By Ann D. Springer, AAUP Associate Counsel
February 2004
Introduction
A. There are legal issues embedded in a myriad of the daily responsibilities of college and university faculty. It is impossible, and inadvisable, to cover every possible issue, or every aspect of every issue. However, even a general awareness of some of the main legal concerns in different aspects of faculty life can be useful to faculty as the make decisions about how to approach different situations.
B. This outline touches on a number of disparate areas of legal interest, to give a sense of some issues that arise, the wide range of topics in which they occur, and some general suggestions on how constructively to approach them.
C. This outline covers:
1. Educational Malpractice
2. Indemnification of Faculty
3. Student Privacy Issues
4. Faculty Recruitment and Hiring
II. Educational Malpractice
The concept of "educational malpractice"—students' claims against an institution for failure to provide the process and/or substance they claim was promised to them as "customers" of the institution—has gotten significant publicity in recent years.
As higher education institutions act more like corporations, courts are more willing to see the policies and practices of institutions as "contracts" with the "customers" or "clients" (students) regarding the quality of the "product" (education). The more similar institutions are to corporations, the less courts will be willing to defer to the professional judgment of educators and the institutional autonomy of colleges and universities. See Donna R. Euben "Educational Malpractice: Faculty Beware?," Academe: Bulletin of the American Association of University Professors 102 (May/June 2003).
A. The "Contract"
1. Actionable promises to students can be imbedded in all kinds of documents, including those created both by the administration and by professors.
2. Courts have found promises or contracts to be included in documents such as: School catalogs, course catalogs, manuals, bulletins, handbooks, circulars, institutional regulations and policies, registration materials, degree requirements, and syllabi. See, Lerner v. Ravenswood Hospital Medical Center, 1999 WL 12677 (N.D. Ill. 1999); 1999 U.S. Dist. LEXIS 19804 (N.D. Ill. 1999); Coddington v. Adelphi University, 45 F.Supp. 2d 211 (E.D. N.Y. 1999); Govan v. Trustees of Boston Univ., 66 F.Supp. 2d 74 (D. Mass. 1999); Zumbrun v. Univ. of Southern California, 25 Cal. App. 3d 1 (1972); Mangla v. Brown University, 135 F.3d 80 (1st Cir. 1998).
3. Central to any litigation based on these documents will be the question of whether the document constitutes a binding contract. Such questions depend on state law, and differ from state to state. They also depend on the factual scenario of the individual case (whether disclaimers are included in the handbook or other document, how it has been presented and treated, etc.). See AAUP Legal Technical Assistance Guide, Faculty Handbooks as Enforceable Contracts: A State Guide (3rd ed. 2003).
4. Legal cases arise with factual situations that are not addressed in the handbook, when expectations for faculty or students are not well defined, or when procedures have not been followed. Some common issues of litigation are licensure and degree requirements, adherence to disciplinary procedures, and grade appeals processes.
5. Courts have generally been willing to defer to educational institutions, and are willing to grant significant flexibility to educators to make necessary academic decisions. However, this deference and flexibility depends somewhat on the type of contract claim being made.
B. Educational Quality
1. Courts have generally been willing to defer to educators on claims that courts see as challenging the quality of the education.
2. See, e.g.: Love v. Duke Univ., 776 F.Supp. 1070 (M.D.N.C. 1991) (in holding that a student would be held to the reduction of semesters allowed for passing a preliminary investigation, even though that reduction occurred after the student's initial admission to the university, the court stated that it "has neither the insight nor the expertise to make decisions concerning student termination, absent proof of intentional discrimination"); Alligood v. County of Erie, 749 N.Y.S.2d 349 (2002) (the court ruled that failure to provide adequate instruction and to teach biomedical technology program in accordance with printed syllabus did not state a cause of action under New York law, and the court noted that "claims concerning misrepresentation as to the quality or comparative quality of the education… provided… are …opinions which ought not to provide a basis for the imposition of liability."); Miller v. Loyola Univ. of New Orleans, 829 So. 2d 1057 (La.App. 2002), cert. denied, 839 So. 2d 38 (La. Mar. 14, 2003) (Student sued law school for educational malpractice because of a professor who failed to cover the full content of the course advertised and was found unsatisfactory and disciplined under handbook procedures. The court was "persuaded by the overwhelming weight of authority for other jurisdictions that, absent a specific, identifiable agreement for the provision of particular services, the public policy...militates against the recognition of a claim by a student against a private educational institution arising from the institution's alleged improper or inadequate instruction…[because, in part, such oversight]…implicated considerations of academic freedom and autonomy." The court also found course descriptions not to be a binding contract.)
C. Educational Process
1. Courts are somewhat more willing to find that students are entitled to the processes outlined in school documents, or to particular clear-cut contractual claims.
