Crenshaw v. Erskine College

THE STATE OF SOUTH CAROLINA
In The Supreme Court
William Crenshaw, Respondent,
v.
Erskine College and David A. Norman, Petitioners.
Appellate Case No. 2018-001926
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Abbeville County
Eugene C. Griffith Jr., Circuit Court Judge
Opinion No. 27993
Heard January 15, 2020 – Filed September 9, 2020
REVERSED
Thomas H. Keim Jr., Ford & Harrison, LLP, of
Spartanburg, for Petitioners.
E. Charles Grose Jr., Grose Law Firm; Robert J. Tinsley
Sr., and Robert Jamison Tinsley Jr., Tinsley & Tinsley,
P.C., all of Greenwood, for Respondent.
JUSTICE FEW: William Crenshaw—a tenured professor of English at Erskine
College—brought this lawsuit claiming he was wrongfully fired. An Abbeville
County jury found in favor of Dr. Crenshaw and awarded him $600,000. We hold
the trial court properly granted Erskine's motion for judgment notwithstanding the
verdict (JNOV) because—as a matter of law—Erskine did not breach its contract
with Dr. Crenshaw.
I. Facts and Procedural History
William Crenshaw, Ph.D. began teaching at Erskine College in Due West, South
Carolina, in 1976. Erskine granted him tenure in 1984. On the morning of Friday,
September 24, 2010, Dr. Crenshaw was teaching a freshman seminar on critical
thinking skills. He noticed one of the students was "nodding off . . . like she was
going to sleep." The other students in the class told Crenshaw the student fell during
lacrosse practice earlier that morning and hit her head on both her lacrosse stick and
the ground. Crenshaw—a former paramedic—administered what he called "the
standard orientation test" EMS personnel give for "a suspected head injury."
Crenshaw determined the student needed medical attention, so he stepped out of the
classroom and called Robyn Agnew—Vice President for Student Services—to
arrange for an ambulance. When EMS arrived, paramedics removed the student
from the classroom and put her into the ambulance.
When the class ended, Crenshaw noticed EMS was still on campus. He decided to
approach the ambulance to "see how she's doing." The paramedics informed
Crenshaw that the athletic trainers and the student's guardian told the student she
could refuse to be transported in the ambulance. Crenshaw testified the student was
upset and the paramedics requested his help to calm the student. Crenshaw then
entered the ambulance where he discussed with the student whether she should
refuse to be taken to the hospital. Later that day, the guardian informed the
Academic Office she intended to file a complaint against Crenshaw claiming
Crenshaw pushed her out of the way as he entered the ambulance. The Due West
Police Chief, who responded to the scene "in reference to an assault," testified the
guardian "was very irate" and "we had to calm her down." He testified Crenshaw's
"behavior was normal" and he did not "do anything out of line."
Over the weekend, Crenshaw and Adam Weyer—Erskine's head athletic trainer—
engaged in a heated email exchange. Weyer accused Crenshaw of violating an
Erskine student athlete "protocol" that directs faculty members to call athletic
trainers before calling for EMS. Crenshaw responded that Erskine's "'normal
protocol,' as you call it, is certainly different from the nationwide emergency medical
protocols for blunt closed head trauma. Why is that?" Crenshaw also wrote, "The
fact that you or your people were attempting to stop emergency transport when
definitive diagnosis is beyond your capability is chilling, dangerous, and a lawsuit
waiting to happen." Finally, Crenshaw wrote, "When you endanger students, you
bet I'm going to question the way you do your job." In these emails, Crenshaw
repeatedly asked for a copy of the protocol Weyer said he violated, but apparently
was never given one.
The next week, three Erskine officials filed grievances against Crenshaw for his
conduct on September 24 and over the weekend. The procedure for handling
grievances of this sort is set forth in "The College Faculty Manual." The August 31,
2009 version of the Faculty Manual comprises sixty-five pages and an appendix of
forms addressing a wide variety of subjects affecting faculty, other employees, and
students. The section entitled "Faculty Committees" provides for grievances to be
forwarded to the Grievance Committee, a "standing" committee consisting of six
faculty members who hold no administrative position. The Faculty Manual1
provides the committee will "act as a mediator," and "determine whether basic rights,
such as academic freedom, have been respected." The committee met, but the
chairman reported they were unable to assist in resolving the dispute.
After an effort to mediate the grievances by a dean was unsuccessful because the
Erskine officials who filed them refused to participate, Dr. David Norman—
President of Erskine College—appointed professors to an ad hoc faculty
committee—as provided for in the Faculty Manual—to interview those involved and
advise him "regarding the nature and extent of relevant culpability." Crenshaw met
with this committee in December, and categorically denied all allegations against
him. He questioned the committee's procedures and accused the members of "ad
hoc justice, justice on the fly." When the members asked a question about a specific
allegation, Crenshaw responded by asking for evidence to support the allegation. He
accused the committee of going on "fishing expeditions" and violating his "due
process."
He also told the committee, "You people are putting yourselves in harm's way," and
"you are [about] to put yourselves in jeopardy." Several members of the ad hoc
committee interpreted Crenshaw's comments as threatening. One of the members
1
The document entitled "The College Faculty Manual" is the central document of
this litigation. We will discuss it extensively in this opinion. Crenshaw contends it
is his written contract. Erskine relies on its terms in defending Crenshaw's allegation
of a breach of contract. Norman and Crenshaw, however, sometimes referred to it
as the "handbook." For brevity, we will refer to it as the Faculty Manual. For clarity,
there is only one document that anyone contends contains the terms of Crenshaw's
contract, and it is the Faculty Manual.
recused himself because he felt threatened. In a letter to President Norman the same
day as the committee meeting, the professor wrote,
I am very much a proponent of faculty self-governance
and defending faculty rights, but the environment is so
toxic, with pervasive bullying on the part of Dr. Crenshaw
that I must recuse myself. I feel that I can no longer serve
as a fair and impartial member of this committee due
to . . . the constant aggressive acts . . . and threats of Dr.
Crenshaw . . . at this meeting today . . . ."
In early January 2011, the committee made its report to President Norman. The
professor who wrote that he was recusing himself nevertheless signed the report,
which said nothing about any threatening behavior. In concluding the report, the
committee wrote, "At this time we believe that we can do no more to help resolve
this situation. It is our opinion that faculty governance will not be successful in this
case."
Erskine took no further action until August 2011. During the interval, many alumni
publicly called for Erskine to split with the Associate Reformed Presbyterian
Church. On one of the Facebook pages on which alumni wrote in favor of the split,
Crenshaw posted the following,
I think this [Facebook page] does accomplish three things.
First it spreads the word and the outrage. This [page] is a
means to an end. The end[s] are the other two
accomplishments: second, people are encouraged to quit
donating to Erskine and to quit sending their kids until all
this is straightened up. The power of the purse is far more
significant and successful than any behind the scenes deal-
cutting has been. And third, this [page] shines the light on
the actions of Synod, wingnuts, and the admin; i.e., it
delivers a healthy wallop of bad publicity to Erskine,
which means they have to spend time countering the bad
publicity and answering for what they are doing. I would
submit that if there is behind the scenes pressure being put
on the admin or the wingnuts, it has come from the sense
of outrage generated by this site that led to private, chew-
them-out phone calls, not something achieved by
following Marquis of Queensbury[2] niceties.
On August 6, 2011, President Norman met privately with Crenshaw to attempt to
resolve the dispute. Both men made audio recordings of the meeting. President
Norman began the meeting by reading a letter stating Erskine was beginning
termination proceedings because of the way Crenshaw treated his colleagues in the
aftermath of the ambulance incident. Norman informed Crenshaw he was
suspended, and thus would not be teaching in the fall semester. Norman outlined
the steps Crenshaw must take to keep his job. First, Crenshaw must apologize to the
officials who filed grievances against him. Second, he must apologize to the faculty
for his abrasive behavior towards the ad hoc committee. Third, he must apologize
to the Erskine Community—"the people that read your [Facebook posts], that sort
of thing"—for disparaging the institution. Crenshaw was contentious through much
of the meeting, telling Norman at one point, "Oh, come on. You're a son of a bitch.
. . . You're a nice son of a bitch, but you're still a son of a bitch."
Crenshaw brought up the possibility of taking an early retirement, and the two
discussed the terms of a potential retirement agreement. On August 8, Crenshaw
emailed Norman indicating he and his attorney were "willing to discuss" early
retirement. Norman replied by sending Crenshaw a draft retirement announcement
and retirement agreement which provided twenty-one days for Crenshaw to consider
the retirement option.
On August 12, Norman sent Crenshaw an email with an attached letter. In the email,
Norman assured Crenshaw the early retirement offer "still stands." In the letter,
2
Crenshaw was referring to rules governing the sport of boxing, designed to bring
order and civility to the brutal sport. See Marquess of Queensbury Rules,
ENCYCLOPAEDIA BRITANNICA, https://www.britannica.com/sports/Marquess-of-
Queensberry-rules (last visited September 8, 2020). The Supreme Court of the
United States referred to these rules in Miranda v. Arizona. Giving examples of
contrasting commentary by law enforcement officers on the Court's then-recent
decision in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977(1964), the Court quoted the former Police Commissioner of New York as stating,
"What the Court is doing is akin to requiring one boxer to fight by Marquis of
Queensbury rules while permitting the other to butt, gouge and bite." Miranda, 384
U.S. 436, 442 n.3, 86 S. Ct. 1602, 1611 n.3, 16 L. Ed. 2d 694, 705 n.3 (1966) (citing
N.Y. Times, May 14, 1965, p. 39).
Norman outlined three categories of allegations. The first category included
Crenshaw's climbing into the ambulance, his pushing of the student's guardian, and
his medical advice to the student when others with more authority were present.
Norman labeled this behavior "rude" and said it was beyond Crenshaw's authority to
attempt to overrule the student's guardian and EMS personnel. The second category
involved Crenshaw's behavior during the grievance process. Norman labeled this
behavior as "bullying" and "contempt[uous]" and said it "evidence[d] a pattern" of
"volatility" that "has created a hostile working environment on the Erskine campus."
The third category concerned the Facebook post encouraging readers to stop
donating to Erskine and sending their children there. Norman labeled this behavior
as "blatant disloyalty to Erskine College." He wrote that he found "probable cause
to believe [Crenshaw] engaged in culpable conduct" warranting termination.
Norman referenced several provisions of the Faculty Manual, including,
You have a right under College policy to a full hearing
before a faculty committee. Unless you waive your right
to a hearing, it shall be held on August 29th at 9 AM . . . in
the Chestnut Room. This schedule is subject to adjustment
upon reasonable request. As also stated in the handbook,
you will reply to this letter in writing, stating whether this
hearing is desired. This reply shall not be less than two
weeks before the date set for the hearing.
Norman ended the letter stating "my decision is to seek your termination."
Crenshaw did not respond to this letter. On August 29, Norman sat in the Chestnut
Room from 9 a.m. until noon. Crenshaw did not appear.
The twenty-one day period to consider early retirement expired on August 30. The
next day, Norman emailed Crenshaw's attorney and extended the deadline to accept
early retirement until September 5. Norman wrote, "As we discussed today, if Dr.
Crenshaw is unable to fully accept an agreement by next Tuesday (September 5th),
I will send an updated version of the . . . termination letter." Neither Crenshaw nor
his attorney responded.
On September 7, 2011, Norman wrote Crenshaw informing him, "In view of your
failure to make a timely demand for a hearing before the faculty committee in
accordance with my letter to you dated August 12, 2011, and the College Faculty
Manual, your employment is terminated at the end of the day today."
