The Chronicle: Legal Contingencies for Contingent Professors
A Doonesbury comic strip by the cartoonist Garry Trudeau offers a droll and insightful look at the general situation of contingent faculty members, those who have part-time appointments or full-time non-tenure-track ones. It shows an auction where a man with a bullhorn calls for “a Keynesian economist for a one-semester lecture course! Any takers?” A man in the crowd calls out his interest, and the auctioneer asks what he requires to take the job. The man responds, “A living wage, and to be treated like a human being!” The bullhorn holder retorts, “I’ll keep looking,” and the job seeker then compromises: “Okay, okay, forget the human being part!”
That depiction probably resonates even more today than it did at the time of its original publication in 1996. Then, about 41 percent of the professoriate was part time, and non-tenure-track positions of all types accounted for 58 percent of all faculty appointments. By 2003 as many as 46 percent of all faculty members were part time, and non-tenure-track positions made up 65 percent of the professoriate — and the numbers keep growing.
As the ranks of contingent faculty members expand, so too does the amount of litigation involving them. What are some of the recent legal skirmishes involving contingent faculty members, and what lessons can all faculty members and administrators learn from them?The cases have tended to fall into the following broad categories:
Academic freedom and free speech. The 1940 “Statement of Principles on Academic Freedom and Tenure,” jointly written by the American Association of University Professors and the Association of American Colleges and Universities, recognized that “teachers,” whether tenured or not, “are entitled to freedom in the classroom in discussing their subject.” More recently, judges and juries have recognized that right, too.
In 2001, for example, the U.S. Court of Appeals for the Sixth Circuit ruled in Hardy v. Jefferson Community College that administrators at the Louisville, Ky., institution violated the First Amendment academic freedom of Kenneth E. Hardy, an adjunct communications professor. The trouble had begun when an African-American student and a local civil-rights leader complained to the administration about “offensive” language — terms like “bitch,” “faggot,” and “nigger” — that Hardy used in a class discussion on “how language is used to marginalize minorities and other oppressed groups in society.” After the complaints were made, Hardy was told that no classes existed for him to teach and was not reappointed. Yet before the controversy erupted, Hardy had been assigned to teach three classes that fall.
Hardy sued and won. The appellate court found the topic of the class — “race, gender, and power conflicts in our society” — to be a matter of public concern. It held that “a teacher’s in-class speech deserves constitutional protection,” and that “reasonable school officials should have known that such speech, when it is germane to the classroom subject matter and advances an academic message, is protected by the First Amendment.” Perhaps most significant is the court’s unwritten holding that the First Amendment right of academic freedom applies to faculty members at public institutions, whether those faculty members are tenured or not.
That is not to say that contingent faculty members win all free-speech claims. A different federal appellate court — this time the Ninth Circuit — recently ruled that Clark College, a community college in Vancouver, Wash., did not violate the First Amendment when it decided not to renew the contract of Barbara V. Hudson, a part-time instructor of economics, after she took her students on a “de facto field trip” to the World Trade Organization demonstrations in Seattle.
Hudson brought a hybrid claim of free speech and right of association, arguing that the college had retaliated against her based on the exercise of her First Amendment rights. The court ruled that while the WTO protests were “quintessentially matters of public concern,” the professor’s First Amendment rights were outweighed by the “legitimate administrative interests” of the college, specifically its concern about “student safety and pedagogical oversight.” The limitation on Hudson’s First Amendment rights was “minimal,” the court opined, because she was merely “not permitted, under the de facto auspices of the College, to associate with a handful of students during a discrete event for a limited duration.” In weighing the pedagogical concerns, the court relied heavily on the testimony of the chairman of the economics department, especially his significant pedagogical concerns about “‘the marginal benefit to the marginal cost’ of the students taking a field trip to the anti-WTO rally.”
