakota State Circuit Court in Vermillion seeking a declaration that she is eligible for tenure consideration this year and an order directing the Provost to continue processing her application on the merits.   We have asked the Court to set an expedited schedule for the Provost’s response and a hearing, if necessary. 

We are hopeful of a positive outcome in the Court.  Certainly the facts and the law are on Myanna’s side.  Unfortunately, Myanna’s extended legal battles to defend her rights have put a severe financial strain on her.  USD is one of the lowest-paying law schools in the country (even third year Associate Professors like Myanna are still paid under six figures) so there is not a lot left over for legal fees.  Although I have done all of my work on the case either pro bono or at a deeply discounted rate, it is still a major struggle for Myanna to pay for the ongoing fees and costs of litigation.   Accordingly, Myanna has set up a Legal Defense Fund with Go Fund Me.  This fund will be used to pay for court costs (filing fees, pro hac vice fee, etc.), and past, present and future legal fees.  If the Court orders a hearing in the case, I have promised Myanna to represent her at the hearing pro bono, but the fund would be used to pay for my travel expenses to South Dakota, which is not the cheapest place to get to.  If you have a few bucks to spare and would like to support Myanna, please consider donating to the fund. 

Stay tuned here for further developments on the case.   In the meantime, I welcome your comments, questions and ideas on the matter and on the Declaratory Judgment Motion.  In particular, if anyone knows of any analogous cases involving a dispute between a law school and University administration on a tenure eligibility question, Myanna and I would be very interested to hear about it.  Thank you.

UPDATE MONDAY, MARCH 12. I am pleased to report that earlier today the Provost informed Professor Dellinger that USD was reversing course and, with the consent of the Board of Regents, the University would now process her tenure dossier and forward it with a recommendation to the Board of Regents as we had sought in our Motion for Declaratory Judgment. Of course, this does not guarantee that Professor Dellinger will actually be awarded tenure, but it is a major step in the right direction and I am cautiously optimistic that she will get the recognition that she has worked so hard for and richly deserves.  Thank you to all who wrote in support and/or contributed to Professor Dellinger's legal defense fund.    DF

Comments

[ChicagoD]

It's a state school so why didn't you throw in a 1983 count for gender discrimination and for first amendment issues arising from the negative reaction to her article? I guess you can do that later.

Anyway, it confirms my own experience, which is that lower ranked schools are actually hostile to scholarship. It generates tremendous envy. That is likely at the root of this.

[David Frakt]

ChicagoD -
So, first we are trying to get the Court to force the University to forward the tenure application to the Board of Regents. Although the President could forward it and recommend denial, he would have to provide written reasons for doing so, and I don't think there are any merit-based/tenure standards-based reasons that he could give, so I am hopeful that if the Court tells the University that they have to process the application, they will do the right thing and recommend her. Even if he doesn't, there is a chance that the Board of Regents will follow the strong recommendations of the Law School Tenure Committee and the Dean over the President's recommendation. But you are quite right. If she is ultimately denied tenure on the merits, we will be raising these other issues. One other interesting fact is that there are two other law school associate professors up for tenure this year, both white males who started their career at USD as assistant profs, were promoted to associate after three years, and are in their third year as associates and sixth overall. While both of these professors may very well also meet the standards for tenure, Myanna's overall record is far superior to theirs. So, if they are granted tenure, and she is denied, I think we will have an extremely strong case for gender discrimination.

[Deep State Special Legal Counsel]

Professor, with a new PAID membership to the NRA, you will receive a FREE bonus gift---the NRA Rosewood Handle Pocketknife, a personalized NRA membership card, Your choice of one of NRA's award-winning magazines (American Hunter as a show of good faith), member ACTION ALERTS, invitations to exciting "Friends of NRA" events in your area, FREE admission to NRA's Guns, Gear and Outfitter show and NRA 5-STAR BENEFITS. All for a discount membership of $30.00. You are on your way to tenure...

[Anon]

Is this professor a member of the SD Bar? Has she ever tried a case? Seen the inside of a courtroom? Does she offer to represent community members with their legal problems? Is she even a member of the community? She seems young and unseasoned to become a tenured professor. No question that she is academically gifted but this is a school that needs to pump out public defenders, prosecutors, small firm generalists, government lawyers...much different than a policy school like Harvard or Yale.

[AnonProf]

I find it absolutely disgusting that you use your position on this blog to put pressure on those who are at odds with your clients. You need to be reported to the bar. I am most sympathetic to her, but your conduct is outrageous.

[twbb]

AnonProf, how on earth is this any different from any other lawyer making public statements arguing for his client?

[anon]

Alas, I think AnonProf might have the better argument, but, before deciding how I would vote on this issue: AnonProf, what is your authority for the notion that there is anything to "report to the State Bar"? What violation do you claim has occurred?

