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VOLUME 15, ISSUE 4
Snapshots
News/RESOURCES
A university creates a
customized MBA program
for a local business;
Coursera teams up with the
State Department to offer
courses worldwide; and
more. Page 2
WHAT WOULD YOU DO?
Consider the potential
impacts of long-term cuts
in federal grants for science
research. Page 8
LAWSUITS & RULINGS
FACULTY: A reasonable accommodation for an
employee does not have to
be the accommodation the
employee requests. Page 9
ACADEMIC AFFAIRS:
Changing graduation requirements did not violate
students’ rights. Page 10
DISMISSAL: A dismissed medical student’s
claim was filed too late to be
considered. Page 11
DISABILITY: Review
a roundup of recent court
cases. Page 11
2013 Winner
Specialized Information
Publishers Association Awards
Best Instructional Reporting
DECEMBER 2013
Cover Story
Review the top 10 legal issues
you should be concerned about
Lawsuits are time consuming, expensive and distracting. Plus,
they generate negative publicity for your institution. That’s true
even if they have little merit.
Check out
Barbara A. Lee explains the top issues
legal resource
campus leaders need to worry about.
Get more informaShe’s a practicing attorney and a profestion
about the latest
sor at Rutgers, the State University of
version of The Law of
New Jersey.
Higher Education. See
She’s also the co-author of The Law of page 5.
Higher Education, 5th edition, published
by Jossey-Bass, A Wiley Brand.
Consider why some issues are so important to faculty members and students that they often result in litigation. And review
steps you need to take to address those common concerns before they result in lawsuits. Effective policies and procedures
can help you reduce some of the time and expense that legal
action demands. Full story, see pages 4–5.
Highlights
Create a better environment on your campus
As an administrator, you can build a campus climate that supports faculty members.
Daniel L. Kain explains how to avoid the type of environment that encourages professors
to act like desert toads.
Page 3
Know what search committees want in business deans
If you aspire to be a business dean, do you know what search committees are
looking for? Steve Williams and Cynthia Popa analyzed job postings to discover what
qualifications are most sought after.
Pages 6–7
Learn what it takes to be a long-term leader
Norman C. Francis recently celebrated his 45th anniversary as president of Xavier
University of Louisiana. He shared the strategies that have helped him lead his institution
to impressive achievements for decades.
Page 12
© 2013 Wiley Periodicals, Inc., A Wiley Company • All rights reserved
View this newsletter online at wileyonlinelibrary.com • DOI: 10.1002/dap.20072
2
Dean & Provost
News/Resources
Get published
in Dean & Provost
For Dean & Provost writers’
guidelines, contact the editor at
jhope@wiley.com. ■
Customized programs
meet local needs
Creating programs to meet the
needs of specific industries — or
even particular employers — is
one way institutions can attract
students.
At Grand Valley State University
in Michigan, officials developed a
Health Care Executive MBA program for employees of Spectrum
Health.
Clinical and administrative
employees at Spectrum will be
eligible to enroll in the 22-month
program. It will be headquartered
at GVSU’s downtown Grand Rapids campus. ■
International enrollment
of grad students rises
Comparing your institution’s
admissions practices and enrollment with your peers’ can help
you determine whether you are on
the right track with your efforts.
A recent Council of Graduate
Schools report revealed that admissions offers to international
graduate students for this fall rose
by 10 percent, first-time international graduate student enrollment
increased by 10 percent; and total
international graduate student
enrollment rose by 7 percent.
You can view “Findings from
the 2013 CGS Inter national Graduate Admissions Survey, Phase III: Final Offers of
Admission and Enrollment”
at http://cgsnet.org/ckfinder/
userfiles/files/Intl_III_2013_
report_final.pdf. ■
Improved system
tracks sustainability
Do you want to know how your
institution’s sustainability performance rates against its peers’?
The Association for the Advancement of Sustainability in Higher
Education has launched a new version of its Sustainability Tracking,
Assessment and Rating System.
Your institution can share its
efforts on STARS to showcase successes and get feedback on where
improvements are needed. Learn
more at https://stars.aashe.org. ■
A recent study by Public
Agenda reveals that 23 percent
of 18- to 55-year-old Americans
who do not have a degree are
considering enrolling within the
next two years to complete a
certificate or degree.
Learning skills relevant to their
work is among their top concerns,
according to “Is College Worth It
for Me? How Adults Without Degrees Think About Going (Back)
to School.”
You can view the report
at www.publicagenda.org/
files/IsCollegeWorthItForMe_
PublicAgenda_2013.pdf. ■
Coursera partners
with U.S. State Dept.
Massive open online courses
enable students anywhere to learn
important topics.
Coursera is working with the
U.S. State Department to create
learning hubs around the world
where students can get Internet
access and participate in discussions of course topics with instructors, reports The New York
Times. ■
Dean & Provost
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Copyright © 2013 Wiley Periodicals, Inc., A Wiley Company. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means,
electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under
Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission
of the Publisher or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400, fax 978-646-8600. Requests
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This publication is designed to provide accurate and authoritative information regarding the subject
matter covered. It is provided with the understanding that the publisher and editor are not engaged
in rendering legal counsel or other professional service. If legal advice is required, the service of a
competent professional should be sought.
