Faculty tenure protections, financial exigency, and equal pay in academia

Faculty Rights

What is tenure?

Tenured faculty members "are typically protected from termination without reasonable cause from their faculty positions" (189). When it comes to the legal situation of universities, faculty members must be sure that they understand the terms of their tenure. Faculty members have argued removal, claiming tenure, only to be denied by the courts. In fact, "courts may be hesitant to infer that a tenure system exists," unless that system is specified in some sort of contract, handbook, or written communication (186). While courts have accepted the fact that oral contracts are binding in the case of faculty rights, they have not always upheld the fact that such oral contracts imply tenure. In fact, the Supreme Court found that the faculty contracts' and handbooks were superior to the fact that the "university president had said, during an accreditation team visit by the American Bar Association, that the law school faculty members were tenured" (187). Further, Tenured faculty members receive tenure in their academic teaching position, but not in their administrative roles unless this is stated in some sort of a contractual document (189). Although regulations are different for public and private institutions, both must look to contracts and other documents in order to make decisions about their tenure.

2. When may financial exigencies be applied in the removal of faculty?

Because of the academic environment of the university, faculty members have certain rights that other employees do not have (185-18). The terms of faculty members' employment and the terms of termination can be found by scouring the employee's contract. Further, federal labor regulation laws do affect universities and their faculty members. Federal law "contains no special provisions (or exceptions) for college faculty" regarding collective bargaining, while state law may contain special procedures. The issue of whether faulty members are considered supervisors or employees has been hotly debated, and several answers have been supposed. In most institutions, at least certain faculty members can engage in collective bargaining in order to meet financial needs. Thus, faculty members can be removed from their positions due to financial reasons when their contracts stipulate, but they can also engage in collective bargaining in order to win financial support.

4. Termination of Tenured Faculty For Cause

The American Association of University Professors has recommended that universities extend adopt regulations for dismissing tenured faculty for "adequate cause," but leave the specifics up to the university (215). Tenured university professors can be relieved of their duty for cause if they fail to maintain their "fitness" as "teachers and researchers" (215-216). One example of how this policy can be interpreted for individual universities is a university that required a tenured professor two have a review of unsatisfactory performance for two consecutive years before being terminated for cause, in addition to "clear and convincing evidence" of this status. Misconduct, neglect, and dishonesty are other conditions that would require the dismissal of a tenured faculty member for cause (216). Courts reviewing these cases must be sure that the for-cause dismissal is warranted, abides by written documents, and is not an attempt to remove free speech or academic freedom.

5. Part Time Faculty

By hiring part-time faculty, universities save money, as these employees are not awarded benefits and are generally paid less than full-time professors. The hiring of Part-Time faculty brings about many issues for a university, such as how part-time faculty members are distinguished from full-time faculty and what rights, such as tenure, benefits, severance, and collective bargaining, they are granted (192). In order to avoid legal issues regarding the different types of faculty, it is recommended that "administrators…understand the differences in legal statuses of part-time and full-time faculty members at their institutions" (193).

6. Are Faculty Employers or Employees

When it comes to collective bargaining, it is important to distinguish between employees and "managerial or supervisory" personnel, who cannot engage in collective bargaining based on the National Labor Relations Act. While it seems easy to distinguish between these two types of workers, it is, in fact, very difficult when it comes to the University or College. Based on the popular case regarding Yeshiva University, certain faculty can be considered supervisors, while others, for instance part-time faculty, are considered employees. Because the Yeshiva case is the one upon which precedent is set, these terms can only be applied to other schools that are like Yeshiva. Thus, certain professors at private colleges could also be considered employees. The difficult distinction between part-time and full-time faculty, or managerial-like and employee-like faculty, can be a difficult concept to grasp as it is readily changing. In order to solve this problem, it is necessary that the gap in understanding between legal issues that apply to part-time faculty and issues that apply to full-time faculty are resolved. This would satisfy many issues, especially those having to do with collective bargaining.