Presentation to the 15th Annual Legal Issues in Higher Education Conference, University of Vermont
By Donna R. Euben, AAUP Counsel
October 24, 2005
Academic administrators tend to function most effectively when they are able to identify potential legal problems and, to the extent feasible, avoid them. At the same time, there is no way to completely avoid litigation. In the end, if you apply institutional policies consistently and fairly, you will be in a solid position to defend decisions.
The number and variety of issues faced by academic administrators can be daunting—from handling disabled student requests for accommodations to assisting in the smooth functioning of departments and divisions to preventing health and safety complaints, to name just a few. This outline focuses on some of the recurring legal issues that often arise for academic administrators in dealing with faculty, including those legal “red flags” in faculty recruitment, academic tenure and promotion, sexual harassment, and academic freedom. The outline also briefly reviews issues relating to personal liability protection.
A few general principles inform the more specific legal topics below.
1. Be familiar with your institution’s policies and know whom to contact in understanding and applying them.
2. The academic workplace, like most other workplaces, has become grist for the legal mill. Litigation happens.
3. Communicate decisions and the reasons underlying those decisions. No faculty member or colleague should be surprised by a final decision.
4. Prevention is the key. The “ask no questions” policy often allows problems to escalate.
5. Be respectful. Whether you have to communicate a decision denying a faculty member tenure or suggesting that a department chair needs to do a better job of handling administrative responsibilities, civility is key.
See Ann H. Franke and Lawrence White, “Responsibilities of Department Chairs: Legal Issues” at 3-4 (American Association of University Professors-American Conference of Academic Deans Conference, October 2000, Revised June 2002).
The purpose of this outline is not to help you to become amateur lawyers. Rather, the goal is to familiarize (or refamiliarize) you with some common legal concerns and to provide a preliminary guide for “issue spotting.” This outline is not comprehensive, and should be considered only as a starting point.
I. Faculty Recruitment: Legal Trouble Spots and Practical Suggestions
A. Who Has the Authority to Make the Offer?
Be familiar with institutional policies and procedures, and follow them carefully regarding who can make the offer to the selected candidate. When recruiting faculty, avoid promises you cannot keep and communicate job offers, including the terms and conditions of the appointment, in writing.
Johns Hopkins University v. Ritter: The university recruited a married couple to help restore its pediatric cardiology program. The chair of pediatrics, who headed the search, wrote to the couple that they would be “coming on board as full tenured professors.” He allegedly sent a copy of the university’s personnel handbook. The candidates confirmed the understanding in their acceptance letter that they would be “proposed for a tenured appointment” as professors of pediatrics. They allegedly received repeated assurances that their appointments with tenure would be “rubber stamped.” As the appointment process continued, however, relations deteriorated between the two new professors and others in the department, and the university decided to terminate the relationship. The professors filed suit, and a 15-day trial resulted in a jury verdict of $822,800 in the professors’ favor. A state appellate court overturned that jury award, ruling that the chair of pediatrics lacked the authority to bind the university to a promise of tenure, including any promise that the tenure procedures set forth in the university handbook would be treated as mere formalities. The court stated: “when a tenure process is established in writing and is communicated to a prospective appointee, a subordinate official may not circumvent that process and bind the college to a tenure arrangement.” 689 A.2d 91 (Md. App. 1995), cert. denied, 694 A.2d 950 (Md. 1997).
Hirsch v. Columbia University, College of Physicians and Surgeons: Joy Hirsch, a tenured neuroscientist at Cornell University, left for a tenure-track position at Columbia University. The dean of the medical school as well as the department chair actively recruited her, sending her a letter in which they stated that they would enthusiastically recommend her for tenure as soon as possible and would consider appointing her to an endowed chair. Three years later Hirsch was denied tenure and one of the reasons she was given was that she had not been hired through the university’s established recruitment procedures. At that time, the dean was no longer at the university and did not participate in her tenure review. Hirsch sued the university, the medical school, the dean, and the department chair, asserting claims of gender discrimination, breach of contract, and fraud. The court first ruled that the dean signed the letter to Hirsch in his official (not personal) capacity and since he was no longer in a position to recommend her for tenure, he could not be sued personally for breach of contract. The court also found that the dean could not be held personally liable for discrimination, if any existed. However, the court declined to dismiss the claim of fraudulent inducement against the former dean in his personal capacity. The court found that if the following statements were made, then the former dean made a number of false representations, including that he was following established recruitment policies and that he would recommend her for tenure (both of which were not true), and that Hirsch relied on these misrepresentations to her detriment, leaving a tenured appointment to go to the medical school where she was ultimately denied tenure. 2003 WL 22829213 (S.D.N.Y. Nov. 24, 2003).
Drake v. Medical College of Ohio: Barbara Drake was recruited to serve as director of a collaborative biotechnology center at the state medical school. Drake provided a resume, and a senior vice president met with her, described the duties, and wrote her a confirming letter of appointment. The vice president orally stated that the appointment was subject to the approval of the board of trustees, but that such approval would not be a problem, since the board usually “rubber stamped” presidential recommendations. Drake began work in April 1994. However, the university ended her appointment after the board expressed concerns about particular omissions and misrepresentations in her resume, and declined to approve the appointment. Drake sued for breach of contract, and the administration prevailed. The state appellate court reasoned that only the board of trustees had hiring authority, not the vice president, so any representations by the vice president were not legally binding on the institution. 698 N.E.2d 463 (Ohio App. 1997). See also Jacobson v. Med. College of Ohio, 2005 WL 1220741 (Ohio App. May 24, 2005)
Kulm v. Montana State University-Bozeman: A professor responded to an advertisement in The Chronicle of Higher Education for a position at MSU for up to five years. He accepted an oral offer, resigned from his position at Texas A&M, and moved his family to Montana. After one year he was not renewed for reasons unrelated to his performance. Professor Kulm sued for fraud, negligent misrepresentation, and breach of the duty of good faith and fair dealing. The Montana Supreme Court ruled that the state’s Wrongful Discharge from Employment Act barred the professor’s claims, a law which provides that “no claim for discharge may arise from tort or express or implied contract.” 948 P.2d 243 (Mont. 1997).
B. Treatment of Adjunct and Visiting Professors as Candidates for Newly Available Tenure-Track Positions
An increasing number of institutions rely for teaching on visiting, part-time and adjunct professors. Today, 46 percent of all faculty are part-time, and non-tenure-track positions of all types account for 65 percent of all faculty appointments in American higher education. Both part- and full-time non-tenure-track appointments are continuing to increase, with the most rapid growth in recent years occurring in full-time positions off the tenure track.
1. Some Case Law
More and more frequently adjunct and visiting faculty are challenging appointment decisions when they feel that their proven record of service should qualify them for a tenure-track position, but the appointment goes to an external candidate. Some legal cases arise because of informal, often well-meaning, statements by tenured faculty or administrators that seem to promise a newly created tenure-track position to a contingent instructor.
Daniels v. University of Cincinnati: Annemarie Daniel, a communications professor, left a tenure-track position elsewhere to be a full-time, non-tenure-track visiting faculty member at the University of Cincinnati. She was told that the next year the visiting position would “convert to a permanent tenure-track line.” The permanent position opened, and Daniel applied, along with twenty-seven others. She was not selected for an interview, and another candidate was ultimately appointed. Daniel sued, alleging that she had relied on the promise that she would be considered for the permanent position. She testified that she had received “unofficial assurances” that she would get the permanent position, including a colleague’s comment that “the department had a good record of retaining visiting assistant professors in tenure-track positions.” The state trial court rejected Daniel’s contract claim, ruling that, as Daniel conceded, the university had not guaranteed that the position would “automatically be awarded” to her. The court emphasized that she had signed a contract for a one-year, non-tenure-track position. Moreover, despite what departmental colleagues might have implied, only the board of trustees had the authority to approve employment contracts. 761 N.E.2d 1168 (Ohio C.P. 2001).
See generally Donna R. Euben, “Contingent Faculty and the Courts,” Academe 94 (Jan.-Feb. 2004).
2. AAUP Policy
In 2003 the AAUP issued its statement, “Contingent Appointments and the Academic Profession." The statement recommends that adjunct faculty be considered in the pool of candidates when new tenure-track positions are created:
Creation of New Positions
Faculty and administrators at an institution may decide to create new tenure-track positions while reducing the number of new hires of contingent faculty. When this is done, the following guidelines should be followed:
1. Faculty should reconsider the academic work to be undertaken by those holding both new and existing tenure-line positions. Faculty responsibilities may need to be restructured or rearranged in order to ensure that undergraduate as well as graduate courses are appropriately staffed.
2. When colleges and universities create new tenure-track positions, they should advertise widely to generate a diverse pool of applicants.
3. Experienced, effective, and qualified faculty currently holding contingent appointments should be encouraged to apply for the new tenure-track positions. In the selection and appointment process, faculty and administrators should recognize the value of continuity in teaching and familiarity with the institution’s programs as desirable criteria. Contingent faculty should be given fair and careful consideration when new tenure-eligible positions are created, and their experience and accomplishments should be taken into account. Certainly, faculty charged with the selection of new colleagues should scrupulously avoid discrimination against applicants currently employed in contingent positions. In the context of a transition, faculty members who have served many years in contingent appointments should have the option of continuing in the same position, with the same qualifications and responsibilities.
