Workplace Blog

The Chronicle: The Proper Advocates for Adjuncts

Are faculty organizations adequately representing adjuncts’ interests? asks Keith Hoeller, a co-founder of the Washington Part-Time Faculty Association who teaches philosophy in Washington’s community-college system.

http://chronicle.com/weekly/v52/i41/41b01101.htm
From the issue dated June 16, 2006
The Proper Advocates for Adjuncts

By KEITH HOELLER

Higher-education institutions now employ half a million adjunct professors nationwide. In most cases, the working conditions that those adjuncts endure are abysmal. According to the American Association of University Professors, “part-time non-tenure-track faculty are paid approximately 64 percent less per hour” than their full-time counterparts. Many adjuncts do not enjoy health-care or retirement benefits, and few have any job security from quarter to quarter, let alone from year to year.

In the last decade, the three major faculty organizations — the AAUP, the American Federation of Teachers, and the National Education Association — have emphasized organizing and collective bargaining as the means to improve the lot of adjuncts. They have all issued strong policy papers in support of adjuncts and begun to actively recruit them. Their newsletters regularly hail the formation of a new bargaining unit, usually expressing hope about the many gains adjuncts can now expect.

The AAUP deserves special mention for its adjunct advocacy. As well as placing adjuncts on its national committees, the association has helped create both the Coalition of Contingent Academic Labor and Campus Equity Week, coalitions of organizers and activists who are working together to counter the exploitation of adjunct faculty members. The AAUP has also established a national Committee on Contingent Faculty and the Profession and staffed it with both part-time and full-time activists dedicated to equality. That committee has encouraged regional organizing in Boston, which has resulted in adjunct unions at Emerson College and Suffolk University.

Yet several questions remain: Since the number of adjunct faculty members began to grow rapidly in the 1970s, why did all three faculty groups begin to vigorously organize adjuncts only in the late 1990s? Why have adjunct gains been so modest, even where adjunct faculty members have been unionized for years? And why have so few adjuncts chosen to join those organizations?

In response to the first question, labor leaders often cite the 1980 NLRB v. Yeshiva University decision in which the U.S. Supreme Court ruled that faculty members, through shared governance, were in fact part of management and therefore not entitled to the benefits of collective bargaining. But Yeshiva applied only to private colleges and universities, not public ones, and no one has ever claimed that adjunct professors are management. So Yeshiva cannot be the real reason for the failure to organize adjuncts until recently.

Still more puzzling is the fact that even where adjuncts have been unionized for decades, their plight is little better than unorganized migrant farm workers. For example, since the 1970s, the AFT and the NEA have represented adjuncts in the community colleges in the state of Washington, where I have taught for 15 years. Yet we still earn only 57 cents on the dollar compared to our full-time colleagues. Nearly half of the adjuncts do not receive health or retirement benefits, and most have little, if any, job security. Our classes are regularly canceled at the last minute, either because of low enrollment or because a full-time professor had low enrollment and took our class to fulfill his or her contractual obligations.

At each college, our union contracts forbid us from teaching full time, even though the very same contracts allow full-time faculty members to teach extra courses over and above their full-time load. And while all 34 of the local unions have bargained incremental step raises for full-time professors, half have failed to bargain any increments for their part-timers, while the others have bargained only a few tiny steps, which I have nicknamed “dinkrements.” From 1999 to 2004, full-time faculty members received 90 percent of almost $15-million for such raises, even though adjuncts taught nearly half of all classes.

That points to the fundamental reason for the continuing second-class status of adjuncts: Across the country, they have been organized into organizations run for and by full-time tenured faculty members. It would be safe to say that adjuncts have yet to reach even token leadership positions within the three faculty organizations, whether at the local, state, or national level. Even when adjuncts do hold leadership positions, they are often hand-picked, or elected, by a majority of full-timers. Such mixed bargaining units are the rule nationwide, with a few notable exceptions. While the AFT has 135 higher-education local bargaining units, only 17 consist solely of part-timers.

The AFT’s “Standards of Good Practice in the Employment of Part-Time/Adjunct Faculty,” ratified in 2002, contained a set of eight basic principles that the union called a “bill of rights” for adjuncts. It tried to confront the problems of mixed unions, stating that “Part-time/adjunct faculty, often treated as second-class citizens at work, never should be treated as second-class citizens in their own union.” The Chronicle reported that the AFT document was supposed to contain a section stating that “local unions should create mechanisms for full- and part-time faculty members to settle disputes that arise over employment, compensation, and professional responsibilities.” But, unfortunately, no specific mechanisms of enforcement appeared in the final document.

Meanwhile, part-time faculty members who publicly support ideas opposed by tenured faculty members face serious risks. Many adjuncts fear they will lose their jobs if they become politically active, and some have reported that they, in fact, have lost their jobs.

