Higher Ed Law

Education

Higher Education Law

Overall since the U.S. Supreme Court's rulings on affirmative action in 2003, colleges have had to reconsider how they give preference to students according to race, ethnicity, sex and age not only in admissions, but in financial aid, internships, along with various other programs. It is now felt that it is time for them to do the same thing for employment preferences. It is well-known that many colleges still weigh such factors in faculty hiring decisions. A practice that is completely at odds with Title VII of the 1964 Civil Rights Act, which bans employers from such discrimination (Clegg, 2006). Recent legislation has provided hope that these practices will soon change for the better.

The Age Discrimination in Employment Act of 1967 (ADEA), forbids employers from using age as a basis in making decisions surrounding hiring, firing, promotion or compensation. It also limits the segregation or classification of employees in any way that would deprive them of employment opportunities. This included enforcing mandatory retirement ages (Kaplin and Lee, 2007). In 1986 there was a special ADEA exemption enacted stating that postsecondary institutions were permitted to enforce mandatory retirement for faculty who reached the age of 70. This exemption was limited to seven years and expired at the end of 1993. The end to mandatory retirement has resulted in retirement trends at postsecondary institutions that are individually determined rather than institutionally mandated which has lead to unpredictable planning and budgeting (Hall, 2009).

A recent study done by the National Bureau of Economic Research (NBER) compared the retirement rates before and after 1994. The results showed that the elimination of compulsory retirement led to a dramatic drop in retirement rates at ages 70 and 71. The NBER research found that when mandatory retirement rules were in effect, less than 10% of 70-year-olds were still teaching two years later. Since 1994 and the elimination of mandatory retirement the number of those still teaching after age 70 rose to 50%. Other recent studies that have been conducted also confirm this trend toward delayed retirement in academia (Hall, 2009).

Academic institutions are expected to struggle with the consequences stemming from the ADEA prohibition on mandatory retirement for many years to come. Issues are likely to be increasingly centered on more persuasive voluntary incentives to retire. One of these incentives is likely to the creation of more part-time emeritus and senior scholar positions. This would help to ease the transition from full-time teaching and research status and the structuring of faculty retirement benefits so that the later that one retires, the fewer the years that benefits will have to be paid. It is also being heard around higher education today, the idea that in exchange for having had a career protected by tenure, senior faculty owe an obligation to move on to retirement for the good of the institution, notwithstanding the protections afforded them by federal law (Hall, 2009).

One particular issue that stemmed from these regulations was in the way that higher education institutions could word employment ads. Jim Soulsby, development officer at the National Institute of Adult and Continuing Education, noted that institutions would have to be careful about using the word mature. Universities would no longer be able to say they will consider mature applicants without traditional qualifications because this may discriminate against young applicants who also lack these qualifications. A spokesman for the Department for Work and Pensions age partnership group says that colleges and universities will have to be careful about demanding certain qualifications if they cannot be shown to be relevant to a job. If they have been recently developed or are no longer available, this could be discriminatory. They would need to show that equivalent qualifications are acceptable (Adapting to age-discrimination regulations, 2008).

The organization Age Concern is particularly concerned about potential older doctoral and other postgraduate students being turned down because of their age. It is thought that all universities need to stop working on the assumption that their students are young. They need to adapt courses and services to pertain to all age groups. It is felt that everyone in higher education needs to be aware that the regulations cover everything a university does (Adapting to age-discrimination regulations, 2008).

The Older Workers Benefit Protection Act of 1990 amended the ADEA to specifically prohibit employers from denying benefits to older employees. Congress has determined that the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers. And it is felt that those greater costs would create a disincentive to hire older workers. Only in limited circumstances, an employer may be permitted to reduce benefits based on age, as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers (Facts about Age Discrimination, 2008).

An employer may ask an employee to waive their rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. Yet, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. In order for an ADEA waiver to be valid it must:

be in writing and be understandable specifically refer to ADEA rights or claims not waive rights or claims that may occur in the future be in exchange for valuable consideration advise the individual in writing to consult an attorney before signing the waiver provide a person at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.

If an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, these minimum requirements become extensive (Facts about Age Discrimination, 2008).

