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  • Leaving the Institution—or Staying | AAUP
    see if there is a deadline for filing a petition for a review You will have the burden during the appeal to prove that the review of your professional work was unfair the members of the appeal committee who should be members of the faculty will assume that it was fair After the committee concludes its deliberations about your case it should provide copies of its report and recommendation to you the appropriate administrative officers and others concerned in the matter for example the chair of your department and the chair of the college s promotion and tenure committee Finally although the appeal committee s report and recommendation is not likely to be binding on the administration the administration consistent with principles of shared governance in academic institutions should defer to the faculty s position unless it has compelling reasons not to do so in which case those reasons should be stated in detail A faculty appeal committee recommended three months ago that I be given a new tenure review because of procedural irregularities The administration however rejected the committee s recommendation one week before my appointment is to expire Must I leave the institution in a week s time An appeal of a denial of tenure typically gets under way toward the end of the sixth year of probationary service that is shortly after a faculty member learns of the adverse decision Often the appeal itself is heard in the fall semester of the seventh year by the end of that semester the entire appeal process is usually concluded Before the appeal is filed the faculty member will have been issued a terminal appointment for the seventh year The filing of the appeal it is worth noting does not stay the effect of the terminal notice That is because an appeal is a challenge to a decision that is assumed to be procedurally and substantively correct The burden is on the faculty member to disprove the assumption and the terminal notice remains in force unless the decision is reversed During the seventh year the individual has the threefold task of attending to faculty responsibilities pursuing the appeal and seeking to relocate The last of these tasks recognizes the reality that it is difficult to overturn a negative tenure decision Planning for the future is therefore a sensible precaution against further disappointment But concentrating on this task becomes much more difficult if the faculty appeal committee finds for the individual and the final negative disposition of the appeal is not reached until the clock on the terminal year is about to run out or has run out In a situation such as yours you should not be required to leave the institution in a week s time Instead the terminal year appointment should be extended for another year the extension would not in itself be grounds for a claim to attainment of tenure through length of service thus providing a reasonable opportunity to seek a position elsewhere For the past

    Original URL path: http://www.aaup.org/i-need-help/workplace-issues/leaving-institution%E2%80%94or-staying (2016-02-13)
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  • Contours of Academic Freedom | AAUP
    controversies about global warming that you link to the study of physics they would be protected by academic freedom Even if your comments are not directly relevant to the subject matter of the course they might pass muster if they are meant to lighten the mood of the class as you deal with the complexities of the course subject However assuming that improving the mood of the class is your goal the fact that a student has complained suggests that your technique may not be working Should you want to continue with it you might consider several questions Are your comments persistent Do you spend some portion of each class talking about national political issues not related to physics How much class time do you actually spend doing so Have you considered other perhaps more effective ways of teaching physics A rare case may arise in which a faculty member seriously disregards the obligation to teach the subject of the course and some action will be needed to correct the situation But a notion of teaching that discourages a faculty member from discussing controversial questions in the classroom ill serves academic freedom In a letter to the editor published in a local newspaper I questioned the decision of the board of trustees to build a new student union The chair of the board has admonished me for speaking out on a matter not within my area of academic competence What can I say in response to her First all policy matters are of potential concern to the faculty not only such obvious matters as the curriculum the requirements for academic degrees and internal rules that affect academic freedom and tenure but also the institutional budget changes in the academic calendar and the establishment of new schools campuses and buildings Faculty members should not be discouraged from expressing opinions about these matters their speaking out is properly understood as an exercise of academic freedom A campus community that is proud of its commitment to free expression will encourage intramural criticism debate and protest about nonacademic matters as much as it will applaud vigorous intellectual disputes among and between faculty members and students on academic issues Second while competence in a particular academic field is certainly a key consideration in selecting an individual for a faculty position it does not follow that professors must be silent on questions concerning subjects that they were not appointed to teach or that they must avoid giving opinions on matters that they themselves may consider outside their area of academic competence An effort to restrict academic freedom to one s area of competence is usually aimed at keeping faculty members from taking part in public discussions of controversial issues But no true meaning of academic freedom can have an area of competence limitations clause It is neither practicable nor principled to try to distinguish subjects that are off limits from those that are acceptable It is not practicable because a professor s area of competence can

