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Legal Watch: Contingent Faculty and the Courts
By Donna R. Euben
More colleges and universities are relying on contingent faculty—that is, faculty in part- or full-time non-tenure-track positions—to teach. As the number of such faculty grows, so does the amount of litigation on related issues.
Not only does the joint 1940 Statement of Principles on Academic Freedom and Tenure recognize that "teachers," whether tenured or not, "are entitled to freedom in the classroom in discussing their subject," but so have the courts. In 2001, a federal appellate court ruled that administrators at Jefferson Community College in Louisville, Kentucky, violated the First Amendment academic freedom of Kenneth Hardy, an adjunct communications professor. An African American student and a civil rights leader complained to the administration about "offensive" language that Hardy used in a class in which students were asked to examine how language "is used to marginalize minorities and other oppressed groups in society." The discussion included as examples such terms as "bitch," "faggot," and "nigger." After the complaints were made, Hardy was not reappointed because, according to an administrator, no classes existed for him to teach. Yet before the controversy, the administration had informed Hardy that he was assigned to teach three classes that fall.
Hardy sued, arguing that the college had violated his academic freedom, and won. The court found the topic of the class—"race, gender, and power conflicts in our society"—to be a matter of public concern. It held that "a teacher's in-class speech deserves constitutional protection," and that "[r]easonable school officials should have known that such speech, when it is germane to the classroom subject matter and advances an academic message, is protected by the First Amendment." Perhaps what is most significant about this case is what is not written: the First Amendment right of academic freedom applies to all faculty at public institutions—on the tenure track or not. (The U.S. Supreme Court declined to review the case.)
Some legal cases arise because of informal, often well meaning, statements by tenured faculty or administrators that seem to promise a newly created tenure-track position to a contingent instructor. In 2001, Annemarie Daniel, a communications professor, left a tenure-track position elsewhere to be a full-time, non-tenure-track visiting professor at the University of Cincinnati. She was told that the next year the visiting position would "convert to a permanent tenure-track line." The permanent position opened, and Daniel applied, along with twenty-seven others. She was not selected for an interview, and another candidate was ultimately appointed. Daniel sued, alleging that she had relied on the promise that she would be considered for the permanent position. She testified that she had received "unofficial assurances" that she would get the permanent position, including a colleague's comment that "the department had a good record of retaining visiting assistant professors in tenure-track positions."
The state trial court rejected Daniel's contract claim, ruling that, as Daniel conceded, the university had not guaranteed that the position would "automatically be awarded" to her. The court emphasized that she signed a contract for a one-year, non-tenure-track position. Moreover, despite what departmental colleagues may have implied, only the board of trustees had the authority to approve employment contracts.
Contingent faculty, especially those with part-time appointments, also struggle for compensation and benefits that more accurately reflect their contributions. In 2003, the Washington State supreme court ruled that the state health care authority improperly found two part-time professors ineligible to receive employer contributions for health care during the summer quarter. The court reasoned that the authority failed to engage in an "individualized approach" based on the adjuncts' "actual work circumstances." Accordingly, the court found that the instructors, who had taught on a "half-time or more basis" for numerous quarters, were "seasonal" employees under state law. (One of the instructors, Eva Mader, had taught German three out of four quarters for twenty-one years.) As such, the qualified adjuncts were eligible for employer insurance contributions during the summer, even though they did not sign contracts or work during that quarter.
In 2002, in another case involving Mader and the state of Washington, the parties settled class action litigation for $12 million after the state trial court ruled that nonclassroom hours should count toward part-time faculty's eligibility for retirement benefits.
Contingent faculty should not be treated as wanderers in the academic promised land. Clear understandings about appointment terms should be reflected in contracts between contingent faculty and the institution, including any promises about possible permanent positions. In addition, compensation and benefits should more accurately reflect their contributions to the academy and, of course, their academic freedom should be protected.
Donna Euben is AAUP counsel.
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