University of Baltimore v. Iz

HOLLANDER, Judge. This appeal concerns the decision of the University of Baltimore (the “University”), appellant and cross-appellee, to deny tenure and promotion to Peri Iz (“Dr. Iz”), appellee and cross-appellant. 1 Appellee filed suit in the Circuit Court for Baltimore City against the University; its President, H. Me-bane Turner (“President Turner”); its Provost, Ronald Legón; and former Dean of the Business School, Daniel Costello (collectively, the “Officers”). 2 In her second amended complaint, Dr. Iz alleged that the Officers violated her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. With respect to the University, Dr. Iz claimed that it violated the ¹⁴¹ Civil Rights Act of 1964, breached its contract with Dr. Iz, and breached the implied covenant of good faith and fair dealing. After a three week trial in July 1996, the jury found in favor of the University and the Officers on the civil rights and state and federal constitutional claims, but found in favor of Dr. Iz on the contract claims lodged against the University.

The jury awarded appellee $425,000.00 in damages. After the parties’ post trial motions were denied, the University timely noted its appeal. It presents four questions for our review, which we have reframed and reordered: I. Did the trial court err in refusing to grant appellant’s motion for judgment as a matter of law? 3 II. Did the trial court err in permitting appellee to testify as an expert on damages when she had not been named as an expert witness pursuant to the court’s scheduling order for disclosure of experts?

III

Was the jury’s award of $425,000.00 in damages excessive and speculative? TV. Does sovereign immunity bar a claim for breach of the implied covenant of good faith and fair dealing? In her cross-appeal, appellee presents one question for our consideration, which we have rephrased: Did the trial court err in refusing to award specific performance of the contract?

In addition, the University has moved to dismiss appellee’s cross-appeal as untimely filed. It has also moved to strike part of Dr. Iz’s reply brief on the ground that it exceeds the ¹⁴² scope of the University’s response to the issue raised by Dr. Iz on her cross-appeal. We shall answer appellant’s first question in the affirmative. Therefore, we need not address appellant’s remaining issues or the issue presented on the cross-appeal.

Moreover, we shall deny appellant’s motions. Accordingly, for the reasons that follow, we shall reverse. Factual Background The parties agree on most of the facts. Dr. Iz holds a Ph.D. in Decision Sciences, and her expertise lies in the study of decision-making in a business context.

In 1989, the University hired Dr. Iz as a visiting assistant professor under a one-year contract. She was appointed to the University’s Merrick School of Business (the “School” or “Merrick”) in the Information and Qualitative Sciences (“IQS”) Department. In 1990, Dr. Iz received a tenure track contract. The agreement provided that she would be reviewed for tenure in the 1993 academic year in accordance with the terms and conditions of the University of Maryland System’s Board of Regents’ policy on appointment, rank, and tenure.

The University of Maryland System’s policy, in turn, requires each of its institutions to develop written procedures and criteria governing the promotion and tenure process. The University of Maryland System’s policy also states: [T]he terms described in the letter of appointment, together with the policies reproduced in the designated portions of the faculty handbook, shall constitute a contractually binding agreement between the institution and the appointee. The University of Maryland System’s tenure policy also provides that the President of the University is the only official actually authorized to award tenure and promotion to a faculty member. Such authority is also provided in Md.Code (1978, 1997 Repl.Vol., 1997 Cum.Supp.), § 12-109(e)(4) of the Education Article (“Educ.”).

After the University discovered a miscalculation of Dr. Iz’s initial tenure review date, the contract was amended to change ¹⁴³ the tenure review date to the 1994 academic year. Nevertheless, Merrick’s policy permitted Dr. Iz to seek early tenure review without penalty. Against the advice of her tenured colleagues in the IQS Department, Dr. Iz decided to undergo tenure review in academic year 1993, one year earlier than provided in her contract. Merrick’s policy does not appear to require a vote on whether to recommend early tenure review.