4. When institutions replace part-time positions with full-time positions, and/or contingent positions with tenure-track positions, they should create timetables that rely, insofar as possible, on attrition and voluntary terminations, in order to introduce the least possible disruption in the work lives of contingent faculty who have served the institution well over a period of years.
5. Plans for transition should be multi-year plans, including a realistic assessment of the resources needed to accomplish the change, and the steps necessary to commit the appropriate resources.
C. The Search Process: Recruitment and Outreach
Courts have found race-conscious recruiting acceptable under a variety of legal standards. For an excellent review of these laws, see Ann D. Springer, “How to Diversify Faculty: The Current Legal Landscape” (2004), and “Update on Affirmative Action in Higher Education: A Current Legal Overview” (2005). Taking steps to increase the pool of qualified faculty applicants increases chances for diverse candidates, and exposes the institution to a broader pool of talent. See, e.g., Duffy v. Wolle, 123 F.3d 1026 (8th Cir. 1997); Hill v. Ross, 183 F.3d 586, 589 (7th Cir. 1999) (plans designed to “search intensively for minority candidates. . . .do not entail preferential treatment for any group in making offers of employment”).
See also AAUP’s policy on The Ethics of Recruitment and Faculty Appointments: “An institution that announces a search should be genuinely engaged in an open process of recruitment for that position. Descriptions of vacant positions should be published and distributed as widely as possible to reach all potential candidates. The procedure established for reviewing applicants and for selecting final candidates should be consistent with the institution’s announced criteria and commitment to a fair and open search.” “The Ethics of Recruitment and Faculty Appointments,” aaup policy documents & reports 141 (9th ed. 2001).
1. Some Practical Suggestions
a. Advertise and publicize widely available positions Often job information is shared as part of regular contact and communication, and those who find out about jobs through these methods are in the best position to have the time and connections to prepare competitive applications. But those who are not part of the usual networks of senior faculty and administrators miss out on the advantage this kind of networking and recruiting provides. Thus our networks need to be consciously expanded. See Daryl Smith and Caroline Turner, “Hiring Faculty of Color: Research on the Search Committee Process and Implications for Practice,” Plenary Paper, Keeping Our Faculties Conference, University of Minnesota 2002.
b. Designers of diversity programs must also be careful about creating the perception that hiring of diverse faculty is not based on merit, that the appointee is not chosen or supported by the members of the department. Failure to take this issue into account can lead to isolation within the department, and lack of the necessary departmental support at tenure time. See, e.g., L. K. Johnstrud, & K. C. Sadao, “The Common Experience of ‘Otherness’: Ethnic and Racial Minority Faculty,” The Review of Higher Education 21(4) 315-342 (1998).
(i) Advertise in journals and periodicals that make special efforts to reach minority faculty and graduate students. More than 100 academic journals publish research of interest to racial and ethnic groups.
(ii) Vacancy announcements can also be sent to faculty members or graduate students at minority-serving institutions, organizations that work on minority issues, components within organizations such as minority caucuses in national scholarly associations, and personal contacts in the field who are likely to know promising graduate students or other potential applicants. Develop outreach networks that target faculty at majority white schools that grant a substantial number of doctoral degrees to minority faculty, or at historically black colleges and universities. Consult with minority faculty members on campus for their views on outreach, and on ways to reach a broader community.
(iii) Do not forget electronic advertising: Post new positions on disciplinary electronic discussion lists, seeking out such lists likely to be subscribed to by minority faculty and graduate students (for example: MELUS-NewsNotes-list, Native-L, AFAMHED [higher education], H-LatAm [Latin American History], etc.). Examine the Web sites of departments at likely colleges and universities including those that have historically enrolled minority students.
(iv) Create and maintain a list of such diverse publications, institutions and resources for outreach, so that it is both accessible to and able to be added to by all faculty. This prevents each search committee from having to regenerate such a list, and creates a forum for sharing knowledge and resources.
c. Draft position descriptions so that they realistically reflect the full range of skills and knowledge needed. Criteria for consideration can include factors like demonstrated ability to work with diverse students and colleagues, or experience with a variety of teaching methods or curricular perspectives.
“The overall excellence of a given department may be better ensured by considering its existing strengths and weaknesses and, accordingly, varying the emphasis given to different kinds of individual qualification for appointment from time to time, instead of applying a rank-order of standards of fitness identically in every case. The failure to consider appointments in terms of a balance of qualities within a department may in fact result in less overall excellence than otherwise.” “Affirmative Action in Higher Education: A Report by the Council Committee on Discrimination,” aaup policy documents & reports, 193, 195-6 (9th ed. 2001).
(i) Overly rigid criteria should be avoided. Criteria like years of service might exclude promising candidates from less traditional backgrounds who could make substantial contributions to the institution and may not be necessary for the position.
(ii) Consider expanding the position to include interdisciplinary or interdepartmental work, which creates a broader applicant pool. Creating opportunities for a variety of pedagogical techniques and approaches is not only more applicable to a greater variety of students and learning styles, but is more likely to bring in a greater variety of candidates. See, e.g., Does Diversity Make a Difference? Three Research Studies on Diversity in College Classrooms, American Council on Education & American Association of University Professors (2000).
(iii) Tying the description closely to the real range of skills needed is a strong argument against claims that race or sex was impermissibly considered in hiring. Creating a well thought-out and focused position description avoids problems later on.
d. Well-crafted job descriptions are particularly useful in states where the state law forbids considering race and ethnicity in hiring at all. Even in these states, institutions may consider whether the research interests of a candidate meet the particular research or curricular goals of the institution, program or department. Thus if the institution has included considerations of diversity as part of the definition of academic excellence, it can give positive consideration to candidates’ research agendas that enhance understanding of race, ethnicity, gender, multiculturalism, etc. Similarly, curricular initiatives that focus on issues like comparative cultural studies and social justice mean that candidates considered to teach those classes should have experience and research issues in those areas. See, e.g., Sheila O’Rourke, “Strategies for Achieving Faculty Diversity at the University of California in a Post-Proposition 209 Legal Climate (Part One),” Keeping Our Faculties Conference, University of Minnesota 2002.
2. Some Case Law
Medcalf v. Trustees of Univ. of Pennsylvania:. A male job applicant sued the university, alleging that he was not hired or even interviewed for a position as coach of the women’s crew team because the decisionmaker wanted to add a woman to the all-male coaching staff. In upholding the district court’s refusal to grant the university’s motion for summary judgment, the court paid particular attention to the skills listed in the job description. Noting that the job description placed a high importance on actual coaching ability, yet the university argued in court that the woman hired was chosen for her superior administrative skills, the court concluded that the evidence “reveals inconsistencies in Penn’s position as to what ‘hiring criteria’ it used to make the decision regarding the open coaching position, and what qualities it valued most highly in candidates.” This, combined with evidence of the desire to diversify the coaching staff, was enough for the court to allow the suit against the university to proceed. 71 Fed. Appx. 294 (3d Cir. 2003).
Kokes v. Angelina College: A white male applicant challenged the institution’s refusal to hire him for a faculty position. The job description required a master’s degree and “some college teaching,” indicated that the instructor would be teaching freshman-and sophomore-level courses, and expressed a preference for candidates with experience in community college teaching and “the ability to interact with a diverse student body.” Kokes argued that he had a PhD, had taught longer (at four-year institutions), and had published much more than Jackson, the African-American woman hired. The college argued that while both candidates were highly ranked by the search committee, Jackson had more general and community-college teaching experience, had already taught several semesters at the college, and had better teaching references. The court, in dismissing Kokes’s federal claims, noted that everyone agreed that both candidates were qualified for the job, and “different employers may weigh candidates’ qualities in various ways and the qualities that one employer would say are essential might not be that important to another employer in the same field.” The court also noted that different schools with different communities and missions would value qualifications differently. 220 F. Supp.2d 661 (E.D. Tex. 2002).
Sadki v. StateUniversity of New York, College at Brockport: A candidate who was denied an assistant professor position sued SUNY, alleging discrimination based on race and national origin. The job description stated that the position required a PhD or equivalent in French studies or a related area, experience and commitment to teach language, and a demonstrated ability to conduct and publish scholarly research. The candidate had a PhD in education and international and African studies. He was fluent in French, and had taught four French classes a semester at the college for the past two years and received excellent reviews. The dean and the president denied the candidacy of the candidate after concluding that he did not meet the advertised requirements for the position because he did not have a PhD in French. Finding a genuine issue of material fact about whether the college’s reasons for denying the candidate the appointment were pretextual, the court denied the college’s motion for summary judgment. 310 F. Supp.2d 5061 (W.D.N.Y. 2004)
D. The Search Process: Working with Search Committees
1. Search committees are often the weak link in discrimination lawsuits. It is unfair and unrealistic to expect faculty committees to understand the nuances of the issues and legal constraints in this area without information and support from the administration and the institution’s policies. Even well-meaning people often misunderstand affirmative action and can unwittingly say or do things that cause candidates to believe they are being discriminated against or misrepresent the position or the institution’s commitment to diversity.
2. Briefing search committees ahead of time is a benefit to the committee and to the institution. Committees should receive guidance about reaching out to the complete pool of qualified applicants, about subtle forms of discrimination that can creep into the process, about ways to evaluate candidates in a way that values diversity, and about what they should and should not say and promise.
