Chapter 2 is about legal planning and dispute resolution.
This chapter gives a brief overview of issues in treatment and preventive law.
1. One concept I found interesting was the idea of academic deference afforded to higher educational institutions by the courts. In particular the Feldman v. Ho case. The decision established that several kinds of disputes should be handled by the university. On one hand, I think this is prudent since the courts would not want to have to hear litigation for every faculty claim of misconduct. However, the result gives a lot of power to universities to settle their own legal business "in house." How do you feel about that power?
2. The later part of the chapter covers the idea of managing and preventing litigation. I wondered how much effort is spent preventing as opposed to litigating. Many of us have worked in community college or university settings in which some training or workshops were offered/required as a part of this prevention. For example, when I worked at UCSD in California we were required to complete a 1 hour sexual harassment online training before we could get our first paycheck. However, when I was hired at USF nothing was required or emphasized. Can you share any personal examples you know of at a higher education setting of something that was done with staff/faculty/students as part of a preventive measure?
Final comment, after reading the last section on ADR I realized I should appreciate more our USF collective bargaining unit's efforts for faculty.
Similar to your UCSD experience. Saint Leo has mandatory sexual harassment training (on-line) required of all faculty/staff every three years. Additionally, depending on rank/title there are required professional development sessions each year as part of your Individual Development Plan (IDP). At Saint Leo, professional development is a position requirement with a minimum of two hours each month set aside to complete different trainings. Many are preventative - sexual harassment, supervision, dealing with disruption, etc.
The power that is given to academic institutions under academic deference is typically clearly outlined from the start in faculty/staff/student handbooks, and through institutional policies and procedures. As we learned, some particular cases would be based on university research, personnel decisions, admissions of students, evaluation of student performance, and use of university facilities. These are all issues that the institutions have policies and outlines for their guidance. The decisions are not made up on the spot, and therefore should usually be just. In the case of Cannon v. University of Chicago, I agree that “it would be unwise to subject admissions decisions of the universities to the judicial scrutiny at the behest of disappointed applicants.” I think that is academia this may be a very standard means for a claim to be brought to attention. A faculty member, student, staff, etc. may be unhappy with the outcome of a decision and instead of looking at their own faults and realizing that they may have not been up to par; they find something that they can use against the university. In fact, I think as society as a whole has become more litigious, people are doing this in any way possible that they can find. I think that the book hit it right on the nose posing the question of “is a jury really the best institution to determine who should receive credit for a paper in mathematics?” I agree with this posed question because I would assume that during the trial for this case, the two faculty members would be arguing their mathematical equations and how they came up with the proper calculations and formulations which resulted in the end result. I can certainly imagine being in a jury member’s shoes, and being completely confused. I wish USF had more training on sexual harassment and think that it is great that St. Leo requires this as professional development. I have also never received any training on this issue and have been at both USF and FSU. I vaguely remember having to sign a paper about it at the start of employment but it was standard procedure along with a stack of 20 other papers such a drug and substance abuse. I’m wondering why the state of Florida has not issued anything within their SUS system as it seems other universities both private and public have.
Academic Deference I have two thoughts concerning this issues. Having been a litigator for 15 years, I can certainly appreciate the attempt to alleviate court back-log and the prevention of frivolous claims. There is nothing more irritating than defending lawsuits that have no basis or merit. However, I am concerned that academic defernce may erode an individual's right to access courts and fundamentally erode due process under the law. Yes, the individual receives notice of the hearing and has the proper channels to file grievances and/or appeals, but to me, due process extends far beyond meeting procedural guidelines. Due process also encompasses fairness and impartility under the law. This concerns me as it relates to Universities rendering decisions. "Politics" within the university/college setting is widespread. I suppose my question hinges upon how does the university find a "fair and impartial" group of individuals to administer justice? I've been a graduate student at USF for one year and I am amazed at the number of faculty/staff that know each other rather well and/or individuals in SA or the Board of Trustees. How does one create that impartiality within the university environment?
ADR I am highly in favor of litigation prevention workshops and ADR. I believe ADR should be mandatory with respect to all lawsuits filed because it alleviates the courts, but more importantly, returns individuals to face-to-face dialogue, compromise and compassion. There was a time when an individual's word meant something and communication fostered understanding, and compassion. We've kind of lost that in America.
