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Harsay v. University of Kansas

Supreme Court of Kansas

November 21, 2018

Edina Harsay, Appellant,
v.
University of Kansas, Appellee.

         SYLLABUS

         1. 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.

         2. On 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. 77-621(c)(7).

         Review of the judgment of the Court of Appeals in an unpublished opinion filed July 29, 2016.

          Appeal from Douglas District Court; Robert W. Fairchild, judge.

          Edina Harsay, appellant, was on the briefs pro se.

          Sara 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.

          OPINION

          BEIER, J.

         After 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.

         A panel 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.

         We hold 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.

         Factual and Procedural Background Harsay was hired for a tenure-track position on the faculty of the University in January 2004.

         The University's Promotion and Tenure Process

         The 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.

         The 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 Kansas law.

         According 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."

         Harsay's Dossier

         Harsay's 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.

         Harsay 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 publication.

         As 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.

         The 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.

         Department Level

         The 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.

         In its 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.

         The department's recommendation was forwarded to the College Committee on Appointments, Promotions, and Tenure (the College Committee).

         College of Liberal Arts and Sciences Level

         The 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.

         Cohen 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 ...


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