archive-org.com » ORG » A » AAUP.ORG

Total: 1208

Choose link from "Titles, links and description words view":

Or switch to "Titles and links view".
  • Board of Trustees of the Leland Stanford Junior University, v. Roche Molecular Systems, Inc. et al., 131 S. Ct. 2188 (2011) | AAUP
    a nonprofit advocacy group Originally filed as a patent infringement lawsuit by Stanford University against Roche Molecular Systems Inc this complex case has evolved into a broader battle over the patent rights of faculty members to their inventive work Specifically the case centers on the dispute over who owns the patent rights to inventions developed in academia and funded fully or partially through federal government grants In support of its patent infringement claims Stanford University has asked the Supreme Court to interpret the federal Bayh Dole Act as automatically taking ownership rights away from inventing faculty members and vesting that ownership interest in the faculty members college or university whenever federal research funds are involved The AAUP IEEE and IP Advocate believed that this interpretation would contradict existing patent law and is counter to the process of patent assignment that has worked successfully under the Bayh Dole Act during the thirty years of its existence The Bayh Dole Act became law in 1980 and was intended to address concerns about government funding agencies inability to efficiently transition publicly funded research from development to application During the last thirty years the law has positively influenced how academic inventions have transitioned from the research to application phase in order to benefit the public The joint AAUP IEEE and IP Advocate brief therefore endorsed the purpose of the Bayh Dole Act and argued that it is unnecessary and potentially harmful for the law to be reinterpreted to take ownership rights from faculty researchers The brief emphasized that the act does not alter the basic ownership rights granted by law to faculty inventors which faculty may then assign to their college or university by contract Furthermore the joint brief strongly rejected an argument made by Stanford and other universities and higher education associations that

    Original URL path: http://www.aaup.org/brief/board-trustees-leland-stanford-junior-university-v-roche-molecular-systems-inc-et-al-131-s-ct (2016-02-13)
    Open archived version from archive

  • Cameron v. Arizona Board of Regents, 2011 Ariz. App. Unpub. LEXIS 1129 (2011), petition for review denied, 2012 Ariz. LEXIS 220 (2012). | 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 Cameron v Arizona Board of Regents 2011 Ariz App Unpub LEXIS 1129 2011 petition for review denied 2012 Ariz LEXIS 220 2012 Theresa Cameron was a tenured associate professor at Arizona State University She was accused of misconduct by the Dean and Associate Dean for among other things allegedly plagiarizing syllabi of other faculty in the construction and use of several of her own course syllabi The Dean Associate Dean and Provost asked the university President to terminate Dr Cameron for just cause under University and Board of Regents policies and he did so Professor Cameron appealed her termination to the ASU Faculty Senate Committee on Academic Freedom and Tenure CAFT which found that even though Dr Cameron admitted she had plagiarized her syllabi CAFT unanimously recommended that she be reinstated and undergo a post tenure review to assist her with construction and use of syllabi The university President however rejected CAFT s recommendation and Dr Cameron filed suit Both the trial and appellate court ruled in favor of the University and Professor Cameron has filed a petition for review by the Arizona Supreme Court The AAUP filed an amicus brief in support of Dr Cameron s petition for review drafted by Arizona State University law professors Joseph Feller and Paul Bender and joined

    Original URL path: http://www.aaup.org/brief/cameron-v-arizona-board-regents-2011-ariz-app-unpub-lexis-1129-2011-petition-review-denied (2016-02-13)
    Open archived version from archive

  • Vergara, et al. v. State of California, et al. and California Teachers Association and California Federation of Teachers, Case No. BC484642 (Calif. Superior Ct., Los Angeles, June 10, 2014) appeal filed, Case No. B258589 (Calif. App. Ct., Second App. Dist | AAUP
    secondary school teachers a two year probationary period stipulate procedural protections for non probationary teachers facing termination and emphasize teacher seniority in reductions of force The trial court judge held that the statutes unconstitutionally impact students constitutional right to equality of education and disproportionately burden poor and minority students The amicus brief contesting this decision argued that the challenged statutes help protect teachers from retaliation help keep good teachers in the classroom by promoting teacher longevity and discouraging teacher turnover and allow teachers to act in students interests in presenting curricular material and advocating for students within the school system The challenged statutes in the California Education Code establish a two year probationary period during which new teachers may be terminated without cause due process protections for non probationary teachers facing termination for cause and procedures for implementing budget based reductions in force After an eight week bench trial Los Angeles Superior Court Judge Rolf Michael Treu in a short sixteen page opinion containing only superficial analysis adopted the plaintiffs theories in full striking down each challenged statute as unconstitutional In doing so Judge Treu improperly used the strict scrutiny standard and failed to adequately consider the substantial state interest in providing statutory rights of tenure and due process for K 12 teachers in the public schools Instead Judge Treu accepted wholesale testimony given by the plaintiffs expert witnesses Based on this testimony the court concluded that the specific effect of grossly ineffective teachers on students shocks the conscience and that there are a significant number of grossly ineffective teachers currently active in California classrooms who have a direct real appreciable and negative impact on a significant number of California students Although he did not cite evidence showing a causal link between the statutes and students constitutional rights Judge Treu

    Original URL path: http://www.aaup.org/brief/vergara-et-al-v-state-california-et-al-and-california-teachers-association-and-california (2016-02-13)
    Open archived version from archive