    Original URL path: http://www.aaup.org/i-need-help/workplace-issues/contours-academic-freedom (2016-02-13)
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  • Friedrichs v. California Teachers Association, No. 14-915 (2015) | AAUP
    school district seeking to invalidate agency fee provisions in the collective bargaining agreement arguing that agency fee clauses in the public sector violate the First Amendment On June 29 2015 the Supreme Court granted certiorari and thereby agreed to hear the appeal The AAUP amicus brief argues that collective bargaining supported by the agency fee system significantly benefits the educational system and that removal of the ability to charge agency fees would upset the balance set by the states and burden the rights of union members Agency fee has been deemed constitutional since the Supreme Court s 1977 decision in Abood v Detroit Board of Education Last year in Harris v Quinn the Supreme Court declined to overrule Abood although the Court raised questions regarding its vitality Anti union groups brought the Friedrichs case in California and pushed it through the courts In the Supreme Court the Friedrichs plaintiffs have advanced the argument that all agency fee arrangements in the public sector violate the First Amendment as they compel non members to pay for activities that they believe address matters of public concern The plaintiffs also argued in the alternative that even if some agency fee system is unconstitutional the current opt out system of charging agency fee payers in unconstitutional The Supreme Court accepted two questions for review 1 Whether Abood v Detroit Board of Education should be overruled and public sector agency shop arrangements invalidated under the First Amendment and 2 whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public sector unions rather than requiring that employees affirmatively consent to subsidizing such speech Given the questions before the Court there are several potential outcomes First the Court could answer no to both questions and leave the law status quo Second the Court could answer the first question in the affirmative and it would overrule Abood and prohibit agency fee in the public sector This would impose a right to work style system nationwide in the public sector This would render the second question before the Court moot Third the Court could answer the first question no thereby allowing agency fee but could answer the second question yes The second question addresses the current law regarding agency fee payers and objectors Under the current law non members can be charged a rate equivalent to full union dues unless they affirmatively object Once a non member formally objects they can only be charged the agency fee rate This creates an opt out situation in which non members must affirmatively opt out to pay the lower agency fee rate If the Court answered the second question yes then agency fee would still be permissible but all non members would be considered objectors automatically and could therefore only be charged the lower agency fee rate Finally in answering the questions the Court could leave some charges for agency fee standing while substantially changing the amount that can be permissibly collected For example

    Original URL path: http://www.aaup.org/brief/friedrichs-v-california-teachers-association-no-14-915-2015 (2016-02-13)
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  • Pacific Lutheran Univ. & SEIU, Local 925, 361 N.L.R.B. No. 157 (N.L.R.B. Dec. 16, 2014) | AAUP
    factors such as the extent of university administration hierarchy the extent to which the administration makes academic decisions based on market based considerations the degree of consultation by the administration with faculty governance bodies whether the administration treats faculty recommendations as advisory rather than as effective recommendations whether the administration routinely approves nearly all faculty recommendations without independent administrative review and whether conflict between the administration and the faculty reflects a lack of alignment of administration and faculty interests In its decision the NLRB ruled that it had jurisdiction over the petitioned for faculty members even though they were employed at a religious institution and that the faculty members were not managers The question of whether faculty members in religious institutions are subject to jurisdiction and coverage of the Act has long been a significant issue with the Supreme Court s 1979 decision in Catholic Bishops serving as the foundation for any analysis In Pacific Lutheran University the Board established