December 2013
DOI: 10.1002/dap
© 2013 Wiley Periodicals, Inc., A Wiley Company
All rights reserved
Dean & Provost
3
Executive Management
Launch an administrative anti-toadification campaign
By Daniel L. Kain
As I write this, we have reached the end of the rainy
then focus only on what’s wrong.
season in Arizona. The joyous occasion of rain in the
In a few short steps, you can make a desert, and
deserts is also the time when the desert amphibians
faculty will adapt: Embracing isolation, they beemerge. Surprisingly, a quarter of the frogs and toads
come steeped in suspicion and effectively hidden,
in the U.S. live in Arizona, though it’s
to re-emerge only when they must.
not quite the lifestyle I imagine frogs
Deliberately or not, you have toadified
About the author
enjoy in Mississippi.
your campus.
Daniel L. Kain is vice proFor more than 10 months of the year,
In contrast, administrators can
these desert dwelling toads lurk deep vost for academic personnel take actions that cultivate a bamin underground coolness, and when at Northern Arizona Univer- boo-generating environment. For
the rains arrive, they emerge for a few sity. You may contact him at example, administrators must proweeks of furious feeding and breeding Daniel.Kain@nau.edu. ■
vide the resources faculty need to
before retreating again into the soil.
A number of years ago, I gave a professional
development talk to a large gathering of teachers
from kindergarten through community college. I
contrasted the solitary life of the desert toad with
the rich interconnectedness of vibrant, growing
bamboo groves.
My point was that it’s better to be part of the
bamboo grove, and that a teacher’s sense of professionalism calls on that teacher to work for the bamboo model of collaboration and professional growth.
Of course, any biologists in the audience — and
there certainly were some — had to resist the urge
to call me on the limits of the analogy. After all, both
the bamboo plants, for all their amazing and unending intertwining growth, and the desert toads, for all
their gloomy withdrawal into the moist, dark depths,
are perfectly adapted to their relative environments.
Neither would survive in the other’s territory.
And that’s actually a great reminder for administrators committed to the success of their faculty
and staff at a college or university. Organisms adapt.
The environment campus leaders create has an
enormous impact on which “creatures” thrive in that
environment. As administrators, we can seriously
affect whether the terrain produces isolated toads
or rich bamboo groves.
It’s relatively simple to engender the toad-making
environment of isolation. Start by scrimping on
psychological/emotional support so the faculty are
“dehydrated” and have to withdraw from the university environment for their sustenance.
Isolate individuals from one another by discouraging or failing to reward collaboration, by fragmenting efforts into unconnected parts. Make resources
scarce so that individuals compete against one
another for what they should have at hand.
Treat faculty with the suspicious assumption that
they will abuse freedom. Give feedback rarely, and
© 2013 Wiley Periodicals, Inc., A Wiley Company
All rights reserved
do their work. That’s why creative
means of generating resources are so important
— even though faculty members may not always
appreciate this.
Like employees in other fields, faculty members
need to understand what is expected of them, so
administrators must create a culture of clarity.
Related to this, faculty need honest feedback on
their performance. Often this feedback is a blended
system of review from peers and administrators,
but it is the administrator who ensures that this
feedback thrives.
Without undervaluing the contributions of individuals, administrators should also deliberately seek
ways to acknowledge and reward collaborative work
— ensuring that the organization demonstrates the
value of joint effort.
For example, our university has created grant
programs that require multiple faculty members
to join together to create internal grant proposals related to incorporating technology into their
teaching.
By building a requirement of collaboration, both
for the writing of proposals and the programs and
activities funded through the awards, the environment is altered to promote joint work.
The key action in an anti-toadification campaign
is that administrators must attend carefully to the
consequences, both intended and unintended, of
our decisions. We need to ask ourselves regularly
how our practices, decisions, stories of success,
and even our comments mold an environment for
the faculty.
Recognizing the complexity of decision-making,
in the overall scheme of things, are we doing more
to build a climate that sustains bamboo groves or
to encourage the digging of holes by desert toads?
Is it time to deliberately cultivate a better environment on your campus? ■
Vol. 15, Iss. 4
DOI: 10.1002/dap
4
Cover Story: Strategic Planning
Dean & Provost
Review the top 10 legal issues
deans and provosts should focus on
By Barbara A. Lee, Esq.
4
You don’t have to be a lawyer to know that lawsuits
Students with disabilities are arriving on
against colleges and universities — and in some cases
campuses in increasing numbers, and are
against deans and provosts — have mushroomed in
requesting — and sometimes demanding — extenrecent years.
sive academic accommodations.