  • Kant v. Lexington Theological Seminary, No. 2912-SC-000502-DG, 2014 Ky. LEXIS 160 (Ky. April 17, 2014). | AAUP
    employed him to teach courses on several religious and historical subjects In 2009 the Seminary terminated Kant s employment in violation of the terms of the Faculty Handbook Kant challenged his termination by filing suit for breach of contract and breach of implied covenants of good faith and fair dealing Similarly the Seminary terminated Professor Jimmy Kirby who filed suit for breach of contract breach of good faith and fair dealing and for race discrimination in violation of Kentucky law Two trial courts summarily dismissed Kant s and Kirby s claims holding that the contract claims were barred by the ministerial exception a judicially created principle whereby the secular courts have no competence to review the employment related claims of ministers against their employing faith communities Kirby at 11 The lower courts also held that they had no jurisdiction to interpret the contract under the ecclesiastical abstention doctrine under which the secular courts have no jurisdiction over ecclesiastical controversies and will not interfere with religious judicature or with any decision of a church tribunal relating to its internal affairs as in matters of discipline or excision or of purely ecclesiastical cognizance Kirby at 53 see link below The Kentucky Court of Appeals affirmed the decisions below and both professors filed separate appeals with the Kentucky Supreme Court AAUP filed an amicus brief in support of Kant s appeal to the Kentucky Supreme Court arguing that the Seminary could not use the ministerial exception to avoid its voluntarily negotiated tenure contract obligations Specifically AAUP argued that the issue at the heart of the case whether the contract permitted the Seminary to eliminate tenure and terminate Kant due to financial exigency could be decided based on neutral principles of law that would not require the Court to interfere with the Seminary s constitutional right to select its own ministers or otherwise to intrude on matters of church doctrine While the Court did not formally join the Kant and Kirby cases it heard arguments on the same day and relied upon the arguments in AAUP s amicus brief in reaching its decision in both Kirby and Kant On April 17 2014 the Kentucky Supreme Court issued unanimous decisions in both cases Kant v Lexington Theological Seminary 2012 SC 000502 DG 2014 Ky LEXIS 160 Ky April 17 2014 Kirby v Lexington Theological Seminary 2012 SC 000519 DG 2014 Ky LEXIS 161 Ky April 17 2014 Although the Court adopted the ministerial exception doctrine as outlined by the U S Supreme Court in Hosanna Tabor Evangelical Lutheran Church School v EEOC 132 S Ct 694 2012 it flatly rejected the reasoning of the Kentucky courts below and permitted both professors to proceed with their cases The Court viewed the ministerial exception as narrow contrary to the expansive interpretation offered by Seminary In particular the Court stated We reject a categorical application of the ministerial exception that would treat all seminary professors as ministers under the law Kant at 2 3 Instead the Court emphasized

    Original URL path: http://www.aaup.org/brief/kant-v-lexington-theological-seminary-no-2912-sc-000502-dg-2014-ky-lexis-160-ky-april-17-2014 (2016-02-13)
    Open archived version from archive

  • Branham v. Thomas M. Cooley Law School, 689 F.3d 558 (6th Cir. 2012). | AAUP
    v Thomas M Cooley Law School 689 F 3d 558 6th Cir 2012 Tenured law professor Lynn Branham was terminated from Thomas M Cooley School of Law Cooley and subsequently sued the law school in federal court on claims of violations of the Americans with Disabilities Act and Michigan Persons with Disabilities Civil Rights Act intentional infliction of emotional distress and breach of contract The federal district court granted Cooley s motion for summary judgment on Branham s first three claims but allowed her breach of contract claim to proceed The district court went on to rule that Cooley had breached its employment contract with Branham because it failed to follow the specified procedures for dismissal and ordered Cooley to comply with that process To comply with the Court s order Cooley held a faculty conference to determine whether there was good cause to dismiss Branham from her position The faculty concurred with the decision to dismiss Branham and the Board of Directors unanimously upheld the faculty s decision The district court then ruled that Cooley had fulfilled its due process obligations under the employment contract and that the process complied with Michigan law The court then entered judgment against Branham Branham subsequently appealed to the U S Court of Appeals for the Sixth Circuit arguing among other things that the district court erred in concluding that the tenure granted under her contract does not afford her rights beyond the one year term specified in her employment contract The Sixth Circuit upheld the district court s decision concluding that Branham s employment contract did not create an obligation of continuous employment but rather expressly limited its term to one year The Court reasoned that while Branham may have had tenure in the sense that she had academic freedom she was

    Original URL path: http://www.aaup.org/brief/branham-v-thomas-m-cooley-law-school-689-f3d-558-6th-cir-2012 (2016-02-13)
    Open archived version from archive