On July 22, 2014, Crenshaw filed this lawsuit against Erskine College and David
Norman in his individual capacity. Crenshaw included a cause of action for what he
called "wrongful discharge,"3 along with causes of action for breach of contract and
intentional infliction of emotional distress. The trial court dismissed all claims
except breach of contract against Erskine. The jury awarded Crenshaw $600,000 in
damages. The trial court granted Erskine's motion for JNOV. The court of appeals
reversed and reinstated the jury verdict. Crenshaw v. Erskine Coll., 424 S.C. 287,
297, 818 S.E.2d 218, 224 (Ct. App. 2018).
II. Analysis
Most participants in this case—including the dissent, but not including the trial court
in its ruling granting JNOV—have overstated the significance of "tenure" to
Crenshaw's enforceable rights in this breach of contract case.
A. Tenure
The word "tenure" as it is used in the academic setting is a short-form expression of
an elaborate theory. In simple terms, when an academic institution grants tenure to
one of its professors, the institution promises long-term job security to the professor
that differs from the employment-at-will status of non-tenured faculty. In more
complicated terms, academic institutions developed the theory of tenure to serve
important purposes, for the benefit of the professor and the institution, but also for
the benefit of society.
Tenure is a means to certain ends; specifically: (1)
freedom of teaching and research and of extramural
activities, and (2) a sufficient degree of economic security
to make the profession attractive to men and women of
ability. Freedom and economic security, hence, tenure,
are indispensable to the success of an institution in
fulfilling its obligations to its students and to society.
3
The trial court later dismissed this claim—correctly—on the ground that a claim
for wrongful discharge does not exist in the abstract, but instead must be based on a
contract, a constitutional provision, public policy, or some other identifiable
provision of law. In this case, as we will explain, Crenshaw's only claim for
wrongful discharge is his breach of contract claim.
Statement of Principles on Academic Freedom and Tenure, American Association
of University Professors (1940). The use of tenure for the pursuit of these ends for
over 100 years4 has led to an extensive body of recorded thought on the theory of
tenure and what it means to professors, institutions, and the rest of us. See generally
Mayberry v. Dees, 663 F.2d 502, 513-19 (4th Cir. 1981) (the Fourth Circuit provides
"a rather detailed description of the tenure concept"); Symposium, Freedom and
Tenure in the Academy: The Fiftieth Anniversary of the 1940 Statement of
Principles, 53 Law & Contemp. Probs., no. 3 (William W. Van Alstyne, ed., 1990)
(collecting ten essays, an extensive bibliography, and the text of the 1915 "General
Report" and 1940 "Statement" of the American Association of University
Professors, supra).
In academia, the meaning of the word "tenure" as it relates to a professor's
enforceable job security is described in deceptively simple terms, even if every
academic does not agree on precisely how it should be simply stated. In a 1971
Symposium on the subject, a former President of Yale University wrote, "The
practical fact in most places . . . is that tenure is for all normal purposes a guarantee
of appointment until retirement age." Kingman Brewster Jr., On Tenure, 57 AAUP
Bull. 381, 381 (1971). In a different article in the same Symposium—in apparent
disagreement—a longtime Duke University Law School professor wrote, "Tenure,
accurately and unequivocally defined, lays no claim whatever to a guarantee of
lifetime employment. Rather, tenure provides only that no person continuously
retained as a full-time faculty member beyond a specified lengthy period of
probationary service may thereafter be dismissed without adequate cause." William
W. Van Alstyne, Tenure: A Summary, Explanation, and "Defense," 57 AAUP Bull.
328, 328 (1971) (emphasis in original).
In law, however, the word "tenure"—by itself—is of little help in understanding the
rights a tenured professor may enforce in court. When government-supported
institutions grant tenure, the tenured professor's enforceable rights derive primarily
from the Due Process Clause of the Fourteenth Amendment, see, e.g., Ross v. Med.
Univ. of S.C., 328 S.C. 51, 66, 492 S.E.2d 62, 70 (1997) ("A tenured professor has a
property interest in continued employment which is safeguarded by due process."
(citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 576-77, 92 S. Ct. 2701,
2709, 33 L. Ed. 2d 548, 560 (1972))), and from the Free Speech Clause of the First
4
See General Report of the Committee on Academic Freedom and Academic Tenure,
American Association of University Professors (1915).
Amendment, see, e.g., Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 2697,
33 L. Ed. 2d 570, 577 (1972) (recognizing the government "may not deny a benefit
to a person on a basis that infringes his constitutionally protected . . . freedom of
speech"). The theory of tenure and the "ends" it serves—such as academic freedom
and freedom of speech—informs the body of constitutional law defining legally
enforceable rights for publicly employed tenured professors. See, e.g., Ross, 328
S.C. at 66-67, 492 S.E.2d at 70-71 (recognizing the Due Process Clause dictates the
nature of pre-termination hearing a tenured professor is entitled to receive at a public
institution).
The concept of adequate process, and the goals of academic freedom and free speech,
likewise inform the development of tenure policies at private institutions. Erskine
designed the sections of its Faculty Manual dealing with tenure and termination of
tenured professors with the clear intention of ensuring adequate process to, and
promoting academic freedom and free speech for, its tenured professors. By
promoting those goals, Erskine likewise promoted its own academic and religious
mission.
The Faculty Manual sets forth Erskine's conception of academic freedom and free
speech in a section entitled "Academic Freedom, Rank, Tenure, Appointment
Renewal and Related Procedural Standards." The section begins,
An Erskine professor is a teacher in a particular
educational institution, a member of a learned profession,
and a citizen, with responsibilities related to each of these
roles. For the fulfillment of these responsibilities a climate
of academic freedom is necessary, not merely for the good
of the faculty member or of the institution, but also for the
common good.
The section goes on to explain in some detail what "Academic freedom means . . ."
to Erskine and what "Academic freedom requires . . ." of its professors. The section
stresses "a professor has the right to advocate solutions to human problems and to
seek to influence human affairs," and a professor's role as a citizen carries "the
responsibility to take stands on public issues which affect life in the larger
community." But the section also requires professors "to perform in consonance
with the purposes of the College as adopted by the Board of Trustees," and "to
support the College Mission Statement and to contribute to our mission." Finally,
the section provides, "If an Erskine College professor behaves in a manner that is
not consistent with our Mission Statement he/she may be subject to disciplinary
action up to and including dismissal."
Thus, adequate process, academic freedom, and free speech informed Erskine's
development of the contractual rights it promised a tenured professor in the Faculty
Manual. When private institutions grant tenure, however, the Constitution provides
the tenured professor no additional protections from the actions of the institution
beyond those set forth in the professor's contract. As the Supreme Court of the
United States has stated, "it is fundamental that the First Amendment prohibits
governmental infringement on the right of free speech. Similarly, the Fourteenth
Amendment . . . applies to acts of the states, not to acts of private persons or entities."
Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S. Ct. 2764, 2769, 73 L. Ed. 2d 418,
425 (1982) (emphasis added); see also Nat'l Collegiate Athletic Ass'n v. Tarkanian,
488 U.S. 179, 191, 109 S. Ct. 454, 461, 102 L. Ed. 2d 469, 484 (1988) ("Embedded
in our Fourteenth Amendment jurisprudence is a dichotomy between state action,
which is subject to scrutiny under the Amendment's Due Process Clause, and private
conduct, against which the Amendment affords no shield, no matter how unfair that
conduct may be."); Branham v. Thomas M. Cooley Law Sch., 689 F.3d 558, 562 (6th
Cir. 2012) (finding "the tenure held by [a professor at a private institution] does not
afford her rights beyond those enumerated in her contract"); J Royce Fichtner & Lou
Ann Simpson, Trimming the Deadwood: Removing Tenured Faculty for Cause, 41
J.C. & U.L. 25, 28 (2015) ("Tenure can also have a very different meaning in private,
as opposed to public, institutions. Tenured faculty in public institutions have a
'property interest' in continued employment via state statutes and the Fourteenth
Amendment, but faculty in private institutions may only have a contractual interest
in continued employment.").
The status of "tenured" is important to the rights of any professor. Without it, the
professor is probably an employee at will. The theory of "tenure" is important to the
development of the constitutional and contractual rights that come with the status of
"tenured." Once a professor is tenured, however, the rights the professor may
enforce in court are not directly affected by the meaning of "tenure." At a public
institution, a tenured professor may enforce her or his constitutional rights under the
Due Process and Free Speech Clauses. At a private institution, a tenured professor
has no right of legal recovery for violations of due process or free speech. While the
concepts of due process, academic freedom, and free speech are critical to the
development of a private institution's tenure policies, at a private institution, those
concepts do not define a tenured professor's enforceable rights. Only the written
terms of the professor's contract do that.
Erskine College is a private institution. This case, therefore, is not about tenure.
This case is not about whether Erskine denied Crenshaw due process, academic
freedom, or free speech. This case is not about whether Crenshaw was correct the
student should be taken to the hospital for evaluation, or whether Erskine's alleged
"protocol" was medically unsound and Crenshaw was justified in criticizing it. This
case is not about whether Crenshaw should be free to publicly criticize Erskine, or
publicly argue it should split from the church. Rather, this is an ordinary breach of
contract case in which the terms of the contract are set forth in The College Faculty
Manual.
We proceed, therefore, to explain that the trial court correctly ruled as a matter of
law that Erskine did not breach Crenshaw's contract.
B. The Contract
Crenshaw contends Erskine violated the provisions of the Faculty Manual entitled
"Termination of Tenured Faculty Appointments." He alleged in his complaint, "The
relationship thus became an ongoing contract between [Crenshaw] and . . . Erskine
College governed by The College Faculty Handbook."5 Erskine refused at trial to
concede the Faculty Manual is a contract, and continued its refusal to concede the
point until we forced it to do so at oral argument before this Court. We hold Erskine's
Faculty Manual is a contract with its tenured professors as a matter of law.
Tenure—by its very nature—is a promise. President Brewster of Yale described it
as a "guarantee," Brewster, supra, at 381, and Professor Van Alstyne of Duke said
it means "no person continuously retained as a full-time faculty member . . . may
thereafter be dismissed without adequate cause," Van Alstyne, supra, at 328.
Erskine wrote the sections of the Faculty Manual relating to tenure for the stated
purpose of providing rights and procedures to tenured faculty. In exchange, as also
stated in the Faculty Manual, Erskine designed its tenure program to retain faculty
on a long-term basis and promote its academic and religious mission. Erskine's
granting of tenure to Crenshaw in 1984 was an offer to fulfill the promises set forth
in the Faculty Manual. Crenshaw accepted Erskine's offer by his continued
performance as a tenured professor. See Small v. Springs Indus., Inc., 292 S.C. 481,
484, 357 S.E.2d 452, 454 (1987) (where an employer "made an offer or promise . . .
in return for specified benefits," and the employee "accepted this offer by performing
5
There is not a "Faculty Handbook." The reference is to the Faculty Manual. See
supra note 1.
the act on which the promise was . . . based," the "promise constituted the terms of
the employment agreement" based on "sufficient consideration to make the promise
legally binding"); Hessenthaler v. Tri-Cty. Sister Help, Inc., 365 S.C. 101, 108, 616
S.E.2d 694, 697 (2005) (stating "a 'court should intervene to resolve the handbook
issue as a matter of law . . . if the handbook statements and the disclaimer, taken
together, establish beyond any doubt tha[t] an enforceable promise . . . does . . .
exist'" (quoting Fleming v. Borden, Inc., 316 S.C. 452, 464, 450 S.E.2d 589, 596
(1994))); see also 19 WILLISTON ON CONTRACTS § 54:10 (4th ed. 2016) ("If the
intention of the parties can be ascertained from the terms of the personnel manual
alone, its interpretation is a matter of law for the court.").
