Former professors sued Emporia State University administrators and Kansas Board of Regents members in federal court, alleging a conspiracy and constitutional violations associated with the dismissal of tenured faculty members in September. (Max McCoy/Kansas Reflector)
TOPEKA — Eleven former Emporia State University professors in federal court documents accuse school administrators, Kansas Board of Regents members and unknown other individuals of conspiring to fire tenured and “problematic” professors.
The federal lawsuit is a response to the university’s decision last year to fire 30 tenured or tenure-track professors as part of a KBOR-approved “framework” to stabilize finances and restructure the university. The lawsuit argues that defendants willfully violated constitutional rights to due process, equal protection, liberty, property and free speech.
The 11 former professors were targeted, the lawsuit alleges, because they were tenured, not Republicans, involved in efforts to form a union or outspoken critics of ESU president Ken Hush. The university relied on KBOR’s pandemic-era Workforce Management Policy, which stripped professors of the right to determine why they were fired, or examine reports or other evidence that was used to determine who would be fired.
The professors are asking for damages in excess of $75,000, the threshold for filing a civil lawsuit, and to be reinstated with full pay and benefits. The lawsuit attempts to sue the defendants as individuals, rather than public officials.
“These defendants saw tenure as an impediment to terminating tenured faculty who were ‘problematic’ concerning issues disfavored by the ESU administration,” the lawsuit contends. “These issues included being members or former members of the faculty senate committee, being perceived to or having friction with the administration, policy sticklers, liberals, advocates, unionizers, and department or campus leaders.”
The 11 professors involved in the federal lawsuit are Christopher Lovett, Amanda Miracle, Michael Behrens, Rob Catlett, Dan Colson, Charles Emmer, Brenda Koerner, Sheryl Lidzy, Max McCoy, Michael Morales and Lynnette Sievert.
They were called to an off-campus building on Sept. 15, where they were given termination letters signed by Hush. The letters said professors were being dismissed for reasons that may include but were not limited to nine possibilities.
The Office of Administrative Hearings, a state agency that handled appeals, reinstated five of the professors on the basis that the university failed to provide a specific reason for firing them. But in about-face, the office then upheld the firing of Lidzy and Lovett. The office has not yet ruled on the Emmer, Koerner, McCoy or Morales cases.
ESU has asked the Lyon County District Court to review and reverse the OAH decisions to reinstate Behrens, Catlett, Colson, Miracle and Sievert. The university placed those five on paid leave but required them to clear out their office and turn in badges that give them access to campus facilities. They won’t be allowed to teach or provide services to students before the legal wrangling is resolved.
The 72-page lawsuit makes 30 references to an alleged conspiracy by regents members, ESU officials and others to target “problematic” professors.
In the months before they were fired, the lawsuit says, several plaintiffs organized meetings and worked to obtain signatures to support unionization. ESU provost Brent Thomas and other ESU administrators attended some of those meetings.
McCoy, a journalism professor, spoke in favor of effort to form a union. He also wrote an opinion article, published by Kansas Reflector, criticizing the decision to suspend tenure.
“I may be fired for writing this,” McCoy wrote.
He was fired two days later.
The lawsuit argues that tenure is a recognized property right under Kansas law. ESU chief counsel Kevin Johnson, the lawsuit notes, co-wrote a paper in 2015 in which he acknowledged tenure was a property right. But during appeals hearings, the university argued that tenure was merely a privilege.
The university presented its framework for realignment to the KBOR under the pretense of financial exigency. But, the lawsuit says, ESU enrollment had increased, operating revenues had increased, and operating expenditures had decreased. The financial position was further bolstered by federal COVID-19 relief funds.
The lawsuit also notes that after firing professors, ESU secretly awarded $137,741 in performance bonuses to 68 faculty members for undisclosed reasons. The bonuses were made public through reporting by Kansas Reflector.
The lawsuit was filed against Hush, Thomas, Johnson, ESU associate general counsel Steven Lovett, KBOR general counsel Julene Miller, and current and former KBOR members.
The lawsuit also identifies “John Doe” as a defendant — a placeholder for anybody involved in the drafting of the KBOR policy or ESU framework.
“Defendants conspired, had a meeting of the minds, and took action in furtherance of the conspiracy to deprive plaintiffs of their property right in tenure, liberty right in their good names, reputation in employment and their equal protection rights, without due process by adopting and implementing the WMP and ESU’s framework in KBOR meetings, among KBOR members and ESU officials, ultimately resulting in the publication of the termination letter,” the lawsuit says.
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