Students file lawsuits for
While the college’s disability
About the author
everything from plagiarism alservices professionals underBarbara A. Lee stand the legal requirements of
legations to academic or disciis co-author, with accommodation, many faculty
plinary dismissals. And faculty
William A. Kaplin, of do not. In fact, some may resist
sue when they are denied proThe Law of Higher the requested accommodations
motion or tenure, when they are
Education, 5th edi- under the banner of their “acadisappointed in the amount of
tion (2013). She is a demic freedom.”
their salary increase, or when
professor at Rutgers,
they are moved to a smaller
When students with disabilithe State Univer- ties are dismissed on academic
office or lab.
sity of New Jersey, grounds, they frequently claim
Colleges usually prevail in
teaching courses that they were not accommothese lawsuits, but they are
in
higher
education
law
and employment dated appropriately and cite the
expensive, time-consuming,
law.
She’s
also
of
counsel
to the law firm of intransigent professors as evigenerate unfavorable publicity,
Edwards
Wildman
Palmer,
LLP. ■
and are a significant distraction.
dence. Again, training of faculty
The following are the top
is essential to avoid litigation.
10 issues campus leaders should focus on in this
Research misconduct is an unfortunate fact of
litigious era.
life at colleges and universities, and the ubiqThe fastest growing topic of litigation in acauity of the Internet may be fueling the increase in
demic affairs is student challenges to faculty
allegations and ensuing litigation. Federal funding
academic judgments — allegations of plagiarism,
agencies have strict protocols for the investigation
denial of a graduate degree on the basis of academic
and resolution of claims of scientific misconduct,
failure, or academic dismissal.
and deans and provosts need to acquaint themselves
Although courts remain deferential to “genuine
with those requirements and ensure that they are
academic judgments,” faculty committees who do
followed.
not follow institutional policies carefully, or who
Students are claiming that their faculty adviappear to be making judgments about students on
sors “stole my ideas,” and demanding to be
the basis of their religious or political beliefs, have
included on patents and as co-authors on articles.
encountered judicial hostility to their requests for
In some cases, these demands are legitimate. Deans
academic deference.
and chairs need to monitor student-faculty research
Faculty who are disciplined, whose contracts
relationships to ensure that student intellectual
are not renewed, or who are removed from
property rights are protected and recognized.
teaching as a result of provocative speech are suing
Despite the fact that legal challenges to denial of
more frequently. Even adjunct faculty are protected
tenure or promotion are nearly always unsucby the institution’s academic freedom policies, and
cessful, faculty continue to sue over those negative
over-reaction by the institution to protected speech
decisions. These cases are complicated, lengthy and
leads to litigation.
acrimonious. And they often require the assistance
Although student claims of sexual harassment
of expert witnesses to review the justification for the
by faculty appear to be declining, the issue is
institution’s negative decision in the face of what is
still a problem on campus and, when it occurs, creusually a claim of discrimination by the aggrieved
ates serious legal and public relations repercussions.
faculty member.
Training of faculty — whether they believe they need
Careful and honest mentoring of untenured factraining or not — is essential to prevent harassment
ulty members and regular, honest feedback when a
and to enable the college to respond effectively in
faculty member’s work does not meet institutional
the event that harassment occurs.
standards are critical to a successful defense of
1
5
6
2
7
3
December 2013
DOI: 10.1002/dap
© 2013 Wiley Periodicals, Inc., A Wiley Company
All rights reserved
Dean & Provost
5
Cover Story: Strategic Planning
subsequent claims of discrimination when tenure
or promotion is denied.
Disputes between faculty members are on
the increase, and occasionally lead to litigation that draws in the chair, dean or provost as a
witness — if not a defendant. Defamation claims
— sometimes brought by both of the disputing
parties — may involve academic administrators
as well. Courts have permitted institutions to use
collegiality as a criterion — even if unwritten — for
tenure or promotion. And academic leaders have a
responsibility to deal promptly and effectively with
uncollegial behavior, whether or not the perpetrator is tenured. Academic freedom does not protect
uncivil behavior.
Because the career ladder for faculty is so
short (two or possibly three promotions in an
entire career), other perquisites become important,
such as office size and location, teaching schedule
and selection of courses, or the amount of lab space
allocated to a faculty member.
These lawsuits are virtually always unsuccessful
for the faculty member, but they waste time, energy
and money, and they can divide a department for
decades if faculty members take sides.
The academic freedom rights and protections of faculty at public colleges and universities were challenged by a 2006 Supreme Court
ruling that work-related speech is not protected by
the First Amendment. Whether that opinion applies
to classroom speech and faculty scholarship is not
8
9
10
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clear; courts have differed in their subsequent rulings.
Academic administrators and faculty need to
work together to create institutional policies that
protect speech related to teaching and scholarship
that comport with the rights and responsibilities of
academic freedom.
There is no magic formula for avoiding litigation,
but institution officials who enforce their policies
consistently, provide frequent and honest feedback
to both faculty and students concerning their
performance, and respond promptly to student
complaints of faculty misconduct should be able
to get many of these lawsuits dismissed or, in the
unlikely event that they go to trial, prevail. ■
Get the book
The Law of Higher Education, 5th Edition, 2 Volume Set, 2013, is published by Jossey-Bass, A Wiley
Brand. This is the most comprehensive reference,
research source and practical legal guide for college
and university administrators, campus attorneys and
institutional researchers. It addresses all the major
legal issues and regulatory developments in higher
education.