In short, we adjuncts have not yet achieved equity even within our own unions. Where the adjuncts and the full-timers share a “community of interests,” that may not be problematic. But where we have a “conflict of interest,” the adjuncts are sure to lose with full-time faculty members in control. Throughout academe, the tenured professors are the ones who hire and fire the contingent professors — in other words, they are our bosses. Moreover, adjunct professors and tenured professors are often in competition with each other over which classes to teach, which classes are canceled, who gets raises, and who doesn’t. The full-time faculty members may even directly benefit from having large numbers of adjuncts on their campuses, as that ensures that tenured faculty members are highly unlikely to be laid off, even in an emergency — adjunct faculty members will be let go instead. Adjuncts provide, in effect, a buffer to the loss of tenured jobs.

Such conflicts of interest may explain why the unions have gone to such great lengths to keep adjuncts from forming our own unions and representing ourselves. In Washington State, the unions have secured a ruling from our Public Employment Relations Commission mandating only one faculty union per college. Members of the AFL-CIO are forbidden from raiding another member, and the AFT and the NEA, which have been discussing a merger for years, also have a noncompete agreement. Both the AFT and the NEA are also quickly moving to an “agency-shop” approach, whereby adjuncts must either join the union and pay dues or pay the union a representation fee.

Yet adjuncts and full-timers cannot coexist in the same unions unless both their similarities and their differences are honestly acknowledged. Union “solidarity” does not mean that one group is dominant and another group is subservient.

In their paper, “Best Practices for Assuring the Rights of Part-Time Faculty Within Unions,” Michael Dembrow and David Rives of the Portland Community College Faculty Federation of the AFT outline the pros and cons of mixed versus separate bargaining units for adjuncts and point out that “Many part-time faculty are profoundly unhappy” with mixed unions. Their union seriously considered two separate, parallel executive boards before deciding on “a merged structure with an equal number of representatives allocated to each group, and with several positions … open to either,” and in which “only part-timers vote for those offices designated part-time and only full-timers for the full-time representatives.”

The AAUP, AFT, and NEA should all develop strong policy statements specifying how adjuncts can achieve equal treatment within mixed bargaining units. If they are serious about equality for adjunct professors, they will not hesitate to guarantee that these same professors will be treated equally by their own unions. The national organizations should also develop compliance mechanisms to ensure their policies are followed by their state and local chapters. The best way to do that would be to create ombudsmen positions to investigate complaints from adjuncts who feel their rights have been violated by their unions.

Otherwise, adjuncts should insist on representing themselves and not have the full-time faculty members continue to decide their salaries, benefits, and working conditions. When the American colonists objected to British rule with the slogan, “No taxation without representation,” Britain replied that the colonists had “virtual” representation in Parliament, which ought to be sufficient. Of course, that was not satisfactory to the colonists, who rebelled for the purpose of forming a government in which they could represent themselves. If the faculty organizations do not move quickly to enforce their own adjunct policy statements and to restructure themselves to allow the adjuncts direct representation, they will soon find their adjunct subjects will have no choice but to start their own revolution and create their own national union.

Keith Hoeller is co-founder (with Teresa Knudsen) of the Washington Part-Time Faculty Association, as well as a member of the American Association of University Professors, the American Federation of Teachers, and the National Education Association. He serves on the AAUP’s Committee on Contingent Faculty and the Profession. He teaches philosophy in Washington’s community college system.

http://chronicle.com
Section: The Chronicle Review
Volume 52, Issue 41, Page B11
Copyright © 2006 by The Chronicle of Higher Education

Subscribe | About The Chronicle | Contact us | Terms of use | Privacy policy | Help

The Chronicle: The Value of Forging Alliances

Contingent faculty members need to make common cause with their natural allies on and off campuses, writes Joe Berry, chairman of the Chicago Coalition of Contingent Academic Labor and a part-time instructor at the University of Illinois in the Chicago Labor Education Program, and at Roosevelt University.

http://chronicle.com/weekly/v52/i41/41b01001.htm
From the issue dated June 16, 2006
The Value of Forging Alliances

By JOE BERRY

The majority of faculty members who teach college classes today do not have tenure or prospects for it, and most have no other form of job security, even though they are crucial to the instructional success of their institutions. Luckily, contingent faculty members, of which I am one, have begun to think strategically and collectively about our proper role in the higher-education system and with whom we can join forces to improve work conditions — not just for ourselves but for many other college employees.

I say “luckily” because the need for a faculty voice will increasingly fall upon us, as tenure-track and tenured faculty members become a smaller percentage of the professoriate. It’s also lucky because, given the itinerant nature of our work, a majority of faculty members have had experience at many different types of institutions — much more so than traditional full-time professors. And it is lucky because, by speaking in our own voices, contingent faculty members will force people to confront the reality: Higher education is under attack and facing more substantial changes than at any time since the GI Bill of Rights — and maybe even since the evolution of the academic disciplines in the early 1900s.