  • Faculty Misconduct and Discipline (2005) | AAUP
    institution needs to address the process that will be used to determine whether the faculty member s conduct meets the definition of the misconduct with which he or she has been charged Depending on the seriousness of the allegations a chair or dean might create an ad hoc faculty committee to review the allegations and to make findings of whether or not the misconduct occurred and to recommend what type of sanction to impose Or the issue might be referred to an institution wide faculty committee for findings and recommended sanctions Although many sanctions discussed below would not involve the type of deprivation that might trigger due process protections in public institutions or contractual protections in either private or public institutions the institution should consider developing a grievance process for faculty challenges to sanctions or using the institution s existing grievance process for that purpose At a minimum the institution should provide the following protections to an individual alleged to have engaged in misconduct that is subject to the institution s discipline policy Notice of the alleged misconduct Opportunity to respond to the charges Review by a faculty body of both the factual allegations and the proposed discipline Progressive discipline if appropriate to the seriousness of the misconduct Opportunity for higher level review of the factfinding and the proposed sanction On unionized campuses participation by an advocate for the faculty member in hearings or other meetings Types of Faculty Discipline In 1971 a special joint subcommittee of the AAUP considered the question of sanctions short of dismissal and enumerated the following lesser sanctions 1 oral reprimand 2 written reprimand 3 a recorded reprimand 4 restitution for instance payment for damage due to individuals or to the institution 5 loss of prospective benefits for a stated period for instance suspension of regular or merit increase in salary or suspension of promotion eligibility 6 a fine 7 reduction in salary for a stated period 8 suspension from service for a stated period without other prejudice Faculty Tenure at 75 77 The AAUP s Recommended Institutional Regulations on Academic Freedom and Tenure RIR Recommendation 7 distinguishes between major and minor sanctions categorizing suspension as major and reprimand as minor AAUP regulations 5 and 7 provide that major sanctions should not be imposed until after a hearing in which the same procedures apply as in a dismissal case which include written notice of the charges a hearing before a faculty committee in which the administration bears the burden of proof right to counsel cross examination of adverse witnesses a record of the hearing and a written decision Redbook at 27 Immediate suspension with pay pending a hearing is appropriate under AAUP policy if an individual poses a threat of immediate harm to him or herself or others RIR 5 c 1 Redbook at 25 Moreover Regulation 5 c of the Association s Recommended Institutional Regulations states that the administration before suspending a faculty member will consult with an appropriate faculty committee concerning the propriety the length and other conditions of the suspension The AAUP further provides that an institution may impose a minor sanction after providing the individual notice and that the individual professor has the right to seek review by a faculty committee if he or she feels that a sanction was unjustly imposed Judicial Review of Faculty Discipline As noted above like the legal claims of faculty threatened with dismissal litigation arising from the imposition of sanctions flow from a number of legal sources including the constitutional law for public institutions contractual obligations at private and public sector institutions faculty handbooks letters of appointment collective bargaining agreements and regulations and statutes internal and external 1 Warning or Reprimand In Hall v Board of Trustees of State Institutions of Higher Learning 712 So 2d 312 Miss S Ct 1998 the University of Mississippi issued a written reprimand to a nontenured professor of medicine who in responding to a student s question about interpreting mammograms touched the student s breasts The Mississippi Supreme Court ruled that the written reprimand did not violate the professor s due process rights but required that the document be maintained in a separate file Butts v Shepherd College 569 S E 2d 456 W Va 2002 ruling that professor s refusal to obey supervisor s order to release student grades to supervisor was not grounds for reprimand Powell v Ross 2004 U S Dist LEXIS 3601 W D Wis Feb 27 2004 rejecting professor s defamation claim arising in part from recommendation of administrator that chancellor issue a strong letter of reprimand and place it in professor s personnel file See also AAUP Academic Freedom and Tenure Tulane University AAUP Bulletin 424 430 1970 acknowledging faculty committee s recommendation as proper for reprimand as opposed to dismissal for professor s interference with on campus ROTC drill 2 Public Censure See e g Newman v Burgin 930 F 2d 955 1st Cir 1991 upholding the public censure of a faculty member for plagiarism by the University of Massachusetts Boston administration after an investigation and hearing by a faculty committee But see Booher v Northern Kentucky University 1998 U S Dist LEXIS 11404 E D Ky July 22 1998 holding that departmental censure of faculty member in response to his comments to the media about a controversial university art exhibit provided a basis for professor s First Amendment retaliation claim and noting that the censure could affect the professor s ability to engage in the department s system of governance to participat e in departmental decision making and to select his teaching assignments Meister v Regents of the University of California 78 Cal Rptr 2d 913 Cal App 6 Dist 1998 finding by arbitrator that professor s reputation had been injured by circulation of letter of censure which was recommended by campus committee for the professor s unauthorized circulation of a confidential planning document 3 Departmental Reassignment On occasion an institution decides to transfer a faculty member from one academic department

    Original URL path: http://www.aaup.org/issues/appointments-promotions-discipline/faculty-misconduct-and-discipline-2005 (2016-02-13)
    Open archived version from archive