We have required that courts be reluctant to find an employee handbook or manual
to be a contract as a matter of law when the purported contract document contains a
disclaimer provision. "In most instances," as we stated in Hessenthaler, "judgment
as a matter of law is inappropriate when a handbook contains . . . a disclaimer . . . ."
365 S.C. at 108, 616 S.E.2d at 697; see also Small, 292 S.C. at 485, 357 S.E.2d at
455 (explaining an employer might avoid being bound in contract by provisions of
a policy manual "merely by inserting a conspicuous disclaimer"). In this case, the
Faculty Manual states conspicuously at the bottom of almost every page, "This is
not a contract of employment." For non-tenured faculty, non-faculty employees, and
members of the Board, even students—to each of whom the Faculty Manual has
some application—this disclaimer provision may require the question of whether a
contract exists to be submitted to the jury. Also, the Faculty Manual—as we will
discuss below—contains a section describing Erskine's relationship with the
Associate Reformed Presbyterian Church. The disclaimer provision could play an
important role in determining whether the Faculty Manual is a contract between
Erskine and the church.
The promises inherent in the granting of tenure, however, render the situation
entirely different when it comes to the enforceable contractual rights of tenured
faculty. The "extensive body of recorded thought" on tenure referred to above leaves
no doubt that institutions of higher learning purposefully induce professors to rely
on the promises of tenure, that professors do in fact rely on the promises, and tenured
professors continue to teach at the institution on the condition of the fulfilment of
such promises, all of which is "indispensable to the success of an institution in
fulfilling its obligations to its students and to society." Statement of Principles on
Academic Freedom and Tenure, supra. The role of the granting of tenure in our
analysis of whether the Faculty Manual is a contract with tenured faculty probably
renders this analysis inapplicable in any other context. In the context of this case—
analyzing the enforceable rights of tenured professors at private institutions6—the
promise of tenure leaves us with no doubt that the Faculty Manual is a contract. See
Stephen F. Befort, Employee Handbooks and the Legal Effect of Disclaimers, 13
Indus. Rel. L.J. 326, 377 (1992) ("The court should . . . decide [such questions] as a
matter of law [when] . . . the handbook statements are so detailed
or unequivocal that, even with a disclaimer, they could not plausibly be interpreted
in a non-promissory manner.").7
The Faculty Manual provides, "Except for retirement, resignation, or disability, the
services of a faculty member with tenure are to be terminated only for adequate
cause . . . ." The "Termination of Tenured Faculty Appointments" section defines
"adequate cause" to include "personal conduct which substantially impairs the
individual's fulfillment of institutional responsibilities" or which "violates the moral
standards which have always been a part of the Erskine College community." The
section also provides,
Erskine College is a private, Christian Liberal Arts
Institution. Every faculty member is required to support
the College Mission Statement and to contribute to our
mission to provide "an excellent liberal arts education in a
Christ-centered environment." Any professor . . . who
behaves in a manner that is not consistent with our Mission
Statement may be subject to disciplinary action up to and
including dismissal.
The Faculty Manual then sets forth the steps Erskine must follow for terminating a
tenured faculty member. The Faculty Manual recites Erskine's purpose in drafting
6
A contract analysis is likely unnecessary for professors at public institutions, as "A
tenured professor has a property interest in continued employment which is
safeguarded by due process." Ross, 328 S.C. at 66, 492 S.E.2d at 70. The
enforceable rights of a tenured professor at a public institution are more likely to be
litigated on claims for due process and free speech violations than under contract.
7
In Fleming in 1994—following up on our 1987 holding in Small—we relied heavily
on this law review article. See Fleming, 316 S.C. at 461, 461, 462, 450 S.E.2d at
594, 595, 596 (citing and quoting Befort, supra, at 377). The Industrial Relations
Law Journal is now the Berkeley Journal of Employment and Labor Law maintained
at the University of California, Berkeley.
the procedures to ensure "that both individual rights and its own institutional
integrity are preserved through procedures that guarantee due process."
The first step, called "Preliminary Proceedings," provides the president must "seek
to resolve the matter with the tenured faculty member in private." The second step,
called "Formal Proceedings," provides,
The President will inform the tenured faculty member in
writing of the dismissal and the grounds for it. The
President will also advise the tenured faculty member of
the right to a hearing before a faculty committee and will
indicate the time and place of the hearing. In fixing the
time and place of the hearing, the President will allow
sufficient time for the tenured faculty member to prepare
a defense. The President will inform the tenured faculty
member of the procedural standards set forth here.
The tenured faculty member will reply in writing to the
President stating whether a hearing is desired, and the
reply shall be not less than two weeks before the date set
for the hearing.
The third step is called "Hearing Committee." The section describing this step
provides the faculty will elect seven of its members "not previously concerned with
the case." The Faculty Manual states this committee has broad authority to
determine the order of witnesses and the admissibility of evidence. The committee,
the President, and the tenured faculty member may be represented by counsel. The
President is given "ample opportunity to argue the case" and the tenured faculty
member "will be afforded ample opportunity for defense and for questioning
witnesses." The Faculty Manual requires, "A verbatim record of the hearing will be
kept and typewritten copies will be made available" to the President, the professor,
and if necessary, the Board. "The burden of proof will be on the administration."
The Hearing Committee has the power to uphold the President's decision, or to
reverse it.
The fourth step is called "Appeals," and provides, "Either the President or the
tenured faculty member may appeal the decision of the hearing committee directly
to the Board of Trustees." The Faculty Manual provides the final decision belongs
to the Board, whose "review will be based on the record of the Committee hearing."
The Faculty Manual states the Board "will provide opportunity for argument, oral or
written, or both."
C. Breach of Contract
Crenshaw makes numerous arguments that Erskine failed to comply with the Faculty
Manual, and thus breached his contract. We address each in turn.
First, Crenshaw argues Erskine did not have adequate cause to terminate him. His
counsel set this argument out in detail in his closing argument for the jury. He argued
Crenshaw "did the right thing" and "acted properly" in calling the ambulance and
encouraging the student to go to the hospital; Crenshaw "wasn't even subject to that
protocol"; and even if he was, "he did not violate any Erskine College protocol."
Counsel cited evidence that refuted the guardian's claim Crenshaw pushed her. He
said the three grievances had "no substance . . . [or] truth behind them," and in any
event, the grievances were never decided, and thus not a proper basis for adequate
cause. He argued Erskine never seriously engaged in mediation—as required by the
Faculty Manual—and President Norman elevated minor incidents into "his own
categories" of allegations that were unjustified in light of what actually happened.
He argued Crenshaw's behavior at the ad hoc committee meeting was not improper,
stressing Crenshaw was justifiably "fighting for proper process and procedure" in
faculty governance. He then refuted the claim of disloyalty in the Facebook post by
reciting extensive evidence of Crenshaw's many acts of loyal service to Erskine, to
the community of Due West, and to Abbeville County for thirty-five years.
This argument—a good argument on the facts—fails as a matter of law. Under the
clear terms of The College Faculty Manual—Crenshaw's contract—the decision to
fire a tenured professor for cause belongs only to the Board of Trustees. Under the
Faculty Manual, Norman's decision to "seek . . . termination" through formal
proceedings was a preliminary decision. Norman's decision was reviewable by the
Hearing Committee, which had full power to overrule Norman. The Hearing
Committee's decision, in turn, was reviewable by the Board. The Board had the
ultimate authority to overrule or affirm the Hearing Committee. Under the terms of
the Faculty Manual, the Board—not Norman—has exclusive authority to determine
whether adequate cause exists for termination of a tenured professor, and even if so,
whether to terminate.
There are several ways of looking at this point of law. One, under the terms of
Crenshaw's contract with Erskine, Norman did not fire Crenshaw. He simply set in
motion the contractually mandated "Formal Proceedings" process that could
eventually result in Crenshaw's firing. Crenshaw elected not to seek review of
Norman's decision to initiate those proceedings. This way of looking at the point is
akin to a person failing to exhaust administrative remedies. More accurately here,
however, Crenshaw failed to pursue his only contractual remedy, which was to take
the question to the Board, and if the Board's decision were adverse, challenge that
decision in court. Two—similarly—Crenshaw's contract sets forth the remedies he
may enforce. Because his contract permits the Hearing Committee to overrule the
President, and the Board to overrule the Hearing Committee, the President's decision
is not actionable. Crenshaw's contractual remedy is only to challenge a final
decision, which—under the terms of the contract—must be the decision of the
Board.8 Three, Erskine embraced the ideal of faculty governance as part of the
theory of tenure. The Board framed Erskine's governance structure to remove the
administration from several levels of the process provided to tenured professors,
including the Hearing Committee step. The Hearing Committee is one of several
manifestations of the idea of faculty governance in the Faculty Manual. Crenshaw's
opportunity to appeal President Norman's action to the Hearing Committee was not
merely a contractual burden the Board imposed upon Crenshaw. Rather, the Board
included the Hearing Committee step to protect Crenshaw and other tenured
professors from the very conduct Crenshaw alleges Norman undertook to improperly
terminate him. This governance decision also gave the faculty structured input to
the Board in the event of an appeal. Crenshaw failed to avail for himself the Board's
decision to give faculty governance precedence over Norman's administrative
authority. Four, all organizations—public, private, corporate, academic—define
their own governance structure in accordance with the law. Under Erskine's
governance structure, the Board of Trustees controls the College. The Board could
have chosen to give the President the authority to fire a tenured professor. It chose
not to do that. The Board retained for itself the sole authority to fire a tenured
8
The dissent cites several cases holding a private institution may not enforce a
contractual provision that purports to prevent a fired professor from challenging the
termination in court. See McConnell v. Howard Univ., 818 F.2d 58, 68 n.11 (D.C.
Cir. 1987); Roberts v. Columbia Coll. Chicago, 821 F.3d 855, 862-63 (7th Cir.
2016). As there is no such provision in the Erskine Faculty Manual, we do not
understand the dissent's point. We certainly agree the Due Process Clause permits
Crenshaw to file this lawsuit. As to McConnell, the dissent includes an extensive
discussion of footnote 11. For an accurate understanding of that footnote, however,
we note the D.C. Circuit's apparent intent that "footnote 11 is informational only."
McConnell, 818 F.2d at 71 (Buckley, J., concurring).
professor. When Crenshaw elected not to take Norman's action to the Board for
review, he elected not to remain employed at Erskine College.
The dissent states we "grievously err" by "invading the province of the jury" on this
point, and accuses us of a "stunning departure from our jurisprudence."
Respectfully, we suggest it is the dissent that departs from standard principles of
contract law. Actions on a contract must be based on the terms of the contract.
Maybank v. BB&T Corp., 416 S.C. 541, 573, 787 S.E.2d 498, 515 (2016). "The
court's duty is to enforce the contract made by the parties regardless of its wisdom
or folly . . . ." Ellis v. Taylor, 316 S.C. 245, 248, 449 S.E.2d 487, 488 (1994). No
jury—nor any judge—is permitted by law to rewrite a contract to impose liability
based on some vague personal sense of what is fair. The contract in this case is
written—the Faculty Manual—and our decision is based on its written terms.
The dissent's analysis is not based on the written contract. In numerous instances
the dissent invents fanciful contract provisions, and makes such remarks as, "The
jury may well have decided" this, or "the evidence presented could well have
prompted the jury to conclude" that, or "the jury could have determined" another
possibility. In most such instances, the dissent speculates on a scenario Crenshaw's
attorney did not argue to the jury. In one particularly striking instance, the dissent
hypothesizes the following scenario could be a breach of contract:
[T]he College forwarded the grievance to the faculty
grievance committee to resolve the matter without
providing its members with any direction on how the
committee was to accomplish its task, thus preventing the
committee from formulating a workable mediation plan.