2. See, e.g.: Lerner v. Ravenswood Medical Center, 1999 U.S. Dist., LEXIS 19804 (N.D. Ill. 1999) (Student placed on probation and eventually expelled brought suit claiming that the institution had not followed conditions of dismissal set out in the student handbook. The court found that the student was entitled to the procedural protections. It also found that the institution had adhered to those procedures, which allowed dismissal of students for noncompliance with school polices or failure to meet expected professional behaviors.); Miller v. Loyola Univ. of New Orleans, 829 So. 2d 1057 (La.App. 2002), cert. denied, 839 So. 2d 38 (La. Mar. 14, 2003) (refusing to find a cause of action for "educational malpractice" based on inadequate instruction, but noting that an identifiable contractual promise like hours of instruction, or taking tuition money and then offering no instruction might support a breach of contract claim).
D. Faculty Role:
1. Litigation claiming inadequate education or failure to follow procedures is often based on the actions or statements of both faculty and administrators. Faculty work closely with students, and when students are unhappy, faculty may be first in the line of fire.
2. When such claims involve faculty performance of job responsibilities, including not only teaching, but advising and pedagogical and programmatical decisions, faculty are generally acting on behalf of the institution, and as such should be indemnified from such claims under institutional indemnification policies. (See Indemnification below).
Some suggestions:
a. Faculty should be aware of their institution's indemnification policy, and ask for clarification on any unclear points. Such polices vary by institution, by institutional status (private or public) and by state. Some are dependent on state law. See. e.g., Code of Virginia § 2.2-137; Virginia Community College System Policy Manual
<http://www.so.cc.va.us/Polcypdf/contents.pdf>.
b. Faculty need to be familiar with institutional policies and procedures on which they rely to advise students. Faculty called upon regularly to advise students may wish to ask for specific training on effective advising to increase their familiarity with policies, and resolve ambiguities that may exist within policies.
3. Faculty should also be aware of how their actions will be received, and can take a few precautions which may provide peace of mind without undue interference with their educational goals.
a. Choice of Language: When drafting course descriptions, syllabi and other documents, be aware of the way intentions are framed. Reflect that course content and discussion will be flexible to some extent, and try not to set expectations that can't be met. Language that infers judgment ("this course will examine/focus on/discuss/investigate") makes clear the intent of the course without making specific guarantees as to the exact extent of coverage or hours spent on a particular subject. On the other hand, language providing such guarantees ("this course will cover all American history from x to y", or "this course will prepare students for x licensing test") creates a sense of entitlement that may be problematic.
b. Disclaimers: Faculty may also want to label their syllabi as "preliminary" or "proposed", and may want to include language explaining that the timeframes/order of topics/specific readings/etc. discussed therein may change over the semester as necessary.
III. Indemnification Concerns of Faculty
A. The duty to defend and indemnify faculty by colleges and universities is grounded in a number of sources, including state laws, case law, and institutional policies. Such indemnification policies are often included in faculty handbooks. The policies themselves vary significantly, depending on the institution and the jurisdiction.
B. According to the AAUP,
There has been in recent years a steady growth in lawsuits filed against faculty members over the discharge of their professional responsibilities. Legal actions have been initiated by colleagues, by rejected applicants for faculty positions, by students, and by persons or entities outside the academic community. Litigation has concerned, among numerous issues, admissions standards, grading practices, denial of degrees, denial of reappointment, denial of tenure, dismissals, and allegations of defamation, slander, or personal injury flowing from a faculty member's participation in institutional decisions or from the substance of a faculty member's research and teaching. . . . Colleges and universities have a responsibility for ensuring legal representation and indemnification to members of their faculties who are subject to lawsuits stemming from their professional performance in institutional service or their conduct of research and teaching.
AAUP's Statement, Institutional Responsibility for Legal Demands on Faculty, AAUP Policy Documents & Reports 130 (2001 ed.)
C. For some legal purposes, faculty members may be agents of the institution when, for example, they are dealing with students enrolled in their courses. Department chairs are almost always considered institutional agents on a continuous basis.
D. As a general rule, institutional indemnification policies cover faculty for occurrences within their "scope of employment." For faculty members the question is, of course, what is considered outside the scope of employment?
1. Is a professor covered who is personally sued for defamation when reporting on her scholarly research, which involved alleged labor abuses by the nursing home chain Beverley Enterprises, at a town meeting convened by legislative leaders? Cornell University decided to defend and indemnify Kate Bronfenbrenner. According to Nelson E. Roth, General Counsel at Cornell University, "Fundamental to this decision was the conclusion that the School of Industrial and Labor Relations, where Bronfenbrenner is the Director of Labor Education Research, encourages such public participation by its faculty members as part of its educational and research missions, the school paid her expenses, her 'job description' included public outreach, and the dean felt strongly that the activity was within the scope of employment."