Just a quick list of issues confronting colleges today includes declining revenues from traditional sources, especially from the federal and state governments; ideological debates about the value and purpose of much of higher education; attacks on free speech and academic freedom; and ever-increasing pressures on higher education to both emulate and serve corporate businesses and to meet the demands of a capitalist market.

Academe has also experienced internal transformations. The college presidents of today are not like the college presidents of a generation or two ago: They are often appointed more for their ability to raise money and their business acumen than for their academic expertise and credentials. Full-time tenure-track colleagues are also not in the same position as their predecessors were, and they face many more demands. Other workers on campuses — clerical and technical staff members, food- and building-services workers, librarians, counselors, and many others who make colleges run — have seen their work, their status, and their employers transformed in the last several generations.

Many of those groups are still collectively trying to figure out who they are and what their interests are in the brave new world of academe. We are all facing the questions, “Who are we now, and what do we need to do?” Contingent faculty members can collaborate with colleagues and fellow workers to help answer such questions.

An initial list of our potential allies includes:

Full-time tenure-track and tenured colleagues. The status of traditional faculty members in the educational process has been degraded, at least for that majority who are not the academic stars highlighted in the media. Professors in many disciplines have far less discretion to pursue research that interests them. Instead their institutions are pressuring them to become more entrepreneurial and to develop commercial projects to help replace traditional, yet declining, sources of revenue.

Meanwhile teaching loads have remained the same or, in some cases, even increased. On top of that, tenure-track faculty members find themselves having to perform more and more departmental, administrative, advising, and other professional tasks with fewer and fewer colleagues because, without being paid to do so, contingent faculty members cannot be forced to take on such responsibilities. In the biggest systems of higher education — for example, in a number of community colleges — it is increasingly the norm for some departments to have only one full-time faculty member supervising a flock of adjuncts. Almost all full-time, tenure-track faculty members who care about the future of their profession as well as their own daily lives bemoan such changes.

What will they do about it? A substantial percentage of tenure-track faculty members will choose a path other than counting the days until retirement, becoming administrators themselves, or building their own consulting or other commercial businesses. Many, maybe even a majority of them, will work with contingent faculty members to resist the trends that I’ve described in the only way that can be successful: with a united faculty demanding adequate conditions and realistic expectations for individual and collective work.

Graduate teaching assistants. TA’s are, in fact, also contingent teachers. Over the past decade, they have found their voice and engaged in substantial movements of activism and unionization. They have left no doubt as to how they conceive of their interests as teachers, as future academics, and as current employees of the higher-education industry.

Alliances between contingent faculty members and graduate students are not untroubled. Many graduate students fear too close contact with people whom they judge as the failures of academe. In addition, their perches in Ph.D.-granting institutions can give them a narrow perspective on higher education that is at odds with reality and with the perspective of most contingent faculty members, many of whom don’t have doctorates.

Nevertheless, they have joined with contingent colleagues in the past and can profit from such cooperation in the future. The biennial conferences of the Coalition of Contingent Academic Labor were born out of collaboration between the two groups in 1995 and will continue, with a seventh conference planned for this August. Those conferences gave birth to the biennial Campus Equity Week and a large collection of papers and other resources.

Other campus workers. Librarians, counselors, manual-service workers, and dozens of other types of staff members have been buffeted by technological changes, privatization and outsourcing, reorganizations, and plain old attrition and layoffs. They have created their own branch of a resurgent campus-labor movement at all types of institutions — elite private universities like Harvard and Yale, major state university systems like the University of California and the University of Minnesota, and local community colleges.

Campus staff members have clearly demonstrated that you don’t need an advanced degree to have a broad and nonparochial view of your interests and who your friends are. Such workers also care deeply about the mission of higher education. Just because they wash dishes, cut grass, repair buildings, or fix computers or audiovisual systems doesn’t mean that they’re know-nothings. Quite the contrary. Many have made tremendous sacrifices to keep their jobs so that their children can attend the colleges where they work.

Such employees have made it clear that the sheer honor of working in higher education doesn’t pay the rent — and that respect for the institution as a whole does not always translate to respect for those who make it run on a daily basis. With few exceptions, the forces of corporatization, marketization, and privatization that have gained such momentum have not served the interests of campus workers well, and in many cases those workers have reached out to others at their institutions.