  • Termination & Discipline (2004) | AAUP
    institution s standard of dismissal for grave cause was vague B Substantive Grounds for Dismissal Dismissal should of course be a last resort Brian Brooks Adequate Cause for Dismissal The Missing Element in Academic Freedom 22 J Coll Univ L 331 353 Fall 1995 Adequate Cause The substantive grounds for dismissal for cause generally include incompetence neglect of duty insubordination and immoral or unethical conduct Dismissal for Cause at 21 Adequate Cause at 331 Robert M Hendrickson Removing Tenured Faculty For Cause 44 Educ L Rptr 483 491 1998 Timothy B Lovain Grounds for Dismissing Tenured Postsecondary Faculty For Cause 10 J of Coll Univ L 419 422 Winter 1983 Courts tend to look favorably upon opportunities provided to faculty to remediate their perceived deficiencies before dismissal As one commentator observes When a person who once proved himself to be competent is eventually judged to be incompetent there is no winner The university has lost a valuable asset in the form of an active competent professor remember he was once judged competent and the professor has lost his livelihood Therefore whenever possible action should be taken to restore the faculty member to his former position of competence Such action may take many forms If the professor is simply not participating informing him of the eventual result of that course of action may remedy the problem The teacher may suddenly teach and the scholar may suddenly publish When the problem involves the quality of the teaching or scholarship then the remedial actions will need to be more aggressive Specific weaknesses and areas for improvement should be identified The professor should be given a timetable for compliance Assistance might also be provided in the form of leave a sabbatical or a decreased class load so that the professor can devote his time to the recommended improvements The essential point is that the focus should be on rehabilitation not on dismissal Adequate Cause at 353 see also Dismissal for Cause at 48 observing that a plan of remediation and a reasonable period of time to address deficiencies may be warranted depending on the faculty conduct at issue 1 Immoral Behavior One commentator has observed that j udicial decisions do not provide a precise definition of immorality in the context of higher education Dismissal for Cause at 35 In the end allegations of immoral behavior must be understood in the context of higher education See e g Texton v Hancock 359 So 2d 895 Fla App 1978 where professor was dismissed for immorality and the charges included using profanity in the classroom and drinking heavily in a student s home the court found insufficient grounds for dismissal because Ms Texton s conduct must be judged in the context of her more liberal open robust college surroundings Immoral behavior as grounds for dismissal of faculty members tends to cover sexual misconduct harassment and dishonesty Plagiarism is a typical basis for academic dishonesty See e g Agarwal v Regents of the University of Minnesota 788 F 2d 504 8th Cir 1986 upholding university s dismissal of faculty member for the immoral conduct of plagiarizing a laboratory manual Yu v Peterson 13 F 3d 1413 10th Cir 1993 upholding termination of faculty member appointment at University of Utah because of plagiarism found by faculty committee which determined that Dr Yu knowingly held out the disputed paper as his own work with knowledge that it included extensive duplications or close paraphrasing of the co authored report 2 Neglect of Duty Neglect of duty which is sometimes alleged to constitute insubordination involves the failure of faculty members to carry out their professional obligations As numerous courts have noted definitions of these terms in the higher education context are rather meager See Botts v Shepherd College 569 S E 2d 456 W Va 2002 See e g Stastny v Board of Trustees of Central Wash Univ 647 P 2nd 496 Wash Ap p 1982 upholding termination of tenured faculty member for unapproved leaves of absences including a trip to Israel during the beginning of the semester after repeated liberal grants of absences because professor s conduct directly related substantially to his fitness as a faculty member McConnell v Howard University 818 F 2d 58 D C Cir 1987 remanding case for further proceedings in breach of contract action by professor who challenged his dismissal for neglect of professional responsibilities Prebble v Broderick 535 F 2d 605 10th Cir 1976 upholding dismissal of tenured faculty member for neglect of duty which involved professor s failure to teach eight days of scheduled classes in one semester But see Trimble v Southern West Virginia Community and Technical College 549 S E 2d 294 W Va App 2001 ruling that administration violated West Virginia constitution when it immediately terminated a tenured public higher education teacher who has a previously unblemished record for an incident of insubordination that is minor in its consequences specifically the professor s failure to submit his syllabi using new campus software See generally Annotation What Constitutes Insubordination as Grounds for Dismissal of Public School Teachers 78 ALR 3rd 83 1977 Supp 2003 3 Incompetence Efforts to dismiss faculty for incompetence generally rely heavily on the evaluations of peers in determining whether a professor is no longer competent to carry out his or her duties AAUP policy provides that in pre termination hearings involving dismissals for incompetence the testimony will include that of qualified faculty members from this or other institutions of higher education RIR 5 c 12 Redbook at 27 See e g Riggin v Board of Trustees of Ball State University 489 N E 2d 616 Ind Ct App 1986 upholding dismissal where professor failed to cover relevant topics in the course syllabus organized lectures poorly failed to attend class regularly and failed to provide students the opportunities to meet with him one on one King v University of Minnesota 774 F 2d 224 8th Cir 1985 upholding dismissal of tenured faculty member based in part on the evaluations of colleagues