Access to tenure. Some legal cases also arise because of informal, often well-meaning statements by tenured faculty members or administrators that seem to promise tenure-track positions to contingent instructors. Take the case of Annemarie Daniel, a communication professor, who left a tenure-track position as an assistant professor of communication at the University of Missouri at Rolla in 1998 to become a full-time, non-tenure-track visiting professor at the University of Cincinnati. She was informed in an e-mail message, not in the formal job description, that the next year the visiting position would “convert to a permanent tenure-track line.”
The permanent position opened, and Daniel applied. However, she was not selected for an interview, and another candidate got the job. Daniel sued, alleging that she had relied on “unofficial assurances” that she would be selected for the position, including a colleague’s comment that “the department had a good record of retaining visiting assistant professors in tenure-track positions.”
The state court rejected Daniel’s contract claim, noting that the university had not guaranteed that the position would “automatically be awarded” to her. The court emphasized that Daniel had signed a contract for a one-year, non-tenure-track position. Moreover, despite what departmental colleagues might have implied, only the board of trustees had the authority to approve employment contracts.
Other legal claims are triggered when contingent faculty members believe they are entitled to newly created tenure-track positions, or when they believe that they have been discriminated against in the appointment process. In a 2003 case, Seydou Diop, an African man who taught chemistry part time in the Wayne County Community College District, sued the district for race, gender, and national-origin discrimination, as well as violation of due process, when the college failed to interview him for, and appoint him to, a full-time tenure-track position in the chemistry department.
The federal district court found legitimate, nondiscriminatory reasons for the college’s decision not to interview Diop and, in turn, not to appoint him for the position. First, Diop was called, but not scheduled, for an interview, because he said he was unavailable at the interview times that the search committee offered. The court noted that Diop “conspicuously overlooks the fact that he was one of eight applicants who were not scheduled for an interview,” and that the seven other candidates were white. Second, the white female candidate ultimately appointed to the new position held a Ph.D., while Diop had a master’s degree, and she had “also authored a number of articles, done many professional presentations, and won a number of awards for her work.”
The court also rejected Diop’s claim that the district had “trampled” his due-process rights because he should have been given “priority over every other applicant for the position, as the most senior part-time instructor in the chemistry department.” The collective-bargaining contract provided that a “part-time faculty member shall … be given primary consideration for a faculty appointment to a vacancy in a program, department or area.” Observing that the contract’s provisions did not “guarantee a part-time faculty member a full-time position,” the court found that Diop had no “legitimate claim of entitlement” to the full-time position, and therefore no due-process protections were triggered.
Non-tenured faculty members seeking tenure-track appointments have also filed reverse-discrimination claims. In 2005 Bruce C. Westrate, a male adjunct lecturer who had taught at Indiana University at South Bend for 15 years and had applied for a tenure-track position, sued the university for not interviewing him because of his gender when the job was given to a female candidate. The court granted summary judgment to the university. It rejected Westrate’s argument that the makeup of the search committee — one man, two women- — was “fishy,” thereby failing to establish on the part of the committee an “inclination . . . to discriminate against men.” The court also accepted as nondiscriminatory the university’s reasons for not considering Westrate: His recommendations were not current, and his teaching experience was in British history, not world history, which was the experience sought in the job posting.
Compensation. Thus far, the courts have appeared to be unsympathetic to legal claims by contingent faculty members over compensation, which are often brought as claims of discrimination, breaches of contract, or violations of state compensation laws. In 2003 a dozen part-time instructors at five of Washington’s community colleges sought overtime pay under the state’s minimum-wage act. They argued that they were not professional salaried employees exempt from the act, but rather hourly employees and therefore entitled to overtime pay under state law. The instructors contended that the college’s compensation arrangement failed to pay them for their work outside the classroom, such as grading exams, attending meetings, and preparing for classes.
The collective-bargaining contract established adjunct pay based on “contact hours,” which excluded those nonclassroom activities. The Supreme Court of Washington ruled that the part-time instructors were ineligible to receive overtime pay, finding them to be professional because their work demanded specialized training, required discretionary judgment, and involved instruction, and that they were not hourly employees because the compensation was calculated on a “salary basis rate of pay.”
