Chapter 5 reviews employment issues associated with faculty. The topics the chapter covers include faculty contracts, academic custom, part-time faculty, collective bargaining, nondiscrimination laws, affirmative action in hiring practices, personnel decisions, and rights for due process. There are a few questions I had that these readings prompted, which I will share below. Please feel free to answer the ones that you also feel are unclear or feel you have particularly strong insights on.
1. In the section on faculty collective bargaining, the book reviewed the NLRB v. Yeshiva University case. In this case the court found that this particular private institution had faculty that were managerial employees. The court then defined this as an employee who “formulate and effective management policies by expressing and making operative the decisions of their employer…[or] exercise discretion within or even independently of established employer policy and [are] aligned with management.” The court then concluded that Yeshiva faculty exercised this authority due to their “absolute” authority over academic matters, such as which courses would be offered and when, the determination of teaching methods, grading policies, and admission standards, and admissions, retention, and graduation decisions. Now in my opinion it seems that most faculty are involved in the above described activities to some extent at many institutions and as such it would seem that universities could apply this very broadly. Can someone offer insight as to why this is fair or not?
2. The court created the managerial exclusion for what they deemed to be “mature” private universities. The only definition of “mature” I found was Justice Brennan’s dissenting opinion which said that “mature universities had dual authority systems: a hierarchical system of authority culminating in a governing board, and a professional network that enabled professional enabled professional expertise to inform and advise the formal authority system.” Does anyone have any opinions as to whether this is the final word and is the correct or incorrect way to apply as the formal definition of a mature university?
3.Regarding the Fisher v. Vassar College case (where the plaintiff, a biology professor, sued because she had been denied tenure for being “away from science” which she interpreted as being because of taking time off to raise her children), the en banc court found that although Fisher had been able to establish a prima facie case of discrimination based upon age and marital status (violations of Title VII and the Equal Pay Act), the college had enough neutral reasons for tenure denial. The book noted that this was because the college found that she had an “inability to meet the standards for tenure and qualifications inferior to those of other tenure candidates” (p. 205), although the book noted and the initial trial judge found the opposite to be true as she had superior publication records to those of males granted tenure both before and after her denial. The judge writing the en banc courts majority opinion did note that employers are allowed to have non-discriminatory reasons for not recommending tenure, and that although the denial is not based upon the merits of the professors work, it doesn’t necessarily constitute discrimination. So my question regarding this case is: must faculty always be able to prove explicit discrimination (via documented record, evidence of others overhearing discriminatory remarks) to be able to prove that they were discriminated against under Title VII and the Equal Pay Act? If so, the burden of proof on the plaintiff seems to be extraordinarily grandiose and hard to prove. Does this seem fair?
4.On page 215 the book was reviewing substantive due process principles, and noted how only occasionally such claims are successful such as Harrington v. Harris. It then noted that other courts will not be as “hospitable” to such claims. So my question is, why? Can someone explain why this is?
The more I learn about the law, the more frustrating it is. I like things right or wrong/black or white, and up until this point, kind of thought of the law in that way: providing us with clear parameters within which we ought to abide.
It seems that the question of managerial exclusion (like so many other elements of the law) lends itself well to Dr. Miller's "it depends" answer. The text states that, even within one institution, some faculty may be permitted to unionize, while others would not, based on the institution, the governance structure, job descriptions, etc.. The examples provided in the text suggest that the Yeshiva case did not necessarily set a precedence for subsequent cases related to collective bargaining by faculty.
Although I guess it should comfort me to know that judicial authorities attempt to apply the rule fairly, taking into consideration a number of distinctions, I kind of wish they'd just make a decision...
I too get frustrated with all of the "it depends" situations. It seems as if this is something that could be an issue at so many types of institutions that they might have thought to pluck up another few cases to fill in some of the holes regarding various faculty who would be allowed to unionize at various institutional types. Just a thought...