Nevertheless, in a memorandum to Dean Costello, Dr. Milton Jenkins, the chair of the IQS Department, stated that he “need[ed] a letter signed by the department’s tenured faculty concerning [Dr. Iz’s] request for a change of [tenure review] date.” In September 1993, by secret ballot, the tenured IQS faculty voted five to one, with one abstention, to recommend against early review. After learning of the IQS faculty’s decision, Dean Costello also recommended against early review. Consequently, Dr. Iz appealed to the provost and President Turner to obtain early review. President Turner informed Dr. Iz that she could seek early review, but he advised Dr. Iz that if she were denied tenure, she would not receive another review.

Because Dr. Iz persisted in undergoing early review, Provost Legón instructed the School, in the fall of 1993, to consider her for tenure and promotion to the rank of associate professor. At Merrick, a faculty member seeking tenure and promotion submits his or her credentials in a portfolio for review by several groups and individuals. The procedures and time frame for each step in the review process are included in the School’s policies and procedures. The faculty member is evaluated by: (1) the professor’s tenured colleagues who hold the desired rank or higher; (2) the department chairperson; (3) the Tenure and Promotion (“T and P”) Committee, a ten member panel consisting of two members from each of Merrick’s five departments; (4) the dean; (5) the provost; and (6) the president.

If the provost recommends against tenure, the faculty member may appeal the recommendation to the University-wide ¹⁴⁴ Faculty Appeals Committee (the “FAC”), consisting of seven tenured faculty members. If an appeal is made to the FAC, it may interview witnesses and review documents, after which it may make one of the following recommendations to the president: 1. follow the provost’s recommendation; 2. reverse the provost’s recommendation; 3. send the case back to an appropriate earlier stage of the tenure and promotion process for reconsideration. The FAC may not substitute its judgment for those involved in the tenure review process, however. At the first stage of review, Dr. Iz’s tenured colleagues in the IQS Department considered whether to recommend her for tenure and promotion.

According to the written report of the IQS tenured faculty, they voted three to two against tenure, with one abstention. They also voted five to one against promotion. 4 Their written report relied heavily on the Department’s recent review of Dr. Iz’s accomplishments in the areas of teaching, research, and service, and noted that Dr. Iz “has been showing progress and would have a stronger case next year.” Dr. Rao Vemuganti, the former IQS Department chairperson, who held the position for 17 years and had hired Dr. Iz, e-mailed his vote while he was away on sabbatical; he recommended against tenure and promotion. Dr. Vemuganti opined that, although Dr. Iz was a good teacher, had publications, and was involved in professional activities, he was concerned about “her attitude and collegiality.” While the tenured IQS faculty was reviewing Dr. Iz’s portfolio, Dr. Jenkins was conducting his review. Contrary to the recommendation of the IQS faculty, Dr. Jenkins recommended the award of tenure and a promotion, stating that Dr. Iz met ¹⁴⁵ or exceeded the necessary qualifications.

Dr. Jenkins’s recommendation was forwarded to the T and P Committee. The T and P Committee voted six to four in favor of tenure and five in favor and five opposed to promotion to associate professor. Half of the Committee found Dr. Iz’s teaching to be “good,” while the other half found it to be “satisfactory.” Moreover, the T and P Committee found Dr. Iz’s accomplishments in research were “very good” and that her record of service was “good.” Following the T and P Committee’s review, all three recommendations were forwarded to Dean Costello and to Dr. Iz. Dean Costello recommended against tenure and promotion.

Although he believed that Dr. Iz met or exceeded the qualifications for research and service, he thought she did not meet the qualifications for teaching. He also observed that Dr. Iz was reluctant to accept “peer evaluation” and that her colleagues had “strongly recommended that she not apply early for tenure and promotion.” Dean Costello’s recommendation was then sent to Provost Legón and Dr. Iz. Dr. Iz provided a written response to Dean Costello’s report, disputing many of his observations. She also met with Provost Legón to discuss the Dean’s recommendation.

Before making his recommendation, the provost met with Dr. Jenkins, the Chair of the IQS Department. Provost Legón asked Dr. Jenkins to clarify statements made in his recommendation concerning Dr. Iz’s disagreements with colleagues. The provost also sought to substantiate Dean Costello’s concern that Dr. Iz was reluctant to accept peer evaluation. Dr. Jenkins responded in writing that Dr. Iz was inflexible, defensive, and unwilling to take constructive advice.