a two part test for determining jurisdiction First whether as a threshold matter the university holds itself out as providing a religious educational environment and if so then second whether it holds out the petitioned for faculty members as performing a specific role in creating or maintaining the school s religious educational environment The employer and its supporters argued that only the threshold question of whether the university was a bona fide religious institution was relevant in which case the Act would not apply to any faculty members The Board responded that this argument overreaches because it focuses solely on the nature of the institution without considering whether the petitioned for faculty members act in support of the school s religious mission Therefore the Board established a standard that examines whether faculty members play a role in supporting the school s religious environment In so doing the Board recognized concerns that inquiry into faculty members individual duties in religious institutions may involve examining the institution s religious beliefs which could intrude on the institution s First Amendment rights To avoid this issue the new standard focuses on what the institution holds out with respect to faculty members The Board explained We shall decline jurisdiction if the university holds out its faculty members in communications to current or potential students and faculty members and the community at large as performing a specific role in creating or maintaining the university s religious purpose or mission The Board also found that that faculty must be held out as performing a specific religious function such as integrating the institution s religious teachings into coursework or engaging in religious indoctrination emphasis in original This would not be satisfied by general statements that faculty are to support religious goals or that they must adhere to an institution s commitment to diversity or academic freedom Applying this standard the Board found that while Pacific Lutheran University held itself out as providing a religious educational environment the petitioned for faculty members were not performing a specific religious function

    Original URL path: http://www.aaup.org/brief/pacific-lutheran-univ-seiu-local-925-361-nlrb-no-157-nlrb-dec-16-2014 (2016-02-13)
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  • Statement on Government of Colleges and Universities | AAUP
    The selection of a chief administrative officer should follow upon a cooperative search by the governing board and the faculty taking into consideration the opinions of others who are appropriately interested The president should be equally qualified to serve both as the executive officer of the governing board and as the chief academic officer of the institution and the faculty The president s dual role requires an ability to interpret to board and faculty the educational views and concepts of institutional government of the other The president should have the confidence of the board and the faculty The selection of academic deans and other chief academic officers should be the responsibility of the president with the advice of and in consultation with the appropriate faculty Determinations of faculty status normally based on the recommendations of the faculty groups involved are discussed in Part 5 of this statement but it should here be noted that the building of a strong faculty requires careful joint effort in such actions as staff selection and promotion and the granting of tenure Joint action should also govern dismissals the applicable principles and procedures in these matters are well established 1 d External Relations of the Institution Anyone a member of the governing board the president or other member of the administration a member of the faculty or a member of the student body or the alumni affects the institution when speaking of it in public An individual who speaks unofficially should so indicate An individual who speaks officially for the institution the board the administration the faculty or the student body should be guided by established policy It should be noted that only the board speaks legally for the whole institution although it may delegate responsibility to an agent The right of a board member an administrative officer a faculty member or a student to speak on general educational questions or about the administration and operations of the individual s own institution is a part of that person s right as a citizen and should not be abridged by the institution 2 There exist of course legal bounds relating to defamation of character and there are questions of propriety 3 The Academic Institution The Governing Board The governing board has a special obligation to ensure that the history of the college or university shall serve as a prelude and inspiration to the future The board helps relate the institution to its chief community for example the community college to serve the educational needs of a defined population area or group the church controlled college to be cognizant of the announced position of its denomination and the comprehensive university to discharge the many duties and to accept the appropriate new challenges which are its concern at the several levels of higher education The governing board of an institution of higher education in the United States operates with few exceptions as the final institutional authority Private