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Legal Remedies for Contingent Faculty
Contracts, Faculty Handbooks, State and Federal Laws, and the U.S. Constitution Each Offer Some Possibilites.
By Nicolas Manicone
Education has become “big business,” and the task of operating the university enterprise has been transferred from the faculty to an autonomous administration, which faces the same pressures to cut costs and increase efficiencies that confront any large industrial organization.
—Justice William Brennan, writing for the dissent in NLRB v. Yeshiva University (1980)
Almost thirty years ago, Justice William Brennan saw clearly that American higher education was coming under the same pressures to “cut costs and increase efficiencies” to which market forces were subjecting businesses. Since Justice Brennan’s observation, employers generally have sought to maximize their “flexibility” by creating a contingent workforce to which they owe few, if any, long-term obligations. Like workers in many other occupations, faculty appointments are increasingly contingent and part time. By 2005, the latest year for which Department of Education data are available, 48 percent of faculty members were part time and 20 percent were full time nontenure track, while only 32 percent were full time tenured or tenure track. This fundamental restructuring of the personnel relationship has meant that the faculty has lost not only job security but also many of the common incidentals of full-time employment: health and retirement benefits, paid sick leave, and the protections of the Family and Medical Leave Act, as well as other benefits. Many contingent faculty members ask whether they can use legal theories to claim benefits that they feel have been unfairly denied them. This article focuses on some of the avenues to use in asserting a right to such benefits and provides suggestions for determining the locus of rights to which the contingent faculty member may be entitled.
Contracts and Faculty Handbook
The first place to look is to an individual contract or letter of appointment. Such contracts are particularly important for those at private colleges and universities, who frequently have fewer statutory or constitutional protections than those at state institutions. Employment contracts typically specify compensation, benefits (if any), classes to be taught, and start and end dates and refer to more detailed employment policies contained in a faculty handbook or policy statement. Each of these terms, if included, may be enforceable by law. Because a contract or letter of appointment may provide a faculty member with the clearest and most easily enforceable articulation of his or her employment rights, it is important to read these documents carefully—if necessary, with help from an attorney experienced with faculty employment—to ensure that your employer is providing you with everything your contract or letter guarantees.
A faculty handbook may also be an important source of legally enforceable rights—even, in some cases, when the handbook explicitly disclaims its own enforceability. A majority of state courts have held that contractual terms can at times be implied from faculty handbooks. So, for example, in Howard University v. Best (1984), one court found that a faculty handbook commitment to give adequate notice of nonrenewal was enforceable, and other courts have noted that an employment handbook can, under proper circumstances, convert an at-will relationship into one bound by contractual terms (for example, Ferraro v. Koelsch [1985]). Other, less formal statements of policy, such as assurances made in casual conversation, may also be enforceable, depending upon the state.
Various factors may affect whether a faculty handbook is enforceable as a contract, including the favorability of state courts to claims by employees and the specific language of the handbook, so it is impossible to state a general rule that would apply to all faculty handbooks in every situation. The AAUP guidebook Faculty Handbooks as Enforceable Contracts reviews, on a state-by-state basis, every state’s law regarding the enforceability of faculty handbooks. (Purchase it here.)
State Laws and Regulations
In its 2002 final legislative report, the Washington State legislature noted that “the practice of providing less generous compensation to some contingent workers is sometimes justified on the basis that the employer should provide more generous compensation to persons who perform full-time services, or have performed services for a longer period of time. In some cases, however, public employers use labels to justify providing different levels of benefits to employees who have rendered identical levels of service, for identical periods of time, for the employer.” As the legislature recognized, contingent faculty are sometimes treated differently—and unfairly—even when they provide services to the university or academic community that are identical to those of their tenure-track or tenured colleagues. State statutes or regulations may be a source of rights for both private and state employees, and state law may protect employees against various forms of discrimination and provide access to paid leave or other benefits.
At least two states offer specific protections for part-time faculty members. California’s education code provides that a part-time faculty employee will generally be assigned to work no more than three-quarters of the days that his or her college is conducting classes. However, if a state university or college assigns a “part-time regular employee” to work more than part time for two consecutive academic years, then the state must reclassify that faculty member as a “full-time regular employee,” with attendant benefits.
Washington State’s regulatory code allows part-time faculty to apply for health-care coverage through the state employee health-care program at their own expense “beginning with the second consecutive quarter/semester of half-time or more employment at one or more state institutions of higher education.” The regulations recognize that many faculty members can be employed long term as part-time employees; they therefore also make “career seasonal/instructional employees,” who work half time or more during a nine-month school year or on a seasonal basis, eligible to receive employer contributions for health insurance “during the off-season following each period of seasonal employment.”
A good place to look for state statutes and regulations is the state attorney general’s Web site. The Graduate School of Library and Information Science at the University of Illinois at Urbana- Champaign also maintains a useful site linking to a wealth of legal information from all fifty states (www.prairienet.org/~scruffy/f.htm). In addition, Cornell University Law School maintains a helpful site with links to each state’s education statutes (http://topics.law.cornell.edu/wex/state_statutes3).