For more information, or to order, go to www
.josseybass.com/highereducation and input “The
Law of Higher Education” into the search box. ■
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Vol. 15, Iss. 4
DOI: 10.1002/dap
6
Dean & Provost
Research
So you want to be a business dean?
Consider the attributes of a successful candidate
By Steve Williams and Cynthia Popa
were in their first deanship. The large majority of
Deans in today’s business schools face a complex
deans were promoted from within the same instituand complicated array of academic and local busition, indicating that the experiences deans acquire
ness constituents who look to the business dean
while climbing the ranks of
to provide leadership, vision,
academia may be those needed
funding expertise, organizational
About the authors
to prepare them to lead the busiskills, and a host of other CEOSteve Williams is dean and professor
ness school.
like attributes.
of management and the Joel R. StubbleThe AACSB survey revealed
Those who aspire to be busifield Endowed Chair of Business at the
that the average business dean
ness deans can sense that uniCollege of Business at the University of
is a man (82 percent) who came
versity presidents, and more
Arkansas – Fort Smith. Contact him at
from a previous academic adparticularly university search
Steve.Williams@uafs.edu.
ministration position (14 percent
committees, are seeking a new
Cynthia Popa is with the College of
management, 13 percent marbreed of trailblazer to take the
Education at the University of Arkansas
keting and 11 percent finance)
reins of the business school and
– Fort Smith. Email her at cpopa00@g
who has been on the job not
lead the way in advancing the
.uafs.edu. ■
quite five years.
reputation of the institution as
The reasons people gave for
a whole.
seeking to become the dean of a business school
If you’re thinking you’d like to become a business
were many and varied. The 2011–2012 AACSB survey
dean, do you have what it takes to land the job?
found that the bulk (35 percent) of new deans were
The Association to Advance Collegiate Schools of
not seeking their current deanship and were invited
Business’s “2011–2012 International Deans Survey”
to apply, while 18 percent were actively searching
found that the majority of new business dean posiand 13 percent were promoted after serving as the
tions were filled by people who had never been deans
interim dean.
before and who likely held previous administrative
Regardless of the motivation for wanting to be a
academic titles such as associate dean, department
business dean, knowledge of what search commitchair, vice dean or program director.
tees and business schools are seeking in successful
Of the 500 business deans surveyed, 72 percent
Review listing of business dean positions
The following institutions posted job listings for business deans between June and August 2012.
1. American InterContinental University
2. California State University-East Bay
3. Clarion University of Pennsylvania
4. Drexel University
5. Duke University
6. Grand Canyon University
7. Indiana University Kokomo
8. Kean University
9. Kent State University Main Campus
10. Lone Star College System
11. McNeese State University
12. Messiah College
13. Montana State University - Billings
14. Morehead State University
15. Pacific Lutheran University
16. Robert Morris University
17. Rochester Institute of Technology
December 2013
DOI: 10.1002/dap
18. Savannah State University
19. The University of Texas at Arlington
20. University of Arkansas Main Campus
21. University of Charleston
22. University of Dallas
23. University of Houston - Downtown
24. University of Illinois at Chicago
25. University of Louisville
26. University of Michigan-Dearborn
27. University of Nevada, Las Vegas
28. University of South Florida
29. University of Tennessee, Knoxville
30. University of Texas at San Antonio
31. Virginia Polytechnic Institute and State University
32. West Virginia University
33. Western New Mexico University
34. William Paterson University of New Jersey ■
© 2013 Wiley Periodicals, Inc., A Wiley Company
All rights reserved
Dean & Provost
candidates gives applicants an idea as to whether
they possess the skills and attributes required to
lead a college of business.
Kevin R. Johnson, in his article “Deciding to Become a Dean” in the Seattle University Law Review
(2008), suggests that colleges seek deans who are all
things to all people and “virtually everyone wants a
skilled administrator, a great and proven fundraiser,
a super-star scholar (the most frequently sacrificed
aspiration in a dean), a leader committed to his or
her institution, and much more.”
While it is true that business schools would prefer
those who can walk on water, our inspection of recent
job descriptions for business dean positions reveals
that most business schools are seeking similar attributes in their applicants.
Listings reveal desired qualifications
What do university search committees seek from
aspirants for the business school deanship? To determine the attributes business schools hope to find
in their new dean, we identified all domestic listings
for American business school dean positions posted
for the months of June, July and August of 2012 in
the Chronicle of Higher Education and HigherEdJobs,
as well as any job listings located through general
Web searches during the summer of 2012.
We analyzed the content of the listings and coded
it for the 34 business dean positions reported (see
list, p. 6).
The universities with business dean openings
varied in size from just under 1,400 students at
the University of Charleston to more than 75,000
students at the Lone Star College System in Texas.