institutions are established by charters public institutions are established by constitutional or statutory provisions In private institutions the board is frequently self perpetuating in public colleges and universities the present membership of a board may be asked to suggest candidates for appointment As a whole and individually when the governing board confronts the problem of succession serious attention should be given to obtaining properly qualified persons Where public law calls for election of governing board members means should be found to ensure the nomination of fully suited persons and the electorate should be informed of the relevant criteria for board membership Since the membership of the board may embrace both individual and collective competence of recognized weight its advice or help may be sought through established channels by other components of the academic community The governing board of an institution of higher education while maintaining a general overview entrusts the conduct of administration to the administrative officers the president and the deans and the conduct of teaching and research to the faculty The board should undertake appropriate self limitation One of the governing board s important tasks is to ensure the publication of codified statements that define the overall policies and procedures of the institution under its jurisdiction The board plays a central role in relating the likely needs of the future to predictable resources it has the responsibility for husbanding the endowment it is responsible for obtaining needed capital and operating funds and in the broadest sense of the term it should pay attention to personnel policy In order to fulfill these duties the board should be aided by and may insist upon the development of long range planning by the administration and faculty When ignorance or ill will threatens the institution or any part of it the governing board must be available for support In grave crises it will be expected to serve as a champion Although the action to be taken by it will usually be on behalf of the president the faculty or the student body the board should make clear that the protection it offers to an individual or a group is in fact a fundamental defense of the vested interests of society in the educational institution 3 4 The Academic Institution The President The president as the chief executive officer of an institution of higher education is measured largely by his or her capacity for institutional leadership The president shares responsibility for the definition and attainment of goals for administrative action and for operating the communications system that links the components of the academic community The president represents the institution to its many publics The president s leadership role is supported by delegated authority from the board and faculty As the chief planning officer of an institution the president has a special obligation to innovate and initiate The degree to which a president can envision new horizons for the institution and can persuade others to see them and to work toward them will often constitute the chief measure of the president s administration The president

    Original URL path: http://www.aaup.org/report/statement-government-colleges-and-universities (2016-02-13)
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  • Policies and Best Practices | AAUP
    of related disciplines When feasible the term should designate a department 7 To what extent will affected faculty members be informed of the proposed discontinuance of their programs Tenured tenure track and contingent faculty members whose programs face potential closure will be informed promptly of the pending decision and will be given at least thirty days to respond to the proposal 8 What due process protections does the AAUP recommend affording a faculty member whose position is being terminated because of financial exigency A faculty member whose position is identified for termination should be afforded an adjudicative hearing of record before a duly constituted faculty committee in which the following three issues may be contested The existence and extent of the condition of financial exigency with the burden of proof upon the administration The validity of the educational judgments and the criteria for identification for termination with the proviso that any faculty judgments in these matters are presumed valid Whether the criteria for termination are properly applied in the individual case Recommended Institutional Regulations 4c 9 Is there an order in which appointments should be terminated after financial exigency has been declared According to the Recommended Institutional Regulations 4c 3 The appointment of a faculty member with tenure will not be terminated in favor of retaining a faculty member without tenure except in extraordinary circumstances where a serious distortion of the academic program would otherwise result 10 How much notice should an administration provide a faculty member whose appointment is being terminated for financial exigency Regulation 8 of the Recommended Institutional Regulations provides as follows If the appointment is terminated the faculty member will receive salary or notice in accordance with the following schedule at least three months if the final decision is reached by March 1 or three months prior to the expiration of the first year of probationary service at least six months of salary