3. Provide search committees with materials about the institution’s commitment to diversity and the educational benefits of diversity. Make diversity recruitment resources available to search committees, and consider creating an institutional diversity recruitment document if one does not exist. There are many excellent materials available (in hard copy and on the web) on concrete processes and strategies for diversifying. See, e.g., C.S.V. Turner, Diversifying the Faculty: A Guidebook for Search Committees, (Association of American Colleges and Universities, 2002) (hereafter “Diversifying the Faculty”); University of Washington Faculty Recruitment Toolkit; Michigan State University Handbook “Best Practices for a Successful Academic Search: Practical Tips & Resources for Recruiting a Diverse Faculty;” Kent State University Diversity Instruments, “Hiring for Diversity Instrument,” “Retaining for Diversity Instrument.”
4. Choose search committees wisely. Faculty members who are active researchers and attendees at professional conferences are more likely than others to have encountered minority faculty in their area of study.
The matter of access is in part . . . .a function of the procedures through which professional academics have been sought out and recognized within the academy. Insofar as few are called, the range of choice must necessarily be a narrow one, and those fewer still who are chosen tend to mirror the profession’s image of what it is, not what it should or might be. Beyond procedural defects, however, the very criteria by which professional recognition is accorded have necessarily tended to reflect the prejudices and assumptions of those who set them, and professional recognition and advancement have generally been accorded to those who most closely resemble the norm of those who have in the past succeeded in the academy.
“Affirmative Action in Higher Education: A Report by the Council Committee on Discrimination,” AAUP Policy Documents & Reports 193 (9th ed. 2001).
5. Support search committees throughout the process. Dedicated efforts to reach out to diverse candidates take extra time and effort. Administrations should reduce that burden as much as possible by providing resources (advertising lists, web resources, etc.) to committees so that they do not have to create them, providing encouragement for committees to make the extra effort to reach out to colleagues who might be able to identify diverse candidates (those who teach graduate students, make frequent presentations at scholarly conferences, are familiar with diverse areas of interest in the field), and recognizing and applauding those who make a concerted effort. Ask faculty who have led diverse searches to speak to colleagues, present information on what worked and what did not, and generally make the subject an area of discussion and involvement throughout the campus. Business as usual can be one of the greatest impediments to increasing diversity; support the effort it takes to move beyond that model. Provide search committees with practical guides to steps they can take to advance diversity. See, e.g., Turner, Diversifying the Faculty.
6. Encourage committees to evaluate their criteria. Part of changing practice as usual is to look at the factors search committees use in evaluating candidates, and what assumptions are built into those criteria. For example, search committees should pay attention to decisions in ranking candidates’ graduate schools, and how minority-serving institutions and programs fare in that ranking. Make sure that the ranking of minority institutions accurately reflects the strength of their programs and the advantages they offer, and does not reflect any prejudice or discrimination, or simple lack of familiarity with the program.
II. Faculty Tenure and Promotion: Legal Trouble Spots and Practical Suggestions
Like hiring decisions, tenure and promotion decisions should be handled in a fair, equitable and timely fashion. Courts tend to grant higher education institutions a great deal of deference in their academic decisionmaking. Neverless, courts will rule against colleges and universities where there is evidence of discrimination, arbitrary decisionmaking, or failure to follow established institutional procedures. See generally American Council on Education, American Association of University Professors, and United Educators, Good Practice in Tenure Evaluation (2000).
A. Take Pre-Tenure Evaluations Seriously
Craine v. TrinityCollege: Leslie Craine, a former assistant professor of chemistry, who was denied tenure in 1993 despite a unanimous departmental recommendation, sued the college in 1995. The unanimous state supreme court upheld part of the jury verdict, which found in favor of the professor, ruling “that the [college] breached the parties’ contract [established by the faculty handbook] by indicating that [Craine] would be evaluated according to one standard but denying tenure because of her failure to meet a different one.” The Trinity faculty handbook provided that the college is obliged to “indicate” to a candidate “as clearly as possible” any areas that require “special attention,” and that a negative tenure decision must be based on having failed “to meet the standards of improvement” based on rank and delineated in the last reappointment letter. Craine’s last reappointment letter encouraged her “to continue along the lines” she had established at the college, although it also suggested that she focus on publishing the results of her original research. During her last reappointment review, Craine’s colleagues had determined that she was on track for tenure. Two years later, the department voted that she should receive tenure. The college’s appointments and promotions committee, however, voted against Craine, because it found that she had “only one published article in a refereed professional journal.” Craine argued that her article was published in her discipline’s most prestigious journal and that its substance could have been published as several articles. Craine, with the support of the chemistry department, sought reconsideration by the committee. According to the Chronicle of Higher Education, the department wrote that “[t]o change the rules between the second and the final [tenure review] is fundamentally unfair.” On appeal, the court found that the college had used a “shifting standard” when it emphasized the quantity of her publications as a basis for tenure denial: “The quantity of publication was emphasized during the tenure denial but was not clearly emphasized at any time prior thereto.” Accordingly, the court asserted that “with different notice, Ms. Craine might have performed differently.” 259 Conn. 625 (2002).
B. Do Not Retaliate Or Act With Malice
Sifferman v. Board of Regents, SoutheastMissouriStateUniversity: James Sifferman, a professor of music, sued the university for retaliation when he was denied promotion to full professor. Sifferman had testified before a state human rights commission on behalf of a female faculty member who was denied tenure in a sexual harassment case against the department head and dean. Sifferman was denied promotion four consecutive years. The one year that the department chair was not on the committee, Sifferman’s application was approved, but it was then rejected by the dean. The district court declined to grant the university’s motion for summary judgment, finding direct evidence that a former department head had stated that Sifferman had acted “uncollegial” and would never get promoted as long as he was around. 240 F. Supp.2d 1139 (E.D. Mo. 2003).
Witczak v. Gerald: After Zbigneiw Witczak, a professor in the pharmacy school at the University of Connecticut, was denied tenure, he sued two faculty colleagues and a dean, claiming that they had intentionally inflicted emotional distress upon him by their actions in connection with the tenure decision. The faculty members had intentionally and in bad faith destroyed a letter they had solicited that supported Witczak’s tenure candidacy, and intentionally underreported the amount of funding and the number of publications he had generated. The dean had refused to take any steps to correct the inaccurate figures. The trial court dismissed Witczak’s suit, finding that the three defendants were immune from suit under state law because the alleged conduct was not wanton, reckless or malicious. The state appellate court reversed, finding that the conduct of the two faculty members and the dean fell within the statutory exception to the state immunity law. 793 A.2d 1193 (Conn. App. 2002).
C. Be Careful What You Say
Stray or off-hand discriminatory remarks made by academic administrators are often cited as a basis for discrimination lawsuits by faculty members in tenure denial and promotion denial suits.
1. Some Discrimination Laws
A number of (at times overlapping) federal discrimination laws apply to higher education institutions. The rationale underlying these laws is that characteristics such as race, gender or age are irrelevant for appointment decisions, including hiring and promotion. The application of discrimination laws to the higher education context is complex because colleges are not typical workplaces. For example, it is often difficult for a professor alleging discrimination to establish different treatment from “similar” faculty members. Is an art history professor “similar” to a studio art professor? Who is responsible for the allegedly discriminatory conduct where faculty peers play a primary role in recommending candidates for hiring, promotion and tenure? The department? The department chair? The P&T committee? The dean? The board of trustees?
Here is a brief overview of some of the federal anti-discrimination laws that apply to most higher education institutions:
Title VI of the Civil Rights Act: Title VI prohibits discrimination on the basis of race, color, or national origin by public and private educational programs and activities that receive federal funds.
Title VII of the Civil Rights Act: Title VII prohibits discrimination in employment based on an individual’s race, gender, color, religion, sex or national origin.
Title IX of the Education Amendments: Title IX prohibits sex discrimination in educational programs and activities by public and private educational institutions that receive federal funds.
Salary Discrimination and the Equal Pay Act: Both the Equal Pay Act (EPA) and Title VII prohibit sex discrimination in compensation. The critical issues are, usually, whether the jobs are “equal” or “substantially similar,” and whether an exception applies to allow a salary differential, such as a “differential based on any other factor other than sex.”
The Americans with Disabilities Act (ADA): The ADA prohibits discrimination against individuals with disabilities. Individuals are “qualified” for the position, with or without a reasonable accommodation, if they can perform the essential functions of the position. If a professor, at hiring or during an appointment, is a “qualified individual with a disability,” the college must provide a reasonable accommodation unless the accommodation presents an “undue hardship” for the college. (There is also the Rehabilitation Act of 1973, which prohibits discrimination against individuals with disabilities in federally funded programs and activities.)
The Age Discrimination in Employment Act (ADEA): The ADEA prohibits age discrimination with respect to persons who are at least 40 years old. In 1986 the law was amended so that, as of January 1, 1994, mandatory retirement for faculty, whether tenured or not, is unlawful.
Please note that state laws and municipal ordinances also exist. Furthermore, anti-discrimination policies may also be contractual obligations where faculty handbooks are enforceable contracts under state law. Similarly, where faculty are unionized, collective bargaining contracts often contain anti-discrimination provisions. AAUP, “Faculty Handbooks as Enforceable Contracts: A State Guide” (2005 ed.).