and consecutive department chairs about his poor teaching research and service that he often had teaching assistant substitute teach and that he failed to grade 16 of 22 students in one course 4 Ethical Misconduct AAUP s Statement on Professional Ethics provides that faculty should avoid any exploitation harassment or discriminatory treatment of students and that professors do not discriminate or harass colleagues They respect and defend the free inquiry of associates Redbook at 133 34 See e g Korf v Ball State University 726 F 2d 1222 7th Cir 1984 upholding dismissal of faculty member for violation of professional ethics based on AAUP s statement Filippo v Bongiovanni 961 F 2d 1125 3rd Cir 1992 upholding dismissal by Rutgers University of a tenured chemistry professor relying in part on the university s adoption of AAUP s professional ethics statement to find the professor had exploited threatened and been abusive to visiting Chinese scholars brought to the University to work with him on research projects Yao v Board of Regents of The University of Wisconsin System 649 N W 2d 356 Wis App 2002 upholding board s decision to dismiss professor for intentionally tampering with a colleague s laboratory materials C Procedural Protections in a Dismissal for Cause 1 Due Process under the Law Tenured appointments or appointments with fixed terms are entitled to due process legal protections in public colleges and universities Board of Regents v Roth 408 U S 564 1972 Wieman v Updegraff 344 U S 183 1952 The U S Supreme Court in Roth 408 U S at 564 spoke to the property interests of faculty members Property interests of course are not created by the Constitution Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and support claims of entitlement to those benefits When an institution s decision implicates property interests constitutional due process provides for certain procedural safeguards before a final decision specifically notice and an opportunity to be heard Cleveland Bd of Educ v Loudermill 470 U S 532 546 1985 Due process protections at private institutions are often dictated by contractual and in some instances state law The extent of legal due process required to faculty members tends to vary by jurisdiction including the degree to which a formal pre termination hearing is legally required See generally The Law of Higher Education at 288 295 One federal appellate court set forth its views as to minimum legal procedural safeguards in the academy These safeguards may include 1 written notice of the grounds for termination 2 disclosure of the evidence supporting termination 3 the right to confront witnesses 4 an opportunity to be heard in person and to present witnesses and documentary evidence 5 a neutral and detached hearing body and 6 a written statement by the fact finders as to the evidence relied upon Chung v Park 514 F 2d 382 3rd Cir 1975 See also Levitt v University of Texas at El Paso 759 F 2d 1224 1227 28 5th Cir 1985 a hearing should be before a tribunal that possesses some academic expertise and apparent impartiality toward the charges But see Hulen v Yates 322 F 3d 1229 10th Cir 2003 ruling that professor s due process rights were not violated when he received no formal evidentiary hearing before being laterally transferred to a different academic department because the Tenth Circuit interprets Loudermill as providing for not very stringent pre termination hearings McDaniels v Flick 59 F 3d 446 3rd Cir 1995 ruling that due process rights afforded to tenured professor need not follow all six steps in Chung v Park before termination of tenured appointment Dismissed faculty members often challenge their dismissal on procedural grounds Accordingly administrators at public institutions would be well advised to provide more Chung not fewer McDaniels procedural protections not only because greater due process often ensures a more considered decision but also because affording such procedural protections communicates to courts that significant due process protections were afforded and that therefore the internal decision should be respected See The Law of Higher Education at 175 78 Supp 2000 Faculty participation in dismissal procedures often helps institutions defend their dismissal decisions in court In McConnell v Howard University 818 F 23d 58 D C Cir 1987 the federal appellate court remanded a dismissal case for further examination of neglect of professional responsibilities finding that the administration s dismissal decision was suspect because in part it rejected the faculty committee s determination in favor of the professor The faculty committee had found that while failure to teach an assigned course might justify dismissal mitigating circumstances in this case the failure of the administration to deal with a disruptive student dictated otherwise See also Bates v Sponberg 547 F 2d 325 6th Cir 1976 faculty committee rejected professor s argument that his failure to report and account for research funds was a protest of the university s accounting policy and the federal district court relied on that faculty committee decision to affirm the professor s dismissal Filippo v Bongiovanni 961 F 2d 1125 3rd Cir 1992 report of faculty committee which found professor to have violated AAUP s ethics statement relied on by court in upholding institution s decision to dismiss tenured faculty member NOTE Constitutional due process protections would not generally attach to the nonrenewal of a faculty member s contract unless for example proper notice is not provided See e g Greene v Howard Univ 412 F 2d 1128 D C Cir 1969 ruling that failure to provide timely notice of nonrenewal meant that administration was required to establish just cause for the termination of an appointment because the faculty member had a legitimate expectation of another annual contract Soni v Board of Trustees of University of Tennessee 513 F 2d 347 6th Cir 1975 ruling that a nonrenewed nontenured professor of mathematics had a property interest because he had been told that he could expect his contract to be renewed and he had exercised voting and retirement plan