or notice if the decision is reached by December 15 of the second year or after nine months but prior to eighteen months of probationary service at least one year if the decision is reached after eighteen months of probationary service or if the faculty member has tenure On the recommendation of the faculty hearing committee or the president the governing board in determining what if any payments will be made beyond the effective date of termination may take into account the length and quality of service of the faculty member 11 Does an administration have any other obligations toward a faculty member whose position is terminated because of financial exigency An administration should make every effort to find another suitable position within the institution for the affected faculty member Recommended Institutional Regulations 4c 4 T he position of the affected faculty member will not be filled by a replacement within a period of three years unless the released faculty member has been offered reinstatement and a reasonable time in which to accept or decline it RIR 4c 6 12 Can institutions terminate

    Original URL path: http://www.aaup.org/i-need-help/responding-financial-crisis/policies-and-best-practices (2016-02-13)
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  • Faculty Handbook Policies, Budget Committees, and Budget Principles | AAUP
    Bill of Rights Minority Serving Institutions Post Tenure Review Retirement Sexual Diversity Gender Identity Teaching Evaluation Tenure Women in Higher Education Reports Publications AAUP Policies Reports Academe Economic Status Report Compensation Survey Bulletin of the AAUP The Redbook Journal of Academic Freedom AAUP Bookstore News AAUP in the News AAUP Updates For the Media Get Involved Upcoming Events Local Toolkit Issue Campaigns Find Chapters Conferences Start a Chapter I Need Help With Workplace Issues Understanding Terms and Abbreviations Responding to Financial Crisis You are here Home I Need Help Responding to Financial Crisis With Workplace Issues Understanding Terms and Abbreviations Responding to Financial Crisis Policies and Best Practices Faculty Handbook Policies Budget Committees and Budget Principles Legal Considerations Understanding Institutional Finances Organizing the Faculty Response Accounting Guidelines for Analysis of Financial Exigency Letter to University of Illinois Faculty Regarding Finances Faculty Handbook Policies Budget Committees and Budget Principles Sample Faculty Handbook Policies on Financial Exigency These samples comport with AAUP recommended standards as set forth in the Recommended Institutional Regulations on Academic Freedom and Tenure Regulation 4c Fairleigh Dickinson University Faculty Handbook Section XXII pp 46 48 Wartburg College Faculty Handbook Section 2 10 5 3 Reduction in Force Sample Faculty Organized Budget Committee The structure of this committee ensures faculty involvement in key budgetary decisions North Carolina State University University Budget Advisory Committee Sample Budget Principles See this example from North Carolina State University Model Faculty Statement on Financial Recommendations Joint Resolution Recommending a Hiring Freeze and the Elimination of Administrative Stipends to Avoid Laying off Teaching Faculty from East Carolina University 4 21 Start a Chapter Active AAUP chapters serve the profession on more than 450 campuses by supporting principles and programs that vitally affect the quality of higher education and professional life Find out how you can

    Original URL path: http://www.aaup.org/i-need-help/responding-financial-crisis/faculty-handbook-policies-budget-committees-and-budget (2016-02-13)
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  • Legal Considerations | AAUP
    Appeals for the Fourth Circuit which makes federal law for Virginia West Virginia Maryland North Carolina and South Carolina is an exception to the trend of finding that statutes abrogating collective bargaining agreements violate the Contract Clause The Fourth Circuit has held that a unilateral reduction in contractually established future state employee salary obligations does not constitute a substantial impairment under the Contract Clause In Baltimore Teachers Union AFT v Mayor and City Council of Baltimore 6 F 3d 1012 4th Cir 1993 cert denied 114 S Ct 1127 1994 police and teachers sued the city of Baltimore alleging that 1 percent salary reductions implemented to meet a budgetary shortfall violated the federal constitution s Contract Clause he district court ruled in favor of the employees On appeal the Fourth Circuit recognized that the salary reduction imposed a substantial impairment of the employees contracts observing there likely is no right both more central to the contract s inducement and on the existence of which the parties more especially rely than the right to compensation at the contractually specified level Nevertheless the federal appellate court reversed the lower court ruling that the city s furlough program was reasonable and necessary The court paid significant deference to the city and emphasized that no evidence existed that it chose a more drastic impairment over a more moderate option In so reasoning the court noted that the salary reduction was but one of a number of measures taken by the City It further found that the furlough program did not narrowly target specific classes of employees it extended to all City employees The court conceded however that