Further, he explained that he did not raise these concerns in his recommendation because he did not believe that Dr. Iz’s behavior could be considered in the tenure review process. After reviewing the recommendations and the information provided by Dr. Iz and Dr. Jenkins, Provost Legón recommended that Dr. Iz be denied tenure and promotion. Although the provost acknowledged Dr. Iz’s strengths in re ¹⁴⁶ search and service, he commented on her difficulties with her IQS colleagues. Nevertheless, he acknowledged that he could not determine who was right or wrong, or whether this merely represented “an acceptable level of professional disagreement.” Upon receiving Provost Legon’s recommendation, Dr. Iz met with President Turner.

She informed President Turner that she would appeal the provost’s recommendation to the FAC. In discussing her disappointment with the negative recommendations that she had received, Dr. Iz accused male colleagues of making inappropriate remarks to her. She also claimed that she had learned that colleagues had used foul language in her absence when discussing her at a faculty meeting. Although Dr. Iz told President Turner about the remarks that had been disclosed to her, she did not reveal the identities of those persons who had allegedly made them.

Dr. Iz, who is Turkish, appealed the provost’s recommendation on several grounds, including discrimination on the basis of gender and national origin. Before deliberating, the FAC reviewed documents and heard from Dr. Iz, Provost Legón, Dr. Jenkins, and other witnesses. Four members then voted to reverse the provost, two voted to follow the recommendation, and one voted to reconsider the case. Those who recommended against following the provost’s recommendation believed that Dr. Iz’s review had been unfair because it considered her lack of collegiality, a criterion not expressly set forth in the tenure review policy.

The FAC found no evidence of gender discrimination, although it did conclude that Dr. Iz had been the victim of “personality discrimination,” which created an unfair review process. President Turner received the FAC’s recommendation on May 2, 1994. Before making his decision, President Turner met with several people involved in reviewing Dr. Iz for tenure and promotion. He also carefully explored the process.

For example, he asked for information about student evaluations; he inquired of Dr. Iz’s female colleagues in the IQS Department to determine whether they had experienced dis ¹⁴⁷ crimination, to which they replied that they had not; he asked the chairperson of the T and P Committee if the process had been fair to Dr. Iz, to which she responded that it had. President Turner also met with many members of the FAC and learned that Dr. Iz had revealed to them the identities of two male colleagues who had allegedly made inappropriate remarks to her. President Turner then spoke with both men, who denied that they had made such remarks. President Turner also conferred with Dr. Jenkins, who was present at the meeting when Dr. Iz alleged that foul language had been used in her absence during a discussion about her.

Dr. Jenkins contended that the allegation was false. After reviewing the recommendations, President Turner concluded that the review process had been fair and that the alleged inappropriate conduct either could not be corroborated or had not occurred. Therefore, based on a lack of support from the IQS Department, President Turner decided not to award tenure or promotion to Dr. Iz. Dr. Iz was advised of the decision on May 27, 1994, and was advised that her terminal year as a faculty member would be academic year 1994-95.

She continued teaching at the University through June 1995. In the fall of 1995, Dr. Iz signed a two year contract to teach at Hong Kong Baptist University as an associate professor. On January 30, 1995, while in her remaining year at the University, appellee filed her original complaint in this case. The case came to trial in July 1996; it lasted for three weeks and included testimony from 27 witnesses.

Of significance here, Dr. Iz asserted that the University had breached its contract with her by considering collegiality as a criterion in her promotion and tenure review and by holding her to a higher standard because she had sought early tenure review. During Dr. Iz’s direct examination, the court permitted her to testify, over appellant’s objection, as an expert witness in the field of economics. The court rejected appellant’s argument that Dr. Iz should not be permitted to testify as an expert merely because she had not been identified as an ¹⁴⁸ expert witness before trial. Consequently, Dr. Iz testified about the present value of the future lost income that she sought as compensatory damages.