I agree with Sara that the power that is given to academic institutions (academic deference) is usually outlined in the book of rules and regulations for institutions. However, I would not agree with anyone who would argue that the rules and regulations contained in these books are always as cut and dry as one would expect it to be. The recurring factor in each of our discussions thus far, involves the fact the rule books and policies of institutions are flawed and leave open windows of opportunity to people involved to appeal and seek further council to gain a complete and fair response with respect to their case. Upon further reading in the case of Feldman v. Ho, we find that there is not just an issue of academic misconduct. There also lies at the core of this case an issue of freedom of speech. This opens the door for appeals and hearings to be made outside of the jurisdiction of the institution. Institutions have been given this power to govern themselves to a certain extent and they appear to be trying to work within the confines of their own jurisdiction. However, there are situations that may actually call for the intervention of a jury of a higher court. That is what the judicial system is there for, to set legal precedence and protect those who may be taken advantage of. Society as a whole may be more litigious than they may have been before. Our society has not always been governed by the most honorable of laws as our history tells us. Everyone does not receive a fair shake all the time. That is why we have to set legal precedence in an effort to set things straight. Perfect examples are the concepts of affirmative action and university admissions. Please remember it was “disappointed” black college applicants that led to the solidification of the Brown v. the Board of Education decision in southern schools in Alabama in 1963. Yes, our system is an imperfect one. What makes our system work better than any other is the fact that our constitution and other legal guidelines are designed to be amended when taken through the proper channels. *With respect to Sara’s reference to admissions the 1949 Virgil Darnell Hawkins case at the University of Florida is a case that is well worth analyzing with regard to the case of admissions and people who are considered disappointed applicants. *Schools have rules and regulations that are set by its board of trustees and may be brought up as high as the president or the board of trustees for a hearing. Once all other efforts within the jurisdiction of the school have been exhausted the individual(s) have the right to appeal to higher powers if they feel that their constitutional or human rights have been violated.
Walter, you've highlighted a great point! I certainly agree with you that the rules and regulations that are contained in these guides of policies and procedure are often not "cut and dry." I do think that they are a good starting point for reference though.
I'm interested in looking up the USF specific case of admissions that you brought attention to. It always makes things more rinteresting when you can associate something that you are familiar with.
Thanks Sara. Make sure to look up the Hawkins case at UF not USF.
With regard to the concept of ADR. I think that it is an excellent idea to establish preventive measures to avoid serious conflict and embarassment at institutions. I have listened to administrators discuss the concept, but it is always an after or passing thought. That is until someone does something dumb and gets nailed for it.
When It worked for the state of Florida I had to undergo training for issues such as descrimination and sexual harrassment. it was explained to me that it was not something that the district had to do, but instead it was something that had been mandated by the District Director. I have discovered that it is a matter of the particular statndards of the institution and whether there is a budget for them to hire an outside consultant or pay someone from within the extra amount to conduct the sessions. I found that fact to be appauling and very irresponsible personally. ADR ought to be mandatory at all public institutions.
The comments about USF’s lack of sexual harassment training brought back a memory. About 10 years ago, USF did put on a ‘mandatory’ meeting about sexual harassment for the entire university. It was delivered at couple of times within a one week span with several units mandated to participate each day. At the meeting I attended there were about 250+ people crammed into the ballroom of the old Marshall Center and the session was conducted by the folks from ODT (Organizational Development and Training, now called Talent Management).
At the time, no one really wanted to go but that wasn’t option as supervisors and academic leaders were ‘ordered’ to make sure every employee in their unit attended. I don’t know that there was a particular event that triggered the sudden need for this training, but do I recall there were rumors that implied such.