2. Some Case Law
“The English Department is a damn matriarchy.” Brown v. Trustees of Boston University, 891 F.2d 337 (1st Cir. 1990) (university president’s comment to department chair that was offered as evidence by female English professor who was denied tenure in a department that had a female chair and six other tenured women out of a total of 26 tenured faculty).
“There’s a problem. There are different standards for males and females.” Krystek v. University of Southern Mississippi, 164 F.3d 251 (5th Cir. 1999) (interim dean’s remark to a male faculty member in the political science department who sued for tenure denial, about the successful tenure candidacy of a female professor).
“Your performance isn’t bad for a broad.” Farlow v. University of North Carolina, 624 F.Supp. 434 (M.D. M.C. 1985) (department chair’s comment to a female faculty member after a musical performance which was cited by another female musician who was denied promotion to full professor).
“All Mexicans hired by the college cause trouble.” Briseno v. Central Technical Community College Area, 739 F.2d 244 (8th Cir. 1984) (college president’s statement to part-time Mexican-American faculty member who was rejected for a full-time position; the judge found the president’s denial about having made that statement “unconvincing”).
“We want to hire young people.” Mandell v. Regents of the University of California, 2004 WL 2335251 (Cal. App. 2004) (search committee chair’s comment to a 47-year-old female candidate who was rejected for tenure-track appointment that was filled by 39-year-old candidate).
“I know what’s wrong with this place, too many white people around here.” Gentner v. Cheyney University of Pennsylvania, 1999 WL 820864 (E.D. Pa. 1999) (department chair’s statement to two white professors who objected to how faculty searches were conducted; the chair also allegedly said, “[A]s long as I am chairperson, I am not going to accept a white one”).
D. Be Careful What You Write
There is a constant balancing in the academic community between the public’s “right to know” and an individual’s right to privacy. As the AAUP’s Access to University Records statement points out, “While access confers benefits, it also carries costs and potential dangers, many of which apply with special force to an academic community.” See also Donna R. Euben, “Let the Sunshine In? State Open Records Laws,” Academe 102 (Mar.–Apr. 2002).
Under state freedom-of-information laws, often called “open-records” laws, key terms relevant to the academic community are defined and interpreted differently: Is a college or university a “public agency”? Is a particular document a “public record”? When is a record “in the possession of” a state agency, and are materials “possessed” by faculty members included? (There is also the federal Freedom of Information Act, and some courts have recognized a state “common law right” to gain access to public documents.)
Some state open-records laws allow for the disclosure of certain personnel records, including documentation of faculty recruitment efforts. Accordingly, written correspondence—including e-mails and handwritten notes—may be subject to public disclosure under your state sunshine law. For a description of a current controversy at the University of Georgia involving the sunshine law, see Piper Fogg, “Paper Trail,” The Chronicle of Higher Education A20 (July 15, 2005).
State ex rel. James v. Ohio State University: William Calvin James, an assistant professor of geological sciences at Ohio State University, was entitled to access other professors’ tenure and promotion files and to his own unredacted tenure dossier, which were maintained by the university, under the state’s open-records law. The Ohio Supreme Court rejected the university’s arguments that tenure files were protected under the confidentiality exception to the state law because that exception applied to law enforcement records only. The court also found that academic freedom was not implicated because “the issue is not whether the university is permitted to decide on academic grounds who receives promotion and tenure, but whether the records of those decisions are public records.” 70 Ohio St. 3d 168, 637 N.E. 2d 911 (Ohio Sup. Ct. 1994).
Handler v. Arends: Bonnie Handler, a professor in the School of Education at Central Connecticut State University, sued her dean and another professor, asserting that her privacy was violated by her colleagues’ disclosure to others that she had been denied tenure. She had been informed that she was denied tenure because of “budgetary concerns,” but still was promoted because of her high academic achievement. A Connecticut appellate court ruled that a professor’s personnel file, including the documents regarding her tenure denial, might be exempt from the disclosure requirements under state law. The court found that under the faculty collective bargaining agreement and state disclosure law, the professor had an argument that “the disclosure of internal, personnel evaluations for tenure would constitute an invasion of privacy.” 1995 Conn. Super. LEXIS 660 (Conn. Super. Ct. 1995) quoting Perkins v. Freedom of Information Comm., 228 Conn. 158, 174, 635 A.2d 783 (Conn. 1983).
Marder v. Board of Regents: In an unpublished opinion a Wisconsin appellate court ruled that the University of Wisconsin had to disclose to media outlets copies of the personnel records and investigation files compiled by the administration in response to a sexual misconduct claim filed against a tenured professor of mass communications. The court opined that the professor’s privacy interests were outweighed by the public’s “substantial interest in student-faculty relations at our state universities, the manner in which school administrations handle student complaints against faculty, and the enforcement of university rules.” 226 Wis. 2d 563 (Ct. App. 1999).
A summary of state open records laws is available at The Reporters Committee for Freedom of the Press, Tapping Officials’ Secrets.
E. Tick Tock, the Tenure Clock
From time to time faculty members may seek an extension of their tenure clock for family or other reasons. The mishandling of such requests may trigger discrimination or contractual claims. In considering whether to approve or deny a request for the extension of the tenure clock, be clear on what criteria to consider and then apply those criteria fairly and consistently.
McMiller v. Board of Trustees of the University of Illinois: William McMiller, an African-American psychiatrist, was denied tenure and alleged race and disability discrimination because the institution failed to grant him an extension of his probationary period and to grant him tenure. The university’s policy allowed up to two years of “rollback,” and required that to receive such a rollback, the candidate must be making sufficient progress toward tenure. McMiller received a two-year extension, and then requested additional time based on his degenerative spinal condition. However, McMiller did not provide documentation of the medical condition, and so his request was denied. His department and the college committee both unanimously voted to deny McMiller tenure based upon his dossier. McMiller’s disability claim failed because the university was immune from such suit under the Eleventh Amendment. McMiller’s race discrimination allegation failed because he had been told that for tenure, he needed ten or more publications, including those in refereed journals and those in which he served as senior author. That evidence, the court reasoned, was a proper ground for denying McMiller’s probationary extension request because the written criteria required appropriate demonstrable progress toward tenure, and he had made no such progress. 275 F. Supp.2d 974 (N.D. Ill. 2003).
Back v. Hastings-on-Hudson: Elana Back, a school psychologist at a New York elementary school, was denied tenure at the end of her three-year probationary period. The school alleged that the denial was based on deficiencies in her organizational and interpersonal skills, but Back asserted that the denial was based on her supervisor’s assumption that she could not be devoted to her position while being a mother of young children. The lower court ruled in favor of the school, but the federal appellate court vacated that decision, remanding the case for further consideration. The Second Circuit held that the use of motherhood stereotypes of female employees is gender discrimination under the Equal Protection Clause of the U.S. Constitution. It opined: “It takes no special training to discern stereotyping in the view that a woman cannot ‘be a good mother’ and have a job that requires long hours, or in the statement that a mother who received tenure ‘would not show the same level of commitment [she] had shown because [she] had little ones at home.’” The court concluded that a jury could find that Back was stereotyped “as a woman and mother of young children,” and thus the school treated her “differently than they would have treated a man and father of young children.” 365 F.3d 107 (2d Cir. 2003). See Donna R. Euben, “Working Mothers and Gender Discrimination,” The Chronicle of Higher Education (Legal Supplement) (May 27, 2005).
For recommendations on how to balance family and work responsibilities, including requests for stopping the tenure clock, see the AAUP’s “Statement of Principles on Family Responsibilities and Academic Work.”
F. Do Not Ignore Misconduct Accusations During Tenure Reviews
What should happen when misconduct allegations—of sexual harassment or plagiarism, for example—arise about candidates during their reviews for tenure, promotion, or reappointment? The academic and legal issues are complex, and the outcome relies, to a great extent, on institutional policies and practices, to the extent they exist.
Tacka v. GeorgetownUniversity: While the tenure application of Philip Tacka, an assistant professor of music at Georgetown University, was pending, he learned that an outside evaluator had accused him of plagiarism in critiquing the professor’s scholarship. The faculty handbook at Georgetown provided that plagiarism charges be investigated by a research integrity committee, and Tacka requested that his tenure consideration be delayed until after such investigation. Nevertheless, the departmental committee convened and rejected his tenure bid, as did the promotion and tenure committee. Only after Tacka received the negative tenure decision was the plagiarism charge forwarded to the research integrity committee, which found no merit to it. A grievance panel reached the same conclusion. A year later, Tacka was awarded tenure. Tacka sued the university, raising a number of legal claims, including breach of contract. He argued that the institution failed to follow its own faculty handbook, which is an enforceable contract under District of Columbia law, in two ways: by failing to refer the plagiarism charge immediately to the research integrity committee, and by dealing with the misconduct allegation in his tenure review before forwarding the claim to the research integrity committee. The administration responded that “neither the handbook nor common practice at Georgetown University requires suspension of a tenure review process when an allegation of academic dishonesty, such as plagiarism, is received.” In allowing the professor’s suit to continue, the court found the handbook “clear in requiring allegations of plagiarism to be addressed through the exclusive mechanism of the Research Integrity Committee.” At the same time, the handbook was “less clear—and . . . in fact silent—on the issue of whether a tenure review must be halted when an allegation of plagiarism is received.” The court opined, however, that “[a]dherence to the proper procedure likely would have resulted in suspension of the tenure review process.” In so reasoning, the court found the conclusions of the committee and grievance panel “germane and helpful” in interpreting the ambiguous faculty handbook provisions. 193 F. Supp.2d 43 (D.D.C. 2001).