privileges 2 Academic Due Process AAUP recognizes that t he governing board of an institution of higher education in the United States operates with few exceptions as the final institutional authority Statement on Government of Colleges and Universities Redbook at 217 220 see also 1958 Statement Redbook at 13 14 acknowledging that board of trustees has final decisionmaking authority regarding dismissal of faculty Nevertheless faculty are generally regarded as having a primary role to play in determining faculty status including dismissal See Statement on Government of Colleges and Universities Redbook at 221 The concept of academic due process entails more than the legal barebone procedural requirements described above Academic due process an internal institutional procedure is to be distinguished from due process of law Faculty Tenure at 255 56 Academic due process is a system of procedures designed to produce the best possible judgments in those personnel problems of higher education which may yield a serious adverse decision about a teacher Joughin Academic Due Process Academic Freedom The Scholar s Place in Modern Society 146 Oceanna Publications 1964 see also Statement on Government of Colleges and Universities Redbook at 217 219 Joint action with administration and faculty should also govern dismissals One court opined that t he serious consequences of a just cause dismissal are one reason why university regulations prescribe a rigorous process when accusations are made Yao 649 N W 2d 356 As one scholar observed Tenure is translatable principally as a statement of formal assurance that thereafter the individual s professional security and academic freedom will not be placed in question without the observance of full academic due process This accompanying complement of academic due process merely establishes that a fairly rigorous procedure will be observed whenever formal complaint is made that dismissal is justified on some stated ground of professional irresponsibility William Van Alstyne Tenure A Summary Explanation and Defense AAUP Bulletin 57 328 1971 AAUP policy encompasses the following components of academic due process a statement of charges in reasonable particularity opportunity for a hearing before a faculty hearing body the right of counsel if desired the right to present evidence and to cross examine record of the hearing and opportunity to the governing board The 1958 Statement which was jointly drafted and approved by AAUP and AACU and has been incorporated into hundreds of faculty handbooks observes that it is a necessary precondition of a strong faculty that it have first hand concern with its own membership including the appointment promotion and dismissal of their colleagues At the same time t he faculty must be willing to recommend the dismissal of a colleague when necessary The 1958 Statement further provides that t he faculty member should have the option of assistance by counsel Redbook at 13 Please note that the law may vary by jurisdiction about the right to have legal representation at a termination hearing See e g Frumkin v Board of Trustees 626 F 2d 19 6th Cir 1980 allowing counsel to be present and advise but prohibiting counsel from cross examining witnesses Chan v Miami Univ 652 N E 2d 644 649 Ohio 1995 The right to be heard would be in many cases of little avail if it did not comprehend the right to be heard by counsel Even the intelligent and educated layman has small and sometimes no skills in the science of the law In 2001 an AAUP investigating committee concluded that the University of Virginia administration had violated the academic due process rights of a tenured professor who had misused research funds The AAUP found Professor McCarthy was afforded no opportunity to respond to each action in 1998 before the discipline was imposed on him and the administration did not consult with any faculty body before it acted as it did He was dismissed without adequate cause having been demonstrated by the administration before a faculty body He received no severance salary The opportunity for a postdismissal hearing could not substitute for an appropriate pre dismissal academic proceeding and in any event would have wrongly required Professor McCarthy to carry the burden of proof AAUP Academic Freedom and Tenure the University of Virginia Academe 60 Nov Dec 2001 see also AAUP Academic Freedom and Tenure Macomb County Community College Michigan A Report on Disciplinary Suspension AAUP Bulletin 369 Winter 1976 finding as violative of AAUP supported principles the institution s official policy on disciplinary suspension that permits the administration unilaterally to suspend without prior demonstration of adequacy of cause a faculty member who might be viewed as insubordinate AAUP s Statement on Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments provides guidance on appropriate academic due process protections for nontenured faculty The statement explains that nontenured faculty cannot be dismissed before the end of a term appointment except for adequate cause that has been demonstrated through academic due process a right they share with tenured members of the faculty In such situations the administration should provide the faculty member with adequate notice of nonreappointment with upon request a written explanation for the decision and the opportunity to appeal the decision to a faculty body on grounds that the decision was based upon an impermissible consideration or inadequate consideration IV Sanctions Less Than Dismissal For Cause The notion of progressive discipline is not a term that one sees in many faculty handbooks But see Trimble v West Virginia Board of Directors 549 S E 2d 294 W Va 2001 college should not have fired tenured professor before resorting to other progressive disciplinary measures under West Virginia constitution Nevertheless there are sanctions less severe than dismissal that may be appropriate in dealing with particular faculty matters that do not rise to just cause The Commission on Academic Tenure observed in 1973 that it was manifestly insufficient to have a disciplinary