The presenters appeared to be terribly uncomfortable with the topic and the attendees appeared equally uncomfortable. They presenters kept trying to get the audience to participate in the dialogue but were not receiving any responses. Things really took a turn for the worst when the lead presenter asked, “Who can tell me what sexual harassment is?” One empathetic gentleman decided he would help get things moving along. He stood up and innocently said; “Sexual harassment is …” (I’ll leave out his exact words here but tell you that he clearly defined ‘oral sex’ instead of sexual harassment). The presenter turned absolutely crimson. The gentleman, when he realized what he had said, also turned crimson. There was what felt like a dreadful hour of silence until some people in the back rows starting coughing, making faces, stifling grins until they could no longer contain themselves and burst out howling with laughter. It was about a 50-50 split between those who were terribly embarrassed and those who were now thoroughly entertained. Needless to say, the meeting broke up a bit earlier than planned. It appears that was the end of the sexual harassment training at USF…
Walter, I think your point about whether there is a budget to hire outside consultants might have been a consideration here. In what may have been an attempt to save the university some money, I think administration probably goofed in placing the responsibility for this highly specialized training on a department that existed for a very different purpose (namely, training for workplace skills such as working with software, time management and preparing PowerPoint presentations). As such, it appears the university placed the ODT team in a very awkward position and could have even exposed itself to further problems if those in attendance found the remarks at the session offensive (especially because the university mandated their attendance). This appears to be a case where the use of outside experts in sexual harassment training would have been a better and a safer choice for the institution.
The fact that there is still no formalized training on sexual harassment for new and continuing employees seems to be a potential problem just waiting to happen. Kaplin notes, “Even before disputes arise, administrators and counsel should be actively engaging in preventive law as the most comprehensive and forward-looking means of avoiding and limiting lawsuits” (p. 73).
Michelle, you’ve posed some excellent questions. In #1, you stated, “However, the result gives a lot of power to universities to settle their own legal business "in house." How do you feel about that power?” The more I read and learn about legal issues and higher education, the more I’m appreciative that we do have the opportunity and authority in most situations to resolve issues within house rather than through litigation in the courts. Higher education, especially in public institutions, has many statutes and regulations established by states to govern and guide our operations; however, in many instances, we have the ability to establish our own college policies and procedures which truly set forth our day-to-day operations. I believe that this allows us to effectively allow our institution to follow those “required” statutes/regulations while at the same time tailoring our policies and procedures to our institutional “personality”. Our college/university handbooks and our written and approved policies and procedures are the tools which guide us.
Dionne asked about the impartiality of people involved in the due process; this, admittedly can be a concern, and could certainly affect the outcome of any decision. The issue of politics is a concern and can play a far greater role in some institutions than in others. However, there should be the appropriate set of checks and balances in who sits on these types of hearing committees, if a committee is involved, and who completes the “final” investigations. For example, if someone from the academic side of the house has an issue that requires an investigation, the investigator(s) would generally by from a separate division such as financial services.
Michelle’s question regarding the amount of time spent in attempting to prevent litigation is a valid concern. At my institution, we spend a good amount of time providing training on many issues, and in discussing how to resolve effectively a situation that could potentially turn litigious. With many areas of issues, especially those which deal with personnel and student issues, we document as much as possible in an effort to look at “all the angles” as well as to be prepared in the event an issue “blows up” and becomes more significant. These efforts require a lot of time and focus, but through the process we also are learning to question ourselves and our processes/procedures more carefully, which, in turn helps us continually to improve (we hope!).
Since the subject of ADR was mentioned by a few people, I thought I would share an article I found that discusses how the intervention of a mediator or arbitrator can be used to tame faculty bullies. The article specifically talks about how workplace bullying is a huge issue for colleges. I’ve personally witnessed some bullying by faculty members here at USF and it is a shame that we would have to resort to using some type of third party intervention to help solve these problems. One would think that people would be more civil to each other in academia; however that is often not the case. It’s amazing how much time and money we waste on these issues. I guess we should be thankful for ADR because it is quick and cost effective.
Michelle, what interesting questions you brought up! Especially as my experiences differ a bit from some of the others posted above.
I recently got my current position upgraded from OPS to staff and as such had to attend a new employee day hosted by HR, ie- talent management. During this event we did actually have a brief training regarding diversity! I actually attended this about two weeks ago now. I thought this was a good example of an effort at USF to institute a preventative measure.
Additionally, about two years ago I worked in a different office of the university as a graduate assistant at which i had to attend a sexual harassment and diversity training along with the rest of the office, everyone was included. This was at USF so i was admittedly shocked when i read the above posts to find out that this isn't the most common of practices. It makes me wonder if perhaps this is only done on a department wide scale if there is some legal issue that is being addressed currently that involves that unit? It would be interesting to find out what the exact policy is!
I personally view academic deference as highly advantageous for current institutions. While I feel a majority of the disputes can be handled in-house, I see academic deference as a means for a completely unbias entitity to settle disputes that cannot be resolved. Therefore there is a level playing field for both plaintiffs and defendants to have a fair resolution. In the highly political realm of higher education, academic deference seems to me essential.
