This report, prepared by a joint subcommittee of the Association’s Committee on Representation of Economic and Professional Interests and Committee A on Academic Freedom and Tenure, was approved by the respective committees in March and April 1973.
Collective bargaining by faculties in higher education has been accompanied by the use of arbitration1for the resolution of disputes involving questions of contractual application or interpretation that may include matters of faculty status and rights. It should be noted that the use of arbitration does not wholly depend on the existence of a collective-bargaining relationship. It may be provided for in institutional regulations, agreed to between an internal faculty governing body and the administration, or utilized on an ad hoc basis in a particular case. The enforceability of agreements to arbitrate future disputes, however, is a legal question involving both federal and state law. Since arbitration developed in the industrial context, it must be given the closest scrutiny when applied to the needs of higher education. Accordingly, this joint subcommittee was given the task of providing an initial review of that application.
The Association has been committed, since its founding in 1915, to securing a meaningful role for the faculty in decisions on matters of faculty status, rights, and responsibilities. The Association’s Statement on Government of Colleges and Universities provides a brief discussion of the bases for this position:
The primary responsibility of the faculty for such matters is based upon the fact that its judgment is central to general educational policy. Furthermore, scholars in a particular field or activity have the chief competence for judging the work of their colleagues; in such competence it is implicit that responsibility exists for both adverse and favorable judgments. Likewise, there is the more general competence of experienced faculty personnel committees having a broader charge. Determinations in these matters should first be by faculty action through established procedures, reviewed by the chief academic officers with the concurrence of the board. The governing board and the 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.
The Statement does not suggest a formal device to resolve disputes between faculty and governing board. Indeed, resort to any body outside the institution, such as the courts, for an official resolution of disputes in matters of faculty status, rights, and responsibilities poses a serious challenge to accepted notions of institutional autonomy. Moreover, a survey of current practices, admittedly limited, reveals that arbitration has been used not solely to break impasses between faculty and governing board but to review the soundness of faculty decisions themselves. This suggests an additional problem of the relationship of arbitration to faculty autonomy.
The Use of Arbitration
In many situations, administrators are responsive to faculty recommendations and indeed may welcome them. In such cases the resort to arbitration will probably not be perceived as necessary. In some situations, however, administrators or trustees are unresponsive to Association standards and faculty actions, and final legal authority to resolve matters of faculty status usually lies with the governing board concerned. In such cases, outside impartial review may well be useful. It must also be recognized that in many situations faculty members do not enjoy or exercise a degree of independence adequate to the assurance of protections embodied in Association standards. In these situations also, independent impartial review may play a role.
For example, disputes regarding the appropriateness of individual salaries, or the imposition of penalties for alleged violations of institutional regulations, or the termination of academic appointments for reason of financial exigency, or decisions affecting a faculty member’s teaching duties or programs of instruction are the sorts of controversies resolution of which may be fostered in varying degrees by arbitration.
It seems clear that, where resort to a formal external agency is deemed necessary, arbitration affords some advantages over judicial proceedings. In a court challenge, the procedure and substance are prescribed by federal and state constitutions, statutes, and judicial decisions in whose formulation the profession has almost no role. In contrast, arbitration procedures and substantive rights are largely within the joint power of the administration and the faculty’s collective representative to prescribe. Hence the parties to the academic relationship can shape procedures to their special needs, formulate substantive rules embodying the standards of the profession, and select decision makers with special competence in the field. In addition, arbitration may prove a quicker and less expensive remedy.
Thus, where the faculty does not share in the making of decisions or its voice is not accorded adequate weight, arbitration may have particular utility. However, the finality of arbitral review also has its hazards, especially in the present nascent state of arbitral doctrine, and because of the slight experience of arbitrators in academic settings. Accordingly, arbitration may play a useful role in an academic setting to the extent it can foster rather than impair the sound workings of institutional government.
It is suggested that four factors are essential for the effective use of arbitration: (1) sound internal procedures preliminary to arbitration that enjoy the confidence of both faculty and administration; (2) careful definitions of both arbitral subjects and standards to be applied by the arbitrator; (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.
1. Preliminary Procedures. Arbitration should be used most discriminatingly. It is not a substitute for proper procedures internal to the institution but should serve only as a final stage of that procedure. The availability of this forum should assist in rendering the earlier procedures more meaningful. Indeed, the submission of an inordinate number of grievances to arbitration may be significantly erosive of healthy faculty-administration relations.
The Association has suggested preliminary procedures for the adjustment of general faculty complaints and grievances.2 With more detail, the Association has crystallized procedures to be utilized in dismissal proceedings,3 proposed procedures to be used in hearing allegations of violations of academic freedom or discrimination in the nonreappointment of nontenured faculty,4 and adopted detailed provisions dealing with decisions on nonreappointment and review therefrom not raising issues of academic freedom or discrimination.5
The subcommittee recognizes that a wide variety of institutional practices exists in American higher education, and that the degree to which faculties actually possess the decisionmaking authority recommended in the foregoing varies accordingly. It may not be possible, then, to propose a single model of arbitration responsive to these varying institutional patterns and the many kinds of issues which could conceivably be presented for an arbitral determination. The subcommittee believes it to be of critical importance, however, that, in the agreement to arbitrate any matter affecting faculty status, rights, and responsibilities, the judgment of the faculty, as the professional body properly vested with the primary responsibility for such determinations, be accorded a strong presumption in its favor.