The year of founding for the institution varied from
1794 for the University of Tennessee at Knoxville to
1982 for the University of Illinois at Chicago.
We systematically analyzed the position announcements based on desired skills/attributes. We
identified and categorized the listed qualifications.
That process resulted in a ranking of all positional
attribute categories.
What makes the ideal business dean candidate?
Almost all position announcements stated that
applicants should possess the following personal
characteristics and work-related experience:
➢➢ Accomplishments in higher education and/or
a history of professional endeavors.
➢➢ Five years educational or related industry experience with management experience.
➢➢ Terminal degree in business or a related
discipline.
➢➢ Demonstrated ability to lead and manage academic programs.
© 2013 Wiley Periodicals, Inc., A Wiley Company
All rights reserved
7
Research
➢➢ Proven record of leadership and community
engagement.
➢➢ Demonstrated record of teaching and research
excellence.
➢➢ Proven fiscal/budgetary experiences that
demonstrate an understanding of the complexities
of higher education.
The following skills and attributes were cited in
the majority of business dean searches:
✔✔ Ability to lead and provide vision.
✔✔ Ability to coordinate academic facilities.
✔✔ Record of ethical management and enforcement
of academic policies and procedures.
✔✔ Ability to align the business school with the
institution as a whole.
✔✔ Ability to evaluate faculty and student concerns fairly.
✔✔ Ability to effectively manage department chairs,
faculty and college programs.
✔✔ Ability to define and enforce high-quality academic standards.
✔✔ Excellent communication skills.
✔✔ Expertise with external fundraising.
✔✔ Skill at collaborating and dealing with others
with academic integrity.
✔✔ Understanding of accreditation standards and
applicable regulatory standards.
✔✔ Commitment to economic development.
Our inspection of job postings for business schools
seeking new deans indicates universities are looking
for candidates with specific personal characteristics,
work-related experience and skill attributes.
If you aspire to be a dean, do you have what it
takes to lead a business school? ■
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Vol. 15, Iss. 4
DOI: 10.1002/dap
8
Dean & Provost
What Would You Do?
How would you address science grant funding shortfalls?
Your faculty members are having a hard time getting grant funding, given the federal
budget problems. And those who have been awarded federal grants
The Problem
aren’t receiving the full amounts budgeted. Grant funding problems
are causing a shortfall in your unit’s budget.
What would you do?
The Solution
Prepare for long-term funding issues
Chances are, your institution has felt the effects of
the sequestration on research funding.
The National Institutes of Health, one of the main
agencies that provides federal grant funding for research, provided approximately 640 fewer grants in
fiscal year 2013 than in fiscal year 2012. And existing
grants were cut an average of 4.7 percent. Learn
more about the effect of sequestration on the NIH at
www.nih.gov/news/health/jun2013/nih-03.htm.
Barmak Nassirian, director of federal relations and
policy analysis at the American Association of State
Colleges and Universities, said his organization has
been informally tracking the impact of federal budgetary fluctuations caused by the sequestration and
the shutdown.
“In general, for this first year of sequestration, the
impact on our institutions appears to be fairly small.
By far the majority of institutions that we have communicated with indicate that grant reductions on their
campuses have been below $10,000, and that they
have not been forced to institute layoffs or eliminate
projects,” Nassirian said.
Next time ...
One of your staffers is romantically involved with an
employee from the president’s
office. Several issues have
arisen because of that.
The staff member shares
information from the president’s
office with others in the office
that is news to you and that may
be gossip rather than truth.Also,
other staffers in your unit are
concerned that this individual
will benefit professionally from
the connection.
What would you do?
December 2013
DOI: 10.1002/dap
?
Send your responses to Joan
Hope, editor, at
jhope@wiley.com.
Your comments
will be included in
an upcoming issue.
“They have generally moved institutional funds around
to keep the projects going, and taken steps to reduce
costs where possible,” he said.
“Despite this, most campuses are also reporting great
concern about their ability to absorb another round of
sequesters, and believe cutting projects and layoffs
would be almost inevitable if the federal cuts continue
for another year,” Nassirian said.
But at some institutions, the cuts have meant layoffs
already. For example, Arkansas State University cut 30
scientist and researcher jobs because of the budget
cuts, reports CNN.
And the results of a survey by the American Society
for Biochemistry and Molecular Biology and 15 partner
organizations paints a dire picture of the impact of federal budget cuts to the future of scientific research in
the United States.
According to the survey results reported in Unlimited
Potential, Vanishing Opportunity, 65 percent of respondents have had difficulty receiving funding for their work,
45 percent have laid off scientists or expect to do so
soon, and 55 percent have a colleague who has lost a
job or expects to soon.
The vast majority of survey respondents — 91 percent — were from academia.
View the report by going to www.asbmb.org and
typing “unlimited potential” in the search box.
Some institutions have created forums to communicate the problems they expect ongoing budget problems
to create for their research endeavors. For example,
see the University of North Carolina at Chapel Hill’s
Web page outlining the problems at http://research
.unc.edu/sequestration.