1. I am always weary about the whole notion of settling outside of court. While I understand the importance of keeping costs down and keeping the institution out of the public eye, I have concerns about what message a settlement sends - is it perceived as admitting fault or is it a precaution to avoid a long and wounding court process? Additionally, is this power always used in the right manner or with the best of intentions? My main concern with this practice is that it does not allow for a jury of peers to hear the case and make a determination. It also has a tendency to favor the university and doesn't allow for true accountability to take place - I feel like it's a quick fix to a problem that may very well need some further review but no one has enough time or energy to deal with.
2. One of the things a lot of institutions have put in place to safeguard themselves from litigation in the area of student organizations is paperwork associated with registering social events. When registering social events, institutions have the ability to show that they have done their due diligence to educate the organization about how to properly and safely plan an event through the use of forms that the vendor and organization sign off on and check the necessary safeguards against (like proper licensing and insurance).
When is the last time you sat and read an End-User License Agreement (EULA) for a new software or gadget? I feel that higher education institutions are hiding behind user policies and not doing enough of the necessary legwork needed to disseminate policy information. In a perfect world, everyone would have the same expectations of the steps involved in legal proceedings. The problem is that in reality, people (specifically students) are not taking the time to read the policies outlined in our handbooks. Institutions tend to hide behind the policies written in their handbooks. It’s not enough to write it and have it published. It must be made available and reinforced to students and staff through all channels of communication. I believe universities should attempt to settle their own legal business in house. I know some of the cases highlighted in the chapter did have occurrences when institutions did not properly follow their written policies. I agree with Walter about the case of Feldman v. Ho when he said that it offered a good example of when and how the courts are better at examining content open to interpretation. I still believe that higher education is caught up in covering its bases to protect against liability. Why can’t the message be clear?
Chapter 2 is about legal planning and dispute resolution.
ReplyDeleteThis chapter gives a brief overview of issues in treatment and preventive law.
1. One concept I found interesting was the idea of academic deference afforded to higher educational institutions by the courts. In particular the Feldman v. Ho case. The decision established that several kinds of disputes should be handled by the university. On one hand, I think this is prudent since the courts would not want to have to hear litigation for every faculty claim of misconduct. However, the result gives a lot of power to universities to settle their own legal business "in house." How do you feel about that power?
2. The later part of the chapter covers the idea of managing and preventing litigation. I wondered how much effort is spent preventing as opposed to litigating. Many of us have worked in community college or university settings in which some training or workshops were offered/required as a part of this prevention. For example, when I worked at UCSD in California we were required to complete a 1 hour sexual harassment online training before we could get our first paycheck. However, when I was hired at USF nothing was required or emphasized. Can you share any personal examples you know of at a higher education setting of something that was done with staff/faculty/students as part of a preventive measure?
Final comment, after reading the last section on ADR I realized I should appreciate more our USF collective bargaining unit's efforts for faculty.
-Michelle Bell-
Similar to your UCSD experience. Saint Leo has mandatory sexual harassment training (on-line) required of all faculty/staff every three years. Additionally, depending on rank/title there are required professional development sessions each year as part of your Individual Development Plan (IDP). At Saint Leo, professional development is a position requirement with a minimum of two hours each month set aside to complete different trainings. Many are preventative - sexual harassment, supervision, dealing with disruption, etc.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteThe power that is given to academic institutions under academic deference is typically clearly outlined from the start in faculty/staff/student handbooks, and through institutional policies and procedures. As we learned, some particular cases would be based on university research, personnel decisions, admissions of students, evaluation of student performance, and use of university facilities. These are all issues that the institutions have policies and outlines for their guidance. The decisions are not made up on the spot, and therefore should usually be just. In the case of Cannon v. University of Chicago, I agree that “it would be unwise to subject admissions decisions of the universities to the judicial scrutiny at the behest of disappointed applicants.” I think that is academia this may be a very standard means for a claim to be brought to attention. A faculty member, student, staff, etc. may be unhappy with the outcome of a decision and instead of looking at their own faults and realizing that they may have not been up to par; they find something that they can use against the university. In fact, I think as society as a whole has become more litigious, people are doing this in any way possible that they can find.