    Original URL path: http://www.aaup.org/issues/appointments-promotions-discipline/termination-discipline-2004 (2016-02-13)
    Open archived version from archive

  • Academic Freedom and Professorial Speech | AAUP
    the intellectual atmosphere of a school for incoming students The day of the reading program the federal appellate court upheld the trial court s ruling 19 Opponents of UNC s and other institutions academic programs argue that teaching about one topic such as Islam is inappropriate because in essence the other side is not being presented However a course is not subject to a legal mandate for equal time Such a legal imposition would needlessly and seriously undermine academic freedom As Justice Stevens noted in his concurrence in the Supreme Court case Widmar v Vincent 454 U S 263 1981 the judgments about whether to prefer a student rehearsal of Hamlet or the showing of Mickey Mouse cartoons should be made by academicians not federal judges Surely faculty are allowed to assign books or plays in their courses without having to provide equal time to every competing viewpoint Similarly another federal appellate court ruled that faculty approval of a controversial play selected by a student for his senior thesis which offended some religious individuals did not violate the Establishment Clause In Linnemeir v Board of Trustees Indiana University Purdue University Fort Wayne IPFW 260 F 3d 757 7th Cir 2001 some Indiana taxpayers and state legislators sought to compel IPFW to halt the campus production of Terrence McNally s Corpus Christi The Theatre Department faculty committee had unanimously approved the selection of the play as the senior project of a drama student The plaintiffs alleged that the play was an undisguised attack on Christianity and the Founder of Christianity Jesus Christ and therefore they claimed the performance of the play on a public university campus violated the separation of church and state under the Establishment Clause of the First Amendment The Seventh Circuit denied the plaintiffs request for a stay The majority opined The contention that the First Amendment forbids a state university to provide a venue for the expression of views antagonistic to conventional Christian beliefs is absurd It continued Classrooms are not public forums but the school authorities and the teachers not the courts decide whether classroom instruction shall include works by blasphemers Academic freedom and states rights alike demand deference to educational judgments that are not invidious 20 Another federal appellate court has ruled however that professors have no First Amendment right of academic freedom to determine appropriate curriculum In Edwards v California University of Pennsylvania 156 F 3d 488 3rd Cir 1998 cert denied 525 U S 1143 1999 Dilawar M Edwards a tenured professor in media studies sued the administration for violating his right to free speech by restricting his choice of classroom materials in an educational media course The classroom materials emphasized issues of bias censorship religion and humanism The department however had voted to use an earlier version of the syllabus for the introductory course Thus Edwards was teaching from a non approved syllabus The court declined to review the case under the standard of whether the professor s course content was reasonably related to a legitimate educational interest because a public university professor does not have a First Amendment right to decide what will be taught in the classroom The fact that Edwards departmental colleagues approved a syllabus that Edwards declined to use seems to have contributed to the court s overbroad conclusions 21 III Some Legislative Initiatives Implicating Academic Freedom There are and have been a number of legislative initiatives federal and state that threaten institutional autonomy and faculty academic freedom in terms of curricular choices and classroom speech A The Kansas Controversy In April 2003 Kansas governor Kathleen Sebelius issued a ringing endorsement of academic freedom and vetoed part of a state legislative bill that sought to cut 3 1 million from the University of Kansas budget because of objections to a course on human sexuality The legislature had proposed the cuts after learning about a student s objections to the content of a popular course in human sexuality The elective course taught for two decades by an award winning professor uses videotapes and pictures that depict genitalia and sexual activity In a statement about the veto Governor Sebelius found the proposed cut to be an inappropriate use of legislative powers designed to impinge upon academic freedom in the State of Kansas The legislature subsequently passed a bill requiring state institutions to develop a policy on the use of sexually explicit materials including videos as part of the curriculum for undergraduate students 22 B The International Studies in Higher Education Act On October 21 2003 the U S House of Representatives passed H R 3077 the International Studies in Higher Education Act The bill reauthorizes Title VI of the Higher Education Act and establishes an International Advisory Board to advise Congress and the Secretary of Education on Title VI programs in relation to national needs with respect to homeland security international education international affairs and foreign language training The board is also to annually review monitor apprise and evaluate the activities of grant recipients and to make annual recommendations to Congress and the Secretary of Education Despite the explicit ban on the board s making curricular decisions the power to hold hearings monitor programs and make recommendations to ensure that authorized activities reflect diverse perspectives and the full range of views on world regions foreign languages and international affairs gives the board power to have a direct impact on curricular decisions decisions that properly are a faculty responsibility H R 3077 has been referred to the Senate Committee on Health Education Labor and Pensions which is expected to consider it as part of the debate over reauthorization of Title VI in the coming months 23 C An Academic Bill of Rights The past year has also witnessed a concerted effort to establish what has been called an Academic Bill of Rights ABR In September 2003 Colorado State Senate President John Andrews indicated that he intends to propose legislation of some type in January 2004 to promote the Academic Bill of Rights created by David Horowitz and Students for Academic Freedom In October 2003 Congressman Kingston R Ga introduced House Congressional Resolution 318 for the same proposition The following text is an excerpt from AAUP s statement on the Academic Bill of Rights which is to be published in the January February 2004 issue of Academe Based upon data purporting to show that Democrats greatly outnumber Republicans in faculty positions and citing official statements and principles of the AAUP advocates of the ABR would require universities to maintain political pluralism and diversity This requirement is said to enforce the principle that no political ideological or religious orthodoxy should be imposed on professors and researchers through the hiring or tenure or termination process While the AAUP endorses this principle and has spoken to this issue in earlier statements 24 the Association believes that the ABR is an improper and dangerous method for its implementation There are already mechanisms in place that protect this principle and they work well Not only is the ABR redundant but ironically it also infringes academic freedom in the very act of purporting to protect it A fundamental premise of academic freedom is that decisions concerning the quality of scholarship and teaching are to be made by reference to the standards of the academic profession as interpreted and applied by the community of scholars who are qualified by expertise and training to establish such standards The proposed ABR directs universities to enact guidelines implementing the principle of neutrality in particular by requiring that colleges and universities appoint faculty with a view toward fostering a plurality of methodologies and perspectives The danger of such guidelines is that they invite diversity to be measured by political standards that diverge from the academic criteria of the scholarly profession Measured in this way diversity can easily become contradictory to academic ends So for example no department of political theory ought to be obligated to establish a plurality of methodologies and perspectives by appointing a professor of Nazi political philosophy if that philosophy is not deemed a reasonable scholarly option within the discipline of political theory No department of chemistry ought to be obligated to pursue a plurality of methodologies and perspectives by appointing a professor who teaches the phlogiston theory of heat if that theory is not deemed a reasonable perspective within the discipline of chemistry In the early 1980s historian Walter Metzger set forth a classic AAUP definition of academic freedom limits for legislatures 25 Professor Metzger granted that a state legislature can without necessarily intruding on academic freedom set up or abolish departments of instruction in academic institutions under its control because of budgetary implications He continued Nor does it intrude on academic freedom when under its licensing powers it requires candidates for professional degrees to undergo a specified course of training which the state academic institution must provide But he insisted that it invades