Constitutional Claims
The Fourteenth Amendment to the U.S. Constitution decrees that “no State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Under this amendment, if an employee of a public college or university can establish a “property right” to state employment— which can be demonstrated, in the case of contingent employees, by a lengthy term of employment and a reasonable expectation of continued employment—then the university must go through a reasonable process before terminating the faculty member’s services.
Indeed, the U.S. Supreme Court has recognized that a faculty member may have a property right in his or her position even without a formal contract or tenure rights, based upon the circumstances of employment. In Perry v. Sindermann (1972), the Court held in accordance with the AAUP’s amicus brief that a “teacher . . . who has held his position for a number of years, might be able to show from the circumstances of this service— and from other relevant facts—that he has a legitimate claim of entitlement to job tenure.” Although a potential property interest would not automatically entitle a faculty member to continued employment, it could at least “obligate college officials to grant a hearing at his request, where he could be informed of the grounds for his nonretention and challenge their sufficiency.” An instructor may even have a reasonable expectation of continuing employment after he or she has worked a number of short-term contracts; in Lucas v. Chapman (1970), a court found that “long employment . . . [through] renewals of short-term contracts” was sufficient to constitute a “protectable interest” in continued employment. Courts have also found that faculty members may develop a “liberty” interest in retaining their employment, even when they do not have a formal contract or handbook guarantee of process. A faculty member’s liberty interest could be affected where a discharge is accompanied by damage to reputation in the community, as when a faculty member is discharged as a result of allegations of impropriety that the affected individual does not have the ability to confront in a hearing. This was the case, for example, in Wellner v. Minnesota State Junior College (1973).
Unfortunately, it is extremely difficult for a faculty member to win a case based on constitutional claims, given the relative narrowness of the due process rights afforded to state employees under the Constitution.
Civil Rights Legislation
Contingent faculty may also wish to consider whether their situation implicates the federal Civil Rights Act of 1964 or the Equal Pay Act of 1963. Title VII of the Civil Rights Act prohibits discrimination by employers, including private employers, on the basis of race, color, religion, sex, or national origin. The Equal Pay Act prohibits compensating male and female employees differently for the same work and, importantly, does not require a plaintiff to prove that the employer intended to discriminate by gender. If a university established employment practices whereby women or protected minorities were more likely to be channeled into contingent, lesser paid positions, then affected faculty members could conceivably invoke Title VII or Equal Pay Act claims.
Claims of pervasive discrimination can, however, be very difficult to prove. For example, in Ottaviani v. SUNY–New Paltz (1989), a group of female tenure-track and tenured faculty brought suit under Title VII against the State University of New York at New Paltz for discriminating against them on the basis of their sex. Employing an argument that is paralleled in the experience of many contingent faculty, the female faculty members alleged that the university had initially placed them in lower academic ranks relative to their male colleagues, delayed their promotions, and paid them less salary throughout their employment. The faculty members were required to show that “unlawful discrimination was a regular procedure or policy followed by the University,” which they attempted to do through statistical analysis and anecdotal evidence demonstrating that males were assigned to higher ranks, promoted more quickly, and generally paid more. Even though the female professors were able to produce a number of studies that showed significant deviation from what should have been the norm in the absence of discrimination, they were ultimately unable to convince the trial court judge that the university systematically discriminated against women.
Nonetheless, it is possible to prevail in discrimination cases. In Lavin-McEleney v. Marist College (2001), a female professor was able to demonstrate that the college failed to promote her to full professor, as it did similarly situated male colleagues, and that it consistently awarded her less pay for performing work similar to that of male colleagues. Statistical analysis, conducted by both sides, demonstrated that there were undoubtedly differences in the pay levels of male and female faculty generally. The college claimed that the differences were caused “by chance,” while the professor argued that “gender difference could reliably predict [the] salary discrepancy.” Ultimately, a jury found that the college had violated the Equal Pay Act and awarded the professor back pay, attorneys’ fees, and other economic compensation. Although this case involved a full-time professor, a similar strategy could be used by a contingent faculty member or a class of such members in similar circumstances.
Conclusion
The problems facing contingent faculty will not be easy to remedy, but several paths may be available for faculty members attempting to level the playing field. New or existing legislation can establish the grounds for fair treatment of contingent faculty at public institutions. Finally, enforcement of civil rights laws or constitutional claims, particularly by classes of contingent faculty, can be another route to rectify imbalances.
Note
This article does not discuss enforcement of rights found in collective bargaining agreements, which can be a strong means of securing individuals’ rights in an employment relationship. A faculty member who is covered by a collective bargaining agreement and believes that the administration is violating its terms might be able to file a grievance to secure his or her rights; obviously, the faculty member should speak to a steward or association representative about the means for doing so, which vary from contract to contract.
Nicolas Manicone is associate counsel at the AAUP.
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