ReplyDeleteI think that the book hit it right on the nose posing the question of “is a jury really the best institution to determine who should receive credit for a paper in mathematics?” I agree with this posed question because I would assume that during the trial for this case, the two faculty members would be arguing their mathematical equations and how they came up with the proper calculations and formulations which resulted in the end result. I can certainly imagine being in a jury member’s shoes, and being completely confused.
I wish USF had more training on sexual harassment and think that it is great that St. Leo requires this as professional development. I have also never received any training on this issue and have been at both USF and FSU. I vaguely remember having to sign a paper about it at the start of employment but it was standard procedure along with a stack of 20 other papers such a drug and substance abuse. I’m wondering why the state of Florida has not issued anything within their SUS system as it seems other universities both private and public have.
Academic Deference
ReplyDeleteI have two thoughts concerning this issues. Having been a litigator for 15 years, I can certainly appreciate the attempt to alleviate court back-log and the prevention of frivolous claims. There is nothing more irritating than defending lawsuits that have no basis or merit. However, I am concerned that academic defernce may erode an individual's right to access courts and fundamentally erode due process under the law. Yes, the individual receives notice of the hearing and has the proper channels to file grievances and/or appeals, but to me, due process extends far beyond meeting procedural guidelines. Due process also encompasses fairness and impartility under the law. This concerns me as it relates to Universities rendering decisions. "Politics" within the university/college setting is widespread. I suppose my question hinges upon how does the university find a "fair and impartial" group of individuals to administer justice? I've been a graduate student at USF for one year and I am amazed at the number of faculty/staff that know each other rather well and/or individuals in SA or the Board of Trustees. How does one create that impartiality within the university environment?
ADR
I am highly in favor of litigation prevention workshops and ADR. I believe ADR should be mandatory with respect to all lawsuits filed because it alleviates the courts, but more importantly, returns individuals to face-to-face dialogue, compromise and compassion. There was a time when an individual's word meant something and communication fostered understanding, and compassion. We've kind of lost that in America.
I agree with Sara that the power that is given to academic institutions (academic deference) is usually outlined in the book of rules and regulations for institutions. However, I would not agree with anyone who would argue that the rules and regulations contained in these books are always as cut and dry as one would expect it to be. The recurring factor in each of our discussions thus far, involves the fact the rule books and policies of institutions are flawed and leave open windows of opportunity to people involved to appeal and seek further council to gain a complete and fair response with respect to their case. Upon further reading in the case of Feldman v. Ho, we find that there is not just an issue of academic misconduct. There also lies at the core of this case an issue of freedom of speech. This opens the door for appeals and hearings to be made outside of the jurisdiction of the institution.
ReplyDeleteInstitutions have been given this power to govern themselves to a certain extent and they appear to be trying to work within the confines of their own jurisdiction. However, there are situations that may actually call for the intervention of a jury of a higher court. That is what the judicial system is there for, to set legal precedence and protect those who may be taken advantage of. Society as a whole may be more litigious than they may have been before. Our society has not always been governed by the most honorable of laws as our history tells us. Everyone does not receive a fair shake all the time. That is why we have to set legal precedence in an effort to set things straight. Perfect examples are the concepts of affirmative action and university admissions. Please remember it was “disappointed” black college applicants that led to the solidification of the Brown v. the Board of Education decision in southern schools in Alabama in 1963. Yes, our system is an imperfect one. What makes our system work better than any other is the fact that our constitution and other legal guidelines are designed to be amended when taken through the proper channels.
*With respect to Sara’s reference to admissions the 1949 Virgil Darnell Hawkins case at the University of Florida is a case that is well worth analyzing with regard to the case of admissions and people who are considered disappointed applicants.
*Schools have rules and regulations that are set by its board of trustees and may be brought up as high as the president or the board of trustees for a hearing. Once all other efforts within the jurisdiction of the school have been exhausted the individual(s) have the right to appeal to higher powers if they feel that their constitutional or human rights have been violated.
Walter, you've highlighted a great point! I certainly agree with you that the rules and regulations that are contained in these guides of policies and procedure are often not "cut and dry." I do think that they are a good starting point for reference though.
ReplyDeleteI'm interested in looking up the USF specific case of admissions that you brought attention to. It always makes things more rinteresting when you can associate something that you are familiar with.
Thanks Sara. Make sure to look up the Hawkins case at UF not USF.