See Donna R. Euben, “Misconduct Accusations in Tenure Reviews,” Academe 78 (Jan.-Feb. 2003).
G. Apply Tenure Review Policies Consistently
Unsuccessful tenure candidates often challenge procedural irregularities in the handing of their tenure reviews. One source of such litigation arises in the context of outside letters of reference.
El-Ghori v. Grimes: Ali-Kanso El-Ghori, a professor of journalism and mass communications at Kansas State University, sued the university, two administrators, and two faculty members who opposed his tenure application for defamation, discrimination, and other claims when he was denied tenure. Although the court dismissed the professor’s suit because it found no evidence of discrimination based on his race or national origin, it noted: “The tenured faculty voted without having reviewed letters from faculty outside of the school (outside reviewers), which was the school’s practice, although the school’s written procedures provide for such information to be available for review prior to voting.” 23 F. Supp.2d 1259, 1264 (D. Kan. 1998).
Ganguli v. University of Minnesota: Aparna Ganguli, a professor of mathematics, sued the university for breach of contract when it denied her tenure. In siding with the faculty member, the court observed that the university solicited more than 40 external review letters, while the normal number would have been between 6 and 10. 512 N.W.2d 918 (Minn. App. 1994). On appeal after remand, the court found that the board stated “substantial reasons” for denying Ganguli tenure, and affirmed the lower court’s decision. Ganguli v. University of Minnesota, 1996 WL 689786 (Minn. App. 1996).
Kulkarni v. City University of New York: Ravi Kulkarni, a professor of mathematics, sued the university when he was denied promotion to the position of distinguished professor. The institution said that the letters of reference were not strong enough for the appointment, even though the court noted they were “consistently highly positive.” One letter, which criticized him for an inaccuracy in his c.v., was contested by Kulkarni as having been an alleged procedural irregularity when the university did not request letters of reference until seven months after his nomination was forwarded. The court rejected the professor’s claim of race and national origin discrimination because he provided no evidence about the policy regarding co-authors, the seven-month lag was justified by the promotion committee’s schedule, and the university had valid reasons to deny the appointment despite the positive letters of reference. 2002 U.S. Dist. LEXIS 24684 (S.D.N.Y., January 3, 2003).
III. Sexual Harassment Complaints Involving Faculty: Some Legal, Policy And Practical Considerations
A. The Legal Framework
A number of laws govern sexual harassment in colleges and universities, including federal and state laws and sometimes municipal ordinances. Furthermore, faculty handbooks may create contractual obligations under state law. In addition, where faculty are unionized, collective bargaining agreements establish enforceable contracts.
Two federal laws govern sexual harassment:
Title VII of the Civil Rights Act: Title VII prohibits discrimination in employment based on an individual’s race, gender, color, religion, sex or national origin.
Title IX of the Education Amendments: Title IX prohibits sex discrimination in educational programs and activities by public and private educational institutions that receive federal funds.
Some additional legal points
1. Harassment must be “on the basis of sex,” not sexual orientation (e.g., “gay-bashing” is not covered). Sexual harassment may, however, involve individuals of the same sex (e.g., professor continually propositions same-sex student for sexual favors). See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (finding actionable same-sex harassment under federal Title VII law); Mary Ann Connell and Donna R. Euben, “Evolving Law in Same-Sex Sexual Harassment and Sexual Orientation Discrimination,” 31 J.C. & U.L. 193 (2004).
2. Although most institutional sexual harassment policies deal with “sexual conduct,” nonsexual, gender-based harassment may also constitute sex discrimination (e.g., professor who continually berates female students as being “stupid in math”).
3. The same standards applied to sexual harassment are also used by courts to address harassment on the basis of race or other protected categories.
4. Sexual harassment must also be unwelcome.
5. “Mere offensiveness” is not enough to constitute sexual harassment.
The AAUP policy provides:
Such speech or conduct is directed against another and is either abusive or severely humiliating, or persists despite the objection of the person targeted by the speech or conduct; or
Such speech or conduct is reasonably regarded as offensive and substantially impairs the academic or work opportunity of students, colleagues, or co-workers.
The AAUP, “AAUP’s Sexual Harassment: Suggested Policies and Procedures for Handling Complaints” (hereafter “Sexual Harassment”).
B. Some Case Law
In determining whether sexual harassment is severe, pervasive or persistent under legal standards, courts consider the following factors (a “totality of the above-stated circumstances” test):
1. The nature, scope, frequency, duration, and location of incidents;
2. The identity, number, and relationships of persons involved;
3. The perspective of a “reasonable person” of the same age and gender; and
4. The nature of the higher education context and the educational mission.
Gupta v. Florida Board of Regents: The federal appellate court ruled that a woman assistant professor of economics at Florida Atlantic University was not sexually harassed by the director-supervisor of her program. The supervisor’s behavior included touching the professor’s leg and dress (two incidents in a period of seven months); making comments to her, such as “women are like meat” and “men need a variety of women”; and calling her at home two to three times a week. The court found that the supervisor engaged in “mere bothersome and uncomfortable conduct,” but that it was not “severe or pervasive.” Rather, the court found the supervisor’s conduct as exemplifying “the ordinary tribulations of the workplace.” 212 F.3d 571 (11th Cir. 2000), cert. denied, 531 U.S. 1076 (2001).
Types of conduct that may (but do not always) constitute or contribute to sexual harassment:
1. Verbal: unwanted sexual teasing, jokes, remarks, or questions; unwanted comments on appearance; name-calling of a sexual or sex-based nature; pressure for dates or sexual favors.
2. Physical: unwanted sexual looks or gestures, unwanted deliberate touching, actual or attempted rape or sexual assault.
3. Written: unwanted suggestive notes or memoranda, pornographic material, or other materials of a sexual nature in the workplace.
4. Gossip: starting and spreading rumors about a person’s sexual habits.
Hendrichsen v. Ball State University: A female student who was majoring in computer science sued her university for sexual harassment. She alleged that her professor in the computer science department and also a resident of the student’s housing complex on campus left notes and flowers at the door to her residence. He first left them as an “anonymous admirer.” She identified him, and then he continued to send her notes and flowers for two more days. She then informed the professor to stay away from her in a no-trespass letter, and he ceased contact with her. The federal district court ruled that “this brief series of unwanted, perhaps inappropriate communications from [the professor], however uncomfortable for [the student], would not be perceived by a reasonable person as severe, threatening, or humiliating.” The court declined to rule that this “relatively isolated, non-severe misconduct” created a hostile environment. 2003 U.S. Dist. LEXIS 3710 (S.D. Ind., March 12, 2003), aff’d, 107 Fed.Appx. 680 (2004).
Hayut v. State University of New York: A female student in a professor’s international politics course accused him of sexual harassment under Title IX and other laws. The student alleged that the professor harassed her by referring to her as “Monica Lewinsky,” and, according to the court, “making the following comments in front of the entire class: ‘How was your weekend with Bill?’, ‘Be quiet, Monica. I will give you a cigar later,’ and ‘You are wearing the same color lipstick that Monica wears.’” While the court found the professor’s conduct “highly offensive and obviously inappropriate,” it found that conduct only “sporadic and infrequent” and, therefore, insufficient to establish a hostile learning environment. In so ruling, the court found that the professor’s conduct did not interfere with the student’s “educational progress” because she maintained the same grade point average at SUNY New Paltz as she had before (at a community college) and after (Pace University). 217 F. Supp.2d 280 (N.D.N.Y. 2002). The federal appellate court affirmed the lower court’s Title IX holding. 352 F.3d 733 (2d Cir. 2003).
C. Sexual Harassment and Academic Freedom
The Supreme Court has opined that sexual harassment can be distinguished from other behavior through the use of “common sense, and an appropriate sensitivity to social context.” Oncale, 523 U.S. at 82. In higher education, “an appropriate sensitivity to social context” requires recognition of the mission of a college or university as distinct from other workplaces, which include close working and mentoring relationships that often blur the lines between academic and social life. Jonathan Alger, “Love, Lust and the Law: Sexual Harassment in the Academy,” Academe 34 (Sept.-Oct. 1998).
In higher education, the educational benefits protected by law include academic freedom. Academic freedom permits faculty members to use a wide variety of teaching techniques, and faculty and students to engage in the free and open exchange of ideas:
If [sexual harassment] takes place in the teaching context, it must also be persistent, pervasive, and not germane to the subject matter. The academic setting is distinct from the workplace in that wide latitude is required for professional judgment in determining the appropriate content and presentation of academic material.
The AAUP, Sexual Harassment.
The U.S. Department of Education in its Title IX policy guidance on sexual harassment of students recognizes the need for educational institutions to “formulate, interpret, and apply [their] rules so as to protect academic freedom and free speech rights.” Fed. Reg. 62 (March 13, 1997): 12034, 12045-6.