On July 30, 1996, the jury returned a special verdict. The verdict sheet did not distinguish between a breach of the covenant of good faith and fair dealing and breach of contract, however. Instead, it asked: “Do you find that the University of Baltimore breached Dr. Iz’s employment contract?” According to the verdict sheet: (1) the jury did not find that Dr. Iz’s sex was a determining factor in the University’s denial of tenure or promotion; (2) the jury did not find that Dr. Iz’s charge of discrimination or reports of discrimination to her supervisors was a determining factor in any retaliatory action; (3) the jury did not find that any of the Officers had violated Dr. Iz’s right to equal protection under the United States Constitution or Article 24 of the Maryland Declaration of Rights; (4) the jury did find that the University had breached Dr. Iz’s employment contract. As noted previously, the jury awarded Dr. Iz $425,000.00 in damages for the breach of contract.

Thereafter, both parties filed post-trial motions. Appellee filed a motion seeking specific performance of her contract, and the University and the Officers collectively filed motions seeking judgment notwithstanding the verdict, remittitur, or a new trial. Those motions were denied on September 20,1996. Appellant filed a notice of appeal on October 18,1996.

Thereafter, appellee filed her cross-appeal, contesting the trial court’s denial of her motion for specific performance. We will include additional facts in our discussion. Discussion I. Appellant argues that the trial court erred in denying its motion for judgment as well as its motion for judgment notwithstanding the verdict. Essentially, appellant contends the following: (1) the trial court erred in failing to rule, as a matter of law, that collegiality is a factor that may be consid ¹⁴⁹ ered in promotion and tenure review even though it is not expressly included in the contract or in the University’s promotion and tenure policy; (2) there was insufficient evidence to support appellee’s claim that she was held to a higher standard because she sought early tenure review; and (3) there was insufficient evidence to support a finding that appellant violated the implied covenant of good faith and fair dealing.

When we review a trial court’s denial of a party’s motion for judgment in a jury trial, we conduct the same analysis as the trial court. Nationwide Mut. Fire Ins. Co. v. Tufts, 118 Md.App. 180, 189 , 702 A.2d 422 (1997), cert. denied, 349 Md. 104 , 707 A.2d 89 (1998); James v. General Motors Corp., 74 Md.App. 479, 484-85 , 538 A.2d 782 , cert. denied, 313 Md. 7 , 542 A.2d 844 (1988).

We consider all of the evidence, including the inferences reasonably and logically drawn therefrom, in a light most favorable to the non-moving party. Nationwide, 118 Md.App. at 189 , 702 A.2d 422 ; James, 74 Md.App. at 484, 538 A.2d 782 . If there is any evidence, no matter how slight, that is legally sufficient to generate a jury question, we may affirm the trial court’s denial of the motion. Nationwide, 118 Md.App. at 189 , 702 A.2d 422 ; Washington Metro.

Area Transit Auth. v. Reading, 109 Md.App. 89, 99 , 674 A.2d 44 (1996). “On the other hand, where the evidence is not such as to generate a jury question, i.e., permits but one conclusion, the question is one of law and the motion must be granted.” James, 74 Md.App. at 484 , 538 A.2d 782 . Likewise, when we review denial of a motion for judgment notwithstanding the verdict, we use the same standard as a motion for judgment made during trial. Nationwide, 118 Md.App. at 190 , 702 A.2d 422 ; Houston v. Safeway Stores, Inc., 109 Md.App. 177, 182-83 , 674 A.2d 87 (1996), rev’d on other grounds, 346 Md. 503 , 697 A.2d 851 (1997). Thus, we assume the truth of all credible evidence and all inferences of fact reasonably deducible from the evidence that supports the non-moving party’s position.

Nationwide, 118 Md.App. at 190-91 , 702 A.2d 422 . ¹⁵⁰ In its instructions to the jury, the trial court crystalized the parties’ respective arguments: [Dr. Iz] ... claims that her employer, the Defendant, University of Baltimore, violated her employment contract by evaluating her tenure and promotion application under criteria other than the criteria of research, teaching, and service set forth in the contract. Dr. Iz also claims that the University of Baltimore violated the implied covenant of good faith and fair dealing in her employment contract by knowingly denying her tenure and promotion.... * * * * ... I instruct you that a contract is an agreement between two or more parties creating rights or obligations. I instruct you that, as a matter of law, [Dr. Iz] has an employment contract with the University of Baltimore.

A contract contains promises that parties to the contract agree to be bound by. A promise is an expression by words that the person will perform or not perform certain acts in accordance with their promise. Contracts may also require interpretation. A contract is to be interpreted so as to give effect to the parties’ intention at the time the contract was made.