2. Is a consensual relationship "gone bad," where a student now alleges sexual harassment by his or her professor, outside the scope of employment? Courts have found sexual harassment to be outside the scope of employment. See, e.g., Farmers Ins. Group v. County of Santa Clara, 11 Cal. 4th 992 (1995); Oye v. Ohio State Univ., 2003 Ohio App. LEXIS 5271 (November 6, 2003). However, "sexual banter" may not be outside the scope of employment. See Jacobus v. Krambo Corp., 78 Cal. App. 4th 1096 (2000). Please note that some administrations are declining to indemnify faculty who fail to attend campus training programs on sexual harassment. See Mary Ann Connell, Ann H. Franke, and Barbara E. Lee, "Department Chair Online Resource Center: Agency and Indemnification" (ACE Department Chair Online Resource Center).
3. What about a teacher who is alleged to have lured a student to his apartment to pick up her class assignment and then rapes and kills her? Generally, such actions would certainly be considered outside the scope of employment. However, at least one court has ruled that criminal acts may be covered by a policy providing for defense and indemnification for conduct within the scope of duty. See, e.g., State v. McBrayer, 14 P.3d 43 (N.M. App.), cert. denied, 16 P.3d 442 (N.M. 2000). The court reasoned that the duty was returning homework and the criminal act was accomplished in connection with that duty.
4. What about a professor who is sued by a student in a grading dispute? In Chasin v. Montclair State University, 159 N.J. 418 (Sup. Ct. 1999), the N.J. Supreme Court ruled that the university was not required to pay the legal expenses of Barbara Chasin, a professor of sociology, who was sued by a student in a grading dispute under the state torts act. The court reasoned that the state had no duty to indemnify the professor because she had ignored earlier legal advice from the state's attorney general.
5. What about a professor whose federal grant program is being investigated by the federal government? In Buchwald v. University of Minnesota, 573 N.W.2d 723 (Minn. App. 1998), a professor appealed the university's decision to deny his request for indemnification in a federal government investigation. The court noted that the indemnification policy clearly provided for the president to determine coverage, and that the president's decision to decline providing such protection to the professor was not arbitrary because the professor failed to cooperate in the investigation, including by failing to provide itemized time records.
E. AAUP's Statement, Institutional Responsibility for Legal Demands on Faculty, provides:
The Association recommends that colleges and universities adopt a comprehensive general policy on legal representation and indemnification for members of their faculties. The policy should ensure effective legal and other necessary representation and full indemnification in the first instance for any faculty member named or included in lawsuits or other extra-institutional legal proceedings arising from an act or omission in the discharge of institutional or related professional duties or in the defense of academic freedom at the institution. It should also include specific provisions as follows:
1. The policy should include all stages of such legal action, threatened or pending, in a judicial or administrative proceeding, and all aspects of the use of compulsory process whether or not the faculty member is a party in the proceeding.
2. The policy should ensure effective legal representation of the faculty member's interests, whether by the institution's regular counsel or by specially retained counsel, with due attention to potential conflicts of interest.
3. The policy should be applicable whether or not the institution is also named or included in the legal action, though the institution might consider joining in the action as a party if it has not been named.
4. The policy should provide for all legal expenses, for all other direct costs, and for court judgments and settlements.
5. The policy may provide for legal representation and indemnification through insurance.
6. The policy may provide for a faculty committee to make recommendations on the application of the policy to extraordinary circumstances not foreseen at the time of promulgating the policy of general application.
F. Some Suggestions for Faculty
1. Be familiar with your institutional policies on indemnification. See, e.g., Code of Virginia
§ 2.2-137; Virginia Community College System Policy Manual
<http://www.so.cc.va.us/Polcypdf/contents.pdf>.
2. Request that institutional counsel brief relevant faculty bodies on the policy and issues of which to be aware.
3. Professional liability insurance is available for faculty who want it. (See, e.g., AAUP sponsored insurance options. Faculty should consider whether the actual risk of such actions, and of the institution's possible refusal to indemnify, justifies the cost of the insurance.
IV. Student Privacy Issues
A. FERPA
Student privacy has always been a hot-button issue in academe, and faculty are often on the front lines of this debate. See Ann Springer "Do Students Have a Right to Privacy?," Academe: Bulletin of the American Association of University Professors 70 (Sept/Oct 2001).