it would be reluctant to hold that any decrease in annual salary beyond one that could fairly be terminated de minimis could be considered insubstantial This decision has been heavily criticized by a number of commentators 5 What type of notice and hearing is required before I am furloughed Courts have consistently applied a balancing test when reviewing government actions such as furloughs and terminations affecting employees including actions taken by public colleges and universities At public institutions the court will generally consider the following factors in determining what level of process is due The faculty member s interest that will be affected by furlough i e an interest in continued employment and his her agreed upon salary The risk that the faculty member will be erroneously deprived of that interest i e because of insufficient consideration of various factors or because of pretext and the potential value of other procedural safeguards and The state s interest in the matter including the type of employment function involved and any burdens fiscal or administrative that the additional or substitute procedures would impose Mathews v Eldridge 424 U S 319 96 S Ct 893 903 47 L Ed 2d 18 1976 Although this balancing test is used in both furlough and termination situations courts appear to weigh the individual factors differently when comparing the situations perhaps recognizing the difference between the interests involved a day or more without pay versus loss of a job entirely For example in Odynocki v Southern University at New Orleans 2006 U S Dist LEXIS 80929 E D La Nov 3 2006 a case involving a tenured professor who was furloughed from SUNO after Hurricane Katrina the federal district court weighed those three factors to determine whether he had received adequate process Odynocki did not receive a hearing before he was furloughed without pay but he did receive a post furlough hearing which the court held to be sufficient Although Odynocki had an interest in maintaining his position and continuing to receive his paycheck the governmental interest in reducing fiscal and administrative burdens when Hurricane Katrina devastated the City of New Orleans was substantial The governor had issued a variety of orders in response to the hurricane including an order to reduce expenditures In addition Odynocki did not have a full course load though that appeared to be in part the result of some administrative issues potentially out of his control The court therefore concluded that SUNO s interest in safeguarding the future of the University by acting quickly in implementing procedures to relieve the fiscal and administrative burdens as ordered by the Governor following Hurricane Katrina outweigh Dr Odynocki s private interest that was affected by the Force Majeure policy and resulting furlough policy adopted by SUNO 6 What factors may be used in determining financial exigency Declarations of financial exigency are likely to be reviewed on a case by case fact specific basis As one court has observed exigency changes before our eyes Its meaning varies with the light of circumstances AAUP Bloomfield Chapter v Bloomfield College 322 A 2d 846 N J Super Ct 1974 aff d 346 A 2d 615 App Div 1975 The factors that courts have considered in assessing whether a school has acted in good faith in declaring financial exigency include the following decline in enrollment loss of revenue ongoing or increasing deficits or decreasing operating funds cuts in non tenured lines termination of non tenured faculty members elimination of nonessential programs and travel and other reductions in non salary expenses See e g Krotkoff v Goucher College 585 F 2d 675 4th Cir 1978 adding that financial exigency is determined on the basis of the operating fund not considering land or other assets Klein v Board of Higher Education of City of New York 434 F Supp 1113 S D N Y 1977 Board of Community College Trustees v Adams 701 A 2d 1113 Md App 1996 Polishook v City University of New York 234 A D 2d 165 N Y App Div 1996 AAUP Bloomfield Chapter v Bloomfield College 322 A 2d 846 N J Super Ct 1974 aff d 346 A 2d 615 App Div 1975 In AAUP Bloomfield Chapter v Bloomfield College for example the New Jersey Superior Court concluded that the school s actions in terminating the services of some tenured faculty members and placing all others on terminal one year contracts were not taken in good faith on the basis of a number of factors there was no clear financial benefit from putting all remaining faculty on one year terminal contracts which appeared to be a gratuitous challenge to the principle of academic tenure the college failed to show that hiring twelve new faculty members during the period in which tenured faculty positions were terminated was justified by extraordinary circumstances and it undertook that hiring without faculty consultation the college had had liquidity problems for decades and it was declining to sell a golf course a significant asset that could significantly alleviate its cash shortage internal documents suggested that the president s hostility to tenure motivated some of the decisions a report from the college s Commission to Review Tenure and Retirement Policy indicated that the college s primary goal was to abolish the tenure system and the college failed to consider other cost reducing measures like across the board salary reductions and non renewal of contracts for teachers on probationary status The court