And many associations advocate for a federal budget
that supports funding for scientific research at colleges
and universities. For example, the American Council on
Education and 34 other organizations recently sent a
letter to key legislators asking for an end of the sequester reductions. View it at www.acenet.edu/news-room/
Documents/Letter-Budget-Conference-110113.pdf. ■
© 2013 Wiley Periodicals, Inc., A Wiley Company
All rights reserved
Dean & Provost
Lawsuits & Rulings
AT A GLANCE
A Review of This Month’s Lawsuits and Rulings
Faculty
• Providing postdoctoral fellows to help prof not
a required disability accommodation .................... 9
Academic Affairs
• A college did not violate students’ rights by
changing its graduation requirements ................. 10
Dismissal
• A dismissed medical student did not file his
claim in time for it to be valid ............................... 11
Disability
• Review court cases related to students’ and
employees’ disabilities .......................................... 11
faculty
Failure to accommodate allegation
survives summary judgment
Case name: Tse v. New York University, No. 10
Civ. 7207 (DAB) (S.D.N.Y. 09/19/13).
Ruling: The U.S. District Court, Southern District
of New York granted in part the defendant’s motion
for summary judgment, dismissing her retaliation
and hostile work environment claims under the
Americans with Disabilities Act and the Rehabilitation Act but denying the motion to dismiss her failure
to accommodate claim.
What it means: Employees are not entitled to the
most beneficial accommodations. Also, employers do
not have to offer accommodations employees prefer.
Instead, employers are in compliance with the ADA
when any reasonable accommodations are provided.
Summary: Doris Tse worked at NYU from 1994 to
April 4, 2011. Her first position was in the Department of Pathology, but in 2000 she was transferred
to the Department of Medicine as a non-tenure-track
research professor.
Tse suffered from severe acute arthritis and lupus. She alleged that NYU began to deprive her of
accommodations when she was director of the Flow
Cytometry Core within the university’s Center for
AIDS Research. And she asserted that NYU eliminated
her laboratory assistants in 2009. Also, university
officials wanted to hire a full-time operator for the
machines in the Core, but Tse wanted to keep having
postdoctoral fellows as her disability accommodation.
© 2013 Wiley Periodicals, Inc., A Wiley Company
All rights reserved
9
At the end of 2009, Tse submitted an accommodation request, seeking postdoctoral students
instead of a full-time lab technician. The record
showed that NYU began questioning Tse’s work
performance before she submitted the accommodation LAWSUITS &
request.
RULINGS
Tse filed a complaint against This regular feature
NYU with the New York State summarizes recent
Division of Human Rights and court or agency
the Equal Employment Op- records of interportunity Commission. The est to academic
university removed Tse from administrators.
her position in a letter dated
March 10, 2010, and it did not hire anyone else to
fill the position of Core director.
Before Tse was removed from that position, the
Core paid for all her benefits. But after her removal,
she was required to obtain funding from other sources
to receive full benefits.
Next, Tse applied for long-term disability benefits.
On April 4, 2011, NYU terminated her employment.
On April 5, 2011, she began receiving long-term
disability benefits.
Tse sued NYU, alleging that she was exposed to a
hostile work environment and retaliation under the
ADA, the Rehabilitation Act, NYSHRL and NYCHRL.
NYU moved for summary judgment.
The court dismissed the claims under the ADA
and the Rehabilitation Act because they were not
properly pled and were raised for the first time in
response to NYU’s summary judgment motion.
With respect to Tse’s claim that she was denied
a reasonable accommodation while she was the
Core’s director, the court held that NYU provided a
reasonable accommodation, even though it was not
the one Tse would requested. The court reasoned
that employees are not entitled to hold out for the
most beneficial accommodation and the employer
need not offer the accommodation that the employee
prefers. Instead, when any reasonable accommodation is provided, the employer is in compliance with
disability law.
However, the court ruled Tse’s failure to accommodate claim survived regarding the time between
June 1, 2010, and her termination on April 4, 2011,
because she lost all accommodations after she was
removed from the position of Core director.
With regard to Tse’s hostile work environment
claim, the court held that although the ADA supports
that type of claim, Tse’s allegations were insufficient
to establish it.
Finally, the court also dismissed Tse’s retaliation
claims. ■
Vol. 15, Iss. 4
DOI: 10.1002/dap
10
Dean & Provost
Lawsuits & Rulings
Academic affairs
Court concludes changes in graduation requirements were valid
Case name: Jackson v. Lee College, No. CIV H-131104 (S.D. Tex. 09/09/13).
Ruling: The U.S. District Court, Southern District
of Texas dismissed a student’s suit claiming due
process violations against Lee College.
What it means: To survive a motion to dismiss, a
complaint that the actions of a college or university
violated a student’s substantive due process must
adequately plead why the actions were arbitrary
and capricious.