1. The Family Education Rights and Privacy Act of 1974 (FERPA) 20 U.S.C. § 1232g <http://www4.law.cornell.edu/uscode/20/1232g.html>, and the regulations implementing it, 34 C.F.R. § 99.1 et seq. <http://www.gpoaccess.gov/ecfr/> provide that identifiable information from student education records cannot generally be released to any third party without the consent of the student.
a. An institution's release of such information jeopardizes its federal funding, including student financial aid.
b. FERPA applies to schools that receive funds through the U.S. Department of Education, and thus most higher education institutions, public and private, are covered by FERPA.
2. FERPA holds that:
a. "No funds shall be made available under any applicable program to any …institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information … of students without the written consent of [the student]". Thus educational records may be disclosed with the consent of the student, if the disclosure meets one of the statutory exemptions, or if the disclosure is directory information and the student has not placed a hold on release of directory information.
i. Educational records are records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational … institution or by a person acting for such...institution. 20 U.S.C. § 1232g(a)(4)(A)(i)&(ii).
ii. Directory information, which can be disclosed, includes "the student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student." 20 U.S.C. § 1232g(a)(5)(A).
b. FERPA also provides that students have a right of access to their records (but not necessarily the right to a copy of the record) and a right to request the correction of records that are inaccurate or misleading. If the school denies this request for correction of a record, the student may request a hearing.
3. Enforcement of FERPA
a. FERPA is designed around funding. It holds that schools that fail to comply with provisions of FERPA are no longer eligible for certain federal funds. Thus, while schools must comply or risk losing valuable federal funds, FERPA is not an independent criminal or civil law requiring compliance as a matter of law.
b. Note that FERPA requires a "policy or practice" of non conformity. Generally this has been interpreted to mean a widespread practice or official policy, not the occasional isolated lapse.
c. A recent Supreme Court case held that there is no private right of action under FERPA, which means that . . .
Gonzaga University v. Doe, 536 U.S. 273 (2002). The only issue on appeal to the Supreme Court in this case was whether FERPA grants a private right of action that can be enforced through 42 U.S.C. § 1983. The Court ruled that no individual right of action exists under FERPA, which means that a student or parent aggrieved by the disclosure of personal records cannot use FERPA to bring a lawsuit. The Court held as follows: FERPA's nondisclosure provisions contain no rights-creating language, they have an aggregate, not individual, focus, and they serve primarily to direct the Secretary of Education's distribution of public funds to educational institutions. They therefore create no rights enforceable under §1983.
d. Thus while students can file written complaints with the Family Policy Compliance Office of the U.S. Department of Education, and the Department of Education can investigate, demand compliance, and even terminate eligibility for funding, faculty and administrations now have less need to worry about lawsuits resulting from the occasional release of student records.
B. FERPA and the PATRIOT Act:
1. Congress recently amended FERPA in the U.S.A. Patriot Act. Those amendments make it easier for lawyers in the U.S. Attorney General's office to obtain court orders to access educational records relevant to an investigation or prosecution of terrorism.
2. Once presented with such a court order, institutions must disclose the requested information. The amendments provide that the institution does not need to seek consent from the parent or student, or maintain a record of that disclosure.
3. The FERPA amendments also provide immunity for institutions that make disclosures in responses to these court orders. For a general overview of the recent FERPA amendments under the U.S.A. Patriot Act, see "Recent Amendments to Family Educational Rights and Privacy Act Relating to Anti-Terrorism Activities" (U.S. Department of Education Apr. 12, 2002)
<www.ed.gov/policy/gen/guid/fpco/pdf/htterrorism.pdf>, and see AAUP Government Relations Department information on the Patriot Act.
4. Subpoenas or Other Demands for Student Information:
a. Third-party requests for information on students should be directed to the administrative or legal counsel offices of an institution, although under the new Patriot Act regulations, it is possible that there will be increased requests made directly to faculty.
b. Faculty should not attempt to respond to subpoenas or other law enforcement requests without consulting with the institution's counsel's office.
c. Certain Patriot Act provisions restrict those who receive such subpoenas from disclosing the receipt of such requests to the target of the investigation or to others. However, this restriction does not restrict faculty from notifying university counsel. Faculty should alert institutional counsel if ever they receive law enforcement requests for confidential student information. See AAUP Committee on Government Relations Information for Faculty Who Receive Law Enforcement Inquiries Under the USA Patriot Act.
C. Privacy Issues for Faculty
1. Day to Day Interactions:
a. Exceptions for "legitimate educational interest": FERPA contains an exception for school officials, including teachers, "within the educational institution or local educational agency, who have been determined by such agency or institution to have legitimate educational interests." Thus programmatic discussions, discussions of how best to advise or guide a particular student, discussions of the particular success or failure of a particular class or program of study, etc. are all likely covered by the "educational interest" exception.
b. Policies: Institutions must give students annual notice of their rights under this law, and most institutions accomplish this by having in place a student record policy. Faculty should be familiar with their institutions' policy and practice. See, e.g., the Catholic University of America policy at http://studentlife.cua.edu/handbook/content/studentrecords.cfm.
c. Email and other communication: Digital records like email are covered by FERPA. Thus faculty should be aware of information they put into email, and be careful not to inadvertently release grade or other private educational information through email.