Usually, these intentions are shown by the words and terms used or not used in the contract. Words and terms are given their ordinary meaning unless that would cause an unreasonable result. Each sentence should be interpreted in view of the other sentences. Any ambiguities in the contract should be resolved against the person who drew the contract, in this case the University.

I instruct you as a matter of law that [Dr. l'z’s] employment contract with the University of Baltimore incorporated the tenure and promotion policies of the University of Maryland system, the University of Baltimore, and the Merrick School of Business. Dr. Iz claims that under her contract the University of Baltimore was required to judge her tenure and promotion application solely by the three explicit criteria of research, teaching, and service set forth in the tenure and promotion ¹⁵¹ policies. [Dr. Iz] also claims that the University was required to judge her application for early tenure on the same standards as those applied to all other applications. The Defendants claim that the concept of collegiality, as defined by the -witnesses, is included in the criteria of teaching, research, and services mentioned in the policies and thus is inherently a part of the contract. The Defendants also claim that no higher standard was used to review [Dr. Iz’s] tenure and promotion application than was used for all tenure and promotion candidates with similar qualifications.

You must, therefore, find for [Dr. Iz] on her breach of contract claim if you find that the tenure and promotion policies provide that criteria for tenure and promotion are research, teaching, and service only and that [Dr. Iz’s] tenure and promotion application was judged on criteria other than research, teaching and services. You must also find for [Dr. Iz] on the breach of contract claim if you find that the tenure application was judged by a higher standard because it was early and that the tenure and promotion policies do not provide that the standards to be applied are higher if the tenure application is early. If the plaintiff does not prove either that the University of Baltimore breached her employment contract by judging her application for ... tenure and promotion on a basis other than research, teaching, and service, or that the University of Baltimore breached her employment contract by judging her tenure application by a higher standard because it was early, then your verdict must be for the ... University of Baltimore, on this breach of contract claim.

I instruct you that there exists an implied covenant of good faith and fair dealing in the contract between [Dr. Iz] and her employer, the defendant University. That covenant required [Dr. Iz] and the University to act in good faith towards and deal fairly with each other in regard to their employment relationship. In this case, [Dr. Iz] claims that the University willfully breached the covenant of good faith and fair dealing by ¹⁵² knowingly denying her tenure and promotion on the basis of an unfair discriminatory evaluation process. Your verdict must be for [Dr. Iz] and against the University on her claim for breach of covenant of good faith and fair dealing if you find that the University of Baltimore unreasonably denied [Dr. Iz] her promotion and tenure and did so in bad faith.

If you find that the University acted reasonably in evaluating and denying [Dr. Iz] tenure and a promotion, then your verdict must be for the University on [Dr. Iz’s] claim of breach of covenant of good faith and fair dealing.

II

We recently discussed the term “tenure” in Johns Hopkins University v. Ritter, 114 Md.App. 77, 80-82 , 689 A.2d 91 (1996), cert. denied, 346 Md. 28 , 694 A.2d 950 (1997). There, Chief Judge Wilner, writing for the Court, said: [T]enure is a serious matter for both the college and the faculty____ ... It binds the college to a commitment of continuous employment, however poor the faculty member’s teaching, research, or administrative skills may become and however much controversy or embarrassment the faculty member may later bring upon the college because of his or her academic conduct or pronouncements. Perhaps for that reason, it is generally reserved for only the higher faculty ranks and is granted only after a multi-step process designed to assure that the applicant is academically, personally, and temperamentally qualified to be placed in that protected status.

It is noteworthy as well that the review process ordinarily involves persons other than those who recruited the faculty member, thereby assuring an objective and more detached examination of the candidate’s qualifications. Id. at 94-95, 689 A.2d 91 (citations omitted) (emphasis added). Moreover, tenure “denotes a commitment by the school, as a direct or implied part of its faculty employment agreement, that, upon a determination that the faculty mem ¹⁵³ ber has satisfied the conditions established by the school, the member’s employment will be continuous, subject to termination only for adequate cause.” Id. at 80-81 , 689 A.2d 91 ; see also Board of Community College Trustees v. Adams, 117 Md.App. 662, 702 , 701 A.2d 1113 , cert. denied, 347 Md. 681 , 702 A.2d 290 (1997). A tenured faculty member may be terminated for reasons not personal to the faculty member, however.