Summary: Sharon Jackson and her fellow plaintiffs were students at Lee College in the associate
degree nursing program. They sued the college,
claiming that they fulfilled all the stated entrance
and graduation requirements but, shortly before
graduation, the college amended the graduation
requirements. Following the amendment, nursing
students were required to sit for two exams instead
of one and to obtain a higher combined score to
graduate.
The plaintiffs maintained that the college required
them to meet a higher score than the written grading policy provided to students. They were unable
to pass the required tests after multiple attempts.
Therefore, they did not receive their diplomas. The
students first challenged the amended graduation
requirements through Lee College’s administrative
appeals process without success.
The students alleged that Lee College deprived
them of their right to due process. Specifically,
they asserted that Lee College: (1) failed to follow its
written policies; (2) changed its grading criteria and
exam guidelines without meaningful notice several
times over a period of three to four months; and (3)
refused to correct these errors following their appeal.
The college moved to dismiss the case, contending
that the students asserted claims directly under the
Constitution without invoking section 1983 of the
civil rights laws, failed to plead facts demonstrating the existence of a protected property interest or
liberty interest, and failed to satisfy the standards
required to plead a cause of action for procedural
or substantive due process.
The court dismissed the claims. Although it accepted that loss of an academic achievement is a
deprivation of a property interest, the judge found
that the students failed to demonstrate that the college’s actions deprived them of such interest.
The court also found that the students were afforded more than adequate procedural protections,
including written notice regarding the additional
testing and grading requirements before taking the
test and the opportunity to challenge the amended
requirements through the college’s appeals process.
Regarding the substantive due process claims, the
judge stated that the students needed to allege that
the college’s actions were arbitrary and capricious.
He reasoned that the proper inquiry was whether
Lee College acted arbitrarily when it continually
amended its graduation requirements within a month
of graduation and held students to grading standards
different from those written in its policies.
The court found that the students’ conclusory
allegations regarding the college’s conduct did not
give rise to a claim of violation of substantive due
process. Consequently, it dismissed their claim for
a violation of substantive due process but granted
them the ability to amend their complaint. ■
Dean & Provost Board of Advisors
• Benjamin Akande
Dean, George Herbert Walker
School of Business & Technology
Webster University
• Herman Berliner
Provost and Senior Vice President
for Academic Affairs
Hofstra University
• Marsha Kelliher
Dean
Sigmund Weis School of Business
Susquehanna University
December 2013
DOI: 10.1002/dap
• Darby Dickerson
Dean, School of Law
Texas Tech University
• Lucinda Lavelli
Dean, College of Fine Arts
University of Florida
• Jill Murray
Executive VP and Chief Academic Officer
Lackawanna College
• Cynthia B. Worthen
Vice President for Academic Affairs
Argosy University
• Barbara Gaba
Provost, Elizabeth Campus
& Associate Vice President
for Academic Affairs
Union County College
• William Fitzgibbon
Dean, College of Technology
University of Houston
• Maria Vallejo
Campus Provost
Lake Worth Campus
Palm Beach State College
© 2013 Wiley Periodicals, Inc., A Wiley Company
All rights reserved
Dean & Provost
dismissal
Court won’t overturn
medical student’s dismissal
Case name: Sherrod v. University of Tennessee
Health Science Center, College of Medicine and Pharmacy, et al., No. 12-808-STA-cgc (W.D. Tenn. 09/20/13).
Ruling: The U.S. District Court, Western District
of Tennessee dismissed the student’s lawsuit alleging violations of his rights under federal and state
disability laws.
What it means: Sovereign immunity bars disability
actions against universities in Tennessee. Also, filing a claim with the Office for Civil Rights does not
interrupt the statute of limitations.
Summary: Bernard Sherrod was a student at
the University of Tennessee Health Science Center
when he was involved in an altercation with another
student. Sherrod suffered injuries, including head
trauma.
Sherrod also had trouble keeping up in his anatomy
class. He met with the dean of the Medical Education
Department to discuss his failing grade. Sherrod told
the dean he thought he had a learning disability.
Sherrod visited academic support services for
help and further evaluation but believed it did not
adequately address his issues. He also contacted the
dean several times about attending summer school,
but ultimately the dean recommended his dismissal.
The medical school’s Programs and Promotions
Committee upheld the dean’s recommendation of
dismissal. After the dean of the College of Medicine
heard and rejected Sherrod’s final appeal, he was
formally dismissed on May 24, 2011.
Sherrod filed a complaint with the Office for Civil
Rights. He also sued the university for violating the
Americans with Disabilities Act, the Rehabilitation
Act, Title IV and Tennessee law.
The university moved to dismiss the case on the
grounds of sovereign immunity and that the federal
claims were barred by the statute of limitations. The
court granted the motion, reasoning the university
was entitled to the same sovereign immunity protection that the state enjoyed.
The court dismissed Sherrod’s claims based on
the statute of limitations. Because the university
dismissed Sherrod on May 24, 2011, but he filed
his first lawsuit on June 7, 2012, his claim was
filed too late under Tennessee’s one-year statute
of limitations, the court held. The judge rejected
Sherrod’s argument that filing an OCR complaint
should interrupt the statute of limitations on his
federal claims. ■
© 2013 Wiley Periodicals, Inc., A Wiley Company
All rights reserved
11
Lawsuits & Rulings
Disability
court cases
Review these recent legal rulings to ensure that
your institution is in compliance with disability laws.
