Emporia State University professors ask Kansas Supreme Court to halt ‘sham’ hearings

TOPEKA — Two Emporia State University professors have asked the Kansas Supreme Court to intervene in “sham” appeals hearings over the firing of tenured professors.

The court declined to take immediate action to stop the hearings but ordered ESU, the Kansas Board of Regents and Kansas Office of Administrative Hearings to respond within two weeks to complaints outlined in legal filings.

The university took unprecedented action in September to eliminate programs and terminate faculty members under an emergency policy approved by the Board of Regents. The university said the strategic realignment of resources was designed to address enrollment and financial issues.

Faculty members weren’t given specific reasons for their termination, and the emergency policy denied them typical due process to contest the termination before the OAH.

Attorneys for history professors Christopher Lovett and Amanda Miracle describe an “unconscionable” alternative process in which the professors are not allowed to ask why they were terminated, examine recommendations resulting in the termination, or call witnesses to testify before the appeals officer. The professors are represented by J. Phillip Gragson and Amanda S. Vogelsberg, attorneys at a Topeka-based law firm.

“Clearly,” the attorneys wrote in a court filing, “petitioners are being offered ‘sham’ hearings.”

“It seriously begs the question … what are the chances of any of the hearing officers ruling against ESU/KBOR on the terminations?” the attorneys wrote. “Slim to none, and the bus is warming up for slim to leave town. There is nothing about this situation (that) resembles an impartial tribunal.”

A spokeswoman for ESU said the university doesn’t comment on pending litigation.

Under typical university policy, the elimination of a program would require written recommendations and public hearings before the president could make a final decision. The process should take at least 104 days. Affected faculty members would have the right to receive specific grounds for dismissal and examine the record of proceedings leading to termination.

Instead, acting under a pandemic-era policy, the university took immediate action Sept. 15 to discontinue programs that include history, English, journalism and debate, and to terminate 33 faculty members, including 21 tenured professors. The university subsequently announced plans to invest in nursing, computer science, music and art.

The university hasn’t made public the reasons why specific programs or professors were targeted and others were left alone.

The attorneys for Lovett and Miracle point to a document ESU officials presented to the Board of Regents on March 27, 2021, titled “ESU strategic program alignment reviews.” The document highlights the success of the history department as being efficiently operated, with healthy enrollment, and a significant revenue generator for the university. The report specifically praises Lovett and Miracle for recent accomplishments. The history program should be preserved, the report concluded.

Under state law, attorneys argue, professors should be allowed to find out why the history program was shut down a year and a half later with no hearing or explanation.

The emergency policy requires professors to prove their terminations were not justified.

“BUT,” the attorneys wrote, professors “are not allowed to ask questions of, ask for information from, ask for documents from nor elicit testimony from ESU/KBOR, nor can they subpoena or present witnesses. Clearly and without doubt, these procedures do not comport with the clearly established constitutional law.”

“Nevertheless,” the attorneys added, “ESU/KBOR have somehow mandated to OAH that the hearing officers must follow these deficient procedures and amazingly, OAH has acquiesced.”

The attorneys point to comments made by Jennifer Barton, who presided over Miracle’s appeal. Barton said “some other court” would have to address questions about the process being used. The attorneys found irony in the FAQ section of the OAH website, which says “a fair hearing is very similar to a trial in court with witnesses, exhibits, and rules of evidence.”

Barton also said during Miracle’s hearing that no rulings would be made until all appeals had been heard. The hearing officers would then meet together before issuing a ruling.

“Innumerable lawsuits involving the issues here could be avoided if this court will take jurisdiction of this controversy and determine the issue,” the attorneys wrote.

Michael DeCesare, a senior program officer for the American Association of University Professors, said the procedure for appeals that ESU is using “appears to be sharply at odds” with recommended standards. DeCesare said the AAUP has concluded its investigation into the dismissal of tenured employees and is preparing a final report for publication.

Earlier this month, the Foundation for Individual Rights and Expression identified ESU as one of the 10 worst colleges for free speech.

Details of the university’s financial realities or strategic vision haven’t been made public. Other universities faced similar enrollment and financial challenges during the pandemic, but only ESU took advantage of the emergency policy offered by the Board of Regents.

ESU president Ken Hush, in a Feb. 7 email to students and faculty, highlighted ongoing meetings between university and legislative leadership.

“This is a historic session for ESU as we are creating the solutions to solve for the financial realities that have been discovered at ESU and are systemic throughout higher education,” Hush wrote. “To that end, we spent last Tuesday sharing The ESU Model and our strategic vision for the future with key state legislative leaders.”

House Speaker Dan Hawkins, a Wichita Republican and ESU graduate, applauded “the type of right-sizing they’re doing at Emporia State” in recent newsletters.

“Emporia State has focused on investing in and growing, programs that students, and the employers who hire them, want and need,” Hawkins wrote. “They conducted a complete assessment of their institution, identified inefficiencies and made choices about how to spend their resources in a way that would create the best return for the most students, Kansas businesses, and taxpayers. They moved away from trying to be all things to all people and instead prioritized their resources on programs that Kansas businesses need most.”