therefore ordered that the college reinstate all terminated faculty members and continue the tenured status of those who were tenured before termination By contrast in Polishook v City University of New York 234 A D 2d 165 N Y App Div 1996 the court deferred to CUNY s Board of Trustees on the grounds that the board acted in good faith The court explained its presumption of deference With regard to the Board of Trustees declaration of a continued financial exigency in June 1995 and the subsequent faculty terminations and budgetary cuts it has been held that where there is a showing that the administrative body in exercising its judgment acts from honest convictions and in good faith based upon facts and circumstances which it believes are in the school s best interests and there is no showing that the acts were arbitrary or generated by ill will fraud collusion or such other motives it is not the province of a court to interfere and substitute its judgment for that of the administrative body As noted by two commentators Allowing courts or faculty members to second guess the response of university administration to a bona fide financial crisis would serve to protect neither the financial stability of the institution nor the academic freedom of the faculty The summary question must be one of causation and motive if the institution s decision to terminate a tenured faculty member was caused by financial exigency and the university has no other improper motive for the termination then the question of whether the termination was the best response under the circumstances is a purely administrative one Bolger Wilmoth Dismissal of Tenured Faculty Members for Reasons of Financial Exigency 65 Marq L Rev 346 355 356 n 35 1982 see also Refai v Central Wash Univ 49 Wash App 1 742 P2d 137 7 Have courts recognized the connection between protecting tenure and limiting declarations of financial exigency Yes In AAUP Bloomfield Chapter v Bloomfield College 322 A 2d 846 N J Super Ct 1974 aff d 346 A 2d 615 App Div 1975 one of the most extensive judicial explorations of financial exigency in higher education the court said The adoption of tenure is not merely a reflection of solicitude for the staffs of academic institutions but of concern for the general welfare by providing for the benefits of uninhibited scholarship and its free dissemination The security provided therefor by the consensus of learned authority should not be indifferently regarded It should be vigilantly protected by a court of equity except where under agreed standards stringent to the point suggested by phrases such as financial exigency drastic retrenchment extraordinary circumstances and demonstrably bona fide the survival of the college is imperiled and then only where the good faith of the administration in seeking the severance of tenured personnel has been clearly demonstrated as a measure reasonably calculated to preserve its existence as an academic institution It is not a sufficient justification only that the college acted on the belief that the measure would in some degree advance the financial fortunes of the institution Conceding that the college is under financial stress and that something had to be done it does not follow that the college s freedom of response extends to the unilateral revocation of a contractually protected employment status and the discharge of tenured teachers as a matter of unbridled discretion citations omitted 8 My school s bylaws and faculty handbook do not mention financial exigency as a possible grounds for termination but the school has invoked it anyway Is that legal Several courts have held that even without specific language on financial exigency there is an implied right in higher education to terminate positions on the basis of a real declared financial exigency In Krotkoff v Goucher College 585 F 2d 675 4th Cir 1978 the U S Court of Appeals for the Fourth Circuit upheld the termination of a tenured faculty member for reasons of financial exigency even though neither the faculty member s appointment letter nor the university s bylaws mentioned financial exigency as a possible ground for termination The court opined that such a termination was legal so long as the decision due to financial reasons was demonstrably bona fide Similarly the U S Court of Appeals for the First Circuit upheld the termination of two professors when the university discontinued their program The court ruled in Jimenez v Almodovar 650 F 2d 363 1st Cir 1981 that the terminations were legal even without prior notification that a change in academic program could be grounds for termination and regardless of whether the program discontinuation was based on educational or financial considerations 9 How much notice should an administration provide a faculty member whose position will be terminated for financial exigency Note AAUP recommended standards on notice in cases of financial exigency are more stringent than those in some of the cases below Generally courts will use a balancing test to determine what due process is required when a public institution takes action affecting a faculty member s employment As discussed previously in a question related to furloughs courts look at several factors in assessing what process is required including The faculty member s interest i e an interest in continued employment The risk that the faculty member will be erroneously deprived of that interest i e because of insufficient consideration of