In so doing, the jury likely took into account that Norman
had assumed the presidency of Erskine in 2010 at a young
age, and that by the time of trial, he had already left that
position.[] The jury could have found that this failure
constituted a breach by Erskine of the provision in the
handbook, which provides that the faculty grievance
committee has the duty "to act as a mediator in cases where
misunderstanding or unjust criticism may adversely affect
either the professional reputation of a faculty member or
the academic standing of the institution." It is abundantly
apparent from his actions in this case that Norman lacked
the experience and institutional knowledge as to how to
handle faculty grievances, but his failure to provide the
faculty grievance committee with any direction was
inexcusable, and the jury may have found his conduct in
mishandling the process breached Crenshaw's contract
with the College.
The notion that a jury—or a Justice—may speculate so wildly as to a basis for
imposing liability on a written contract is inconsistent with standard principles of
contract law. The Faculty Manual requires nothing from the President in providing
the faculty grievance committee "direction" on how to accomplish its work. To the
contrary, the Faculty Manual espouses the ideal of "faculty governance." Faculty
governance supersedes administrative authority, and precludes the administration
from directing the work of faculty. The dissent's further suggestion that the jury
could have found a breach of contract based on the jury's view of the appropriate
age, experience, or institutional knowledge of Erskine's President is likewise
inconsistent with standard principles of contract law.
The law provides—rather—that construing a contract is a question of law for the
court. "[W]ritten contracts are to be construed by the Court" unless the "contract is
ambiguous." Cafe Assocs., Ltd. v. Gerngross, 305 S.C. 6, 9, 406 S.E.2d 162, 164
(1991). The Faculty Manual provides that after the President has "inform[ed] the
tenured faculty member in writing of the dismissal and the grounds for it" in the
"Formal Proceedings" step, "The tenured faculty member will reply in writing to the
President stating whether a hearing is desired" in the "Hearing Committee" step. To
determine the meaning and legal effect of this provision, we must consider the entire
Faculty Manual, including the power of both the Hearing Committee and the Board
to overrule the President's decision. See McGill v. Moore, 381 S.C. 179, 185, 672
S.E.2d 571, 574 (2009) ("A contract is read as a whole document . . . ."). Viewed in
this manner, the mandatory nature of the "reply in writing" provision is clear: the
only method by which the professor may invoke the authority of the Board to make
the final decision is to request a hearing before the "Hearing Committee," and if
necessary, appeal to the Board. There is no other way to read the "reply in writing"
provision. See Hawkins v. Greenwood Dev. Corp., 328 S.C. 585, 592, 493 S.E.2d
875, 878 (Ct. App. 1997) ("A contract is ambiguous when it is capable of more than
one meaning when viewed objectively by a reasonably intelligent person who has
examined the context of the entire integrated agreement and who is cognizant of the
customs, practices, usages and terminology as generally understood in the particular
trade or business." (quoting 17A AM. JUR. 2D Contracts § 338, at 345 (1991))).
There is no ambiguity. It is, therefore, the responsibility of the court—not the jury—
to determine the legal effect of the "reply in writing" provision in the Faculty
Manual.
Crenshaw's counsel argued several other points in his closing argument as to how
Erskine breached the contract. First, counsel suggested Erskine denied Crenshaw's
procedural rights in various respects. He argued to the jury,
Based upon [] being a tenured professor, [Erskine] had the
procedures they had to follow and they are not following
them to the letter, not even the spirit, by jumbling the
stages, they are still in the preliminary stage, negotiations
and . . . then he immediately jumps into, well, here you are
terminated. You have to request a hearing by the 15th.
Counsel concluded the argument, "Erskine violated his rights as a tenured professor
. . . ; the procedural rights that they jumbled."
While Crenshaw did not argue to the jury Erskine denied him "due process," and
Crenshaw makes only a passing reference to "due process" in the "Statement of
Facts" section of his brief to this Court (no reference to it at all in the "Arguments"
section), the dissent takes up the point for Crenshaw and argues Erskine denied
Crenshaw his due process rights. We have already explained that Crenshaw—as a
tenured professor at a private institution—has no constitutional due process rights.
The dissent disagrees, but also argues "Erskine's Faculty Manual unequivocally
grants him [contractual due process] rights." Before we address Crenshaw's
argument that Erskine denied him the procedural rights specifically set forth in the
Faculty Manual, we address the dissent's argument that Erskine granted Crenshaw
"contractual" due process in the Faculty Manual.
Erskine stated in the Faculty Manual that its purpose in drafting the procedures set
forth there was to "insure that both individual rights and its own institutional
integrity are preserved through procedures that guarantee due process." The Faculty
Manual also mentions—in a section dealing with non-tenured faculty—that "tenured
faculty . . . have the right of due process concerning their employment status." As
the Supreme Court of the United States has stated, "'Due process' is an elusive
concept. Its exact boundaries are undefinable, and its content varies according to
specific factual contexts." Hannah v. Larche, 363 U.S. 420, 442, 80 S. Ct. 1502,
1514, 4 L. Ed. 2d 1307, 1321 (1960). The general statements in the Faculty Manual
referring to the general concept of due process do not grant Crenshaw enforceable
rights to due process. A proper construction of a contract requires the court to give
effect to specific terms over any general language. RESTATEMENT (SECOND) OF
CONTRACTS § 203(c) (1979); see also State v. Sweat, 386 S.C. 339, 347, 688 S.E.2d
569, 573 (2010) (reciting "the statutory construction rule that a court must follow a
specific provision over general language"). The first subsection of the "Termination
of Tenured Faculty Appointments" section is entitled "Procedures (Tenured faculty
only)." Erskine prefaced the subsection stating its purpose is to "guarantee due
process." The subsection then recites the specific procedures Erskine adopted to
achieve that purpose. Erskine's promise was to follow the specific procedures, not
to adopt the general concept of "due process." Crenshaw has no due process rights
he may enforce against Erskine.
Other courts have reached the same conclusion regarding "contractual" due process
rights. In Jansen v. Emory University, 440 F. Supp. 1060 (N.D. Ga. 1977), aff'd,
579 F.2d 45 (5th Cir. 1978), for example, a delinquent student at Emory
University—a private institution—brought suit claiming Emory's refusal to graduate
him from dental school violated a contractual provision stating "no student will be
dismissed without due process." 440 F. Supp. at 1062. The district court ridiculed
the idea that such a term in a contract with a private institution created a right to
"contractual" due process.
Over these bare bones the plaintiff attempts to drape the
entire panoply of due process rights developed by the
Supreme Court in cases [involving public universities].
Based on the assumption that the Emory contract meant to
define "due process" in such a manner, the plaintiff argues
that the process he received was deficient and thus
constituted a breach. The underlying assumption is
extravagant. It entirely disregards the fact that cases . . .
involv[ing] the actions of tax-supported institutions . . .
implicate fundamental consideration of the relationship
between citizen and state which are quite distinct from that
shared by students and private institutions. There is no
basis for suggesting either that Emory, a private
university, is subject to the restraints imposed on state
institutions or that it meant to so bind itself by contract.
Id. The Fifth Circuit affirmed the district court in two sentences, noting "the district
court's order is in complete accord with the recent pronouncement of the United
States Supreme Court in Board of Curators of University of Missouri v. Horowitz,
435 U.S. 78, 98 S. Ct. 948, 55 L. Ed. 2d 124 (1978)." Jansen v. Emory Univ., 579
F.2d 45, 45 (5th Cir. 1978); see also Centre Coll. v. Trzop, 127 S.W.3d 562, 567
(Ky. 2003) (stating "even when a private college specifically agrees to provide due
process, it does not necessarily subject itself to the entire panoply of due process
requirements that would be applicable at a state-sponsored education institution").9
We now proceed to address the issue Crenshaw raises: whether there is any evidence
in this case to support a finding that Erskine failed to follow the procedures promised
to Crenshaw in the Faculty Manual. We find there is none. The first step—
Preliminary Proceedings—Norman satisfied with his August 6 meeting. The second
step—Formal Proceedings—Norman satisfied with his August 12 email and letter.
The third step was the Hearing Committee, which the Faculty Manual required
Crenshaw to request or it would not take place. Therefore, even if Erskine failed in
the first or second step, Crenshaw's failure to avail himself of the third step
extinguished his right to recover for breach of contract.
Crenshaw's next argument is that Erskine interfered with his early retirement offer
by initiating Formal Proceedings for termination before the end of the twenty-one
day period.10 We find this argument fails as a matter of law. Crenshaw had no
contractual right to early retirement. Rather, the early retirement offer was
essentially a settlement offer Erskine made in an effort to avoid having to take the
termination proceedings to a conclusion. Norman's initiation of formal termination
proceedings before Crenshaw made a final decision on early retirement is not
inconsistent with Crenshaw's contractual rights.
9
The dissent argues Jansen and Trzop are not applicable because they involve
students, and Crenshaw's case involves faculty. See infra note 18. The dissent
misses that we cite Jansen and Trzop because they reject—as a matter of contract
interpretation—the idea of "contractual" due process. Students and faculty are
equally affected by the principles of contract interpretation. The dissent also misses
a fundamental tenet of constitutional law. In addition to their contract analysis,
Jansen and Trzop rely on the obvious point of constitutional law that the Due Process
Clause limits only state action. The Due Process Clause places no limits on private
action by private educational institutions such as Emory University, Centre College,
or Erskine College. See Tarkanian, 488 U.S. at 191, 109 S. Ct. at 461, 102 L. Ed.
2d at 484 (distinguishing "state action" from "private conduct, against which the
[Fourteenth] Amendment affords no shield, no matter how unfair").
10
Federal law requires persons over the age of forty to be given twenty-one days to
consider a retirement agreement. 29 C.F.R. § 1625.22(e)(1)(i) (2020).
Counsel also argued Norman "confused Dr. Crenshaw" by stating in the August 12
letter, "Unless you waive your right to a hearing, it shall be held on August 29 . . . ."
Even if Norman's statement were unclear, it cannot change Erskine's obligations
under the Faculty Manual. See Player v. Chandler, 299 S.C. 101, 104-05, 382 S.E.2d
891, 893 (1989) ("Any modification of written contract must satisfy all requisites of
valid contract."); 299 S.C. at 105, 382 S.E.2d at 893 (adding "there must be a meeting
of the minds between the parties with regard to all essential and material terms of
the agreement"). Crenshaw's enforceable rights derive from the Faculty Manual, not
from statements Norman made carrying out its procedures. In addition, Norman's
statement is followed directly by a clear reference to Crenshaw's obligation—as
stated in the Faculty Manual—to request a hearing in writing. Norman wrote, "As
also stated in the handbook, you will reply to this letter in writing, stating whether
this hearing is desired." The Faculty Manual clearly provides there will be a Hearing
Committee proceeding only if the professor requests it in writing. The argument
fails as a matter of law.
Crenshaw made other arguments in his briefs to the court of appeals and this Court.
He argues Erskine violated the covenant of good faith and fair dealing that is implied
in all contracts. See Adams v. G.J. Creel & Sons, Inc., 320 S.C. 274, 277, 465 S.E.2d
84, 85 (1995) ("There exists in every contract an implied covenant of good faith and
fair dealing."). As an initial point on this argument, Crenshaw did not argue to the
jury Erskine breached the implied covenant. The trial court did not explain the
implied covenant in its jury charge. The first time Crenshaw made this argument
was in his brief to the court of appeals.11 The court of appeals relied on it in finding
Erskine breached the contract. See 424 S.C. at 296, 818 S.E.2d at 223 (citing
Adams). "However, there is no breach of an implied covenant of good faith where
a party to a contract has done what provisions of the contract expressly gave him the
right to do." Adams, 320 S.C. at 277, 465 S.E.2d at 85. As we explained, the "reply
in writing" provision in the Faculty Manual required Crenshaw to request a hearing
with the Hearing Committee. Erskine's reliance on this contractual provision cannot
11
The court of appeals found Crenshaw did raise this issue at trial when his counsel
said, "It shows a lack of good faith, the fact that they are jumbling these stages and
give him two days to respond, or three, I guess, less than three days, weekend days."