Christina, you raise some very interesting and thought provoking questions. I will attempt to answer numbers 3. Although Title VII was enacted for the purpose of affording broad based protection to individuals, in my opinion, the holding in Fisher clearly reflects a transfiguration of the law’s original intent. The burden of proof for Title VII cases is extremely overly burdensome, especially since the ultimate burden of persuasion always rest with the plaintiff. While courts believe that the establishment of a prima facie case is minimal and the employer’s rebuttal is equally diminished, I contend that its easier said than done as evidenced in the Craine case whereby the plaintiff had to rely upon a procedural violation as a conduit to establish a prima facie case for discrimination. In addition, litigators are always at the mercy judges who unconsciously, in some instances, interject their subjective opinions, even though objectivity should prevail. Moreover, courts seem to overlook the most burdensome phase for a plaintiff, which is a merger between proving the employer’s rebuttal is false and establishing “intentional discrimination.” Intentional discrimination presents a high standard, especially when the plaintiff has to prove “that an illegal discriminatory reason played a motivating role in the adverse employment decision” and the court is looking for that “smoking gun.” In fairness to the court, the majority did state in Bickerstaff that a distinction had to be made between “evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture.” While Bickerstaff presented regression models and affidavits from colleagues asserting possible racial challenges within the department, the court ultimately ruled that the plaintiff did not present sufficient admissible evidence from which a rational finder of fact could infer that more likely than not she was the victim of intentional discrimination. I remain committed to my initial premise, which proffers the burden of proof is overly burdensome in Title VII cases.
Thanks for bringing up the NLRB v. Yeshiva University case. It's a good example of how government tries to apply policies from one program (NLRA)that was set up to deal with industrial labor relations, to a completely different context, that of higher education. But they ARE different. You don't normally see companies with most of its "employees" having a hand in day to day management like you do at a university. Faculty have more control over their jobs, more say in course/department direction than other industrial employees. Therefore, I appreciated Justice Brennan's acknowledgement of the dual role university faculty play in the nature of their positions. They may have some power to advise the directions of departments, but the higher ups in the university still have the ultimate decision making power (and can ignore the faculty senate if they choose. Not smart, but possible.)
Do I think the board of regents or the provost and his crew should be able to unionize? Heck no -and that is what I think was the original argument behind the Yeshiva case - they viewed faculty as having this kind of power. Which we all know is not true...
I looked all over and the only thing I could find on the definition of mature universities comes from Baldridge (1971) in “Power and Conflict in the University” which states:
“Unlike the purely hierarchical decision-making structure that prevails in the typical industrial organization, the bureaucratic foundation of most "mature" universities is characterized by dual authority systems. The primary decisional network is hierarchical in nature: Authority is lodged in the administration, and a formal chain of command runs from a lay governing board down through university officers to individual faculty members and students. At the same time, there exists a parallel professional network, in which formal mechanisms have been created to bring the expertise of the faculty into the decisionmaking process.”
In looking around, a common thread I came across was that the Court appeared to overlook the fact in this case that the decision-making influence the faculty has in universities is attributable only to their collective expertise as professional educators (and not to any managerial or supervisory powers). While the administration can and does look to the faculty for advice on professional and/or academic matters of concern, the faculty offers recommendations primarily to serve its own independent interests in effecting the most successful environment for teaching and learning. Even though the administration defers to faculty experience and knowledge whenever possible, administration must apply its own fiscal and managerial perspectives to such recommendations; neither of which the faculty has any part in developing.
#1 - Until I read this chapter, I NEVER thought of faculty as managerial employees. A faculty department chair and/or a dean fine, but not faculty.
Quite honestly, I'm not sure whether or not I feel that it is fair. As you point out, faculty are involved in many aspects besides leading (and some cases managing) in the classroom. Why should these normal, everyday job duties qualify a faculty person as a manager? When hired,faculty are aware that they will have responsibilities outside of just teaching and/or research with the biggest being curriculum. However, are faculty making these decisions or just making recommendations? For me personally, I do not make decisions. I make recommendations to my faculty department chair and the dean regarding curriculum, schedules, etc. If I don't have final decision authority on these matters, am I a manager? I quite honestly don't think so - so in that case I'm thinking this broad classification would not be fair.
In the case of the faculty member denied tenure, as with any other discrimination case, it may seem unfair that the Plaintiff has to prove the discrimination. But, whether fair or not, there doesn't seem any other way around it. Who else could this burden fall upon? The plaintiff and the lawyer have the only real stakes. Do you think the defendents should have to show equal proof that they did not discriminate?