2. Grades:
a. Status: There is legal debate about when exactly a grade becomes an educational record "maintained" by the institution. Regardless of this debate, the basic issue for faculty is the same: be careful about disclosing student grades. Faculty should not post grades by name or social security number, or other easily identifiable characteristics.
b. Recent Case: A recent case challenged the practice of students grading each others papers. The U.S. Supreme Court found that students trading papers to grade each other's work in elementary school was not a violation of FERPA. See Owasso Independent School District v. Falvo, 534 U.S. 426 (2002). The parent of a grade-school age student sued the school district, claiming that the peer grading method embarrassed her child. The Court ruled that because the grades were not recorded in the teacher's grade book, they were not "maintained" by the institution, as required by FERPA. The Court noted that peer grading is a legitimate pedagogical tool that allows students to learn from the grading process. At the same time, however, the Court declined to rule on whether a grade book itself is protected as an educational record.
3. Letters of Recommendation: Letters of recommendation are regularly requested by students, and it is often difficult to give an accurate and complete recommendation without discussing a student's educational record and achievements.
a. Faculty should obtain written consent from the student for the release of education data in letters of recommendation.
b. One option to avoid getting consent is to give the letter to the student, and have the student him or herself release the letter, thus absolving the faculty member of responsibility for release of information. Obviously, however, this solution may be neither practical nor advisable in many situations.
V. Faculty Recruitment Legal Issues
A. There are several sources of law and policy applicable to colleges and universities. Some laws apply to all institutions, others to public institutions only. Those involved in the recruitment process need to be aware of many legal issues and best practices to recruit the best qualified and most diverse faculty.
1. Federal Constitution: The federal Constitution was designed to limit the exercise of government power only, and therefore it does not limit private employers, such as private colleges, from infringing on professors' constitutional freedoms, such as freedom of speech and due process. (These rights can be protected, however, through contracts between professors and their institutions, as discussed below.)
2. Federal Laws: The inapplicability of constitutional protections does not leave professors unprotected at private higher education institutions. Private (and public) colleges must comply with many federal laws, such as federal anti-discrimination law (Title VII of the Civil Rights Act). If the private institution receives federal funds, it must comply with additional federal laws, such as Title IX (sex discrimination).
3. State Laws: Public and private colleges are also covered by state laws. So, for example, state anti-discrimination and contract laws apply to private higher education institutions. And so, a faculty handbook, which delineates due process and academic freedom rights, may be a source of important contractual (as opposed to federal constitutional) protections for professors at colleges. See AAUP Legal Technical Assistance Guide, Faculty Handbooks as Enforceable Contracts: A State Guide (3rd ed. 2003).
4. State Constitutions: Some state constitutions provide protections not only to public but also to private college professors. For example, the California Constitution protects the free speech of public and private employees, including professors at public and private institutions.
5. Institutional Policies: There are several internal sources of law of which to be aware: institutional rules and regulations; letters of appointment; academic custom and usage; and, where applicable, collective bargaining agreements.
B. Some Specific Discrimination Laws
1. There are a number of, at times overlapping, federal discrimination laws that apply to higher education institutions. The rationale underlying these laws is that characteristics such as race, gender or age are irrelevant for appointment decisions, including hiring and promotion. The application of discrimination laws to the higher education context is complex because colleges are not typical workplaces. For example, it is often difficult for a professor alleging discrimination to establish different treatment than "similar" faculty members. Is an art history professor "similar" to a studio art professor? Or, for example, who is responsible for the alleged discriminatory conduct, where faculty peers play a primary role in recommending candidates for hiring, promotion and tenure? The Department? The Department Chair? The P&T Committee? The Dean? The Board of Trustees.
Here is a brief overview of some of the anti-discrimination laws that apply to most private higher education institutions:
a. The 14th Amendment to the Constitution provides that "[n]o State shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws."
i. This constitutional provision, and the standards the courts have developed to implement it, applies only to public institutions. However, some courts have stated that this standard is the same as the standard to be applied under Title VI, which would mean that the constitutional standard is applied to virtually all institutions, public and private.
ii. Under the 14th Amendment, consideration of race or national origin in hiring or promotion decisions is subject to "strict scrutiny," which requires that policies be "narrowly tailored" to achieve a "compelling government interest."
