Arbitration in Cases of Dismissal

This report was approved for publication by the Council of the American Association of University Professors in June 1983.

In 1973, the Association’s Committee A on Academic Freedom and Tenure and the Commit­tee on Representation of Economic and Professional Interests approved publication in the AAUP Bulletin of a report which was addressed to the topic, “Arbitration of Faculty Grievances.”¹ That report, prepared by a joint subcommittee, was viewed by the committees as a first statement on the relationship of arbitration of faculty grievances to established Associa­tion policies. The present report amplifies on the development of arbitral practices in higher education, with particular emphasis on the question of arbitration of dismissal cases.² Consis­tent with the Association’s long­standing obligations to the profession to define sound aca­demic practice, this report was prepared after analysis of collective­ bargaining agreements reached by agents, AAUP and otherwise, and of the relationship of contractual provisions for dismissal to the 1940 Statement of Principles on Academic Freedom and Tenure, the 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings, and the 1966 Statement on Government of Colleges and Universities. It should be added parenthetically that arbitration of faculty status dis­putes is not limited to institutions with collective­ bargaining agreements. Members of the sub­committee were aware of one large public system and one large private university that do not have collective bargaining, but that do have faculty regulations that provide for arbitration of certain faculty status matters.

As was noted in the 1973 report, the Statement on Government of Colleges and Universities gives to the faculty primary responsibility for making decisions on faculty status and related matters. The Statement on Government asserts, “The governing board and president should, on questions of faculty status, as in other matters where the faculty has primary responsibility, concur with the faculty judgment except in rare instances and for compelling reasons which should be stated in detail.”

Any discussion of Association policy on dismissals should, of course, begin with the pro­visions of the 1940 Statement of Principles and the 1958 Statement on Procedural Standards. Both documents are joint policies of the AAUP and the Association of American Colleges (now the Association of American Colleges and Universities). The “Academic Tenure” section of the 1940 Statement includes a basic outline of the procedural steps necessary for review of the dis­missal for cause of a teacher previous to the expiration of a term appointment. The 1958 State­ment supplements the 1940 Statement by describing the academic due process that should be observed in dismissal proceedings. The Association has also provided a fuller codification of appropriate dismissal procedures in Regulations 5 and 6 of its Recommended Institutional Reg­ulations on Academic Freedom and Tenure.

Collective-­Bargaining Modification

Collective bargaining normally results in a formally negotiated contract governing terms and conditions of employment; the provisions of the collective agreement define the legal rights and duties of faculty, administrators, and trustees. Customarily, the collective agreement autho­rizes a neutral third party, an arbitrator, to resolve disputes which arise under it. In contrast to most litigation, negotiated arbitration clauses afford the administration and the faculty oppor­tunity to prescribe the procedures and standards that apply and, most important, jointly to select the decision maker.

It is appropriate to restate here the four factors that the 1973 subcommittee noted as essen­tial for the effective use of arbitration:

1. sound internal procedures preliminary to arbitration which enjoy the confidence of both faculty and administration;

2. careful definition of both arbitral subjects and standards to be applied by arbitration;

3. the selection of arbitrators knowledgeable in the ways of the academic world, aware of the institutional implications of their decisions, and, of course, sensitive to the meaning and critical value of academic freedom; and

4. the assurance that the hearing will include evidence relating to the standards and expec­tations of the teaching profession in higher education and that appropriate weight will be given to such evidence.

This subcommittee concludes that in cases of dismissal the faculty member may properly be given the right, following a proceeding in accordance with the 1958 Statement on Procedural Stan­dards and the Recommended Institutional Regulations, to appeal a negative decision to an arbitra­tor. The subcommittee believes that the 1958 Statement provides the most appropriate model for faculty dismissal proceedings. However, where alternatives are implemented, it urges that they should at least make provision for meaningful faculty participation in the dismissal process and for compliance with the requirements of academic due process in the formal dismissal hearing.

Essential Preliminary Faculty Participation

Before any formal procedures are invoked, the subcommittee believes that the essential faculty procedures preliminary to any contemplated dismissal, already set forth in Association policy statements,³ should be followed. The subcommittee is particularly disturbed by contractual dis­missal procedures that do not provide in any way for formal faculty participation in a media­tive effort prior to the formulation of dismissal charges. It is the subcommittee’s opinion that such participation is necessary both to resolve disputes short of formal proceedings and to advise the administration on the wisdom of further pursuit of a particular matter.

In the event that an administration, after receiving faculty advice, chooses to formulate charges for dismissal of a tenured member of an institution’s faculty or a non-tenured faculty member during the term of appointment, a hearing on the charges should be held, whether or not the faculty member exercises the right to participate in the hearing. A dismissal is not sim­ply a grievance which may not be pursued. A dismissal is a sanction of the highest order requir­ing a demonstration of cause regardless of the faculty member’s individual action or inaction in contesting the charge.

Arbitration Following a Faculty Hearing

It is common practice within the profession that, following a hearing before a faculty commit­tee, the hearing committee presents a report to the president who, in turn, either accepts the report or returns it to the committee with reasons for its rejection prior to transmittal of the report to the governing board. The governing board, in turn, has traditionally made the final decision after study of the recommendations presented to it. In the event that the board dis­agrees with the faculty committee’s recommendations, the board should remand the matter to the committee and provide an opportunity for reconsideration. This subcommittee recommends that, after the board’s ruling, a faculty member who has pursued these tradition­al procedures should be given the right to proceed to arbitration. If the collective-­bargaining agreement provides for arbitration of faculty status disputes, it would be anomalous to deny the right to arbitrate a dismissal, while lesser matters dealing with faculty status may be arbi­trated. More important, arbitration in this setting is not a substitute for unfettered trustee judg­ment, but for the courts; thus, it is not a question of whether institutional officers will be sub­ject to external review, but of what forum is best equipped to perform the task.