424 S.C. at 298 n.4, 818 S.E.2d at 224 n.4. This statement was made during counsel's
response to Erskine's motion for directed verdict, not during closing argument to the
jury. Arguing a point of fact about good faith in response to a directed verdict motion
is hardly sufficient to raise the implied covenant as a basis for the jury's finding of
breach of contract.
be a breach of the implied covenant of good faith. The "covenant of good faith"
argument fails as a matter of law.
Finally, Crenshaw argues Erskine breached his contract when Norman suspended
him—with pay—in the August 6 meeting for the Fall 2011 semester. This argument
fails as a matter of law. If Crenshaw had requested review of Norman's decision to
seek termination, the suspension would necessarily have been subject to review. If
the termination were reversed, so would be the suspension. If the termination were
upheld, the suspension would be meaningless.
We now address two points regarding the court of appeals' opinion. First, the court
of appeals considered whether Crenshaw breached the contract by failing to request
a hearing before the Hearing Committee. 424 S.C. at 297, 818 S.E.2d at 224. The
trial court submitted this question on its special verdict form to the jury, which
answered, "No." The question is misplaced. Crenshaw had no contractual obligation
to request a hearing such that his failure to do so is a breach of contract. The issues
to be decided in Crenshaw's lawsuit are only the extent of Erskine's obligations under
the contract, and whether Erskine breached the contract by failing to meet any of
those obligations. The fact Crenshaw did not request a hearing before the Hearing
Committee is not a breach of contract, but under the clear terms of the contract, it
meant Erskine's obligation to conduct such a hearing never arose, and Norman's
preliminary determination that adequate cause existed for termination became a final
decision.
Second, the court of appeals stated, "By submitting the special verdict form to the
jury, without objection, the parties agreed it was a question of fact as to whether the
contract was breached." Id. The court cited no authority for the statement. The
statement is an incorrect statement of the law of this State.
We conclude our analysis by addressing the dissent's argument minimizing the role
of the Erskine College Board of Trustees. Erskine College was chartered in 1850,
and currently exists as a nonprofit corporation under the South Carolina Nonprofit
Corporation Act of 1994. See S.C. Code Ann. §§ 33-31-101 to -1708 (2006 & Supp.
2019). Subsection 33-31-801(a) of the Act (2006) requires, "Each [nonprofit]
corporation must have a board of directors." Subsection 33-31-801(b) provides that
except as the Board may delegate authority in the articles of incorporation, "all
corporate powers must be exercised by or under the authority of and the affairs of
the corporation managed under the direction of its board." Exercising those powers,
the Erskine Board has directed the College to develop and execute its mission and
philosophy. The Faculty Manual recites two statements on its first page of text that
frame the Board's vision for the College.
Mission of Erskine College
The mission of Erskine College is to equip students to
flourish by providing an excellent liberal arts education in
a Christ-centered environment where learning and biblical
truth are integrated to develop the whole person.[12]
Purpose of Erskine College
Erskine College exists to provide opportunities for liberal
arts education in an environment created from and
expressive of Christian commitment. Striving for
excellence and respecting individuality, the College seeks
to enable each student to integrate knowledge and moral
values in preparation for a life of service to God and
society. Erskine, as part of the Associate Reformed
Presbyterian tradition since 1839, attempts to unite faith
and reason to produce an atmosphere in which Christianity
undergirds the freedom of inquiry and inspires dedication
to the search for truth and understanding.[13]
The next section of the Faculty Manual states Erskine's relationship to the church,
Erskine College represents the Associate Reformed
Church in higher education. The relationship between the
College and the Church is organic; that is, Erskine College
is related to the General Synod of the Associate Reformed
Presbyterian Church as the arm of the Church in Christian
higher education in carrying out the Biblical mandate to
12
The Faculty Manual indicates this "Mission Statement" was "Adopted by the
Board of Trustees, October 2007."
13
The Faculty Manual indicates this "Purpose" statement was "Adopted by the
Faculty, Student Senate, and Board of Trustees, 1977-78, Reaffirmed, 1991."
redeem all of life, especially man's moral and intellectual
life, under the authority and Lordship of Jesus Christ.
The Board undertook the design of its Faculty Manual within the context of the basic
principles set forth in Erskine's mission and purpose statements, and its "organic"
relationship with the church. This includes Erskine's own definition of the term
"adequate cause" and its own conception of academic freedom. We find this to have
been entirely proper, and important to a meaningful understanding of the enforceable
rights of a tenured professor at a private, religious school like Erskine. Under
Erskine's Faculty Manual, when the appeal of a tenured professor's termination
reaches the Board, the Board has the detailed written description of allegations
required to be prepared by the President, which gives the Board the administration's
perspective, and the verbatim record of the proceedings of the Hearing Committee,
which gives the Board the faculty's perspective. The Board's design of the Faculty
Manual enabled the Board to consider the administration's perspective, the faculty's
perspective, the shared perspective of its members, and to consider all of this in light
of the principles set forth in its mission and purpose statements and Erskine's
relationship with the church.
The Board's duty to protect Erskine's values overlaps almost completely with the
Board's obligation to ensure Crenshaw was not fired without adequate cause.
Erskine—having adopted the theory of tenure as part of its effort to develop
academic freedom and free speech—had substantial reasons to promote those ideals,
not to ignore or even underserve them. It was very much in the Board's interest to
reverse Norman and reinstate Crenshaw if it believed the ideals of academic freedom
and free speech were served by doing so. It was, however, the Board's decision.14
14
Because Crenshaw's failure to request that the Hearing Committee review
Norman's decision ends the case as a matter of law, we do not reach the degree of
deference a court and jury must show the decision of the Board at a private, religious,
educational institution before rendering a verdict to overturn the Board's decision
and award damages. See generally Fisher v. Shipyard Vill. Council of Co-Owners,
Inc., 415 S.C. 256, 270, 781 S.E.2d 903, 910 (2016) ("Under the business judgment
rule, a court will not review the business judgment of a corporate governing board
when it acts within its authority and it acts without corrupt motives and in good
faith." (quoting Kuznik v. Bees Ferry Assocs., 342 S.C. 579, 599, 538 S.E.2d 15, 25
(Ct. App. 2000))).
III. Conclusion
For the reasons explained, the trial court correctly determined as a matter of law that
Erskine did not breach its contract with Dr. Crenshaw. We reverse the decision of
the court of appeals to reverse the trial court's order granting JNOV.
REVERSED.
KITTREDGE and JAMES, JJ., concur. HEARN, J., dissenting in a separate
opinion in which BEATTY, C.J., concurs.
JUSTICE HEARN: This was a classic breach of contract case with myriad factual
issues properly presented to and resolved by a jury. The trial judge's decision to
grant JNOV because Crenshaw failed to request a hearing following his termination
by Erskine's president was error, and the court of appeals correctly reversed and
reinstated the jury's verdict. The majority's sweeping transformation of this
quintessential jury issue into a matter of law represents a stunning departure from
our jurisprudence; therefore, I dissent.
The majority's analysis fails because of three critical flaws. First, it assumes
the parties agreed the Faculty Manual created a contract between them. To the
contrary, Erskine steadfastly maintained that it did not, and consequently, this
became an issue for the jury to determine. Second, the majority, ignoring the proper
role of an appellate court, appropriates the jury's function by defining the terms of
that contract. Finally, the majority interprets the provisions of the Faculty Manual
and elevates a single term above all others—which again was an issue for the jury
and not this Court—ultimately engrafting onto that provision the requirement that,
if Crenshaw does not comply with it, he forfeits his due process right to seek redress
in the courts. In reaching its conclusion, the majority makes some unwarranted
pronouncements about the concept of academic tenure. Consequently, the majority
not only nullifies the jury's verdict and strips Crenshaw of the benefits of tenure, but
also effectively renders academic tenure meaningless in this state.
I begin with the familiar principle that a trial court's decision to set aside a
jury verdict is a drastic remedy that should not be taken lightly. 49 C.J.S. Judgments
§ 83 (2009) ("[A] judgment notwithstanding the verdict is to be granted cautiously,
and sparingly, and thus only when it clearly appears from the record that the party
obtaining the verdict was not entitled thereto."); id. ("The standard employed should
be in recognition that nullifying a jury verdict is a matter for the utmost judicial
circumspection because the province of a jury is a pillar of the justice system.").
Instead, "[t]he jury's verdict must be upheld unless no evidence reasonably supports
the jury's findings." Curcio v. Caterpillar, Inc., 355 S.C. 316, 320, 585 S.E.2d 272,
274 (2003). See also Johnson v. Parker, 279 S.C. 132, 135, 303 S.E.2d 95, 97 (1983)
("A jury verdict should be upheld when it is possible to do so and carry into effect
the jury's clear intention."); 49 C.J.S. Judgments § 93 (2009) ("[W]here there is any
credible evidence to support the jury's finding, the court is obligated to uphold it.").
Instead of viewing the jury verdict through that lens and looking to the substantial
evidence in the record which satisfies this minimal standard, the majority
erroneously claims that all the evidence adduced in this case during the three-day
trial points to one and only one conclusion—that Erskine did not breach its contract
with Crenshaw. Further encroaching upon the jury's province, the majority
determines as a matter of law that Crenshaw was not in fact terminated by President
Norman because that authority rested solely with the Erskine Board of Trustees and
posits instead that Norman's termination only became final when Crenshaw failed to
request a hearing before the Board.15 While that may be one possible conclusion to
be drawn from the contract of employment between Crenshaw and Erskine and the
evidence presented at trial, it is certainly far from the only one. More importantly,
the jury—the body charged with determining whether a contract existed and the
terms of that contract—clearly did not find Crenshaw's failure to pursue the appeals
process to be controlling, nor does the Faculty Manual state that it is.
First, the existence of the contract and the terms of that contract were issues
for the jury to determine, not this Court. Erskine maintained throughout this
litigation, including during the trial, that the Faculty Manual did not create a contract
of employment.16 Given Erskine's continued insistence that the handbook did not
constitute a contract, the trial judge had no alternative but to let the jury determine
whether a contract existed. Indeed, "[u]nder the common law, a trial court should
submit to the jury the issue of [the] existence of a contract when its existence is
questioned and the evidence is either conflicting or admits of more than one
inference." Small v. Springs Indus., Inc., 292 S.C. 481, 483, 357 S.E.2d 452, 454
(1987). Here, the trial court correctly found there were genuine issues of material
fact as to whether the Faculty Manual constituted a contract for tenured faculty such
as Crenshaw and whether Erskine breached this contract. Therefore, it properly
denied Erskine's motions for summary judgment and directed verdict, which were
based on the ground that the handbook did not create a contract. If the trial judge
had granted Erskine's motion for summary judgment or directed verdict in this case,
it is blatantly obvious that this Court would have been required to reverse. See
15
The notion that Crenshaw's termination by Norman was of no moment is in direct
contravention to the evidence presented that Norman notified Crenshaw his
employment was terminated by letter dated September 7, 2011, requested that he
vacate his faculty office no later than 5:00 p.m. on September 16, and banned him
from stepping foot on the Erskine campus—all clear indications that Norman's
actions were indeed final.
