SUNY Fredonia's denial of promotion to conservative philosophy professor Stephen Kershnar has grabbed the higher education scandal headlines this week--but Kershnar's is not the only such case unfolding right now. There are intriguingly parallel developments at the University of Kansas:

A judge has denied Kansas University's request for dismissal of a lawsuit by a professor who says he didn't get tenure because his colleagues disliked his Republican politics.

KU attorneys argued that Jeffrey Olafsen's suit, filed early this year in District Court, should be thrown out because it wasn't filed on time.

They argued that when Olafsen received a letter in March 2005 denying him tenure, it was a "final agency action" and that he had only 30 days in which to file a lawsuit.

But Olafsen argued KU's final action didn't come until late 2005, when he lost his appeal to a campuswide tenure committee. He filed the suit shortly afterward.

In a ruling this week, Judge Jack Murphy agreed with Olafsen. He wrote that just because KU called the March 2005 letter a final action "does not necessarily make it so."

Olafsen, an assistant professor of physics and astronomy, claims while his tenure was being considered, the department head suggested Olafsen was to blame for research funding cuts because of his support for President Bush. No trial date has been set.

There isn't much information available about Olafsen's case, but that's to be expected, given the confidential nature of both tenure review and lawsuits. But this one will be worth watching.

If Olafson's claims are true, that would be horrendous discrimination based on political affiliation. I'm not competent to judge his c.v., but it doesn't seem obviously weak from a research standpoint (i.e., it has more than a few publications, and he has two NSF grants as PI, an equipment grant and a SGER, which means that a program officer thought some funding was a worthwhile investment even though the priority score wasn't low enough for automatic funding of an earlier proposal).

In many ways, this might be a harder argument than Kershnar's case because there's no record of departmental support and no obviously smoking gun (in the public record, at least). It also depends on the specifics of state law—to what extent does the state constitution or statute protect speech and political activity, and to what extent is a tenure denial a potentially worse action than a denial of promotion to full?

I don't believe KU faculty are unionized (though there's a non-bargaining AAUP chapter, I think), but Fredonia faculty are. Interestingly, the UUP-SUNY contract provision on nondiscrimination does not mention political affiliation (which our contract at USF, based on the old statewide agreement, does have). There is the standard bit about extramural utterances, though, which should imply basic professional protections for whatever Kershnar, though I'm not sure what the proper remedy would be. (It looks like there's the standard clause that an arbitrator cannot grant tenure ["permanent appointment"], and my guess is that past practice is that an arbitrator cannot grant a promotion, either.) And I don't even know if Kershnar has talked to UUP reps.

Forgetting the merits of the case for a second, but it astounds me that the university's general counsel is really so mind-bogglingly stupid as to try to get the suit dismissed as untimely. In every context I've ever heard of, an action, or a sentence, or a judgment, or the equivalent, does not become final until all direct avenues of appeal are exhausted, either because all appeals have been denied or because the deadline for giving notice of appeal has passed. To be stupid enough to not know that strikes me as legal malpractice; OTOH, to know and proceed against such knowledge anyway would be sanctionable as filing a frivolous claim, and potentially a breach of ethics subjecting an attorney to professional discipline by the bar. Perhaps the Kansas courts play fast and loose with such things; I really don't know.