The department provides examples of protected academic discourse, even when that discussion may offend individuals. One example of protected discourse involves reading and discussion in a college-level creative writing course in which the professor’s required reading list “includes excerpts from literary classics that contain descriptions of explicit sexual conduct, including scenes that depict women in submissive and demeaning roles,” and student essays “which are read in class . . . [some of which] contain sexually derogatory themes about women.” Id.
1. The AAUP Policy
The AAUP policies recognize that academic freedom is not absolute, including in the sexual harassment context:
The AAUP’s “Statement on Professional Ethics” provides that professors “avoid any exploitation, harassment, or discriminatory treatment of students.” <www.aaup.org/ statements/Redbook/Rbethics.htm>.
The AAUP’s “Statement on Freedom and Responsibility” states that “intimidation and harassment” are inconsistent with the maintenance of academic freedom on campus.
The AAUP’s “Sexual Harassment: Suggested Policies and Procedures for Handling Complaints” provides: “Sexual harassment represents a failure in ethical behavior, and that sexual exploitation of professional relationships will not be condoned.”
2. Some Institutional Policies
University policies prohibiting sexual harassment should and usually do recognize the educational mission and principles of free expression and academic freedom.
Tulane University: “This policy against harassment shall be applied in a manner that protects academic freedom and freedom of expression within the University. Academic freedom and freedom of expression include, but are not limited to, the expression of ideas, however controversial, in the classroom setting, academic environment, university-recognized activities, or on the campus. Nothing contained in this policy shall be construed to limit the legitimate exercise of free speech, including but not limited to written, graphic, or verbal expression that can reasonably be demonstrated to serve legitimate educational or artistic purposes nor shall this policy be construed to infringe upon the academic or artistic freedom of any member of the University.” <www2.tulane.edu/main.cfm>.
Stanford University: “Stanford is committed to the principles of free inquiry and free expression. Vigorous discussion and debate are fundamental to the University, and this policy is not intended to stifle teaching methods or freedom of expression generally, nor will it be permitted to do so. Sexual harassment, however, is neither legally protected expression nor the proper exercise of academic freedom; it compromises the integrity of the University, its tradition of intellectual freedom, and the trust placed in its members.”
3. Some Case Law
Cohen v. San Bernardino Valley College: A student in Professor Cohen’s remedial English class complained about the professor’s use of vulgarities and obscenities in the class. The professor argued, in part, that the policy violated his academic freedom. The federal appellate court ruled that the sexual-harassment policy applied to tenured Professor Cohen was “void for vagueness.” The court found that the institution failed to give the professor warning about the sexual-harassment policy; the policy delegated resolution of such complaints to “low level officials . . . on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application”; and the “vague policy discourages the exercise of first amendment freedoms.” 92 F.3d 968 (9th Cir. 1996), cert. denied, 520 U.S. 1140 (1997).
Bonnell v. Lorenzo (Macomb Community College): The Sixth Circuit upheld the college’s suspension of John Bonnell, a professor of English, for having created a hostile learning environment. A female student sued the professor, alleging that he had repeatedly used lewd and graphic language in his English class. The court stated that, “[w]hile a professor’s rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a student’s right to learn in a hostile-free environment.” The court found the professor’s use of vulgar language “not germane to the subject matter.” 241 F.3d 800 (6th Cir.), cert. denied, 534 U.S. 951 (2001).
D. Institutional Liability for Sexual Harassment
In 1998 the U.S. Supreme Court focused on the nature of the harm caused by sexual harassment in employment situations. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Farragher v. City of Boca Raton, 524 U.S. 775 (1998).
The Court articulated the following liability standard:
1. Colleges and universities will automatically be liable for sexual harassment by supervisors that culminates in tangible employment action, such as, holding employers vicariously liable for harassment by supervisors which culminates in “tangible” employment action (e.g., discharge, demotion, or undesirable reassignment).
2. Employers will automatically be liable for sexual harassment by supervisors that does not culminate in tangible employment action, unless:
a. The college or university exercised reasonable care to prevent or correct promptly any sexually harassing behavior; and
b. The “employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.”
When students are harassed by faculty members, a college or university will be liable if a higher-level official—who at a minimum has authority to address the harassment and institute corrective measures on the school’s behalf—receives actual notice of, and is deliberately indifferent to, a faculty member’s misconduct.
Some institutional responsibilities include the following:
Publication and Dissemination: A sexual harassment policy should be easy to understand and widely disseminated each academic year.
Education: Seminars or briefings for faculty to better understand the contours of sexual harassment.
Handlers of Complaints: Procedures should make clear to whom complaints should be directed. Handlers of complaints should be trained and accessible.
Due Process: Sexual harassment grievance procedures should protect the rights of both the complainant and the accused. See AAUP, “Due Process in Sexual Harassment Complaints,” policy document and reports 212 (9th ed 2001). Faculty peer review is an important component of the process for faculty, and helps to ensure that the context of higher education is properly considered.
E. Particularly Thorny Policy Considerations
When developing, revising or applying faculty sexual harassment policies, a number of issues arise, including the need to protect against retaliation, keeping complaints confidential to the extent feasible, and handling anonymous complaints. For a more thorough discussion of other policy and legal issues triggered by campus sexual harassment policies, see Donna Euben, “Sexual Harassment in the Academy: Some Suggestions for Faculty Policies and Procedures” (2002).
1. Prohibition Against Retaliation
Retaliation against individuals seeking to protect their civil rights is prohibited by law and can serve as the basis for a separate complaint. See Section 704(a), Title VII.
Howze v. Virginia Polytechnic Institute and StateUniversity: The federal district court found that an associate professor of education was retaliated against by the university investigating committee’s negative report, which criticized Professor Howze for having used unprofessional methods to pursue her sex discrimination claims. The court opined that such a report “could hinder the plaintiff in obtaining research grants, endowed professorships, publications, and other similar accoutrements of a tenured professor.” At the same time, the court also ruled that the institution’s initial denial of tenure by the department, which faulted the professor for her lack of collegiality because she filed a sex discrimination lawsuit against the institution, did not constitute retaliation because “[p]laintiff was ultimately awarded her promotion and tenure and given pay and rank increases at the same time as other promotees.” 901 F. Supp. 1091 (W.D. Va. 1995).
Nelson v. University of Maine System: Edwin Jessiman, a tenured professor at the University of Maine at Machias, sued his university for retaliation after he filed a sexual harassment complaint regarding his colleagues’ treatment of students. Jessiman alleged that the university’s internal review of the complaint defamed him and that the university president wrote him a letter of reprimand for having filed the complaint. Although the court recognized that an adverse employment action need not rise to the level of discharge to be actionable, it held that “mere criticism of an employee” is not an adverse employment action. The court found that the university’s actions did not injure Jessiman’s employment status because he was not criticized by a formal committee, the criticism was expressed in a letter to Jessiman (as opposed to a committee report), the letter was later removed from his file, no action was taken against him because of the letter, the reprimand was not widely circulated, and Jessiman continued to enjoy the full benefits of a tenured professor. 923 F.Supp. 275 (D. Maine 1996).
The U.S. Supreme Court recently interpreted Title IX to encompass claims by individuals, including educators, who assert that they have been retaliated against because they complained about sex discrimination on behalf of their students.
Jackson v. Birmingham Board of Education: In a 5 to 4 decision, the Court held that Title IX encompasses protection against retaliation by “indirect” victims. The decision notes that “if Title IX’s private right of action does not encompass retaliation claims, the teacher would have no recourse if he were subsequently fired for speaking out. Without protection from retaliation, individuals who witness discrimination would likely not report it, indifference claims would be short-circuited, and the underlying discrimination would go unremedied.” In so ruling, the Court observed that “teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators.” The Court remanded the case to a lower court for further fact-finding consistent with its reasoning. See a copy of the AAUP’s amicus brief in the Jackson case.
2. Protecting Confidentiality
In all cases, faculty and administrators should make clear that they seek to honor requests for confidentiality, but cannot guarantee it. “Cases involving sexual harassment are particularly sensitive and demand special attention to issues of confidentiality. Dissemination of information relating to the case should be limited, in order that the privacy of all individuals involved is safeguarded as fully as possible.” AAUP, Sexual Harassment.
The Office of Civil Rights (OCR) provides that “a school should be aware of the confidentiality concerns of an accused employee or student. Publicized accusations of sexual harassment, if ultimately found to be false, may nevertheless irreparably damage the reputation of the accused.” Office of Civil Rights (OCR), U.S. Department of Education, “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties” 17 (January 2001) (Revised Guidance). Some state open records laws, which are discussed above, may require disclosure of sexual harassment reports to those who request them.
3. Treatment of Anonymous Complaints
Anonymous complaints cannot be ignored. A university has an obligation to follow up on harassment allegations, even if they are anonymous. However, the extent of its responsibility cannot be greater than the extent of its ability to respond.
Recent OCR guidance on Title IX provides for the protection of federal due process rights in assessing an anonymous complaint: “Thus, for example, if a student, who was the only student harassed, insists that his or her name not be revealed, and the alleged harasser could not respond to the charges of sexual harassment without that information, in evaluating the school’s response, OCR would not expect disciplinary action against an alleged harasser.” Revised Guidance at 16.