(a) One major area of debate is what constitutes a "compelling interest." Compelling interests recognized under the law have included remedying the present effects of past discrimination and the attainment of a diverse student body to further the "robust exchange of ideas" on campus. (See Justice Powell's opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978); Grutter v. Bollinger, 123 S. Ct. 2325 (2003), Gratz v. Bollinger, 123 S. Ct. 2411 (2003)).
b. Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, prohibits race and national origin discrimination by recipients of federal financial assistance. Because most colleges and universities accept federal financial aid and other federal money, this applies to most institutions. (For the regulations issued by the Department of Education implementing Title VI, see 34 C.F.R. Part 100.) Some courts have found that the standards for analysis of Title VI are the same as those under the 14th Amendment to the Constitution.
c. Title VII of the Civil Rights Act of 1964, 42 U.S.C. ' 2000e et seq., makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." This federal statute applies to faculty members and other employees of colleges and universities, private and public.
d. Title IX of the Education Amendments: Title IX prohibits sex discrimination in education programs and activities by public and private educational institutions that receive federal funds.
e. Salary Discrimination and the Equal Pay Act: Both the Equal Pay Act (EPA) and Title VII prohibit sex discrimination in compensation. The critical issues are, usually, whether the jobs are "equal" or "substantially similar," and whether an exception applies to allow a salary differential, such as a "differential based on any other factor other than sex."
f. The Americans with Disabilities Act: The ADA prohibits discrimination against individuals with disabilities. Individuals are "qualified" for the position, with or without a reasonable accommodation, if they can perform the essential functions of the position. If a professor, at hiring or during an appointment, is a "qualified individual with a disability," the college must provide a reasonable accommodation unless the accommodation presents an "undue hardship" for the college. There is also The Rehabilitation Act of 1973, the precursor to the ADA which applies to public institutions.
g. The Age Discrimination in Employment Act: The ADEA prohibits age discrimination with respect to persons who are at least 40 years old. In 1986 the law was amended so that, as of January 1, 1994, mandatory retirement for faculty, whether tenured or not, is unlawful.
h. State Laws: Individual state laws vary by state. Some mirror the federal laws, others provide greater protections. State laws may also present different timelines, restrictions or other seemingly minor but important differences in applicability and eligibility. It is a good idea to be familiar with the individual variances of your particular state law. See, e.g. Virginia Human Rights Act, Virginia Code Section 2.1-714 et. seq. (applies to public and private colleges, prohibits discrimination based on age, race, marital status, color, sex, national origin, religion or disability; also prohibits discrimination based on pregnancy, childbirth, and related medical conditions); Civil Rights Act, Iowa Code Section 216.1: (applies to public and private colleges, prohibits discrimination based on age, race, creed, color, sex, national origin, religion or disability; also prohibits discrimination based on pregnancy, childbirth, and related medical conditions).
C. Contractual Issues
1. Faculty members almost always have a contract or letter of appointment. Those contracts or letters are enforceable under state law. Sometimes those letters of appointment also "incorporate by reference" the institution's faculty handbook.
2. In many states faculty handbooks can also be enforced as part of that employment contract. The issue is whether a faculty handbook—which includes policies, rules, and procedures under which professors work--also establishes a contractual relationship between a professor and the institution. The issue usually arises in the context of a breach-of-contract claim, and the question is whether the faculty handbook is part of the employment contract between the professor and the institution. See AAUP Legal Technical Assistance Guide, Faculty Handbooks as Enforceable Contracts: A State Guide (3rd ed. 2003).
3. Some Virginia Cases:
a. Tuomala v. Regent University, 477 S.E.2d 501 (Va. 1996). Three professors signed "three-year continuing contracts" for "tenured faculty appointment[s]," the terms of which were defined in the faculty handbook, and the college later modified that handbook to provide that professors receiving appointments under continuing contracts were entitled to annual "new contract[s]," rather than renewal of existing contracts. In the end, the professors were entitled to three years of employment under initial contracts and, after the expiration of three-year contracts, they were entitled to one-year contracts only, under the revised and controlling faculty handbook.
b. Sabet v. Eastern Virginia Medical Authority, 775 F.2d 1266 (4th Cir. 1985). A professor believed that a university offered "permanent tenure" as per AAUP policy. This belief, based on the widespread adoption of AAUP policies and the fact that the university had always renewed contracts in the past, was not justified, the court ruled, when the faculty handbook stated that the university had no such tenure policy.
c. Siu v. Johnson, 748 F.2d 238 (4th Cir. 1984). Where standards for tenure in the faculty handbook were formally adopted by the board of visitors, which had sole authority to grant tenure, the standards were presumed by the court to be part of a nontenured professor's contract. Although the handbook stated that faculty recommendations for tenure should be followed barring some "compelling reason," the faculty member's constitutional due-process rights were not violated when the administration denied tenure in spite of faculty recommendations and did not state a compelling reason for doing so. The administration's decision was based on the perceived lack of scholarly potential, a constitutionally permissible factor.
