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Legal Watch: A. Miller's Tale: Free-Agent Faculty
By Jonathan R. Alger
Harvard Law School’s Arthur Miller has long been one of the country’s most visible faculty members, having served as host of a public-television series and as a legal commentator on "Good Morning America." Miller recently made headlines of his own after videotaping a series of lectures for a civil procedure course at Concord University School of Law, an online institution. When Harvard officials objected, Miller pointed out that he and other colleagues had long been taping lectures for use elsewhere, as well as negotiating their own deals to publish books and articles. Why was this deal different?
The simple and cynical answer is that it’s all about money. Off-campus lectures and scholarly publications have rarely produced big revenues in the past, but the Internet is reshaping the educational landscape. Some analysts are already predicting a future in which faculty members will act as free agents, selling their services to the highest bidders and reaping huge royalties from teaching online courses.
But the controversy is about more than remuneration. Some campus officials wonder how their institutions will survive in the face of well-financed, technologically advanced competition in which their own faculty may be involved. For example, young billionaire Michael Saylor, who made a fortune by founding a company that sells software for electronic commerce, has donated $100 million to create an online university that he boasts will offer a free education of "Ivy-League quality" to anyone in the world. Under Saylor’s ambitious plan, faculty members from other colleges would not be paid to participate, but would, in his words, "fight to get into the studio" for the chance to teach millions of people and to leave a legacy for higher education.
From a legal and policy perspective, these visions of the future raise fundamental questions about the nature and extent of the ties that bind faculty members to universities. As Miller has asked, "How much of Arthur Miller does Harvard own?" Relying on academic tradition and principles of academic freedom, most institutions have not asserted ownership, control, or royalty rights with regard to ordinary faculty course materials. The advent of distance education, however, has caused many universities to reexamine their policies and to focus on the nature and extent of institutional resources used to produce such materials. Institutions also have legitimate concerns about how their names and reputations are being used and perceived in the educational marketplace.
Yet the Arthur Miller case is about more than intellectual property rights. Most institutions have conflict-of-commitment policies that set limits on faculty members’ outside professional activities. Such policies often specify the maximum amount of working time professors can commit to such endeavors, and prohibit activities that interfere with teaching and research responsibilities on campus. In the past, some enterprising and energetic faculty members have run into trouble for holding tenured positions at more than one institution—without either institution’s knowledge. But application of these general policies in the Internet era is not as straightforward. Why, for example, would the videotaping of a series of lectures for an online institution interfere with one’s teaching and research responsibilities, if giving a series of off-campus lectures would not?
Some colleges and universities have exacerbated tensions by entering into agreements with for-profit entities to produce online courses with little if any faculty consultation. Faculty at these institutions have raised questions about their role in making decisions regarding curricular matters, and about what will be expected of them when these deals are implemented.
Much litigation can be avoided if administrators and faculty members communicate about these issues up front and work together to develop sound policies that are flexible enough to adapt to a changing technological environment. While policies can set broad guidelines, written contracts will often be needed on a case-by-case basis to sort out the rights, responsibilities, and royalties associated with faculty participation in online educational ventures.
Arthur Miller’s question is provocative, yet the ties that bind faculty and their institutions are about more than ownership and money. Their mutual commitments give life to principles of academic freedom and shared governance that distinguish the marketplace of ideas that is higher education from the mere marketplace.
Jonathan Alger is former AAUP counsel.
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