The clash that is happening between the law and the way that things are actually being done can be seen in the numerous court cases that have recently been decided. The California State University system has agreed to pay $50,000 in order to settle an age-discrimination complaint that involved an instructor at San Francisco State University who was passed over for a tenure-track job at age 61 in favor of a younger candidate without a doctorate. The university denied that age discrimination was involved in their decision in regards to Mr. Goddard, but settled the incident as a good business decision. The settlement, approved by a federal judge, contains no admission of wrongdoing by the university. Under the terms of the agreement the university granted Mr. Goddard emeritus status. This gave him the same benefits as a retired professor with tenure. The university also agreed to conduct training on the prevention of age discrimination in hiring (Huckabee, 2009).

In the case of Linda Ahlmeyer v. Nevada System of Higher Education; Mike Reed, 555 F.3d 1051; 2009, the plaintiff, who alleged that she was treated less favorably than her younger coworkers, sought to amend her complaint and replace the ADEA claim with a claim against her supervisor personally based on claimed age discrimination in violation of the Equal Protection Clause. The court held that the ADEA precluded the assertion of age discrimination in employment claims, even those seeking to vindicate constitutional rights. The court rejected the reasoning of various district courts which held that the ADEA was not the exclusive enforcement mechanism for claims of age discrimination in employment because the comprehensive remedial scheme of the ADEA overcame the presumption against implied preclusion.

In another case Rosemarie Crane, a part time lecturer at, was passed over for a full-time appointment four times in eleven years at Wilbur Wright College. She asserted that it was because of her age. Crane was sixty-eight at the time of her last application for a full-time position in 2004. After eleven years with a stellar record at Wilbur Wright, including being the only part-timer to receive the college's Teaching Excellence Award, she was not interviewed. And subsequently the two open full-time positions were filled by applicants who were then twenty-nine and thirty (Jacobe, 2006).

Crane proceeded to file a complaint with the Equal Employment Opportunity Commission (EEOC). After the complaint was unable to be settled a lawsuit was filed. According to the EEOC, Crane's suspicions about age bias were confirmed by a former English department chair after Crane was passed over for a position in 2004. Age bias is a violation of the Age Discrimination in Employment Act, which extends protection to workers who are forty and over. The lawsuit asked that Crane receive back wages and a full-time, tenure-track appointment at Wilbur Wright (Jacobe, 2006).

In 2002 the California Community Colleges Chancellors Office was asked to determine whether a community college district may impose additional physical education enrollment or graduation requirements on students under the age of 21. The Chancellors office concluded that such a practice would constitute unlawful discrimination on the basis of age. State regulations prohibit discrimination on the basis of explicit protected categories, including age, in any program or activity that is funded directly by the state, or receives any financial assistance from the state (Black, 2002).

The Age Discrimination Act of 1975 and the federal implementing regulations at 34 Code of Federal Regulations part 110, prohibit discrimination based on age in programs or activities that receive federal financial assistance. All California community colleges are subject to the Act. The general rule as stated in the Act says that no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity that receives Federal financial assistance. The Act is often confused with another law, the Age Discrimination in Employment Act which protects older workers from discrimination in the workplace. The Act and ADEA are separate and distinct laws. The Act applies to students and others of any age who participate in community college programs and services (Black, 2002).

The Chancellors office revealed that there is no federal or state law justifying additional physical education enrollment or graduation requirements for community college students under the age of 21. The federal Office of Civil Rights (OCR) has rejected arguments that policies adopted by local educational governing boards qualify as ordinances adopted by an elected legislative body. Therefore, they concluded that the statutory objective exception does not apply. The office ruled that a policy requiring students under age 21 to take a physical education course or courses in order to receive an Associate degree unlawfully discriminates on the basis of age (Black, 2002).

A former computer programming instructor at Joliet Junior College in Illinois was cleared to pursue an age discrimination lawsuit after the college failed to renew her teaching contract. After reviewing the case, a federal district judge found sufficient evidence to warrant further review of Elizabeth Jacobsen's age discrimination claim. After 11 years as an adjunct at Joliet, Jacobsen was hired in 2003 by the Computer Information Office System's department for a full time position. She was 54 at the time of this hiring. The position was advertised as a permanent, tenure track job. The posting stipulated that a master's degree in computer science was strongly recommended, and while years of experience might be substituted for education, a master's degree was required for continued employment. At the time she was hired, Jacobsen was halfway through a master's program in computer science at Governor's State University. She intended to finish the degree within a year, although that didn't happen, according to court papers (Freedman and Freedman, 2007)