4. Such laws reinforce the importance of faculty participation in governance, including working with the administration on revisions to faculty handbooks.
D. The Search Process
The search process involves policy and legal considerations by faculty and administrators. AAUP's The Ethics of Recruitment and Faculty Appointments delineates some of the key standards of the professorate in faculty search efforts "with the expectation that they will provide a foundation for appropriate practices." REDBOOK at 141. In so doing, the AAUP Statement emphasizes the need for a clear vacancy announcement that is widely distributed to all potential candidates with "at least thirty days from the first appearance of the announcement to submit their applications." Remember that efforts to expand the pool of potential candidates are legal; quotas in hiring are not.
There are many good practices and legal approaches that faculty and administrators can and should implement to run legal, effective searches and diversify the faculty.
1. Recruiting/Outreach: Courts have found race conscious recruiting acceptable under all of the different standards. Taking steps to increase the pool of qualified applicants increases chances for diverse candidates, and exposes the institution to a broader pool of talent. See, e.g., Duffy v. Wolle, 123 F.3d 1026 (8th Cir. 1997), cert. denied, 523 U.S. 1137 (1998); Hill v. Ross, 183 F.3d 586 (7th Cir. 1999).
a. Advertise Widely: Draft a list of professional publications and media outlets for purposes of broad outreach. In addition to traditional outlets and your own formal (disciplinary, professional associations) and informal networks, advertise in journals and periodicals that make special efforts to reach minority faculty and graduate students. Vacancy announcements can also be sent to faculty members or graduate students at minority-serving institutions, organizations that work on minority issues, components within organizations such as minority caucuses in national scholarly associations, and personal contacts in the field who are likely to know promising graduate students or other potential applicants. Consult with the college's affirmative action office, and colleagues for further ideas about attracting a diverse pool of candidates.
i. Designate a deadline either by postmark or receipt of materials, or indicate date on which screening will begin.
ii. Don't forget electronic advertising: Post new positions on disciplinary electronic discussion lists, seeking out such lists likely to be subscribed to by minority faculty and graduate students (for example: MELUS-NewsNotes-list, Native-L, AFAMHED [higher education], H-LatAm [Latin American History], etc.). Examine the Web sites of departments at likely colleges and universities including those that have historically enrolled minority students.
b. Position Description:
i. Identify minimum and optimum academic degree and experience. Realistically reflect the full range of skills and knowledge needed. Criteria for consideration can include factors like demonstrated ability to work with diverse students and colleagues, or experience with a variety of teaching methods or curricular perspectives.
ii. Rigid criteria that are not absolutely necessary for the position should be avoided, because they might exclude promising candidates from less traditional backgrounds who could make substantial contributions to the institution if given the opportunity. In addition, tying the description closely to the real range of skills needed is a strong argument against claims that race or sex was impermissibly considered in hiring.
iii. Think about possibilities for interdepartmental/interdisciplinary work, which could broaden the potential applicant pool.
iv. Consult with campus office charged with enforcing non-discrimination/ affirmative action provisions. Decide what materials—cover letter, vita, list of references—are necessary for a complete application.
2. Appointing and Training the Search Committee:
a. Search committees are often the weak link in discrimination lawsuits. It is unfair and unrealistic to expect faculty committees to understand the nuances of the issues and legal restraints in this area without information about the schools policies and support from the administration. Even well meaning people often misunderstand affirmative action and can unwittingly say or do things that cause candidates to feel they are being discriminated against or misrepresent the position or the institution's commitment to diversity.
b. Briefing search committees ahead of time is a benefit to the committee and to the institution. Committees should receive guidance about reaching out to the complete pool of qualified applicants, subtle forms of discrimination that can creep into the process, ways to evaluate candidates in a way that values diversity, and what they should and shouldn't say and promise. They should also receive materials about institutional commitment to diversity and its educational benefits. Training possibilities for a search committee include meeting with the college's affirmative action officer or other campus advisor, or developing clear, written guidelines for searches. See The Affirmative Action Office, Penn State, Getting Results: Affirmative Action Guidelines for Searches to Achieve Diversity (1997) (hereafter Getting Results).
c. Choose search committees wisely: faculty members who are active researchers and attendees at professional conferences are more likely than others to have encountered the most promising faculty in their area of study. Often committees tend to choose candidates who are like themselves and meet their personal definitions of "merit." Make an effort to have a diverse search committee.
d. Pay attention to whether candidates' graduate schools are ranked, and if so, how minority serving institutions and programs fare in that ranking. Make sure that the ranking of minority institutions accurately reflects the strength of their programs and the advantages they offer, and does not reflect any prejudice or discrimination.
