LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — August 3, 2004, Page 4

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Question:

I have learned from several CUS colleagues and from some inquiries I have had that some
CUS schools do not offer “continuing level” appointments to their faculty (often called
“tenure”). They only offer roll-over contracts (that theoretically could end without cause at
some point in time, making them initial level appointments according to the definition in the
Handbook). Is this a violation of Bylaw 3.7.1.7.2 (former Bylaws 6.21 and 6.25)? The reason
I ask is because two items in the bylaw seem to require all CUS schools as well as the
seminaries to offer continuing level appointments to their faculties:
1. The bylaw states that “there shall be two levels of appointments” and that one
will be continuing level (which can only be terminated for cause).
2. The bylaw states under point (b) that normally at least 35% of a faculty’s fulltime members shall serve at the continuing appointment level.
So—is not offering continuing level appointments a violation of the bylaw or do CUS schools
have the option of offering only roll-over contracts?

Opinion: Bylaw 3.7.1.7.2 (former Bylaw 6.21 a) clearly establishes two levels of faculty appointments:
“Each educational institution shall have established policies and procedures related to appointments.
There shall be two levels of faculty appointments:
1. Initial level, where the appointment can be terminated with no formal requirement for a show of
cause.
2. Continuing level, where termination requires a formal show of cause.”
The bylaw clearly requires that there be two levels of faculty appointments, an initial-level and a
continuing-level. For a Board of Regents of an educational institution to offer no continuing level
appointments to its faculty as a whole would be a violation of this bylaw.
Paragraphs (b) and (c) of Bylaw 3.7.1.7.2 (former Bylaw 6.25) also state, “Each educational institution of
the Synod normally shall have at least thrity-five percent of its full-time faculty serving at the continuing
appointment level….Each institution shall require specific action by the Board of Regents for promotion
from an initial-level appointment to a continuing-level appointment.” While a specific promotion from the
initial-level to the continuing-level is not required, continuing-level appointments are required, although
the “at least thirty-five percent” requirement is qualified by the word “normally.”
In the promotion from an initial-level appointment to a continuing-level appointment, the specific action
of the Board of Regents of a CUS school is based on specific standards or qualifications and specific
steps. If a faculty member is not promoted to the continuing-level, the individual may continue at the
initial-level or be terminated (Bylaw 3.7.1.7.2 (d) and (e); former Bylaw 6.25 a and b). A Board of
Regents is not required to promote a faculty member to a continuing-level appointment. However, a
faculty member may petition the Board of Regents to do so (Bylaw 3.7.1.7.2 (e) (1); former Bylaw 6.25 b
1).
The Bylaws do not use the term “roll-over contract.” The referenced bylaw does state, “Any continuation
of employment at the initial-level appointment shall be on a year-to-year basis.” And further, the bylaw
also states: “Other types of faculty appointments may be established by institutions as the need arises.”
290. Standard Operating Procedures Manuals (04-2404)
The 2004 convention, with the adoption of Res. 8-01A, “To Amend Bylaws on Ecclesiastical Supervision
and Dispute Resolution,” included the following bylaw responsibilities for the Commission on
Constitutional Matters:

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