Chapter 5 reviews employment issues associated with faculty. The topics the chapter covers include faculty contracts, academic custom, part-time faculty, collective bargaining, nondiscrimination laws, affirmative action in hiring practices, personnel decisions, and rights for due process. There are a few questions I had that these readings prompted, which I will share below. Please feel free to answer the ones that you also feel are unclear or feel you have particularly strong insights on.
ReplyDelete1. In the section on faculty collective bargaining, the book reviewed the NLRB v. Yeshiva University case. In this case the court found that this particular private institution had faculty that were managerial employees. The court then defined this as an employee who “formulate and effective management policies by expressing and making operative the decisions of their employer…[or] exercise discretion within or even independently of established employer policy and [are] aligned with management.” The court then concluded that Yeshiva faculty exercised this authority due to their “absolute” authority over academic matters, such as which courses would be offered and when, the determination of teaching methods, grading policies, and admission standards, and admissions, retention, and graduation decisions. Now in my opinion it seems that most faculty are involved in the above described activities to some extent at many institutions and as such it would seem that universities could apply this very broadly. Can someone offer insight as to why this is fair or not?
2. The court created the managerial exclusion for what they deemed to be “mature” private universities. The only definition of “mature” I found was Justice Brennan’s dissenting opinion which said that “mature universities had dual authority systems: a hierarchical system of authority culminating in a governing board, and a professional network that enabled professional enabled professional expertise to inform and advise the formal authority system.” Does anyone have any opinions as to whether this is the final word and is the correct or incorrect way to apply as the formal definition of a mature university?
3.Regarding the Fisher v. Vassar College case (where the plaintiff, a biology professor, sued because she had been denied tenure for being “away from science” which she interpreted as being because of taking time off to raise her children), the en banc court found that although Fisher had been able to establish a prima facie case of discrimination based upon age and marital status (violations of Title VII and the Equal Pay Act), the college had enough neutral reasons for tenure denial. The book noted that this was because the college found that she had an “inability to meet the standards for tenure and qualifications inferior to those of other tenure candidates” (p. 205), although the book noted and the initial trial judge found the opposite to be true as she had superior publication records to those of males granted tenure both before and after her denial. The judge writing the en banc courts majority opinion did note that employers are allowed to have non-discriminatory reasons for not recommending tenure, and that although the denial is not based upon the merits of the professors work, it doesn’t necessarily constitute discrimination. So my question regarding this case is: must faculty always be able to prove explicit discrimination (via documented record, evidence of others overhearing discriminatory remarks) to be able to prove that they were discriminated against under Title VII and the Equal Pay Act? If so, the burden of proof on the plaintiff seems to be extraordinarily grandiose and hard to prove. Does this seem fair?
4.On page 215 the book was reviewing substantive due process principles, and noted how only occasionally such claims are successful such as Harrington v. Harris. It then noted that other courts will not be as “hospitable” to such claims. So my question is, why? Can someone explain why this is?
This comment has been removed by the author.
ReplyDeleteThe more I learn about the law, the more frustrating it is. I like things right or wrong/black or white, and up until this point, kind of thought of the law in that way: providing us with clear parameters within which we ought to abide.
ReplyDeleteIt seems that the question of managerial exclusion (like so many other elements of the law) lends itself well to Dr. Miller's "it depends" answer. The text states that, even within one institution, some faculty may be permitted to unionize, while others would not, based on the institution, the governance structure, job descriptions, etc.. The examples provided in the text suggest that the Yeshiva case did not necessarily set a precedence for subsequent cases related to collective bargaining by faculty.
Although I guess it should comfort me to know that judicial authorities attempt to apply the rule fairly, taking into consideration a number of distinctions, I kind of wish they'd just make a decision...
I too get frustrated with all of the "it depends" situations. It seems as if this is something that could be an issue at so many types of institutions that they might have thought to pluck up another few cases to fill in some of the holes regarding various faculty who would be allowed to unionize at various institutional types. Just a thought...