University of Arizona: “. . . [B]ecause of the inherent difficulty in investigating and resolving allegations from unknown persons, individuals are discouraged from making anonymous complaints of sexual harassment. Although anonymous complaints are discouraged, the University will reasonably respond to all allegations of sexual harassment. . . . However, a reasonable response would not include disciplinary action against an alleged harasser if an accuser insists that his or her name not be revealed, if there is insufficient corroborating evidence, and if the alleged harasser could not respond to the charges of sexual harassment without knowing the name of the accuser.”
Some states provide significant invasion-of-privacy legal protections through state statutes and state constitutions. Arguably the unveiling of the identity of one who files an anonymous complaint might trigger such invasion-of-privacy claims. Cf., Givens v. Regents of the University of California, 2003 WL 21246766 (Cal. App. 2003) (ruling that the administration violated the privacy of university assistant vice-chancellor and stating that he “had a privacy interest in his identity as a whistleblower. . . . [A]s a matter of public policy, it has been determined [that] the identity of a whistleblower must not be disclosed unless absolutely necessary”).
F. Sexual Harassment Seminars for Faculty Members
Recent Supreme Court case law emphasizes the importance of preventive measures undertaken by an institution in defending itself against harassment claims. See Farragher and Ellerth (describing an affirmative defense as requiring “that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior”); see also Hurley v. Atlantic City Police Department, 174 F.3d 95, 118-19 (3rd Cir. 1999), cert. denied, 528 U.S. 1074 (2000). In a 1997 survey of campus training programs on sexual harassment, a consulting firm found that roughly half of the surveyed institutions had no training programs. Tillinghast-Towers Perrin, “Under-Managed Risk: Employment Claims Drive Rising ELL Occurrences and Costs” (1997).
California appears to be the only state that has enacted a statute requiring employers to provide sexual harassment training for their employees. California Government Code § 12950.1 (2005) provides: “An employer having 50 or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees . . . . The training and education shall . . . include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation.”
Providing sexual harassment programs for faculty is important, but to be effective, consider the following suggestions:
1. Do not call the sexual harassment program “training.” As Barbara Lee has opined, “Faculty believe that training is for dogs.” Consider other titles, such as seminar, forum or program.
2. Use sexual harassment leaders familiar with the academy.
3. Consider “co-sponsoring” such a seminar with your faculty senate, women faculty group, or general counsel’s office.
4. Encourage faculty attendance by issuing personal invitations by the dean and the dean’s attendance; tracking attendance and engaging in aggressive follow-up for no-shows; and offering wine and cheese!
IV. Academic Freedom in the Classroom: Some Legal, Policy, and Practical Considerations
The professional concept of academic freedom for faculty in higher education is set forth in the 1940 Statement of Principles on Academic Freedom and Tenure, which has been endorsed by over 190 scholarly and professional organizations and is incorporated into many college and university faculty handbooks.
The U.S. Supreme Court has repeatedly recognized that academic freedom is a First Amendment right of professors. See, e.g., Sweezy v. New Hampshire, 354 U.S. 234 (1957); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Regents of Univ. of Michigan v. Ewing, 474 U.S. 214 (1985). So, too, have federal appellate courts. See generally Donna R. Euben, “Academic Freedom and Professorial Speech,” 25th Annual Conference on Law & Higher Education, Stetson University College of Law (Feb. 2004).
Accordingly, speech by professors in the classroom at public institutions is often protected under both the First Amendment and the professional concept of academic freedom if the speech is “germane to the subject matter.” See, e.g., Hardy v. Jefferson Community College, 260 F.3d 671 (6th Cir. 2001), cert. denied, 535 U.S. 970 (2002) (“Reasonable school officials should have known that . . . speech, when it is germane to the classroom subject matter and advances an academic message, is protected by the First Amendment.”); Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir.), cert. denied, 534 U.S. 951 (2001) (concluding that, “[w]hile a professor’s rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a student’s right to learn in a hostile-free environment,” and finding professor’s use of vulgar language “not germane to the subject matter”); Kracunas v. Iona College, 119 F.3d 80 (2d Cir. 1997) (applying the “germaneness” standard to reject professor’s academic freedom claim because “his conduct [could not] be seen as appropriate to further a pedagogical purpose,” but noting that “[t]eachers of drama, dance, music, and athletics, for example, appropriately teach, in part, by gesture and touching”).
Academic freedom rights are not coextensive with First Amendment rights, although courts have recognized a relationship between the two. The First Amendment protects expression on all sorts of topics and in all sorts of settings from regulation by public institutions, including public colleges and universities. Academic freedom, on the other hand, addresses rights within the educational contexts of teaching, learning, and research both in and outside the classroom--for individuals at private as well as at public institutions. Accordingly, in addition to the First Amendment and some state laws, academic freedom has been recognized and protected in higher education by academic policy and practice.
A. Classroom Teaching Methods
Are faculty members able to select and use pedagogical methods they believe will be effective in teaching the subject matter in which they are expert? On the one hand, faculty members are uniquely positioned to determine appropriate teaching methods. On the other hand, faculty members should not use such tools to engage in unprotected speech in the classroom, such as religious proselytizing or sexual harassment.
Hardy v. JeffersonCommunity College: An African-American student and a “prominent citizen” complained about the allegedly offensive language used by Kenneth E. Hardy, an adjunct communications professor, in a lecture on language and social constructivism in his “Introduction to Interpersonal Communication” course. The students were asked to examine how language “is used to marginalize minorities and other oppressed groups in society,” and the discussion included examples of such terms as “bitch,” “faggot,” and “nigger.” While the administration had informed Professor Hardy before this controversy that he was scheduled to teach courses in the fall, the administration later did not renew Hardy’s appointment because administrators said no classes were available. Hardy sued. The Sixth Circuit found the topic of the class— “race, gender, and power conflicts in our society”—to be a matter of public concern and held that “a teacher’s in-class speech deserves constitutional protection.” The court opined: “Reasonable school officials should have known that such speech, when it is germane to the classroom subject matter and advances an academic message, is protected by the First Amendment.” 260 F.3d 671 (6th Cir. 2001), cert. denied, 535 U.S. 970 (2002). See also Donna R. Euben, “Contingent Faculty and the Courts,” Academe 94 (Jan.-Feb. 2004).
But not all courts agree that individual professors have the academic freedom to select the pedagogical tools they consider most appropriate to teach their subject matter.
Vega v. Miller (New York Maritime College): Edward Vega, a former non-tenure-track professor of English, sued the college when it declined to reappoint him after he led an “offensive” classroom “clustering” (or word association) exercise in a remedial English class for “pre-freshman” college students during summer school. The clustering exercise, which “is intended to help students reduce the use of repetitive words in college-level essays,” involves students’ selecting a topic, then calling out words related to the topic, and then grouping similar words into “clusters.” In Professor Vega’s summer 1994 class, the students selected the topic of sex, and the students called out a variety of words and phrases, from “marriage” to “fellatio.” Administrators found that the professor’s conduct “could be considered sexual harassment, and could create liability for the college.” Vega argued that the nonreappointment violated his constitutional academic freedom. The administrators argued that they were entitled to qualified immunity from the professor’s claim, and the federal appellate court agreed, because “no decision before 1994 . . . had clearly established that conduct of the sort that Vega undisputedly took violated a teacher’s First Amendment rights.” In so ruling, the court stated:
Since this episode occurred seven years ago and involves a highly unusual set of circumstances, unlikely to be repeated, we see no reason to rule definitively on whether the [administrators’] action was unlawful . . . . [W]e rule only that on the state of the law in 1994, the [administrators] could reasonably believe that in disciplining Vega for not exercising his professional judgment to terminate the episode, they were not violating his clearly established First Amendment academic freedom rights.
273 F.3d 460 (2d Cir. 2001), cert. denied, 535 U.S. 1097 (2002).
In any case, a professor’s First Amendment right to academic freedom is not absolute. And so, when courts recognize the First Amendment right of academic freedom for individual faculty members, courts often balance that interest against other concerns.
i (Macomb Community College): This case, which was discussed above, upheld the college’s suspension of John Bonnell, a professor of English, for creating a hostile learning environment by using lewd and graphic language in his English class. The court clearly recognized the importance of the First Amendment academic freedom of the professor. At the same time, the court concluded that, “[w]hile a professor’s rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a student’s right to learn in a hostile-free environment.” The court reached this conclusion, in part, because, unlike the speech at issue in Hardy, discussed above, the court found Bonnell’s use of vulgar language “not germane to the subject matter.” 241 F.3d 800, cert. denied, 534 U.S. 951 (2001).
B. Curricular Choices and Academic Freedom
The right of teachers “to freedom in the classroom in discussing their subject” under the 1940 Statement is inextricably linked to the rights of professors’ to determine the content of their courses. The Statement on Government of Colleges and Universities further provides that faculty have “primary responsibility for such fundamental areas as curriculum, subject matter and methods of instruction . . .” As one commentator noted: “Faculty will always have the best understanding of what is essential in a field and how it is evolving.” Steven G. Poskanzer, higher education law: the faculty 91 (The Johns Hopkins University Press 2002). Such understanding is why institutions appoint teachers to teach. Moreover, the expertise of a professor and a department helps insulate administrators and trustees from political pressures that may flow from particularly controversial courses. See Donna R. Euben, “Curriculum Matters,” Academe 86 (Nov.-Dec. 2002).
