FACING CHANGE:
BUILDING THE FACULTY OF THE FUTURE
A DISCUSSION OUTLINE OF THE LEGAL
IMPLICATIONS OF TEN FUTURE-ORIENTED
POLICY RECOMMENDATIONS
Presenters:
THOMAS P. HUSTOLES
Attorney at Law
Miller, Canfield, Paddock and Stone, P.L.C.
Kalamazoo, Michigan
And
PETER H. RUGER
General Counsel
Southern Illinois University
Carbondale, Illinois
Stetson University College of Law:
21st ANNUAL LAW & HIGHER EDUCATION CONFERENCE
Clearwater Beach, Florida
February 10-12, 2000
FACING CHANGE: BUILDING THE FACULTY OF THE FUTURE:
A DISCUSSION OUTLINE OF THE LEGAL IMPLICATIONS OF
TEN FUTURE-ORIENTED POLICY RECOMMENDATIONS
A Paper Prepared for the Stetson University College of Law
21st Annual Conference on Law and Higher Education
Clearwater, Beach, Florida
February 10-12, 2000
By:
Thomas P. Hustoles
Attorney at Law
Miller, Canfield, Paddock and Stone, P.L.C.
Kalamazoo, Michigan
And
Peter H. Ruger
General Counsel
Southern Illinois University
Carbondale, Illinois
I.
INTRODUCTION
In 1999, several higher education associations and leading public university
systems collaborated to examine major faculty issues and relevant faculty policies. This
collaboration produced a report which is provided to you with this outline, entitled
Facing Change: Building the Faculty of the Future. The project was chaired by the
Chancellor of the California State University, and coordinated by the American
Association of State Colleges and Universities. Co-sponsors and contributing systems
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included the American Association of Community Colleges, the American Council on
Education, the Association of Governing Boards of Universities and Colleges, the
California State University, the State University System of Florida, the State University
of New York, the University System of Maryland, the Minnesota State Colleges and
Universities, the Pennsylvania State System of Higher Education, and the State College
System of Higher Education. The authors of this outline would like to thank AASCU for
their kind permission to Stetson University College of Law to reproduce the report for
conference attendees.
The stated purpose of the project was “(1) for higher education itself to take a
proactive approach in preparing the higher education workforce and workplace for the
21st century, and (2) to address the growing concern of parents, students, policy-makers
and others who have raised serious questions about the efficiency, effectiveness and
affordability of public higher education institutions.”
The report highlights 49 policy recommendations, many with significant legal
implications. For discussion purposes, we have identified, individually or in
combinations, ten recommendations having the most significant legal implications.
Numerical references are to the enumerated recommendations in the report. After each
such identification, we have selected some items with legal implications for discussion.
II.
REPORT RECOMMENDATIONS AND LEGAL ISSUES
A.
Tenure should be maintained and, normally, a substantial proportion
of the faculty should be tenure eligible. But flexibility in employment practices
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should be encouraged to meet mission and program objectives. (Recommendations
1, 11).
1.
What are the fundamental legal components of tenure?
2.
What are the alternatives to traditional tenure? Can they co-exist
3.
How can the rights associated with tenure be changed?
with tenure?
Prospectively only?
B.
To avoid an adverse impact on students and institutions, the extensive
use of part-time faculty should be re-examined. (Recommendation 26).
1.
Legal issues in hiring, compensating, and terminating part-time
2.
Lessons from the recent Supreme Court decision regarding
3.
Part-time faculty can create full-time liability – can this be
4.
Emerging collective bargaining issues, including the legal
faculty.
Microsoft.
minimized?
implications of the provision of web-based courses by your part-time faculty or by
faculty at other institutions.
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C.
Institutions need to improve hiring policies and practices. Worthy
objectives include more professional search processes and enhancement of faculty
diversity. (Recommendations 6, 13, 14, 15).
1.
Are formal searches (either external or internal) legally required?
What are the common pitfalls?
D.
2.
Who speaks for the institution? Who can bind it? Who is liable?
3.
Brief status of hiring preferences based on race, gender, etc.
Criteria for gaining tenure should be explicit and reflect collaboration
between the faculty, administration, and governing board. Post-tenure review must
be a component of the tenure process. (Recommendations 41, 42, 43).
1.
Can criteria change? Is the “least qualified incumbent” rule still
2.
How important should non-academic criteria be? Can “personality”
alive?
and “fit” be considered?
3.
How do you implement post-tenure review? What kind of review, if
any, should there be for adverse tenure decisions? Is post-tenure review an ADEA/ADA
minefield?
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E.
Institutions should consider variations in the length of the
probationary process and the locus of tenure. (Recommendations 4, 5).
1.
Are the AAUP guidelines just that or are they explicitly or implicitly
incorporated into your faculty handbook or collective bargaining agreement? Should
they be incorporated verbatim without tailoring them to your institution?
2.
Impact of the FMLA and pregnancy discrimination provisions of
state and federal law on the length of the probationary period.
3.
Legal implications of changing the locus of tenure. If you have
collective bargaining, must this be negotiated?
F.
Evaluation processes for the award of tenure, renewal of appointments,
and award of merit pay should be carefully designed and implemented.
(Recommendations 37, 38, 39, 44).
1.
Brief update on the struggle to protect confidentiality while ensuring
fairness and non-discrimination.
2.
Techniques for protecting academic discretion in evaluation and
decision-making.
3.
Can collegiality and civility be suggested or required elements in the
evaluation process or does the First Amendment protect abusive intra-departmental or
intra-institutional communication?
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G.
Institutions should have policies and procedures on separation for
cause that respect the rights of all parties and provide for timely disposition.
(Recommendation 21).
1.
What are typical grounds for termination for cause? What are one
famous arbitrator’s “seven steps” to ensure that just cause is present?
2.
Can you terminate and not litigate? Is ADR realistic?
3.
Differing legal issues to be considered in private, public, or
unionized institutions. Are AAUP guidelines determinative?
H.
Forward looking and humane policies for layoff and retrenchment
should exist. (Recommendations 18, 19, 20).
1.
Who gets laid off, and in what order? Must non-tenured faculty be
laid off first? Are AAUP guidelines determinative?
2.
Who decides? How much “process” is necessarily “due” as a matter
3.
Relevant civil rights and non-discrimination principles.
of law?
I.
Early retirement options that serve faculty and institutional needs
should be explored. (Recommendations 47, 49).
1.
What is the practical impact of recent amendments to the ADEA
which allow descending early retirement incentives with ascending age, subject to
jumping though several hoops?
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2.
Recent federal law and regulatory developments regarding ADEA
waivers and releases.
3.
Advisability of team design and feedback from all constituencies
before implementation.
J.
Community service and outreach by faculty should be encouraged
(Recommendations 2, 24).
1.
To what extent are community service and outreach viable
components for promotion, tenure, and post-tenure review?
2.
Legal implications of requiring community service and outreach.
3.
Political and legal benefits of working together to enhance the
external image of universities with legislatures, taxpayers, alumni, and the communities
within which the institution operates.
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