See, e.g., Adams, 117 Md.App. at 714 , 701 A.2d 1113 ; Krotkoff v. Goucher College, 585 F.2d 675, 679-80 (4th Cir.1978); see also Gardiner v. Tschechtelin, 765 F.Supp. 279 (D.Md.1991) (holding State violated neither Contracts Clause nor Due Process Clause of the United States Constitution when it took over financially troubled City College and abrogated tenure of faculty members). Tenure systems are based, to some extent, on the 1940 Statement of Principles and Interpretive Comments developed by the Association of American Colleges and the American Association of University Professors. Nevertheless, there is no uniform tenure system. Tenure may be afforded in many ways, including by law, by contract, or by academic code.

Ritter, 114 Md.App. at 82 , 689 A.2d 91 ; see generally Mayberry v. Dees, 663 F.2d 502 (4th Cir.1981) (explaining tenure, its origins, its effects on faculty members and universities, and the subjective nature of the process), cert. denied, 459 U.S. 830 , 103 S.Ct. 69 , 74 L.Ed.2d 69 (1982). In dicta, the Ritter Court recognized that the award of tenure involves a large degree of subjectivity that is somewhat tempered by the several layers of review involved in the process. In that case, we considered whether Hopkins had breached its contract with the appellees when it discharged them, notwithstanding an alleged promise to hire them as full professors. Hopkins defended on the grounds that (1) the employment contract did not include a commitment to full professorship; and (2) in the alternative, the person negotiating the contract had no authority to make such a promise.

The jury returned with a verdict in favor of the appellees and awarded damages of more than $800,000. We reversed on the ground that the employee who made the contract with the ¹⁵⁴ appellees did not have authority to do so. Ritter, 114 Md.App. at 98 , 689 A.2d 91 . As we have discovered through our own research, many cases decided by the courts of other states underscore the wide discretion inherent in the tenure process.

These cases also amply demonstrate the courts’ general reluctance to become ensnared in an academic institution’s decision with regard to tenure. In Stern v. University of Oklahoma Board of Regents, 841 P.2d 1168 (Okla.Ct.App.1992), the court reversed a grant of summary judgment in favor of a faculty member who alleged breach of contract and a constitutional claim after she was denied tenure. The handbook governing tenure criteria called for an evaluation of the candidate’s performance in teaching, service or creative achievement, professional service, and university service. The tenure committee recommended against tenure because the faculty member’s research was deficient.

The trial court concluded that the tenure committee’s independent evaluation of the faculty member’s scholarship did not adhere to the prescribed evaluation procedures in the handbook and thus constituted a breach of the faculty member’s contract and a violation of her due process rights. The appeals court held that the trial court erred in determining that a qualitative evaluation of the faculty member’s scholarship violated the policies set forth in the handbook on tenure. In reversing the trial court, the appeals court observed: Courts must take special care to preserve a university’s autonomy in making lawful tenure decisions when reviewing tenure cases. Because tenure decisions require subjective judgments regarding candidates’ qualifications and because of the long-term commitment a decision of tenure necessarily entails, courts should be wary of intruding into the world of university tenure decisions, absent discrimination or other unlawful action by the university.

Id. at 1172 (citation omitted). What the court said in Lovelace v. Southeastern Massachusetts University, 793 F.2d 419 (1st Cir.1986), is also noteworthy: ¹⁵⁵ [I]n view of the substantial commitment a university makes to an individual by granting him tenure, universities have a strong need for, and traditionally have enjoyed a wide discretion in, exercising what is largely a subjective judgment in deciding to whom to grant tenure. By specifying in uniting the usual criteria for promotion — teaching, scholarship, service — a university does not thereby set objective criteria, constricting its traditional discretion or transforming a largely judgmental decisional process into an automatic right to, or property interest in, tenure. Id. at 422 (emphasis added).