It is normally the collective-­bargaining representative’s responsibility to control access to arbitration. The subcommittee believes, however, that the issue of dismissal is of such magni­tude that an individual against whom dismissal charges have been sustained by the institu­tional review processes up to and including the institution’s board of trustees should have an unfettered right to seek arbitral review. Moreover, the nature of a dismissal charge against an individual is such, with each case standing on its own merits, that arbitration decisions in dis­missal cases should not be considered to have created precedent for other arbitrations dealing with dismissals.

Thus, the subcommittee recommends that, in cases where the collective-­bargaining repre­sentative decides not to appeal a dismissal to arbitration, the individual be given the right to seek arbitral review independently. In that event, the individual would be expected to bear those costs of the arbitration normally assumed by the collective­-bargaining representative.

As the 1973 subcommittee noted, it is of critical importance “. . . that in the agreement to arbi­trate any matter affecting faculty status, rights, and responsibilities, the judgment of the facul­ty as a professional body properly vested with the primary responsibility for such determina­tions be afforded a strong presumption in its favor.” This subcommittee agrees and according­ly recommends that, particularly on questions of academic fitness and the norms of the profes­sion, the arbitrator should give great weight to the findings and recommendations of the fac­ulty hearing committee.

The subcommittee recommends that the collective­-bargaining agreement not limit the scope of the issues that may come to an arbitrator in a dismissal case. The arbitration decision should, of course, be based on the record. The subcommittee recommends that the collective­-bargaining agent have the right to participate in the proceedings in order to inform the arbi­trator fully about the standards applicable to the case under review. The recommendation to permit the arbitrator to examine the procedures leading to the dismissal charges, the proce­dures for review of the charges, and the substance of the record developed in the hearings before the faculty committee as well as the arbitration is based on the expectation that the par­ties will select an arbitrator sensitive to the standards and practices of the local and national academic communities.

The procedures of the actual arbitration proceeding should be codified in advance and either spelled out in the collective-bargaining agreement or, if there is a known policy that would guide the proceeding, referred to in the agreement. One policy often referred to in agree­ments at private institutions is the Voluntary Labor Arbitration Rules of the American Arbitra­tion Association; agreements at public institutions often cite the arbitration rules of the agency that administers the state’s collective-bargaining statute.

Alternative Arbitration Procedures

The above proposal contemplates the addition of arbitration to procedures already required by the 1958 Statement on Procedural Standards and the Recommended Institutional Regulations. The proposal does no violence to the basic fabric of the 1940 Statement, for the basic dismissal deci­sion is arrived at with full due process within the local academic community. Arbitration mere­ly substitutes an expert neutral—jointly selected—for the judiciary in any subsequent contest over whether the decision was procedurally deficient or substantially in error under standards widely recognized in the academic world.

The subcommittee recognizes that, in the interest of expeditious adjudication of dismissal charges, some institutions in collective bargaining have devised alternative dismissal procedures. Such procedures range from direct arbitration of dismissal cases to modifications of the 1958 Statement procedures that incorporate arbitration as part of the formal hearing process, thereby obviating the need for an additional arbitration step upon completion of the internal institution­al process.

The subcommittee cannot embrace a position that abandons a model of the faculty as a pro­fessional body passing judgment upon its members. Thus, it must reject resort to arbitration as a permissible alternative to the 1958 Statement procedures unless certain additional require­ments are met. Alternative procedures, designed to comply with the spirit of the 1958 Statement, would have to be examined on a case­by­case basis. At a minimum, the subcommittee would expect such procedures to comply with the 1958 Statement on Procedural Standards in the fol­lowing respects:

1. There should be specific provision for faculty participation in a mediative effort prior to the formulation of dismissal charges.

2. There should be significant faculty representation on the hearing panel in a formal hear­ing of any charges.

3. The formal hearing procedures should comply with the requirements of academic due process as outlined in the Recommended Institutional Regulations.

Summary

In summary, the subcommittee has concluded that it is permissible to have the potential dis­missal of a faculty member subject to review by an outside arbitrator who may make a binding decision. Disputes concerning the dismissal of a faculty member from a tenured position or of a nontenured faculty member during the term of appointment require faculty participation in an effort to mediate the dispute and require a formal hearing.

Consistent with the 1958 Statement on Procedural Standards and the Recommended Institutional Regulations, we believe arbitral review may be appropriate after presidential and board review. Alternate procedures providing for arbitration at an earlier stage may be acceptable, provided they ensure faculty participation in a mediative effort prior to formulation of dismissal charges, significant faculty participation in a hearing of such charges, and adherence in the formal hear­ing to the procedural requirements of academic due process.

Notes

1. AAUP Bulletin 59 (1973): 163–67.

2. The comments on arbitration of dismissal cases are also applicable to those instances in which an administration seeks not to dismiss, but to impose a severe sanction; cf. Regulation 7a of the Association’s “Recommended Institutional Regulations on Academic Freedom and Tenure,” AAUP, Policy Documents and Reports, 10th ed. (Washington, D.C., 2006), 28.

3. See 1958 “Statement on Procedural Standards in Faculty Dismissal Proceedings,” Policy Documents and Reports, 12–15; and Regulation 5b of the “Recommended Institutional Regulations on Academic Freedom and Tenure,” ibid., 26.