Perhaps the most striking example is the truly heroic support that the blue-collar union at Yale, HERE Local 35 (now Unite Here), gave first to clerical workers to help them organize into Unite Here Local 35 and then to graduate assistants in their decade-long struggle to gain recognition. Members of Unite Here have also recently assisted the Yale hospital workers in their efforts to organize. Similarly, at Berkeley, the strike by the clerical workers in the Coalition of University Employees was the spark that allowed the lecturers in the American Federation of Teachers to stage their own systemwide job action and negotiate their best contract since they began to bargain collectively there in the 1980s.

Students. Our teaching conditions are their learning conditions. When our conditions are bad — for instance, having “TBA” or “staff” rather than our names on the class schedules, unstable employment that doesn’t allow for follow-up contact for letters of reference; or no offices, phones, or computers for ourselves — they make for a degraded educational experience for our students.

And the pain is not shared equally, for the people who suffer the worst are those who have the least — both teachers and students. The working-class adjunct at a typical community college who holds her office hours on the trunk of her car before she rushes to her next job is often meeting with a working-class student who is likewise short of time and money. Those students in particular need the intellectual self-confidence that office-hour conversations can build and enhance. They need privacy, confidentiality, and the opportunity for the kind of casual, unhurried, faculty-student contact that was common when most of us who teach today were students.

If we treat our students as we are treated as contingent employees, they will not learn what they should, and they know it. It is no wonder then that, when we as contingent faculty members describe our experiences to our students, they are surprised, then interested, then actively sympathetic with our situation. And when we collectively demand improvements, student groups — like United Students Against Sweatshops and Student Labor Action Coalitions — are strongly supportive.

Off-campus groups. We also have allies beyond the ivied walls. Many alumni fondly remember college experiences that were much different from today’s. Given information and concrete tasks, they can be a force, as the anti-apartheid divestment movement in the 1980s demonstrated when alumni helped force divestiture at dozens of campuses.

We also have allies in the organized-labor movement who have historically fought for free public education for working people and who have also sought to make that education relevant, fulfilling, and useful to all aspects of workers’ lives, not just for the requirements of a particular employer. In point of fact, there would be no teacher-union movement without the historic support of the organized-labor movement.

Within organized labor, our sisters and brothers — especially those in the public sector and in the private nonprofit sector — face many of the same challenges that we do, and can understand what we are fighting for. It doesn’t take a welfare caseworker, a postal worker, or a nurse in a public hospital very long to understand our struggle. It also doesn’t take them very long to understand how we have to fight the battle of ideas: with allies, at the local, state, and federal levels, in the public arena.

If we as contingent academics can get down off our high horses long enough to publicly admit that we are workers who have something to learn as well as to teach, we can gain the support and sympathy of our working-class students and their working-class communities. After all, surveys show that people hold higher education and especially their local public institutions in high regard for the opportunities they represent and the extension services they render. Moreover, colleges are among the largest employers in many communities.

With so much of the work force now in jobs that don’t provide regular, full-time, living-wage employment, we can grow a movement of precarious workers, linked to the rising consciousness of immigrants and their demands for justice and equity. Many of those workers are our students, too, and their hopes include getting a job with a living wage and benefits. Most contingent faculty members teach at community colleges and other non-elite institutions that are populated by adult workers, especially immigrants and those from underemployed minority groups. Such students were prominent in the recent demonstrations for the rights of immigrant workers.

What about the trustees and administrators who govern and lead higher education today? In some cases, of course, we can go to state legislatures together and lay out the need for adequate support for higher education — as we can with local-bond or tax-rate elections for community colleges. We have done it in the past, and we will do it in the future, although such legislative alliances have most often been at the insistence of faculty members, not administrators.

But in the new world of higher education, our goals and those of our close allies are in many cases substantially different than those of top college officials, who now see themselves as CEO’s and business managers more than they do as educational leaders. What’s more, any alliances between contingent faculty members and our employers will be inherently unequal, hence unstable. Fortunately, we can forge partnerships with many other groups to help us weather the storms ahead.

Joe Berry is chairman of the Chicago Coalition of Contingent Academic Labor and teaches part time at the University of Illinois in the Chicago Labor Education Program, and at Roosevelt University. He is the author of Reclaiming the Ivory Tower: Organizing Adjuncts to Change Higher Education (Monthly Review Press, 2005).

http://chronicle.com
Section: The Chronicle Review
Volume 52, Issue 41, Page B10
Copyright © 2006 by The Chronicle of Higher Education

Subscribe | About The Chronicle | Contact us | Terms of use | Privacy policy | Help

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

Seattle Post-Intelligencer: Part-time profs to be sacrificed, again

The Seattle Community College District, suffering from low enrollments, plans to solve its current fiscal crisis by offering fewer courses and laying off part-time faculty, while ensuring that full-time faculty will be protected. If the public feels reassured that college administrators are acting prudently by cutting “temporary” staff, they may want to rethink the kind of two-year college system our state wants to offer.