Similarly, the court in Baker v. Lafayette College, 350 Pa.Super. 68 , 504 A.2d 247 (1986), aff'd, 516 Pa. 291 , 532 A.2d 399 (1987), observed: The evaluation of the performance of a college professor and of his or her suitability to the educational needs, goals and philosophies of a particular institution necessarily involves many subjective, nonquantifiable factors. The assessment of these factors is best performed by those closely involved in the life of the institution, not by judges. It is with good reason that the College retains discretion not to reappoint nontenured faculty members. Even if the faculty member’s performance has been exemplary, measured by the most objective yardstick possible, the institution may wish to hire another person because, for example, an individual with superior qualifications has become available, or the institution decides that this particular faculty member does not mesh with the institution’s educational goals and philosophies, however excellent his work and distinguished his scholarship.

As a matter of sound public policy an institution of higher learning should be free to make such decisions. We believe that engrafting a right to judicial second-guessing of the soundness of personnel decisions made under contracts such as [appellant’s] would hamper this decision-making freedom. Id. 504 A.2d at 256-57 (emphasis added); see also Beitzell v. Jeffrey, 643 F.2d 870, 875 (1st Cir.1981) (“[T]he initial decision ¹⁵⁶ to grant tenure, like various other academic matters, typically calls for the exercise of subjective judgment, confidential deliberation, and personal knowledge of both the candidate and the university community.”); Shaw v. Board of Trustees, 549 F.2d 929, 932 (4th Cir.1976) (“[W]e will not second guess [school boards] on matters within their discretion that do not rise to the level of constitutional deprivations.”); Faro v. New York Univ., 502 F.2d 1229, 1231-32 (2d Cir.1974) (“Of all fields, which the federal courts should hesitate to invade and take over, education and faculty appointments at a University level are probably the least suited for federal court supervision.”); Erickson v. New York Law Sch., 585 F.Supp. 209, 212 (S.D.N.Y.1984) (same); Cherry v. Burnett, 444 F.Supp. 324, 332 (D.Md.1977) (“[I]t is not the function of a federal court to second-guess the decision of a school official on matters within his discretion which do not rise to the level of a constitutional deprivation.”); Henry v. Delaware Law Sch., 1998 WL 15897 , No. CIV.A. 8837, slip op. at 6 (Del. Ch.

Jan. 12, 1998) (noting reluctance of courts to become engaged in second-guessing an academic institution’s decision to deny tenure). In the case sub judice, the University of Baltimore follows the University of Maryland System’s Board of Regents’ policy on appointment, rank, and tenure. The trial judge determined, as a matter of law, that the tenure policies of the University of Maryland System, the University of Baltimore, and Merrick were incorporated into Dr. Iz’s employment contract. That determination has not been challenged on appeal by either party.

Accordingly, we shall briefly set forth the relevant portions of each of those tenure policies. The tenure and promotion policy of the University of Maryland System states, in pertinent part: 1. The criteria for tenure and promotion in the University of Maryland System are: (1) teaching effectiveness, including student advising; (2) research, scholarship, and, in appropriate areas, creative activities; and (3) relevant service to the community, profession, and institution. The relative weight of these criteria will be determined by the mission of the institution. ¹⁵⁷ 2.

Every institution shall have written procedures governing the promotion and tenure process. Following review for form and legal sufficiency by the Office of the Attorney General, these procedures must be submitted to the Chancellor for review and approval. These procedures shall include, at a minimum, the following: Criteria: A statement of criteria upon which reviews will be based, and guidelines for appointment or promotion to each academic rank, with recognition that institutional mission is the primary factor that defines these criteria. Procedures: A description of tenure and/or promotion review procedures, including participants, documentation, degree of confidentiality, schedule of the annual cycle for reviews, and authority for final approval.

Appeals: A statement of the right of faculty to appeal promotion and tenure decisions, the grounds for such appeals, and a description of appeal procedures. The University of Baltimore has three distinct promotion and tenure policies, one each for Merrick, the college of liberal arts, and the school of law. Each of these tenure and promotion policies is attached to the University of Baltimore’s Promotion and Tenure Policies and Procedures (the “University’s policy”). Although each school has its own tenure and promotion policy, the University’s policy provides for a single appeals procedure that is applicable to each of its schools.