various factors or because of pretext and the potential value of other procedural safeguards and The state s interest in the matter including the type of employment function involved and any burdens fiscal or administrative that the additional or substitute procedures would impose Mathews v Eldridge 424 U S 319 96 S Ct 893 903 47 L Ed 2d 18 1976 Minimally courts agree that when facing potential termination faculty members have the right to receive notice of termination and to have an opportunity to be heard How much notice and in what detail varies by court and factual circumstances For example in Johnston Taylor v Gannon No 91 2398 1992 U S App LEXIS 22052 6th Cir Sept 2 1992 the U S Court of Appeals for the Sixth Circuit upheld a forty five day notice period for termination of tenured faculty on the grounds of financial exigency Similarly in Milbouer v Keppler 644 F Supp 201 D Idaho 1986 the Idaho federal district court ruled that the thirty day notice provided by the faculty handbook met due process requirements Faculty at private institutions may also be entitled to a certain amount of notice depending upon the contract between the faculty member and the university including the faculty handbook to the extent it is incorporated into the contract See e g Linn v Andover Newton Theological School 638 F Supp 1114 D Mass 1986 and Scheuer v Creighton University 260 N W 2d 595 Neb 1977 In addition under some circumstances the federal WARN Worker Adjustment and Retraining Notification Act 29 U S C 2101 2109 may apply The WARN Act requires employers to give 60 days notice of an intended mass layoff which means a layoff resulting in an employment loss of a at least 33 percent of the employees and at least 50 employees or b at least 500 employees An employment loss means a termination a layoff exceeding 6 months or a cut of more than 50 percent of the hours of work during each month of any six month period Part time employees those working fewer than 20 hours per week and employees who have been employed for less than half of the year preceding the notice date are not included when calculating the number of employees affected and only employers with 100 or more employees are required to comply with the statute If an employer violates the WARN Act by giving too little notice the employer will owe back pay and employee benefits The employer will not however be ordered to rescind the layoff or reinstate employees In addition the law can be enforced only by private lawsuit the Department of Labor has no enforcement authority See more information on the WARN Act on the Department of Labor s website 10 My position was terminated as a result of a program elimination and I protested The university officials who made the program elimination decisions were same the ones who judged my hearing Is that legal In general without a specific showing of bias by the decision maker courts will not overturn a hearing decision on that ground For example in Bignall v North Idaho College 538 F 2d 243 9th Cir 1976 the U S Court of Appeals for the Ninth Circuit ruled that a hearing before a school s board of trustees was appropriate even though the board had ordered the staff cuts unless the faculty member could show that the board was biased against her In reaching this conclusion the court stated that w hile the risk of error with a biased hearing panel is obvious courts have balanced the need for an objective decision maker against the cost of employing outside people administrative efficiency and the body s having some expertise in institutional structure Furthermore in Texas Faculty Association v University of Texas at Dallas 946 F 2d 379 5th Cir 1991 the U S Court of Appeals for the Fifth Circuit opined that a hearing concerning termination is not rendered constitutionally inadequate solely because university administrators are asked to review their own decisions 11 I was told that at my termination hearing I didn t have legal rights like the right to an attorney the right to cross examine witnesses the right to present evidence or the right to a written record of the hearing Is that accurate State law or institutional policy may require that a formal hearing be granted to the employee facing termination At least one court has found that constitutional due process requirements however likely do not confer a right to counsel or the right to cross examine witnesses at least where the decision to terminate faculty positions is incident to the decision to terminate an entire academic program Texas Faculty Association v University of Texas at Dallas 946 F 2d 379 5th Cir 1991 The court in Texas Faculty Association added however that allowing evidence and requiring a written record would greatly encourage fundamental fairness and informed decision making and would aid in judicial review when a faculty member challenges the substance or procedure of a particular decision in addition requiring those elements would not be too detrimental to the institutional interests in autonomy and economy citations omitted 12 I am a tenured faculty member at a public institution What are my constitutional rights with respect to continued employment The U S Supreme Court has recognized that tenured faculty members have a property interest in continued employment and this interest

    Original URL path: http://www.aaup.org/i-need-help/responding-financial-crisis/legal-considerations (2016-02-13)
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