Other part-time faculty members have sought to challenge their low salaries by bringing individual claims of salary discrimination, arguing that they are underpaid compared with full-time professors. In 1996 in Gisela v. Dibble, a part-time German professor at the University of Maryland-Baltimore County brought a claim based on the Equal Pay Act of 1963. She asserted that she was paid “one-third the salary” of her full-time “male counterpart … even though she was carrying an equivalent teaching load and performing essentially the same tasks.”
In the unpublished decision, the U.S. Court of Appeals for the Fourth Circuit denied Dibble’s claim based on the evidentiary record “that the duties of a part-time professor are far less demanding than those of an assistant professor or another full-time faculty member.” Full-time faculty members, the court wrote, are “required to publish and engage actively in research in addition to teaching.” The court found no evidence that Dibble “advised students in their major, oversaw the curriculum, or participated in departmental, university, and community activities to the same extent as is required of assistant professors.”
Female contingent faculty members as a group have also challenged their compensation, arguing that the very existence of the category of contingent or “temporary” faculty constitutes gender discrimination. Unquestionably women are more strongly represented among part-time faculty members than among full-time faculty members: In 2003 women made up 48 percent of all part-time faculty members compared with 39 percent of all full-time professors. Moreover, women who hold full-time positions are more likely to hold non-tenure-track positions than are men.
Such demographic trends were captured in a 1986 class-action lawsuit, Griffin v. Board of Regents of Regency Universities, filed primarily by non-tenure-track female faculty members. Barbara Griffin, a “temporary employee” in the sociology and anthropology department at Illinois State University, sued the university, challenging the “dual classification system, under which employees are classified as either temporary or regular.” The suit charged that the university had violated Title VII of the Civil Rights Act of 1964, which prohibits gender discrimination in employment, because “women classified as temporary faculty performed the same work as men classified as regular faculty, but received fewer benefits and less pay.”
The federal appellate court ruled in favor of the university, rejecting the female faculty members’ argument that the university “chose to make more ‘men’s jobs’ than ‘women’s jobs’ regular positions.” Finding the category of temporary employees nondiscriminatory, the court said that temporary appointments were “commonly employed” in higher education because such arrangements provide “flexibility in the face of changing enrollments, course demands, and needs of departments.” In ruling that women were not discriminated against even though many more of them tended to be classified as temporary, the court observed that “women are more likely to possess expertise in areas in which fewer regular positions are available,” and that “women tend to place themselves in the sectors of the academic labor market that are crowded.”
Benefits. Adjunct faculty members are usually paid by the course and generally are not entitled to standard employee benefits. The success of legal challenges concerning the denial of those benefits often hinges on whether those faculty members have a “reasonable assurance” or “expectation” of being reappointed to their positions.
In 2003 the Supreme Court of Washington ruled that the state health-care authority improperly found two part-time professors ineligible to receive employer contributions for health care during the summer quarter. The court reasoned that the authority failed to engage in an “individualized approach” based on the adjuncts’ “actual work circumstances.” It found that the instructors, who had taught on a “half-time or more basis” for numerous quarters, were not “temporary” employees under state law. (One of the instructors, Eva Mader, had taught German three out of four quarters for 21 years.) As such, the court said, the instructors could be eligible for employer insurance contributions during the summer, even though they did not sign contracts or work during that quarter.
In another case in 2002 that also involved Mader and similarly situated part-time faculty members, the parties settled class-action litigation for $12-million after the state trial court in Washington ruled that nonclassroom hours should count toward part-time faculty members’ eligibility for retirement benefits.