ReplyDeleteWith regard to the concept of ADR. I think that it is an excellent idea to establish preventive measures to avoid serious conflict and embarassment at institutions. I have listened to administrators discuss the concept, but it is always an after or passing thought. That is until someone does something dumb and gets nailed for it.
When It worked for the state of Florida I had to undergo training for issues such as descrimination and sexual harrassment. it was explained to me that it was not something that the district had to do, but instead it was something that had been mandated by the District Director. I have discovered that it is a matter of the particular statndards of the institution and whether there is a budget for them to hire an outside consultant or pay someone from within the extra amount to conduct the sessions. I found that fact to be appauling and very irresponsible personally. ADR ought to be mandatory at all public institutions.
Thank you for that catch with UF vs USF, Walter! It's funny how your mind reads over something so quickly when you are so accustomed to it!
ReplyDeleteThe comments about USF’s lack of sexual harassment training brought back a memory. About 10 years ago, USF did put on a ‘mandatory’ meeting about sexual harassment for the entire university. It was delivered at couple of times within a one week span with several units mandated to participate each day. At the meeting I attended there were about 250+ people crammed into the ballroom of the old Marshall Center and the session was conducted by the folks from ODT (Organizational Development and Training, now called Talent Management).
ReplyDeleteAt the time, no one really wanted to go but that wasn’t option as supervisors and academic leaders were ‘ordered’ to make sure every employee in their unit attended. I don’t know that there was a particular event that triggered the sudden need for this training, but do I recall there were rumors that implied such.
The presenters appeared to be terribly uncomfortable with the topic and the attendees appeared equally uncomfortable. They presenters kept trying to get the audience to participate in the dialogue but were not receiving any responses. Things really took a turn for the worst when the lead presenter asked, “Who can tell me what sexual harassment is?” One empathetic gentleman decided he would help get things moving along. He stood up and innocently said; “Sexual harassment is …” (I’ll leave out his exact words here but tell you that he clearly defined ‘oral sex’ instead of sexual harassment). The presenter turned absolutely crimson. The gentleman, when he realized what he had said, also turned crimson. There was what felt like a dreadful hour of silence until some people in the back rows starting coughing, making faces, stifling grins until they could no longer contain themselves and burst out howling with laughter. It was about a 50-50 split between those who were terribly embarrassed and those who were now thoroughly entertained. Needless to say, the meeting broke up a bit earlier than planned. It appears that was the end of the sexual harassment training at USF…
Walter, I think your point about whether there is a budget to hire outside consultants might have been a consideration here. In what may have been an attempt to save the university some money, I think administration probably goofed in placing the responsibility for this highly specialized training on a department that existed for a very different purpose (namely, training for workplace skills such as working with software, time management and preparing PowerPoint presentations). As such, it appears the university placed the ODT team in a very awkward position and could have even exposed itself to further problems if those in attendance found the remarks at the session offensive (especially because the university mandated their attendance). This appears to be a case where the use of outside experts in sexual harassment training would have been a better and a safer choice for the institution.
The fact that there is still no formalized training on sexual harassment for new and continuing employees seems to be a potential problem just waiting to happen. Kaplin notes, “Even before disputes arise, administrators and counsel should be actively engaging in preventive law as the most comprehensive and forward-looking means of avoiding and limiting lawsuits” (p. 73).
Michelle, you’ve posed some excellent questions. In #1, you stated, “However, the result gives a lot of power to universities to settle their own legal business "in house." How do you feel about that power?” The more I read and learn about legal issues and higher education, the more I’m appreciative that we do have the opportunity and authority in most situations to resolve issues within house rather than through litigation in the courts. Higher education, especially in public institutions, has many statutes and regulations established by states to govern and guide our operations; however, in many instances, we have the ability to establish our own college policies and procedures which truly set forth our day-to-day operations. I believe that this allows us to effectively allow our institution to follow those “required” statutes/regulations while at the same time tailoring our policies and procedures to our institutional “personality”. Our college/university handbooks and our written and approved policies and procedures are the tools which guide us.
ReplyDeleteDionne asked about the impartiality of people involved in the due process; this, admittedly can be a concern, and could certainly affect the outcome of any decision. The issue of politics is a concern and can play a far greater role in some institutions than in others. However, there should be the appropriate set of checks and balances in who sits on these types of hearing committees, if a committee is involved, and who completes the “final” investigations. For example, if someone from the academic side of the house has an issue that requires an investigation, the investigator(s) would generally by from a separate division such as financial services.