One case that directly raised the issue of academic freedom in determining curriculum--as well as the tension between the academic freedom of professors and the academic freedom of students—is Axson-Flynn v. Johnson (University of Utah), 151 F. Supp.2d 1326 (D. Utah 2001), rev’d, 356 F.3d 1277 (10th Cir. 2004).
1. The Litigation
Christina Axson-Flynn is a former student at the University of Utah, and a member of the Church of Jesus Christ of Latter-Day Saints. She sued the faculty in the university theater department for having violated her rights to free speech and free exercise of religion under the First Amendment by requiring, as part of the curriculum, that students perform in-class plays, despite their possible religious objections to the content of those plays. The professors asserted that “it is an essential part of an actor’s training to take on difficult roles, roles which sometime[s] make actors uncomfortable and challenge their perspective.” The student alleged that she told the theater department before being accepted that she refused to “take the name of God or Christ in vain” or use certain “offensive” words. After she was accepted into the program, she changed some words in assigned scripts for in-class performances so as to avoid using words she found offensive. Her professors warned her that she would not be able to change scripts in future assignments. Axson-Flynn dropped out of the special theater program and sued her professors, arguing that the university violated her free speech (by compelling her to say offensive words) and her religion (by forcing her to say words that she considers sinful).
The university argued in part that the court had to balance “Axson-Flynn’s allegations that the University of Utah’s . . . curriculum violated her constitutional rights by requiring her to perform dramatic parts where her characters used language she found offensive against the backdrop of the University’s freedom to determine its curriculum and how to instruct the students in the curriculum.” It contended that Axson-Flynn’s claims failed because constitutional academic freedom allowed the “university and its departments to make academic judgments to determine for itself, on academic grounds, what to teach and how to teach it.”
In 2001 the district court ruled against Axson-Flynn on summary judgment. The court hypothesized that if the curriculum requirements were to constitute a First Amendment violation, “then a believer in ‘creationism’ could not be required to discuss and master the theory of evolution in a science class; a neo-Nazi could refuse to discuss, write or consider the Holocaust in a critical manner in a history class.”
The student appealed the lower court’s ruling in favor of the university, and the Tenth Circuit reversed and remanded the lower court decision. The unanimous three-judge panel clearly embraced the notion that courts should defer to the professional judgment of faculty to determine what is pedagogically appropriate in the college classroom so long as such academic decisions are not pretextual. Nevertheless, the court ultimately concluded that “[v]iewing the evidence in a light most favorable to Axson-Flynn, . . . there is a genuine issue of material fact as to whether [the professors’] justification for the script adherence requirement was truly pedagogical or whether it was pretext for religious discrimination.”
The court first reasoned that the classroom is a non-public forum for free speech purposes. Next, the court found Hazelwood “applicable in a university setting for speech that occurs in a classroom as part of a class curriculum,” and ruled that Axson-Flynn’s speech could be restricted so long as it was “reasonably related to pedagogical concerns”: “That schools must be empowered at times to restrict the speech of their students for pedagogical purposes is not a controversial proposition. . . Student speech in the classroom context is . . . restricted every day in a variety of ways, few of which would be deemed controversial.” The court found that it would be “abdicating” its “judicial duty” if it “failed to investigate whether the educational goal or pedagogical concern [of the faculty] was pretextual.” The court emphasized that it “may override an educator’s judgment where the proffered goal or methodology was a sham pretext for an impermissible ulterior motive,” such as religious bias. While the court did not recognize a separate right of academic freedom under the First Amendment, it nonetheless applied the First Amendment with a sense of the distinctiveness of the university, reaffirming that it would “not second-guess the pedagogical wisdom or efficacy of an educator’s goal.”
2. The Settlement Agreement and Institutional Policy
In July 2004 the parties entered into a settlement agreement. The university committed to adopting and implementing “a comprehensive religious accommodation policy.” Toward that end, the administration appointed, “in consultation with the plaintiff’s counsel . . . a seven-member ad hoc committee . . . consisting of three faculty members, three students, and one at-large representative,” which was charged with “preparing and presenting for approval and implementation a comprehensive religious accommodation policy and other recommendations it deems appropriate to the continued reduction of insensitive and inappropriate behavior, and to the elimination of illegal discrimination.” Some of the criteria delineated for inclusion in such a policy included “[a] faculty member’s right to deny an accommodation request consistent with the guidelines and limitations set forth by the [Tenth Circuit decision]” and “the right to appeal a faculty member’s denial of an accommodation to a designated administrator at the level of dean . . .” Faculty were consulted about the settlement agreement and the president of the Academic Senate along with a majority of his colleagues “signed off” on the settlement. Elizabeth Neff, “Script v. Scripture: U. Settles Case Over Student’s Rights on Stage,” The Salt Lake Tribune (July 7, 2004).
In 2005 the institution adopted a policy issued by the above-mentioned ad hoc committee that covers the topic of “content accommodations.” The policy initially states, “Consistent with principles of academic freedom, the faculty, individually and collectively, has the responsibility for determining the content of the curriculum.” The policy then provides that “the University recognizes that students’ sincerely held core beliefs may make it difficult for students to fulfill some requirements of some courses or majors.” The policy encourages students to drop courses without penalty when such a conflict arises; however, “[a] student who finds this solution impracticable may request a content accommodation from the instructor,” and “[t]he student’s request must articulate the burden the requirement would place on the student beliefs.” The policy continues:
Instructors are not required to grant content accommodations, as long as the subject course requirement has a reasonable relationship to a legitimate pedagogical goal, but they may do so, only if a reasonable alternative means of satisfying the curricular requirement is available, after considering the following:
(a) the difficulty of administering an accommodation;
(b) the burden on the student’s sincerely-held core beliefs; and
(c) the importance of the particular requirement to the course.
In considering whether or not to make an accommodation, the faculty member may evaluate the sincerity but not the validity of the student’s belief.
The policy further provides:
Instructors who believe that course materials may conflict with students’ deeply held core beliefs may include a statement in the syllabus for the course that advises students that some of the writings, lectures, films or presentations, or other requirements in the course include materials that may present such conflicts. However, this policy recognizes that Faculty will not always be able to predict in advance which if any materials may conflict with the beliefs of a given student or group of students.
In addition, the policy states:
Decisions on accommodation requests may not be considered adversely to a faculty member in faculty code, Retention, Promotion and Tenure, or other proceedings as long as those decisions are made in good faith. Faculty may not take adverse academic action against students who make accommodation requests.
C. Some Practical Suggestions
In determining whether classroom conduct and curricular choices are protected or not, some questions you might consider include:
Is the conduct “germane to the subject matter”? Consultation with senior faculty in a particular department or discipline as to the appropriateness and validity of particular pedagogical approaches can help guide an administration on this issue. Further, should proceedings ensue, having consulted with faculty will help to protect the institution.
Is the conduct directed at the entire class, or to a specific individual or group of individuals (e.g., women, Native Americans, gay and lesbian students)?
Is the conduct an isolated incident or part of a pattern and practice of allegedly offensive behavior?
See Steven G. Olswang and Barbara A. Lee, “Harassment on Campus: Beyond the Basics” at 9 (NACUA 2004); Sonya G. Smith, “Cohen v. San Bernardino Valley College: The Scope of Academic Freedom Within the Context of Sexual Harassment Claims and In-Class Speech,” 25 J.C. & U.L. 1 (1998); Michael A. Olivas, “Reflections on Professorial Academic Freedom: Second Thoughts on the Third ‘Essential Freedom’,” 45 stan. l. rev. 1835 (1993).
V. Protections Against Personal Liability
The following section is excerpted from a presentation by Ann H. Franke and Lawrence White, “Responsibilities of Department Chairs: Legal Issues” at 4 (AAUP and ACAD, October 2000, Revised June 10, 2002).
Protections Against Personal Liability. You are usually protected in two different ways against personal liability for actions you undertake in your capacity as a department chair. First, at most institutions, department chairs [and other academic administrators] enjoy indemnification against claims and lawsuits that may be filed against them. Second, most institutions purchase comprehensive errors-and-omissions liability insurance and [administrators] are usually insured under the E & O policy.
Indemnification. “Indemnification” means a legally enforceable assurance under which one party (in this instance, the university) promises to secure another (you) against liability arising out of the legal consequences of the indemnified party’s act or failure to act. Although not every institution indemnifies its faculty, and although the indemnification protections you enjoy at your institution may be broader or narrower than the norm, the typical indemnification policy provides substantial protection against lawsuits and other claims filed against faculty members, [and administrators]. . . . Chairs [and other administrators] are indemnified against claims asserted in any kind of action (civil, criminal, administrative, actual, threatened, pending, or completed); and for money payment in virtually any form (judgments, fines, settlement awards, and attorneys’ fees). There are ordinarily preconditions, however. A chair [or other administrator] would be indemnified only if:
The action is brought against the chair [or administrator] by reason of fact that he or she is a faculty member. In other words, the university indemnifies only with respect to actions the chair takes as chair [or academic administrator as administrator], not for actions relating to the chair’s [or other administrator’s] personal life or non-university-related business activities.
The chair [or other administrator] acted in good faith and in a manner he or she reasonably believed was consistent with the university’s best interests.
He or she is not ultimately adjudged by a court of law to have committed negligence or engaged in an act of misconduct in performing the duties of the [administrative position]. . . .
Insurance. Most universities purchase commercial insurance policies that provide an extra layer of insulation from potential liability.