16
Alternatively, the College asserted that even if the Faculty Manual constituted a
contract, Erskine followed it; likewise, this issue cannot be decided as a matter of
law. See Soil Remediation Co. v. Nu-Way Envtl., Inc., 325 S.C. 231, 234, 482 S.E.2d
554, 555 (1997) ("[W]here a contract is capable of more than one construction, the
question of what the parties intended becomes one of fact to be submitted to the
jury.").
Conner v. City of Forest Acres, 348 S.C. 454, 463, 560 S.E.2d 606, 610 (2002)
("Because an employee handbook may create a contract, the issue of the existence
of an employment contract is proper for a jury when its existence is questioned and
the evidence is either conflicting or admits of more than one inference.").
The majority concedes that tenure is a promise and claims the promises
inherent in the granting of tenure make the Faculty Manual—as applied only to
tenured faculty—a contract as a matter of law. While I appreciate the majority's
effort to acknowledge the importance of tenure in academia, the fact that a college
decides to include a tenure policy in its handbook does not necessarily transform it
into a contract. See Packer v. Trs. of Indiana Univ. Sch. of Med., 800 F.3d 843, 852-
53 (7th Cir. 2015) (affirming district court's holding that tenure policies in
university's academic handbook did not create an enforceable contract); Wilson v.
Clark Atlanta Univ. Inc., 794 S.E.2d 422, 433 (Ga. Ct. App. 2016) (refusing to hold
faculty handbook containing tenure policy constituted a contract). But see Gray v.
Loyola Univ. of Chicago, 652 N.E.2d 1306, 1309 (Ill. Ct. App. 1995) (holding
college's tenure obligations were not extinguished after merger with another
university because faculty manual setting out terms and conditions of tenure created
a contract). See also Ralph D. Mawdsley, Litigation Involving Higher Education
Employee and Student Handbooks, 109 Ed. L. Rep. 1031, 1034-35 (1996) ("Whether
employee handbooks are part of employee contracts will vary among states. Some
states include handbooks as part of employment contracts. Other states require that
a handbook be expressly included by reference into a contract before terms in the
handbook are enforceable. On the other hand, other states require inclusion of
handbook terms into an employment contract, even without express reference, where
university practice treated the terms as applicable to employees. Still other states
require that handbooks meet contract requirements of offer, acceptance, and
consideration before they are enforceable."). Compare Greene v. Howard Univ., 412
F.2d 1128, 1132 (D.C. Cir. 1969) (holding the university's handbook was impliedly
incorporated as part of the employment agreement), with Black v. W. Carolina Univ.,
426 S.E.2d 733, 736 (N.C. Ct. App. 1993) (holding provisions of university's
handbook were not part of professor's employment contract because they were not
expressly incorporated into it). While it may be sound public policy to interpret a
college handbook's tenure provisions as creating a contract with tenured faculty, and
I would be inclined to do so in the proper case, I disagree with the majority's
proclamation here—under the guise of a matter of law—where the very existence of
the contract was consistently and vigorously disputed and was thus a matter for the
jury to determine.
Moreover, the issue of whether the Faculty Manual constituted a contract was
the most contested issue in this case, and the trial court was required to submit it to
the jury, especially where, as here, the handbook contained a disclaimer that it did
not constitute a contract of employment. See Hessenthaler v. Tri-Cty. Sister Help,
Inc., 365 S.C. 101, 108, 616 S.E.2d 694, 697 (2005) ("In most instances, judgment
as a matter of law is inappropriate when a handbook contains both a disclaimer and
promises."); Horton v. Darby Elec. Co., Inc., 360 S.C. 58, 67, 599 S.E.2d 456, 460
(2004) ("An employee manual that contains promissory language and a disclaimer
is 'inherently ambiguous,' and a jury should interpret whether the manual creates or
alters an existing contractual relationship." (quoting Fleming v. Borden, 316 S.C.
452, 463, 450 S.E.2d 589, 596 (1994)); see also 19 Williston on Contracts § 54:10
(4th ed. 2016) ("[T]he determination [of] whether the manual establishes a
contractual commitment depends on the intention of the parties, and since this is an
inference of fact, the determination of the parties' intent is within the province of the
jury. Relevant evidence of the intent of the parties for purposes of determining
whether an employment manual created an implied employment contract usually
includes the language of the manual itself, the employer's course of conduct, and
pertinent oral representations."). But see Bishop v. City of Columbia, 401 S.C. 651,
658-59, 738 S.E.2d 255, 259 (Ct. App. 2013) ("An employee handbook forms a
contract when: (1) the handbook provisions and procedures in question apply to the
employee; (2) the handbook sets out procedures binding on the employer; and (3)
the handbook does not contain a conspicuous and appropriate disclaimer." (emphasis
added)). It is not the role of this Court to decide to whom a conspicuous disclaimer
applies, as the majority erroneously attempts to do, because when a contract's
existence is questioned and the evidence is conflicting, it becomes a question of fact
for the jury.
The trial court thus properly submitted to the jury the issue of whether a
contract existed as well as the terms of that contract. However, the jury was not
asked, by way of special interrogatories, to specify the terms of the contract. Instead,
the trial court complied with the parties' request that the jury—if it found that a
contract existed—answer two questions, to wit, whether Erskine or Crenshaw
breached that contract. From its verdict, we know the jury determined Erskine
breached its contract with Crenshaw and that Crenshaw did not breach it. That
verdict, if supported by the evidence, should be upheld. I believe the majority
grievously errs in invading the province of the jury, declaring what it believes the
terms of the contract to be, and then holding as a matter of law that Erskine did not
breach its contract with Crenshaw. It also errs in its conclusion that Crenshaw, by
not appealing his termination to the Board, failed to follow the terms of the contract.
The jury found that Crenshaw complied with the provisions of the contract, and it is
neither the role of an appellate court to overrule the jury's factual findings regarding
the terms of a contract nor its decision concerning a party's compliance therewith.
See Small, 292 S.C. at 486, 357 S.E.2d at 455 (holding where the jury determined
that the employee handbook altered the employee's at-will employment status,
"courts will exercise the greatest self-restraint in interfering with the constitutionally
mandated process of jury decision").
This jury determined that Crenshaw, as a tenured17 faculty member, had
enforceable rights and obligations as set forth in the Faculty Manual. That faculty
handbooks can guarantee such due process and procedural rights is well established.
See Beilis v. Albany Med. Coll. of Union Univ., 525 N.Y.S.2d 932, 933 (N.Y. App.
Div. 1988) ("It is well settled that a private educational institution is bound by its
own published guidelines or rules."); Ralph D. Mawdsley, Employment Issues in
Private and Public Schools, 51 Ed. L. Rep. 1107, 1116 (West 1989) ("[O]nce an
educational institution prepares a handbook, employees have every right and
expectation that it will be followed. A faculty member can expect that an institution
will adhere to the procedural rights in the faculty handbook . . . ."). Even if I agreed
with the majority's claim that Crenshaw possessed less due process rights because
he was employed by a private institution, specific language in Erskine's Faculty
Manual unequivocally grants him those rights. In the section governing termination,
the Faculty Manual provides that, "the College will insure [sic] that both individual
rights and its own institutional integrity are preserved through procedures that
guarantee due process." Additionally, the handbook explicitly provides tenured
faculty "the right of due process concerning their employment status" when
contrasting their rights to those of non-tenured faculty. While the majority concedes
17
The Faculty Manual defines "academic tenure" as providing for "continuous
appointment of a faculty member to a designated teaching position." The majority
expends considerable energy explaining the concept of tenure and states that tenure
means something different with respect to faculty employed in private institutions
of higher learning than those employed by public colleges and universities. In doing
so, the majority focuses on the role of constitutional due process in the context of a
private institution and creates a dispute where none exists, as this issue was never
raised by Erskine in this case, nor did Crenshaw allege any such claim. Regardless,
the majority's reliance on this public-private distinction is irrelevant because the
Faculty Manual here specifically guaranteed enforceable due process rights to its
tenured faculty. McCall v. Finley, 294 S.C. 1, 4, 362 S.E.2d 26, 28 (Ct. App. 1987)
("Appellate courts recognize . . . whatever doesn't make any difference, doesn't
matter.").
that the College references due process in its Faculty Manual, it completely ignores
the legal ramifications of this incorporation in its stunning conclusion that Crenshaw
"has no due process rights he may enforce against Erskine."18 See William W. Van
Alstyne, Tenure: A Summary, Explanation and "Defense," 57 AAUP Bull. 328, 328
(1971) ("In a practical sense, tenure is translatable principally as a statement of
formal assurance that thereafter the individual's professional security and academic
freedom will not be placed in question without the observance of full academic due
process. This accompanying complement of academic due process merely
establishes that a fairly rigorous procedure will be observed whenever formal
complaint is made that dismissal is justified on some stated ground of professional
irresponsibility . . . ."); id. at 329 ("The more fundamental reason for the requirement
of due process here as elsewhere is the desire to do justice and to avoid errors in the
making of critical judgments."); see also Mark L. Adams, The Quest for Tenure: Job
Security and Academic Freedom, 56 Cath. U. L. Rev. 67, 80 (2006) ("The nexus
between academic freedom and the job security provided by tenure is the
requirement that due process be provided prior to termination for cause, which
preserves the foundational principle, guiding beliefs, and distinguishing
18
The majority's repudiation of the College's obligation to provide due process to
tenured faculty is unsupported, as Jansen v. Emory University, 440 F.Supp. 1060,
1062 (N.D. Ga. 1977) and Centre College v. Trzop, 127 S.W.3d 562, 567 (Ky. 2003)
concerned the due process rights that a private college owes to its students, not its
tenured faculty. See Jansen, 440 F.Supp. at 1062 (noting the university's bulletin
provided attendance at Emory was a privilege and not a right). Moreover, neither of
these cases rejected "the idea of contractual due process," as the majority boldly
claims. Rather, the court's holdings in both Jansen and Tzrop centered on a specific
clause of the contract providing the procedure for a student's dismissal. See Jansen,
440 F.Supp. at 1062 ("At any time the president or dean may terminate the
enrollment or impose such measures as may be considered appropriate for improper
conduct or for lack of sufficient progress."); Tzrop, 127 S.W.3d at 568 ("Although
students are ordinarily disciplined through the judicial process involving the Student
Judiciary or the executive committees of the Intrafraternity Council or the
Panhellenic Association, the college administration may invoke sanctions including
dismissal from the College in unusual circumstances."). The Tzrop decision further
stemmed from the court's finding that the College "never guaranteed the right to due
process" in its contract. 127 S.W.3d at 568. In contrast, nothing in the Faculty
Manual allows Erskine College to circumvent the termination procedures
guaranteeing due process for tenured faculty outlined in the handbook. As
previously noted, the majority's reliance on Jansen and Tzrop is further misplaced
because the applicability of constitutional due process is not at issue in this case.
characteristics of a liberal arts education at an academic institution: unfettered
objective inquiry supported and challenged by reasoned analysis and discussion.").
The jury properly found that by including these provisions in the Faculty Manual,
Erskine guaranteed Crenshaw enforceable due process rights. To hold otherwise
would render these provisions meaningless in contravention of the well-settled
principles of contract law. 11 Williston on Contracts § 32:11 (4th. ed. 2012)
("Interpretations which give a contract meaning are preferred to those which render
it meaningless."); 17A C.J.S. Contracts § 417 (2020) ("[A] court is bound to construe
contracts so as to give effect to all provisions, whenever possible, and there is a
presumption that the parties have not used words needlessly. A construction
rendering a provision, term, or part meaningless . . . should be avoided."). I therefore
reject the majority's assertion that Crenshaw has "no right of legal recovery" in this
case and that the significance of tenure to Crenshaw's enforceable rights has been
"overstated."