3. Screening the Candidates' Dossiers:
Draft fair and objective criteria for review of each applicant's materials. Prepare candidate evaluation forms with job-related reasons used to evaluate the candidates' qualifications based on application material. Avoid allowing any individual Search Committee member to eliminate any candidate; seek the judgment of as many Search Committee members as possible about each candidate. Recommend interviews for those who meet the advertised minimum qualifications only. Provide full analysis of the most qualified female and minority candidates, and draft clear job-related assessments for them if they are not recommended for campus interviews. Be aware of how historically black colleges and universities (HBCUs) and other minority-serving institutions fare in graduate school rankings. Such institutions are major sources of graduate students in a variety of fields.
4. Interviewing the Candidates:
a Process: Draft fair and objective interview questions for each interviewer to cover in each interview. Draft candidate evaluation forms with job-related reasons used to evaluate the candidates. Review each candidate's skills and abilities for strengths and weaknesses. Avoid allowing any individual Search Committee member to eliminate any candidate; obtain the judgments of as many Search Committee members as possible about each candidate. Try to have the entire Search Committee review and discuss the candidacy of all candidates.
b. Permissible and Impermissible Questions: Professors on search committees often want to ask certain questions to a potential candidate, but feel uncertain about the legality of doing so. Accordingly, they may avoid a questionable topic altogether, thereby losing some potentially pertinent information that might respond to a concern. There are ways to ask questions to gather important information and to avoid legal violations. It is important to ask questions that are job-related to avoid unlawful discrimination. See Ann D. Springer, "Ask and Ye Shall Receive: The Legal Way to Win the Recruitment Battle." 2002. PS: Political Science and Politics 35(4):756. For example, if the Search Committee is concerned about the availability of potential candidates to teach evening and weekend courses, ask all candidates the question about whether they are available to teach evening and weekend courses, not just women who may have children or be of child-bearing age, or men wearing yarmulkes. Id.
c. Resources: Getting Results 6-8; Rice University Human Resources, How to Hire Handbook: Permissible Interview and Pre-Employment Questions (October 1997); Project on the Status and Education of Women, Association of American Colleges, It's All in What You Ask: Questions for Search Committees to Use (February 1988); Office of General Counsel, The Catholic University of America, Employment: Interview Guidelines (January 1998); College and University Personnel Association, "Do's and Don'ts for Interviewers," ADA: Compliance Manual for Higher Education: A Guide to Title I 81-86 (1992); Bureau of National Affairs (BNA), "EEOC Explains Legal Boundaries of Job Questions under ADA"; and BNA, "Interviewing Job Applicants with Disabilities."
5. Pitfalls:
a. Avoid Oral Promises: Communicate job offers in writing.
Kulm v. Montana State University-Bozeman, 948 P.2d 243 (Mont. 1997): A professor responded to an ad in The Chronicle of Higher Education for a position at MSU for up to 5 years. He accepted a verbal offer, made a 2-year commitment, resigned from his position at Texas A&M, and moved his family to Montana. After one year he was not renewed for reasons unrelated to his performance. Professor Kulm sued for fraud, negligent misrepresentation, and breach of the duty of good faith and fair dealing. The Montana Supreme Court ruled that the state's Wrongful Discharge from Employment Act barred the professor's claims.
b. Check References: It is important to check the references of final candidates. Draft questions to check each candidate's references, and follow them. An increasing amount of litigation involves misrepresentation of credentials in the academic world. This can be a source of public embarrassment, professional disappointment, as well as, at times, legal liability.
6. Retention:
a. Mentoring: Increase formal and informal efforts to reach out to new hires, integrate them into the social and professional life of the department and the university community, and provide them guidance on research, teaching, and the tenure and promotion process. Ways to integrate new faculty members into the department include visiting classes; discussing classroom behavior, syllabi, and handouts; discussing departmental quirks, norms and expectations; and offering to review and advise on tenure documents.
b. Criteria for promotion and tenure: Make sure that there aren't subtle discriminations built into the criteria for promotion.
i. Areas of study: Are all areas of study weighted equally? Are ethnic studies treated differently or undervalued in some way?
ii. Service commitment: Be sure that minority faculty members receive credit for the various ways in which they provide service to the university through service on committees, mentoring and tutoring students, etc. Remember that minority faculty members often have demands placed upon them that differ from the expectations placed upon white faculty members.
iii. Student Evaluations: Where issues of gender, race, and ethnicity are explicitly raised in classes, be aware of potential student reactions and prejudices when considering the weight to assign to student course evaluations. See, AAUP, Statement on Teaching Evaluation, REDBOOK at 162.