2. Arbitral Standards. The definition of the arbitral standards requires the most careful attention. In some instances arbitration has been used to correct only procedural departures,
while in others arbitral review of the merits of a decision has been afforded. The latter has proceeded under broad standards such as “just cause” for a particular action or more rigorous ones such as determining whether the questioned decision was “arbitrary and capricious.”
A tentative review of arbitral decisions under the varying approaches has revealed widely differing results and in some cases a degree of arbitral unresponsiveness to the underlying academic values. Accordingly, the subcommittee believes it to be requisite to the use of arbitration as a means of enhancing internal governance that fairly rigorous arbitral standards be established in those cases in which norms and procedures unique to higher education are implicated.
3. Selection and Education of Arbitrators. Much depends on the qualities of the individual selected to serve as the arbitrator and the degree to which he or she is educated by the parties to the issues for adjudication in the context of professional practice and custom and to the importance of the decision to the life of the institution. Here the Association can make a valuable contribution, whether or not a local affiliate is serving as a collective representative. As the preeminent organization of college and university faculty in the United States, the Association should share its expertise in reviewing the qualifications of proposed arbitrators and should consider, jointly with other organizations, consulting on the establishment of a national panel or regional panels of qualified individuals. Further, the Association may prepare model briefs or other materials dealing with accepted norms of academic practice to be used as educational materials before an arbitrator and should consider sponsoring, again possibly with other organizations, workshops for arbitrators on these issues. The Association should also maintain an uptodate file of awards and provide detailed comments on their academic implications, perhaps in some published form. Since the use of arbitration in this setting is so novel, it is clear that for higher education, unlike for the industrial sector, no welldefined set of doctrines has been developed. It is incumbent on the Association to assist directly in shaping such doctrines through all available means. Toward this end the Association should establish a joint subcommittee of the national committees having an interest in this area. A detailed study of the actual effects of arbitration under the varying approaches currently practiced and the drafting of model arbitration clauses would fall within the purview of such a body.
Two final issues require attention: the rights of the individual under a collective agreement providing for arbitration as the terminal stage of the grievance procedure; and the Association’s role in the event an arbitral award departs significantly from fundamental substantive standards sponsored by it. Where there is an exclusive collective representative, the agent almost invariably controls access to arbitration. The subcommittee believes that this approach may be inappropriate in an academic setting and recommends that individual faculty members have access to arbitration on their own behalf if the collective representative refuses to press their claims. Because the issue placed before an arbitrator may touch deeply an individual’s basic academic rights or freedoms, the individual should have the opportunity of participating in the selection of the arbitrator and have full rights to participate in all phases of the procedure, including all preliminaries, on a parity with the collective representative, if any, and the administration. Experimentation with the allocation of costs of proceedings where the representative does not itself desire to proceed to arbitration would be useful. Costs may be assessed by the arbitrator between the parties according to the gravity of the injury, if one is found, or could be borne equally by the administration and the complaining faculty member.
The Association has traditionally viewed itself as supporting basic standards and has not viewed its processes as being limited because of contrary provisions in an institution’s regulations, or, for that matter, an adverse judicial determination. Equally, the Association should continue to challenge significant departures from elemental academic rights, whether or not these departures have warrant in a collective agreement or an arbitrator’s award.
Arbitration can be a useful device for resolving some kinds of disputes and grievances that arise in academic life. Especially when collective bargaining is practiced, resort to arbitrators who are sensitive to the needs and standards of higher education may be the preferred way to avoid deadlocks or administrative domination. But arbitration is not a substitute for careful procedures that respect the autonomy of the faculty and the administration in their respective spheres. A system of collective bargaining that routinely resorts to arbitration is an abdication of responsibility. This is especially true of the faculty’s primary responsibility to determine who shall hold and retain faculty appointments.
1. Arbitration is a term describing a system for the resolution of disputes whereby the parties consent to submit a controversy to a third party for decision. The decision may be advisory only but is usually agreed to be binding. The parties participate in the selection of the arbitrator and may shape the procedure to be used; costs are usually borne equally between them.
2. Regulation 15, “Recommended Institutional Regulations on Academic Freedom and Tenure,” AAUP, Policy Documents and Reports, 10th ed. (Washington, D.C., 2006), 29–30.
3. 1958 “Statement on Procedural Standards in Faculty Dismissal Proceedings,” ibid., 12–15.
4. Regulation 10, “Recommended Institutional Regulations,” ibid., 28.
5. “Statement on Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments,” ibid., 16–21.