In its finding that the Board of Trustees is the only body with the power to
terminate a tenured faculty member, the majority again intrudes upon the role of the
jury by determining the terms of the parties' contract. It then contends that since
President Norman did not have that power, any obligations Erskine College had
under the contract did not arise because Crenshaw failed to request a hearing before
the Hearing Committee. This entire discussion emanates solely from the majority's
own interpretation of the handbook, something which I assert was an issue for the
jury, not for this Court. Moreover, this conclusion, to which the majority attaches
so much significance, was a point never argued or even mentioned by the College.19
19
At the risk of being repetitive, many of the grounds on which the majority bases
its decision as a matter of law were never raised during this lengthy litigation, and
under settled principles, are not preserved. See JEAN HOEFER TOAL ET AL.,
APPELLATE PRACTICE IN SOUTH CAROLINA 382 (3d ed. 2016) ("[A]ppellate courts in
this state, like well-behaved children, do not speak unless spoken to and do not
answer questions they are not asked.") (quoting Langley v. Boyter, 284 S.C. 162,
181, 325 S.E.2d 550, 561 (Ct. App. 1984)); see also Rule 208(b)(1)(B), SCACR
("Ordinarily, no point will be considered which is not set forth in the statement of
the issues on appeal."); I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526
S.E.2d 716, 724 (2000) (noting when a party fails to raise an issue in the lower court
or otherwise preserve it for appellate review, such contentions will not be considered
on appeal); Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546
(2000) ("It is well-settled that an issue cannot be raised for the first time on appeal,
but must have been raised to and ruled upon by the trial court to be preserved for
appellate review.").
While I deeply disagree with the majority arrogating to itself the power to determine
the terms of the contract between the parties, I must also note that the majority is
simply wrong in its conclusion on the power to terminate. Crenshaw was indeed
terminated by President Norman, and when that event occurred, Crenshaw possessed
a right to bring suit against the College for breach of contract based upon his alleged
wrongful termination. Hessenthaler v. Tri-Cty. Sister Help, Inc., 365 S.C. 101, 108,
616 S.E.2d 694, 697 (2005) ("[W]hen an employee's at-will status has been altered
by the terms of an employee handbook, an employee, when fired, may bring a cause
of action for wrongful discharge based on breach of contract."). I acknowledge that
the termination procedures outlined in the Faculty Manual include an appeals
process through which the decision of the Hearing Committee may be reviewed by
the Board; however, nowhere is it stated that a tenured professor who fails to avail
himself of that appeals process loses his due process right to file suit for breach of
contract. Even though the majority elevates this provision to a mandatory
requirement, which if not fulfilled, entirely vitiates Crenshaw's due process right to
sue as well as his tenure rights generally, it cites no authority for this startling
pronouncement, which I feel sure will come as quite a shock to tenured faculty
throughout this state. The majority cites not one case from across the country where
another court has found such a term controlling in the academic setting and states
only that, "This way of looking at the point is akin to a person failing to exhaust
administrative remedies."20
Contrary to the majority, courts across the country have recognized the value
of tenure and the protection it affords to individual faculty with the clear and
unmistakable understanding that such rights are "not easily forfeited." McConnell v.
Howard Univ., 818 F.2d 58, 68 n.11 (D.C. Cir. 1987). See, e.g., R. Chait & A. Ford,
Beyond Traditional Tenure 219–20 (1982); see also White v. Bd. of Educ. of Lincoln
Cty., 184 S.E. 264, 268 (W.Va. 1936) ("A teacher may not be lightly shorn of the
privileges for which he fairly contracted."). The McConnell court further
acknowledged that tenure rights are "substantive right[s] to continued employment
that would exist with or without internal procedures for termination cases."
McConnell, 818 F.2d at 68 n.11 (emphasis in original). Indeed, a college's internal
20
The principle of exhaustion of remedies has no application here. See Stinney v.
Sumter Sch. Dist. 17, 391 S.C. 547, 550 n.1, 707 S.E.2d 397, 398 n.1 (2011) ("The
doctrine of exhaustion of administrative remedies only applies when a litigant
invokes the original jurisdiction of the circuit court to adjudicate a claim based upon
a statutory violation for which the legislature has provided an administrative
remedy.").
procedures provide "an additional right of a tenured faculty member; one that serves
the interests of both professors and universities by 'secur[ing] and maintain[ing] [an]
environment essential to their own effectiveness.'" Id. (alterations and emphasis in
original) (citing Commission on Academic Tenure in Higher Education, Faculty
Tenure 33 (1973)).21 In McConnell, the court found judicial review of the
university's termination decision was not limited, for to limit review of such a
decision would allow "one of the parties to the contract to determine whether the
contract had been breached" and "would make a sham of the parties' contractual
tenure arrangement." Id. at 68. See also Roberts v. Columbia Coll. Chicago, 821
F.3d 855, 862-63 (7th Cir. 2016) (holding a provision in the private college's
handbook outlining internal review procedures did not prevent terminated professors
from bringing their claims to court and noting "tenure would be an illusory benefit"
if a terminated professor were prevented from filing suit to challenge the merits of
the college's termination decision). The court further held, "[i]t would make no sense
for a court blindly to defer to a university's interpretation of a tenure contract to
which it is an interested party." McConnell, 818 F.2d at 69. See also McAdams v.
Marquette Univ., 914 N.W.2d 708, 718 (Wisc. 2018) (refusing to defer to the
university's determination that it did not breach its contract with a tenured professor
when it suspended him). Yet this is precisely what the majority does here.22 The
21
Despite Judge Buckley's statement in his concurrence that the academic principles
in footnote 11 are "informational only," the D.C. Circuit's decision was clearly
premised on the notion that tenure rights are substantive rights to continued
employment regardless of a college's internal procedures. McConnell v. Howard
Univ., 818 F.2d 58, 67 (D.C. Cir. 1987) ("[A]ccording to the trial court, [the
University's] decision to fire a tenured faculty member is largely unreviewable, with
judicial scrutiny limited to a modest inquiry as to whether the [University's] decision
was 'arbitrary,' 'irrational' or infected by improper motivation. Such a reading of the
contract renders tenure a virtual nullity. Faculty members like Dr. McConnell would
have no real substantive right to continued employment, but only certain procedural
rights that must be followed before their appointment may be terminated. We find
this to be an astonishing concept, and one not compelled by a literal reading of the
Faculty Handbook." (emphasis in original)).
22
Following Norman's termination letter to Crenshaw on September 7, 2011, the
faculty executive committee met confidentially with President Norman and Dean
Christie and decided that "the College followed the procedures for dismissal as
outlined in the College Faculty Manual, and that Dr. Crenshaw's procedural rights
have not been violated." The majority blindly adopts the College's interpretation of
these events.
majority's actions in interpreting the provisions of the Faculty Manual and
concluding as a matter of law that Crenshaw forfeited his right to challenge the
College's termination decision not only constitute a misappropriation of the authority
normally accorded to juries to determine the terms of a contract, but also deprive
tenured faculty members of their due process rights. The majority has—as a matter
of law—rendered Crenshaw's tenure an illusory benefit.23 He has become merely an
at-will employee who may be terminated at the whim of his employer.
Having expressed my deep dismay at the majority's decision to transform the
issues of the existence of a contract and the delineation of its terms into a matter of
law, I now turn to some of the voluminous evidence in this record that supports the
jury's verdict.24 First and foremost, the jury may well have found that the initial
grievance against Crenshaw was without merit and should have been summarily
dismissed by President Norman. As was clearly established at trial, William
Crenshaw was a popular and beloved English professor at Erskine for decades,
having been named Professor of the Year by the students and faculty on two
23
The majority completely disregards the significance of tenure such that the
protections provided in the College's Faculty Manual are meaningless, not only
negating its intended purpose but perhaps depriving all tenured faculty employed by
Erskine of this coveted benefit. Moreover, the College's continued insistence that
the Faculty Manual did not create a contract between the parties—thereby rendering
professors with tenure the same as those without it—should cause Erskine's tenured
faculty significant concern about the security of their employment.
24
I reject the majority's contention that I have engaged in wild speculation in
reviewing whether there is any evidence to support the jury's decision. To the
contrary, I believe I have faithfully followed the principles which accompany review
of a trial court's grant of JNOV. See, e.g., Wilson v. Clark Atlanta Univ., Inc., 794
S.E.2d 422, 436-38 (Ga. Ct. App. 2016) (reviewing the record for evidence from
which a jury could conclude the university breached its contract with professors and
affirming the trial court's denial of JNOV). The majority's analysis assumes there
was no dispute as to whether the Faculty Manual constituted a contract between
Crenshaw and Erskine College and instead views the interpretation of the
handbook's provisions—and any alleged breach thereof—as a question of law for
the Court. My analysis does not focus on contract principles because that is not our
role where the contract's very existence—and therefore its terms—were contested
and became questions of fact for the jury. Using this proper lens, the analysis should
be whether there is any evidence in this record which supports the jury's verdict. My
"wild speculation" is merely the recounting of that ample evidence.
occasions. Significantly, he garnered that award during the same year—2010—that
the events which gave rise to the initial grievance against him by members of the
athletic department transpired. He also served with distinction on numerous faculty
committees at the College, including, ironically, the faculty grievance committee at
the same time he was the subject of a grievance lodged by members of the athletic
department. Crenshaw was an active member, not only of the college community,
but of the Due West community. He, along with his wife, served as a volunteer
paramedic for eighteen years. It was through this work as a paramedic that he
quickly recognized a potentially serious medical condition in one of his students
during his 8:00 a.m. class on September 24, 2010. His summoning of an ambulance
for her, without going through the athletic department, ostensibly violated "athletic
department protocol," although that protocol was never produced to Crenshaw
despite his numerous requests. Regardless of this purported protocol, the evidence
presented could well have prompted the jury to conclude that Crenshaw acted in the
best interest of the student, who was diagnosed with a minor brain injury or
concussion after her arrival at the hospital that day. If indeed the initial grievance
against Crenshaw was unwarranted, the jury could have found that the entire process
from that point on was mishandled by Erskine and that the grievance was unfounded
and should have been dismissed at its inception. This point cannot be overstated, as
it was the origin of this entire matter resulting in Crenshaw's termination. The jury
may well have decided that Crenshaw's conduct which precipitated the grievance
simply did not rise to the level of "adequate cause" required for termination, and
Erskine's decision to let the grievance go forward to Crenshaw's ultimate termination
constituted a breach of contract.
Moreover, the jury could have determined that Erskine did not properly follow
the procedures outlined in the Faculty Manual and thereby breached its contract with
Crenshaw. First, the College forwarded the grievance to the faculty grievance
committee to resolve the matter without providing its members with any direction
on how the committee was to accomplish its task, thus preventing the committee
from formulating a workable mediation plan. In so doing, the jury likely took into
account that Norman had assumed the presidency of Erskine in 2010 at a young age,
and that by the time of trial, he had already left that position.25 The jury could have
found that this failure constituted a breach by Erskine of the provision in the
25
Dr. David Norman assumed the mantle of the presidency at Erskine College at the
age of 34, and he resigned within three years of doing so, ostensibly, according to
testimony presented at trial, after having strained or broken relationships in the
Erskine community and finding himself unable to bring peace to the College.
handbook, which provides that the faculty grievance committee has the duty "to act
as a mediator in cases where misunderstanding or unjust criticism may adversely
affect either the professional reputation of a faculty member or the academic
standing of the institution." It is abundantly apparent from his actions in this case
that Norman lacked the experience and institutional knowledge as to how to handle
faculty grievances, but his failure to provide the faculty grievance committee with
any direction was inexcusable, and the jury may have found his conduct in
mishandling the process breached Crenshaw's contract with the College.