ReplyDeleteChristina, you raise some very interesting and thought provoking questions. I will attempt to answer numbers 3. Although Title VII was enacted for the purpose of affording broad based protection to individuals, in my opinion, the holding in Fisher clearly reflects a transfiguration of the law’s original intent. The burden of proof for Title VII cases is extremely overly burdensome, especially since the ultimate burden of persuasion always rest with the plaintiff. While courts believe that the establishment of a prima facie case is minimal and the employer’s rebuttal is equally diminished, I contend that its easier said than done as evidenced in the Craine case whereby the plaintiff had to rely upon a procedural violation as a conduit to establish a prima facie case for discrimination. In addition, litigators are always at the mercy judges who unconsciously, in some instances, interject their subjective opinions, even though objectivity should prevail. Moreover, courts seem to overlook the most burdensome phase for a plaintiff, which is a merger between proving the employer’s rebuttal is false and establishing “intentional discrimination.” Intentional discrimination presents a high standard, especially when the plaintiff has to prove “that an illegal discriminatory reason played a motivating role in the adverse employment decision” and the court is looking for that “smoking gun.” In fairness to the court, the majority did state in Bickerstaff that a distinction had to be made between “evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture.” While Bickerstaff presented regression models and affidavits from colleagues asserting possible racial challenges within the department, the court ultimately ruled that the plaintiff did not present sufficient admissible evidence from which a rational finder of fact could infer that more likely than not she was the victim of intentional discrimination. I remain committed to my initial premise, which proffers the burden of proof is overly burdensome in Title VII cases.
ReplyDeleteChristina-
ReplyDeleteThanks for bringing up the NLRB v. Yeshiva University case. It's a good example of how government tries to apply policies from one program (NLRA)that was set up to deal with industrial labor relations, to a completely different context, that of higher education. But they ARE different. You don't normally see companies with most of its "employees" having a hand in day to day management like you do at a university. Faculty have more control over their jobs, more say in course/department direction than other industrial employees. Therefore, I appreciated Justice Brennan's acknowledgement of the dual role university faculty play in the nature of their positions. They may have some power to advise the directions of departments, but the higher ups in the university still have the ultimate decision making power (and can ignore the faculty senate if they choose. Not smart, but possible.)
Do I think the board of regents or the provost and his crew should be able to unionize? Heck no -and that is what I think was the original argument behind the Yeshiva case - they viewed faculty as having this kind of power. Which we all know is not true...
-Michelle Bell-
I looked all over and the only thing I could find on the definition of mature universities comes from Baldridge (1971) in “Power and Conflict in the University” which states:
ReplyDelete“Unlike the purely hierarchical decision-making structure that prevails in the typical industrial organization, the bureaucratic foundation of most "mature" universities is characterized by dual authority systems. The primary decisional network is hierarchical in nature: Authority is lodged in the administration, and a formal chain of command runs from a lay governing board down through university officers to individual faculty members and students. At the same time, there exists a parallel professional network, in which formal mechanisms have been created to bring the expertise of the faculty into the decisionmaking process.”
In looking around, a common thread I came across was that the Court appeared to overlook the fact in this case that the decision-making influence the faculty has in universities is attributable only to their collective expertise as professional educators (and not to any managerial or supervisory powers). While the administration can and does look to the faculty for advice on professional and/or academic matters of concern, the faculty offers recommendations primarily to serve its own independent interests in effecting the most successful environment for teaching and learning. Even though the administration defers to faculty experience and knowledge whenever possible, administration must apply its own fiscal and managerial perspectives to such recommendations; neither of which the faculty has any part in developing.
#1 - Until I read this chapter, I NEVER thought of faculty as managerial employees. A faculty department chair and/or a dean fine, but not faculty.
ReplyDeleteQuite honestly, I'm not sure whether or not I feel that it is fair. As you point out, faculty are involved in many aspects besides leading (and some cases managing) in the classroom. Why should these normal, everyday job duties qualify a faculty person as a manager? When hired,faculty are aware that they will have responsibilities outside of just teaching and/or research with the biggest being curriculum. However, are faculty making these decisions or just making recommendations? For me personally, I do not make decisions. I make recommendations to my faculty department chair and the dean regarding curriculum, schedules, etc. If I don't have final decision authority on these matters, am I a manager? I quite honestly don't think so - so in that case I'm thinking this broad classification would not be fair.
In the case of the faculty member denied tenure, as with any other discrimination case, it may seem unfair that the Plaintiff has to prove the discrimination. But, whether fair or not, there doesn't seem any other way around it. Who else could this burden fall upon? The plaintiff and the lawyer have the only real stakes. Do you think the defendents should have to show equal proof that they did not discriminate?
ReplyDelete