K.S.A. 60-518 is applicable to save a Kansas Judicial Review
Act action challenging a university promotion and tenure
denial, if the action is refiled within six months of
dismissal for lack of prosecution.
the record in this case, a university's decision to deny
promotion and tenure was supported by evidence "based on
a determination of fact, made or implied by the agency"
that was "supported to the appropriate standard of proof
by evidence that is substantial when viewed in light of the
record as a whole," as required by K.S.A. 2017 Supp.
of the judgment of the Court of Appeals in an unpublished
opinion filed July 29, 2016.
from Douglas District Court; Robert W. Fairchild, judge.
Harsay, appellant, was on the briefs pro se.
L. Trower, associate general counsel and special assistant
attorney general, and Michael C. Leitch, associate general
counsel and special assistant attorney general, were on the
briefs for appellee.
being denied promotion and tenure at the University of
Kansas, Edina Harsay brought this action under the Kansas
Judicial Review Act. The district judge dismissed the action
for lack of prosecution. Harsay then refiled within six
months, relying on K.S.A. 60-518, the savings statute, to
make her action timely.
of our Court of Appeals reversed the dismissal, ordering
remand to the University to begin the promotion and tenure
consideration process anew. The University has successfully
petitioned for our review of whether K.S.A. 60-518 should
have been applied, and, if so, whether the University's
decision to deny Harsay promotion and tenure should be upheld
because it was supported by substantial evidence.
K.S.A. 60-518 applied to make Harsay's refiled KJRA
action timely; but, because the University's decision was
supported by substantial evidence under K.S.A. 2017 Supp.
77-621(c)(7), that decision must stand.
and Procedural Background Harsay was hired for a tenure-track
position on the faculty of the University in January 2004.
University's Promotion and Tenure Process
University's multilayered review process for tenure
culminates in the granting or the denial of promotion and
tenure. Denial leads to termination of employment. Each level
of review is independent of the others; no reviewing level is
bound by the decision of any other; and each level must base
its decision on the applicant's scholarship, teaching,
and service to the University.
process ends with the chancellor's decision. According to
the University's rules, the chancellor must consider the
entire record before him or her in making the decision. The
chancellor's decision is a final agency action under
to the University, scholarship is an essential aspect of the
applicant's record and the tenure review process.
Applicants seeking tenure must demonstrate
"accomplishment reflecting a sustainable program of
scholarly activity," and review of this area must be
done "in light of the expectations of the
discipline." Scholarship review covers both the quantity
and quality of the applicant's work. It also includes
evaluation of the work by peers in the applicant's field
from outside the University, as well as evaluation of the
applicant's reputation in his or her field. An
applicant's "teaching (or professional performance),
scholarship, and service are characterized as
'excellent,' 'very good,' 'good,'
'marginal,' or 'poor.'" An applicant for
tenure must receive at least a rating of
"'good'" in all three categories
"[a]bsent exceptional circumstances."
tenure review began in 2009 in her Department of Molecular
Biosciences, to which Harsay submitted a promotion and tenure
"dossier." The dossier included information about
her pertinent scholarship and grants as well as external
reviews from peers in her field.
reported her scholarship as one published article in a
scientific journal in 2007; one paper accepted and being
prepared for publication, which was published later in 2009;
and one manuscript being considered for acceptance for
grants, Harsay reported four grants from the National
Institutes of Health (NIH) and one grant from the American
Heart Association, totaling slightly more than $600, 000.
Harsay also included one pending grant from the NIH, one
pending grant from the National Science Foundation (NSF), and
one pending grant from the Department of Defense, totaling
nearly $3.6 million. Harsay included proposals for eight more
grants submitted to various organizations but not funded at
the time of her application for tenure.
peers in Harsay's field whose remarks were included in
the dossier varied in their opinions regarding her promotion
and tenure. Three reviewers recommended Harsay for tenure;
three recommended tenure but expressed serious reservations;
one refused to endorse her. All reviewers mentioned
insufficiency of scholarship. At least one reviewer commented
that a low publication rate like Harsay's could make it
difficult to maintain funding for her work.
review at the department level of the University resulted in
a recommendation for Harsay to receive promotion to associate
professor and tenure. The vote was 11 to 6.
recommendation letter to the College of Liberal Arts and
Sciences committee that would conduct the next level of
review, the department review committee noted Harsay's
relatively low number of published papers and said that
"[t]he question of quantity versus quality was also at
the center of the department's discussion." A review
by the full department noted that the external reviewers
"expressed concerns about her level of
productivity." But Harsay "had moderate to good
success at obtaining extramural support for her
research" and had grants pending or received.
department's recommendation was forwarded to the College
Committee on Appointments, Promotions, and Tenure (the
of Liberal Arts and Sciences Level
College Committee initially concluded that Harsay did not
qualify for promotion and tenure and notified the chair of
Harsay's department, Robert S. Cohen, by letter. The
College Committee made "this decision . . . largely
based on research productivity." It requested additional
information on Harsay's scholarship and research
proposals so that it could make a final recommendation to the
body responsible for the next level of review, the University
Committee on Promotion and Tenure (the University Committee).
The College Committee's letter to Cohen stated that
Harsay was to be provided a copy of the letter and an
opportunity to respond to its preliminary conclusion.
responded to the College Committee's request for more
information. He told the College Committee that since Harsay
submitted the dossier she had successfully published another
paper (bringing her total to two) and the third paper
mentioned in the dossier, i.e., the "submitted
manuscript," had been rejected by a publisher. Cohen
also informed the College Committee that two of the three
grants listed as pending in ...