With hearings next week in Lyon County District Court on the future of several terminated Emporia State University professors, a lawsuit involving those educators and others dismissed last fall has now been filed in federal court.
Hearings are currently on the July 19 county docket for Michael Behrens, Rob Catlett, Dan Colson, Amanda Miracle and Lynette Sievert, with the Kansas Office of Administrative Hearings and presiding officer Jennifer Barton listed as co-defendants in each individual case. All five were reinstated after OAH rulings earlier this year, although ESU has denied the reinstatements and is challenging them in Lyon County District Court.
On Wednesday, attorney J Phillip Gragson of the Topeka firm Gragson & Vogelsberg announced the filing of a federal complaint supporting the efforts of the aforementioned professors as well as Charles Emmer, Brenda Koerner, Sheryl Lidzy, Chris Lovett, Max McCoy and Mike Morales.
Gragson says the complaint is “seeking relief from a conspiracy by Kansas higher education officials to deny them due process and other civil rights.” Gragson says all 11 educators were dismissed in mid-September under a COVID-era policy approved by the Kansas Board of Regents. The professors say the emergency workforce policy “improperly suspended the rights granted tenured faculty members under state law, and are protected under both state and federal law, including the right to due process.”
The lawsuit also says Kansas law considered tenure as a property right, subject to both procedural and substantive due process protections under the US Constitution’s Fifth through Fourteenth Amendments, until January 2021, and prior to January 2022, Board of Regents policies said tenured faculty can be terminated for adequate cause, with exceptions involving the end of programs or units or as related to financial exigency, the higher education equivalent of bankruptcy.
The lawsuit says the Board of Regents approved its Workforce Management Policy, thus allowing universities to dismiss tenured professors without due process protections through December 2022. Emporia State requested its adjustments in September, which were rapidly approved by the Regents. Over 30 tenured professors were dismissed before the week was out. The professors in the lawsuit appealed to the Kansas Office of Administrative Hearings, saying Emporia State gave no reason for their respective terminations.
Emporia State University has not commented.
The 72-page lawsuit lists 14 counts, including 7 counts of civil conspiracy, whether in general terms, in violation of the First and Fourteenth Amendments, in violation of the US Constitution or in violation of the Kansas Constitution; as well as two counts for violation of freedom association rights in the US Constitution First Amendment; and single counts of violation of procedural due process and substitive due process, violation of liberty interest against the Fourteenth Amendment; violation of equal protection rights against the Fourteenth Amendment; and violation of the Kansas Constitution Bill of Rights.
It also requests more than $75,000 for each plaintiff, not including costs and interest.
The lawsuit names Emporia State and the Kansas Board of Regents. It also includes ESU President Ken Hush, Provost and Vice President of Academic Affairs Brent Thomas, General Counsel Kevin Johnson and his heir apparent to the role upon Johnson’s upcoming retirement, Steven Lovett, as well as nine current or former Regents members.