[Deep State Special Legal Counsel]

Everybody, just relax. Bar beefs are for serious violations, bordering on criminal. This is one of the most interesting posts I have read on this blog. It is a real learning experience and it intersects with nearly all of the hot button political issues of today.

There is no lawyer defalcation, sleeping with clients, lying to a tribunal or substance misuse. There is nothing here.

[Fiji 007]

This story is truly a disgrace to legal academia and academia in general. Here's a hard-working woman in a man's part of the world, trying her hardest to do all she can to make the students pass the bar, publish scholarship that actually is ahead of the curve, and provide service to native Americans (Standing Rock) and other locals in the area, the local town, etc. A beloved member of the faculty by colleagues and students. She puts the law school and indeed USD on the map like few have in years. What does she get out of it? A bizarre attempt to strip her of her title and have her start over her tenure track in, uhm, South Dakota?! For no reason other than a President saying, basically, that he "doesn't feel like" granting her tenure?! This is a public school, administering local tax payer dollars, not a private company that can do what they want! No man would ever have expected that treatment! Think about what this does for her family and career too. And she is not even getting a pay raise out of this! Sick.

[EthicsProf]

Anonprof -
You have a very strong opinion about this post, but you don't seem to know much about litigation. It is a time-honored tradition, and perfectly appropriate and ethical for an attorney to use the media to bring public attention to his or her client's case or dispute, to try to inform the public about an injustice being done to his or her client, to try to shape the narrative of a developing story, and to try to bring pressure on the opposing party to do the right thing. So, there is nothing outrageous or even close to unethical about writing a story about his client's case. As for Mr. Frakt's use of his position as a guest blogger to post the story here, I see nothing wrong with that either. Mr. Frakt writes frequently about legal education and topics of interest to law professors (unlike some of the other bloggers on this website) on The Faculty Lounge, and this story certainly is in that category. And many bloggers on this website write about their own work. I agree, perhaps for the first time ever, with Deep State Legal Counsel, that this is a very interesting story and there is no basis for a bar complaint here.

[David Frakt]

Anon -

To answer some of your questions. Yes, Myanna is a member of the South Dakota bar. All the Professors at USD Law School are granted bar membership. And yes, she is a member of the community. She has a home in Vermillion and is active in community and University affairs. And yes, she has been in a courtroom before (two separate clerkships) and no, she has not tried a case before, which is why she hired me. The standards for tenure relate to scholarship/research, teaching, and service and those have been her focus at USD. By the way, despite Myanna's youthful appearance, she is hardly "young and unseasoned". This is her eighth year of teaching at an ABA accredited law school and law is her second career. She had nearly two decades of other experience before she went to law school. And all of this information (and much more) is available in the linked materials for those who are interested in learning more about Professor Dellinger and not just offering uninformed opinions.

[Funny Bunny]

This case is gobsmacking to me. We have a professor identified as exceptionally qualified by the Law School's Dean, and a university administration that appears to have one individual with a vendetta for no apparent reason. If the actual reason for seeking to scupper Professor Dellinger's tenure application is her piece on trophy hunting, that's really disconcerting. The university should be seeking to expose students to a range of perspectives, to help foster critical thinking. Moreover, Professor Dellinger's unique career can help to expose students at USD to potential alternative paths for using their degrees. This strikes me as a palpable case of violation of due process that will not end well for either the university of the law students at USD.

[AnonProf2]

The comment that Prof. Dellinger is "young and unseasoned" is the exact type of pernicious coded language of sexism that justifies academic protection in the first place. Even a brief review of her webpage, which includes graduation dates, shows that these claims are dead wrong.

Prof. Dellinger apparently had a career prior to law school, has taught on two continents, and has two prestigious clerkships. In addition to all that, she has taught law full-time for eight years.

In what world does that level of experience render someone "unseasoned"? In what world does any sane university administrator put artificial barriers in the way of a seasoned academic who apparently enjoys universal support from faculty and students?

Only a world where the vicious biases of sexism trump logic and reality.

[Madame Tussaud]

Myanna, Sending support from the academy. I'm sorry you're going through this and I will donate to your GoFundMe campaign.

[RBratspies]

Myanna's situation is Exhibit A of the importance of tenure. A well-respected professor publishes an article on an issue of public importance. Her article offends locally powerful people and suddenly her career in in jeopardy. I am shocked and dismayed at the South Dakota Administration's arbitrary and capricious behavior.

[David Frakt]

SEE UPDATE IN MAIN POST - The Provost has informed Professor Dellinger that he will now continue processing her tenure application so she will receive consideration on the merits. Accordingly, I have dismissed the Motion for Declaratory Judgment as the relief we sought has been granted voluntarily. Thank you all for your support.

[Deep State Special Legal Counsel]

When she obtains tenure, advise her to use her legal skills to fight DAPL and Stand with Standing Rock. Maybe that was the concern all along...