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Legal Watch: Family Matters
By Donna Euben
We've come a long way, baby: in 1876, a Minnesota court explained that women did not need access to a legal education because they were involved in caring for children, and today women make up more than half of all incoming law students. Nevertheless, we in academia continue to struggle with supporting faculty members in integrating work responsibilities and family life.
In 2003, the U.S. Supreme Court ruled that states are not immune under the Eleventh Amendment from suits by individuals, including professors at state universities and colleges, for monetary damages under the "family leave" provisions of the Family and Medical Leave Act (FMLA) of 1993. The FMLA enables parents—women and men—to take up to twelve weeks of unpaid family leave for the care of children, spouses, or parents with serious health conditions. The Court described Congress's enactment of the FMLA as "narrowly targeted at the fault line between work and family—[which is] precisely where sex-based overgeneralization has been and remains strongest." The Court further reasoned that "notions that mothers are insufficiently devoted to work, and that work and motherhood are incompatible" constitute gender discrimination.
Similarly, in 2003 a federal appellate court held that the use of motherhood stereotypes of female employees is gender discrimination under the Equal Protection Clause of the U.S. Constitution. Elana Back, a school psychologist at a New York elementary school, was denied tenure at the end of her three year probationary period. The school alleged that the denial was based on her organizational and interpersonal skills, but Back asserted that her denial was based on her supervisors' assumption that she could not be devoted to her position while being a mother of young children. The lower court ruled in favor of the school, but the federal appellate court vacated that decision, remanding the case for further consideration. The appellate court opined: "It takes no special training to discern stereotyping in the view that a woman cannot 'be a good mother' and have a job that requires long hours, or in the statement that a mother who received tenure 'would not show the same level of commitment [she] had shown because [she] had little ones at home.'" The court concluded that a jury could find that Back was stereotyped "as a woman and mother of young children," and thus the school treated her "differently than they would have treated a man and father of young children."
Such legal challenges also arise in the academy. In 2000, it was reported that the University of Oregon tentatively settled for $495,000 a lawsuit by Lisa Arkin, an assistant professor of dance. She had filed a sex discrimination suit in federal court, claiming she had been denied tenure because she stopped her tenure clock twice to raise two children. According to court documents, her department chair allegedly wrote to Arkin that she "knew as a mother of two infants [that] she had responsibilities that were incompatible with those of a full-time academician."
In 2004, a federal appellate court rejected the tenure denial suit of Karin Meiners, a German literature professor, in a case that indirectly involved extending the tenure clock for caregiving responsibilities. The University of Kansas had granted Meiners's requests for two extensions of her tenure clock in 1994 and 1997. Meiners argued that the two extensions should have extended her tenure review by two semesters only, not two years and that, therefore, she was automatically entitled to tenure. The administration contended, however, that Meiners had never disputed the length of the leaves until it denied "her tenure based on merit." The lower court ruled in favor of the administration, and the federal appellate court affirmed, finding that the administration extended Meiners's "tenure clock in an effort to accommodate a young professor struggling to produce a record of scholarly research worthy of tenure while raising a child and coping with the tragedy of her husband's death." The court expressed its reluctance "to adopt an interpretation of the University's contract and policies that would curtail its flexibility to accommodate the personal problems of its faculty and to create an incentive to deny all requests for extensions of the probationary period."
While the court correctly supported institutional policies allowing faculty to stop the tenure clock, caregiving responsibilities are not, as the court asserted, "personal problems." Only by establishing formal policies, such as active service with modified duties, extension of the tenure clock, and family care and disability leave policies beyond minimal legal requirements as recommended in the AAUP's Statement of Principles on Family Responsibilities and Academic Work, and building on them to create a climate supportive of family responsibilities, can we start making manageable the balance between academic work and family responsibilities.
Donna Euben is AAUP counsel.
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