Michelle’s question regarding the amount of time spent in attempting to prevent litigation is a valid concern. At my institution, we spend a good amount of time providing training on many issues, and in discussing how to resolve effectively a situation that could potentially turn litigious. With many areas of issues, especially those which deal with personnel and student issues, we document as much as possible in an effort to look at “all the angles” as well as to be prepared in the event an issue “blows up” and becomes more significant. These efforts require a lot of time and focus, but through the process we also are learning to question ourselves and our processes/procedures more carefully, which, in turn helps us continually to improve (we hope!).
Since the subject of ADR was mentioned by a few people, I thought I would share an article I found that discusses how the intervention of a mediator or arbitrator can be used to tame faculty bullies. The article specifically talks about how workplace bullying is a huge issue for colleges. I’ve personally witnessed some bullying by faculty members here at USF and it is a shame that we would have to resort to using some type of third party intervention to help solve these problems. One would think that people would be more civil to each other in academia; however that is often not the case. It’s amazing how much time and money we waste on these issues. I guess we should be thankful for ADR because it is quick and cost effective.
ReplyDeleteHere is the link to the article.
http://chronicle.com/article/Workplace-Mediators-Seek-a-/65815/
Michelle, what interesting questions you brought up! Especially as my experiences differ a bit from some of the others posted above.
ReplyDeleteI recently got my current position upgraded from OPS to staff and as such had to attend a new employee day hosted by HR, ie- talent management. During this event we did actually have a brief training regarding diversity! I actually attended this about two weeks ago now. I thought this was a good example of an effort at USF to institute a preventative measure.
Additionally, about two years ago I worked in a different office of the university as a graduate assistant at which i had to attend a sexual harassment and diversity training along with the rest of the office, everyone was included. This was at USF so i was admittedly shocked when i read the above posts to find out that this isn't the most common of practices. It makes me wonder if perhaps this is only done on a department wide scale if there is some legal issue that is being addressed currently that involves that unit? It would be interesting to find out what the exact policy is!
I personally view academic deference as highly advantageous for current institutions. While I feel a majority of the disputes can be handled in-house, I see academic deference as a means for a completely unbias entitity to settle disputes that cannot be resolved. Therefore there is a level playing field for both plaintiffs and defendants to have a fair resolution. In the highly political realm of higher education, academic deference seems to me essential.
ReplyDelete1. I am always weary about the whole notion of settling outside of court. While I understand the importance of keeping costs down and keeping the institution out of the public eye, I have concerns about what message a settlement sends - is it perceived as admitting fault or is it a precaution to avoid a long and wounding court process? Additionally, is this power always used in the right manner or with the best of intentions? My main concern with this practice is that it does not allow for a jury of peers to hear the case and make a determination. It also has a tendency to favor the university and doesn't allow for true accountability to take place - I feel like it's a quick fix to a problem that may very well need some further review but no one has enough time or energy to deal with.
ReplyDelete2. One of the things a lot of institutions have put in place to safeguard themselves from litigation in the area of student organizations is paperwork associated with registering social events. When registering social events, institutions have the ability to show that they have done their due diligence to educate the organization about how to properly and safely plan an event through the use of forms that the vendor and organization sign off on and check the necessary safeguards against (like proper licensing and insurance).
When is the last time you sat and read an End-User License Agreement (EULA) for a new software or gadget? I feel that higher education institutions are hiding behind user policies and not doing enough of the necessary legwork needed to disseminate policy information. In a perfect world, everyone would have the same expectations of the steps involved in legal proceedings. The problem is that in reality, people (specifically students) are not taking the time to read the policies outlined in our handbooks. Institutions tend to hide behind the policies written in their handbooks. It’s not enough to write it and have it published. It must be made available and reinforced to students and staff through all channels of communication. I believe universities should attempt to settle their own legal business in house. I know some of the cases highlighted in the chapter did have occurrences when institutions did not properly follow their written policies. I agree with Walter about the case of Feldman v. Ho when he said that it offered a good example of when and how the courts are better at examining content open to interpretation. I still believe that higher education is caught up in covering its bases to protect against liability. Why can’t the message be clear?
ReplyDelete