It states, in pertinent part: When a faculty member is under review for tenure or promotion, the provost shall consider all prior recommendations, including the dean’s recommendation and all reports and recommendations on which the dean’s recommendation has been based. After arriving at his/her own recommendation, the provost shall forward this recommendation to the president, together with all materials on which it was based, and shall provide the candidate with a copy of the recommendation. ¹⁵⁸ If the provost’s recommendation is negative, the candidate shall have ten calendar days within which to appeal that recommendation by requesting the president to convene the University Faculty Appeals Committee---- * $ $ * Grounds for appeal shall be: 1. any error or default in procedure, when such error or default has had a prejudicial effect on the fair consideration of the candidate’s case for tenure or promotion; 2. any failure to give adequate consideration either to the candidate’s qualifications or to the relevant criteria for tenure, when such failure has had a prejudicial effect on the fair consideration of the candidate’s case for tenure or promotion; 3. a recommendation that is arbitrary, capricious, or not supported by factual data; 4. a recommendation significantly based on any consideration which violates academic freedom or which involves discrimination on the basis of race, gender, religion, national origin, age, physical handicap, marital status, or sexual or affectional preference; 5. a recommendation which violates an explicit written understanding concerning the criteria for tenure or promotion applicable to the candidate. In no case shall the University Faculty Appeals Committee substitute its judgment on the merits for the judgment of any divisional promotion and tenure committee. Merrick’s Policies and Procedures for Promotion and Tenure provide, in pertinent part: Preamble:- ...

The ideal faculty member is terminally qualified in his/her area of teaching, is an effective teacher at both the graduate and the undergraduate levels, is engaged in. scholarly activities of research and publication appropriate to the maintenance and enhancement of scholastic qualifications in his/her field, has professional ties to ¹⁵⁹ current business practice, and finally, discharges his/her obligations as a faculty member through responsible service on university committees or other such assignments. ^ $ IV. Criteria and Procedures for Tenure A. Criteria: While a recommendation for tenure signifies favorable recognition of a faculty member’s past accomplishments, it should be more importantly an expression of confidence in a candidate’s future contribution to his profession, his department, the School of Business, the university and the community. A forecast of future performance must be based on an evaluation of past performance in the required areas of competence as explained below. It must always be remembered that the granting of tenure is the most important decision made about a faculty member, since it is upon the tenured faculty that the future of the School of Business depends.

Specific factors to be considered in the evaluation of the candidate are: 1. Educational Preparation.... 2. Teaching Competency.... 3. Professional and Scholarly Activity.... 4.

University, Professional, and Community Service____ Merrick’s policy then refers back to the qualifications necessary for the ranks of Professor, Associate Professor, Assistant Professor, and Instructor. Here, as we noted, Dr. Iz sought tenure and promotion to the rank of Associate Professor. The qualifications for Associate Professor are, in pertinent part: 1. Educational Preparation — the earned doctorate in an appropriate discipline.... 2.

Teaching ¹⁶⁰ (a) seven years of full-time college teaching experience .... (b) excellence in instruction, as indicated by an examination of all relevant sources of information, including input from students, peers, and administrators. ijí # ❖ 3. Professional and Scholarly Activity — evidence of continued interest, involvement, and productivity in the area of specialization.... 4. University, Professional and Community Service (a) contributions to the university through faculty or administrative committee service, acceptance and fulfillment of special assignments from faculty organizations or the administration, and services rendered to student organizations as advisor or participant in programs.

(b) contributions to the broader community through the participation in and/or provision of services to local, regional, and national professional organizations---- (Emphasis added). Similarly, the criteria for promotion provide: Criteria — To be considered for promotion to any rank, the candidate must possess as a minimum the qualifications listed for that rank.... It should be noted that possession of the minimum qualifications for a rank does not guarantee promotion to that rank. (Emphasis added).

Nowhere in the above-quoted passages does it state that research, teaching, and service comprise an exclusive list of criteria by which to evaluate a candidate for tenure and promotion. In addition, as we noted earlier, the University of Maryland System’s tenure policy provides: “Final authority for the appointment, promotion, and granting of tenure of faculty resides in the chief executive officer of the institution.” Such authority is also provided by statute. See Educ. § 12-109(e)(4) (stating that the respective presidents