■■ Tamara v. El Camino Hospital, No. C-12-01032RMW (N.D. Cal. 08/02/13). The judge ordered that
El Camino, because it was a public facility, was prohibited from automatically excluding service animals
from its behavior health units and must conduct
individualized assessments in accordance with the
Americans with Disabilities Act.
■■ Shurb v. The University of Texas Health Science
Center at Houston-School of Medicine, et al., No.
4:13-CV-271 (S.D.Tex 08/13/13). Jason Shurb, a medical student, claimed that he suffered from obsessive
compulsive disorder and other psychiatric disabilities.
He sued after officials withdrew him following a leave
of absence. The court refused the university’s motion
to dismiss his Rehabilitation Act and Americans with
Disabilities Act claims.
■■ Betts v. Montgomery College, No. 12-cv-3802-AW
(D. Md. 08/16/13). After a dispute arose regarding
a medical leave of absence and her subsequent
termination, Jacquelyn Betts sued the college, its
board of trustees and various employees. The judge
dismissed her Americans with Disabilities Act claims
because she did not exhaust administrative remedies
before filing them. ■
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Vol. 15, Iss. 4
DOI: 10.1002/dap
12
Focus
on
Dean & Provost
Leadership
Norman C. Francis, president, Xavier University of Louisiana
Embrace strategies for long-term leadership
As the longest standing president in the country,
Norman C. Francis knows a few things about higher
education leadership. He recently celebrated his
45th anniversary as president of Xavier University of
Louisiana.
The institution has flourished under his leadership.
Xavier is first in the United
States in the number of
black students who earn
undergraduate degrees
in biology, chemistry and
physics. It’s also the top
producer of black graduNorman C. Francis ates who go on to complete
Photo Credit:
medical school.
Irving Johnson III
According to Francis,
keys to long-term success as a leader include:
➢➢ Get to know the campus and personalities.
Francis was a Xavier administrator for 13 years before becoming president. He started by managing a
residence hall while he was in law school at Loyola,
where laws prevented him from living because he was
black. After his discharge from the army, he returned
to Xavier as dean of men. Over the years leading up
to his presidency he served “an apprenticeship that
you couldn’t buy,” Francis said.
When he was asked to become president, he knew
who to ask to serve in his administration with him.
For example, his executive vice president had been
the placement officer. Xavier’s Placement Office was
one of the first at a historically black college or university. Xavier officials recognized the opportunities
for their students as affirmative action programs led
to federal agencies seeking black graduates to hire.
Besides surrounding himself with effective leaders,
Francis rewrote the institution’s governance plan.
He brought in consultants to assist with that project. The plan launched a faculty governance model.
Much of it is still in effect, Francis said.
➢➢ Hire people who are smarter than you are
and get out of the way. Francis delegates responsibility to people who have the skills and backgrounds
to make decisions, and he holds them responsible
for their actions. To be president, you have to understand that you don’t know everything and trust
others, Francis said.
Sometimes those who don’t like staff members’
decisions complain to Francis. The staff members
December 2013
DOI: 10.1002/dap
involved know he’ll listen to those people, but he
won’t overturn the decisions they made.
➢➢ Maintain consistency in important roles.
Francis’s assistant has worked for him for 40 years.
She can get anyone an answer to any question in
less than 15 minutes, he said.
➢➢ Recognize that there are two sides to any
issue. Francis knows this from his training as a
lawyer. Sometimes people tell presidents what they
think the president wants to hear. But presidents
need to surround themselves with people who will
give them the whole story.
➢➢ Serve on the national scene. Getting involved
in boards and commissions beyond the campus will
help you understand what’s happening in the higher
education landscape. Francis served on and chaired
the College Board and the Educational Testing Service board, chaired the Carnegie Foundation for the
Advancement of Teaching, met every U.S. president
from Kennedy on, and much more. ■
Use leadership position
to make a difference
At age 82, Norman C. Francis has no plans for
retirement. When he was growing up, his parents
taught their five children to make the world a better
place for others and for themselves. Francis’ position as president of Xavier University of Louisiana
enables him to do that.
Even after Francis graduated from law school
and served in the army, he couldn’t walk in the front
door of a hotel, choose any seat in a movie theater,
or eat in any restaurant he selected.
But Francis helped change the way black people
are treated.
For example, he involved his campus in the Civil
Rights Movement. He let Freedom Riders, who rode
buses to protest the illegal segregation practiced on
them, sleep in Xavier’s dormitory even though that
meant a risk of violence against them taking place
on campus.
Francis and his colleagues also pursued job
placements for graduates as changing laws opened
opportunities for them.
“If you’re going to change things, you have to take
some risks,” Francis said. “People are all entitled to
respect as human beings.” ■
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