the very core of academic freedom when it dictates the contents of any course at any level or for any purpose Doing so converts the university into a bureau of public administration the subject into a vehicle for partisan politics or lay morality and the act of teaching into a species of ventriloquism The central precepts of academic freedom are that professors should say what they believe without fear or favor and that universities should appoint meritorious persons not followers of a diversity of party lines IV Faculty Expression in Institutional Matters Faculty are not only teachers they also help to run the academic institution through shared governance Sometimes legal cases arise when faculty members speak out on institutional matters such as the process by which a college president is appointed or the negative consequences of a new admissions standard Such faculty criticism is often directed at the institution s governing board the president and other administrators and faculty colleagues Courts often apply the matters of public concern balancing test to the expression of faculty members at public institutions including when they speak out on institutional matters 26 Courts first determine whether a professor is speaking on a matter of public concern and if so whether the professor s speech outweighs the state s interest in an efficient academic workplace Courts examine the content form and context of a given statement in determining whether a particular remark addresses a matter of public concern 27 The application of this traditional employee test to professors in higher education is not particularly helpful 28 For example under what circumstances can a faculty member s speech disrupt the educational environment when the mission of educational institutions is to create an intellectual marketplace where unpopular controversial and sometimes even offensive speech can be expressed In addition the difference between a matter of public concern and a matter of private interest is difficult to draw in many contexts but is perhaps especially so in the context of classroom speech 29 Courts opine that public concern exists where professors expression directly affects the public s perception of the quality of education in a given academic system But what does directly affect mean In the end too much faculty speech on many important quality affecting issues in institutional affairs is not protected by the First Amendment 30 Numerous cases exist in which different courts view similar facts and reach conflicting conclusions about whether the expression is of public concern when faculty speak out on the internal affairs of a college or university One example Is faculty advocacy around a no confidence vote protected speech Different panels in the same federal appellate court have looked at similar facts and reached opposite conclusions On the one hand in Clinger v New Mexico Highlands University 215 F 3d 1162 10th Cir 2000 cert denied 531 U S 1145 2001 the Tenth Circuit ruled that a professor s speech involving a no confidence vote was unprotected In that case a faculty member who was denied tenure sued the university on a number of grounds including the claim that the administration retaliated against her in part for her advocacy before the Faculty Senate of a no confidence vote with respect to four members of the Board of Regents in light of their purported failure to comply with an internal policy on the appointment of a new president She argued that her speech was protected under the First Amendment The court rejected that argument finding the challenge essentially one about the internal structure and governance of the university and concluding that such matters of this nature rarely transcend the internal workings of the university to affect the political or social life of the community And so the court concluded that t he First Amendment does not require public universities to subject internal structural arrangements and administrative procedures to public scrutiny and debate On the other hand in Gardetto v Mason Eastern Wyoming College 100 F 3d 803 10th Cir 1996 the same court found a female professor s speech protected under the matters of public concern test She spoke out in favor of a no confidence vote against the college president and criticized in public the president s reduction in force RIF plan The court found her call for the no confidence vote as implicat ing broader concerns about the president s possible misrepresentation of his educational status his lack of integrity and leadership and the corresponding decline in student enrollment at the college The court further found her comments about the RIF plan a matter of public concern because she had a well informed perspective on expenditures of public funds in the debate 31 V Freedom of Inquiry and Research Post 9 11 Faculty are not only teachers and partners in the governance of academic institutions but also researchers Numerous federal laws enacted before and after September 11 2001 affect academic research I raise briefly below some of the more contentious legal issues that have arisen post 9 11 This section relies extensively on AAUP s recent report Academic Freedom and National Security in a Time of Crisis Academe Nov Dec 2003 hereafter Academic Freedom and National Security A Classified Research Academic research that is funded by the government can under specified conditions be classified An issue that has long vexed universities and researchers is whether and if so how they can carry out classified research without impairing freedom of research and scientific progress Classified research is generally developed in secret To enforce secrecy institutions often create stand alone facilities for such research separate from other on campus laboratories and buildings The AAUP recommends that fewer restrictions on academic research are not only better than more but restrictions on research to the extent that any are required must be precise narrowly defined and applied only in exceptional circumstances A recent controversy at George Mason University highlights the new academic environment Sean Gorman a graduate student at the university s National Center for Technology and Law wrote a dissertation that maps the fiber optic network that connects businesses in the United States The federal government classified his work Gorman stated They re worried about national security I m worried about getting my degree He continued Academics make their name as an expert in something If I can t talk about it it s hard to get hired It s hard to put classified on your list of publications on your resume As one reporter cleverly observed For academics there always has been the imperative to publish or perish In Gorman s case there s a new concern publish and perish In the end he will publish only the most general aspects of his work 32 B Export Controls Two regulatory regimes affect teaching research and the dissemination of research results involving foreign nationals the International Traffic in Arms Regulations ITAR administered by the Department of State and the Export Administration Regulations EAR administered by the Department of Commerce Both of these federal statutory schemes were established before September 11 2001 how they are applied under current conditions will be of concern to faculty and administration 1 ITAR The Export Control Act 22 U S C 2571 2594 requires that licenses be obtained before any defense articles and defense services and technical data related to them are exported Export is defined to include disclosure including oral or visual disclosure or transferring technical data to a foreign person whether in the United States or abroad As the AAUP report states Classroom discussion or collaborative research with a foreign national the presentation of a paper to an audience that includes a foreign national inside or outside the United States or even informal conversations may be subject to the Act which can include criminal sanctions depending on what has been disclosed or learned 2 EAR EAR covers the export of items which are commodities software and technology Export is a transmission out of the United States or release of technology or software to a foreign national inside the U S Such release may occur by oral exchange in the U S or abroad However EAR exempts release or publication of fundamental research and fundamental research is defined more broadly than under ITAR Research conducted by scientists engineers or students at a university normally will be considered fundamental research University means any accredited institution of higher education located in the United States Id 734 8 b But as the AAUP report notes there is a caveat under the law University based research is not considered fundamental research if the university or its researchers accept at the request for example of an industrial sponsor other restrictions on publication of scientific and technical information resulting from the project or activity Scientific and technical information resulting from the research will nonetheless qualify as fundamental research once all such restrictions have expired or have been removed EAR further exempts the release of educational information which is defined as instruction in catalogue courses and associated teaching laboratories of academic institutions Research for a dissertation is subsumed under the treatment

    Original URL path: http://www.aaup.org/our-programs/legal-program/legal-informational-outlines/academic-freedom-and-professorial-speech (2016-02-13)
    Open archived version from archive



  •