The jury may have also found the College's attempt to handle the grievance
through an unprecedented special faculty committee constituted a breach of contract.
Following several failed attempts at mediation,26 Norman appointed a special faculty
committee to "determine the extent of [Crenshaw's] culpability" regarding a number
of charges that Norman alleged,27 and he instructed the committee to make this
determination based on a five-part scale: (a) Commendable behavior, (b) Compliant
behavior, (c) Mishandled the situation, (d) Grossly mishandled the situation, or (e)
Handled the situation in a way that severely limits Erskine's ability to carry out its
mission. Other than these instructions, Norman again did not provide the committee
26
After the faculty grievance committee could not resolve the matter, Dean Christie
offered Crenshaw and the athletic department complainants an opportunity to
mediate the misunderstanding between them. Crenshaw agreed, but the
complainants refused, so no mediation occurred. The jury could have found that the
complainants' lack of good faith in refusing to engage in mediation should have
resulted in Norman's dismissal of the complaint.
27
Norman appointed a special committee and requested its help "in adjudicating this
matter." He cites Erskine's Employee Resource Handbook as his authority to create
the committee, stating "The President retains the right to appoint a committee from
time-to-time to hear grievances and appeals." This handbook is different from the
Faculty Manual at issue in this case and was not provided to us in the record on
appeal. In his letter to the special committee, Norman outlined the possible offenses
Crenshaw committed as follows: (1) Handling of an emergency situation involving
an injured student athlete displaying abnormal behavior in the classroom; (2)
Treatment of emergency personnel including student's emergency contact; (3)
Professionalism and collegiality towards other faculty at the point of crisis; (4)
Professionalism and collegiality in the aftermath of the crisis; and (5) Respect for
the grievance committee and evidence of respect for faculty governance and the
policies and procedures of Erskine College and Seminary.
with any procedures to conduct its inquiry. The jury may have determined that this
failing constituted a breach of Erskine's contract with Crenshaw.
At the special committee hearing, Crenshaw and members of the committee
disagreed about the procedures and the nature of the committee's task, and they
received no guidance from Norman. Crenshaw was reluctant to respond to questions
posed to him by the committee without the presence of legal counsel, and he
continued to request that he be provided with the actual charges and the evidence
against him—quintessential due process rights. The jury could have determined the
grievance procedures outlined in the Faculty Manual were not followed, and
Norman's failure to provide both the initial grievance committee and the special
adhoc committee with specific procedures to resolve the matter, as well as the failure
to provide Crenshaw with the actual charges and the evidence against him,
constituted a breach of Erskine's contract with Crenshaw. Instead, the instructions
Norman did provide the committee—to essentially adjudicate the issue by grading
Crenshaw's culpability on a five-part scale—are not contained anywhere in the
Faculty Manual and had not previously been used at Erskine to resolve a grievance
matter. Accordingly, the jury could have found Norman's use of a special committee
in this manner denied Crenshaw the due process afforded under the Faculty Manual
and breached Crenshaw's contract with the College.
The timing of this entire affair is also significant and could have been a basis
for the jury to find Erskine breached its contract with Crenshaw. The incident
involving the student requiring medical attention happened in September, and the
faculty grievance committee and the special committee appointed by Norman met
later that same year. Eight months then elapsed with no action being pursued by the
College, and Crenshaw was assigned to teach classes for the 2011 fall semester. At
that point, Crenshaw may well have believed that the matter was behind him.
However, on the very first day that Crenshaw began classes with his new freshman
students, he was unexpectedly confronted by Norman, who asked to meet with him
immediately following his first class that morning.
At this meeting, rather than engage in a conversation with Crenshaw, Norman
read aloud a letter he had written which stated his intention to terminate Crenshaw's
employment and the grounds for his dismissal. In pertinent part, Norman read:
Your considerable lack of civility and collegiality combined with your
toxic levels of personal arrogance, defensiveness and demonstrated
disdain for the policies and procedures put in place to define and defend
our academic community has demonstrated itself in "personal conduct
which substantially impairs your fulfillment of institutional
responsibilities" . . . . [T]hey are grounds for your dismissal.
While Crenshaw's response to this unanticipated and oddly-timed recitation was
somewhat less than cordial, the conduct of Norman and Crenshaw on this fateful day
vis-à-vis the contract was an issue for the jury to determine. First and foremost, the
reasons given by Norman as grounds for this dismissal bear no resemblance to the
original grievance filed against Crenshaw, which likely did not escape the jury's
notice. Inexplicably, Norman provided Crenshaw with only one option to avoid
termination, which was to make blanket apologies to the grievance complainants,
the faculty at large, and the Erskine College community. Taken aback by this
unorthodox request, Crenshaw asked what he needed to apologize for, and Norman
replied that he had offended his colleagues and had a strained relationship with
them.28 However, Norman also acknowledged that he could be wrong, that
Crenshaw had not offended the faculty, and that he would know for sure based upon
the faculty's response to his apology. Given this evidence, the jury could have found
Norman's delayed confrontation with Crenshaw, as well as the morphing of the
original grievance into a personal attack by Norman, did not satisfy the requirement
for preliminary proceedings in the Faculty Manual, and the manner in which Norman
sought to resolve the matter was not only unprofessional, but also constituted a
breach of Erskine's contract with Crenshaw.
Prior to the end of the meeting, Norman informed Crenshaw that he was
suspended from teaching for the semester. Under the terms of the Faculty Manual,
a tenured professor may be suspended from teaching during termination proceedings
"only if immediate harm to himself or others is threatened by his continuance." The
jury may well have concluded that Erskine breached this term of the contract through
Norman's actions on that day. In a similar case, the Wisconsin Supreme Court found
Marquette University—also a private religious institution—breached its contract
with a tenured professor when it suspended him because of a blog post criticizing an
encounter between an instructor and a student. McAdams v. Marquette Univ., 914
N.W.2d 708, 737 (Wisc. 2018). The court found the suspension constituted a breach
of contract because the activity was protected by the contract's guarantee of
academic freedom. Id. at 735. Indeed, the court held that "[a] university's academic
28
Crenshaw's bewilderment concerning the alleged need for him to apologize to his
colleagues and that he had a "strained relationship" with them is understandable
given the fact that the faculty had voted him Professor of the Year during the very
year the initial grievance arose.
freedom is a shield against governmental interference" and criticized the dissent's
willingness to "reforge it as a sword with which to strike down contracts [the
University] no longer wishes to honor." Id. at 737. Similar to McAdams, Crenshaw's
conduct throughout this matter was protected by Erskine's Faculty Manual which
guarantees academic freedom for faculty and defines the term as "freedom of thought
and expression within the institution: freedom to explore, to criticize, to exchange
ideas, and to communicate the result of honest and responsible inquiry."
Accordingly, the jury could have found the suspension from teaching constituted a
breach of contract because Crenshaw's conduct did not rise to the level of
"immediate harm to himself or others" as required by the Faculty Manual.
At the end of the meeting, Norman asked Crenshaw to let him know two days
later which of the following options he decided to choose: (1) apologize; (2) retire
early; or (3) proceed with termination. Crenshaw complied with Norman's request
in an email indicating his willingness to discuss early retirement with his attorney.
However, Norman interpreted Crenshaw's response to be a final decision to proceed
with early retirement, immediately drafted an agreement and announcement for
Crenshaw's approval, and requested his response by the following day—despite the
fact that Crenshaw was guaranteed by law twenty-one days in which to consider the
offer. Crenshaw responded that announcing his retirement was premature, and
Norman reiterated that he was suspended from teaching and that he had to make a
decision immediately. Four days after Crenshaw's initial reply, Norman instituted
formal termination proceedings against Crenshaw because, in his view, they had not
been able to "resolve the matter by mutual consent" according to the Faculty Manual.
Nevertheless, Norman indicated the early retirement offer was still on the table, but
at the same time, informed Crenshaw of the grounds of his dismissal and his right to
a hearing before a faculty committee. Norman provided Crenshaw only three days
to notify him of his desire for a hearing.
While the Faculty Manual does not require a specific length of time for each
stage of the termination proceedings, the jury could have found Erskine
unnecessarily rushed the process when—after allowing eight months to pass without
taking any action—Norman escalated the proceedings to stage two and scheduled
the hearing a mere two weeks later. The jury could have also determined Norman
further confused and bungled the process by granting Crenshaw time to consider
early retirement while at the same time threatening him with termination and
mandating his suspension from teaching. Although Norman proceeded with
scheduling a hearing and testified he actually appeared on the date of the scheduled
hearing, the jury could well have found this hearing to be a sham since no committee
was appointed to hear the case as required by the Faculty Manual. Obviously, even
if Crenshaw had appeared that day, no hearing could have been held without an
adjudicative body. Thereafter, Norman took the extraordinary step of banning
Crenshaw from campus, even though his home was essentially located there. The
jury may have determined that this severe measure breached Erskine's contract with
Crenshaw since there is no provision in the Faculty Manual which authorizes the
president to ban a tenured professor from stepping foot on the Erskine campus.
Finally, the jury could have found Erskine's notification of Crenshaw's right
to a hearing was itself confusing and ambiguous because the letter stated that a
hearing would be held unless waived, provided a date, time, and location for the
scheduled hearing, but also asked that he reply if he desired the hearing. See Williams
v. Teran, Inc., 266 S.C. 55, 60, 221 S.E.2d 526, 529 (1976) (noting that any doubt
in a contract must be resolved against the drafting party); Mid-Continent
Refrigerator Co. v. Way, 263 S.C. 101, 104-05, 208 S.E.2d 31, 32 (1974) (noting
that ambiguities or conflicts in documents constituting a contract must be construed
against the party who drafted the contract). Because Norman had offered Crenshaw
early retirement and allowed him twenty-one days to consider the offer, the jury
could have found he was not required to request a hearing because he was still in the
preliminary negotiation stage of the process, and an agreement to accept early
retirement would have constituted a resolution of the matter "by mutual consent"
under the Faculty Manual.
These numerous factual issues, among others, were peculiarly the province of
the jury chosen to resolve this case. The position taken by the majority—that the
presence of factual questions are irrelevant because the contract between the parties
required Crenshaw to avail himself of the appeals process prior to filing suit—can
only be justified by the majority arrogating to itself the task of determining the terms
of the contract, a matter which I insist was properly submitted to the jury. In fact,
whether the Faculty Manual created a contract was one of the most hotly disputed
issues in this case, and it was the threshold issue the jury was required to determine.
This point—which is the main thrust of my separate writing—bears repeating: not
only does the majority usurp the jury's role in deciding the terms of the parties'
contract, it also errs in its determination because absolutely nothing in the Faculty
Manual—a manual designed to guarantee tenured professors certain rights of due
process which the majority essentially dismisses as meaningless—provides that a
failure to request a hearing forfeits the professor's right to bring a lawsuit for breach
of contract. Therefore, any alleged procedural failure on Crenshaw's part did not—
and indeed cannot—end this case as a matter of law. Issues regarding the existence
of a contract, its terms, and whether a breach has occurred have historically been
issues for a jury, and they should be in this case. The majority's remarkable departure
from this longstanding principle of appellate practice and procedure is wrong, and it
effectively destroys the concept of academic tenure in this state. With the stroke of
a pen, the majority has essentially transformed a tenured professor with a
distinguished career spanning over thirty years into an at-will employee, despite the
clearly supportable verdict of a jury in his favor.
Accordingly, I would affirm the decision of the court of appeals reinstating
the jury's verdict and awarding Crenshaw $600,000 damages for his breach of
contract claim.
BEATTY, C.J., concurs.