Not all such lawsuits are won, however. In 2005 Barbara Perry, an adjunct faculty member at Harrisburg Area Community College, in Pennsylvania, who was seeking permission to join the retirement system, lost her appeal of a ruling by the state retirement board. Perry argued that the board had erred by failing to consider “the true nature of her employment relationship with [the college], which is that she has been an adjunct faculty member of HACC for more than twenty years.” Moreover, she reasoned that she should have been categorized as a permanent employee: “Adjunct faculty positions are permanent positions because they exist every year and comprise more than 50 percent of the teaching faculty.” The court affirmed the board’s decision, however, finding that it had properly determined that Perry was employed on a temporary basis and was therefore ineligible to join the retirement system.
Collective bargaining. Whether contingent faculty members, particularly part-timers, are temporary employees is also an issue under labor law. In 2002 the New Hampshire Supreme Court ruled that adjunct faculty members at Keene State College were not temporary employees under state law and thus were eligible to form a bargaining unit — despite written contracts that clearly provided that no express or implied expectation of future employment existed.
Perhaps what is most interesting about that judicial decision was the willingness of the state’s highest court to revisit the status of part-time faculty members, given that it had considered the same legal issue in the late 1970s and found part-timers to be temporary. The court recognized that “the facts relevant to whether the adjunct faculty are ‘temporary employees’ may have changed in the past 20 years” and so reconsidered the issue in light of the new demographics of the college’s academic work force.
In the 2002 litigation, the state labor board’s hearing officer found the adjuncts not to be temporary because they “expect and are expected to teach semester after semester, year after year contrary to the implication of the time frame stated in the contract they sign. A past practice has been established that represents a reasonable expectation of continuing employment.” The state board further considered the college’s increased reliance on adjunct faculty members, the escalating number of adjunct faculty members (from 51 in 1977 to 170 in 1998), the significant number of adjunct faculty members who had taught for 10 semesters or more (40), and the college’s pay schedule for adjuncts that based the amount paid per course on “longevity.” The “markedly” changed dependence on such faculty members contributed to the Supreme Court’s upholding the state board’s ruling that part-timers were eligible to unionize under New Hampshire law.
The cases that I’ve described raise some of the legal and policy implications, many of which are only now emerging, for contingent faculty members and their institutions. To seek to avoid litigation and to work toward good relations with all faculty members, not just those who are contingent, campus leaders may want to consider some best practices, many of which are applicable to faculty employment more generally.
For example, a number of institutions, in seeking to limit their growing reliance on contingent faculty members, are creating more tenure-track positions for them. When such positions are available, one should consider the following recommendations:
Craft position descriptions of newly available tenure-track openings that recognize the value of continuity in teaching and familiarity with the institution’s programs. Individual experience and commitment should be considered desirable criteria in appointment decisions.
Encourage experienced, effective, and qualified faculty members currently holding contingent appointments to apply for new tenure-track positions. Many contingent faculty members have served ably in their academic positions, and that experience should count for them in the selection process.
Avoid making promises about advancement to tenure-track status, and where such promises reflect mutual agreements, put the understanding in writing.
Also, institutions that continue to rely significantly on contingent faculty members should, where appropriate, recognize the legal reality that at least some adjuncts are no longer temporary but, for all practical purposes, serving in long-term positions. For those faculty members, after successive peer reviews for reappointments, colleges should consider providing more assurances of continuing employment. Those assurances might include longer terms of appointment, due-process protections — like opportunities to challenge and appeal nonreappointment decisions — and recognition of seniority through providing those contingent faculty members the first opportunities for reappointment and course selection. Such an approach will allow institutions to reap the benefits of a committed and stable cadre of faculty members, whether tenured or not, who have the security necessary to integrate teaching, research, and service.
In the end, good-faith efforts to recognize and reflect the actual relationship between colleges and contingent faculty members will minimize legal risks. More important, such efforts can also help improve the quality of education that the institution offers while preserving the scholarly integrity of the academic profession.
Donna Euben is counsel to the AFL-CIO’s Lawyers Coordinating Committee and former staff counsel at the American Association of University Professors. The opinions expressed in this essay are her own.
http://chronicle.com
Section: The Chronicle Review
Volume 52, Issue 41, Page B8
Copyright © 2006 by The Chronicle of Higher Education
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