The American Association of University Professors is devising new guidelines on the dismissal of faculty members with disabilities after realizing the policy it had long recommended for colleges was far out of line with federal antidiscrimination laws.
The AAUP had adopted its old recommended policy in 1968, and how outdated it had become was evident from its title: “Termination Because of Physical or Mental Disability.” Under the Americans With Disabilities Act of 1990, as well as the Rehabilitation Act of 1973, which applies to institutions that receive federal funds, a college may not base a decision to fire a faculty member simply on that person’s possession of a disability. Having a disabilty can lead to termination only indirectly, if it prevents an employee from performing essential tasks, and workers with disabilities must be afforded reasonable accommodations to enable them to continue in their jobs.
Contained in the AAUP document “Recommended Institutional Regulations on Academic Freedom and Tenure,” the AAUP’s old recommended policy for firing faculty members with disabilities also arguably created the impression that such faculty members were entitled to less due process than others at their institution.
The AAUP’s committee on academic freedom and tenure agreed to scrap the problematic policy recommendation last month, and is expected to vote on new policy guidelines when it meets again, in November.
The old recommended policy’s flaws were brough to the AAUP’s attention about a year ago by Ann Franke, president of Wise Results LLC, a consulting company that helps colleges with employment, risk, policy, and training issues. The AAUP responded by establishing a new panel, headed by Ms. Franke, that reviewed—and subsequently recommended scrapping—the old recommended policy, and is working to craft the new one.
In an interview this week, Ms. Franke said she had come across the old model policy while reviewing the faculty handbook of one of the colleges that are her clients. “It is not a regulation that gets a lot of attention,” Ms. Franke said. “When I sat down and read it, I thought, ‘Oh my gosh, this is illegal under the Americans With Disabilities Act.’” In the years since the AAUP adopted the old guideline, she said, “the law and our social understandings about disability have become much more nuanced.”
Although there is no reason to believe many colleges have been violating federal antidiscrimination law based on their reliance on the AAUP’s guidelines, the association’s old model policy had found its way into colleges’ faculty handbooks, Ms. Franke said.
The now-abandoned model policy said that termination of a faculty member “because of” a physical or mental disability “will be based on clear and convincing medical evidence” that the faculty member is no longer able to perform essential duties even with reasonable accommodations. It called for colleges to afford such faculty members, or someone representing them, “an opportunity to present the faculty member’s position and to respond to the evidence.” It also said the faculty members should be allowed to ask that such evidence be reviewed by a faculty committee on academic freedom and tenure before a governing board made a final decision.
The policy was part of a section of the AAUP’s “Recommended Institutional Regulations” document broadly dealing with the termination of faculty members by colleges. It spells out, at considerable length, recommended procedures for the dismissal of full-time faculty members in general, calling for them to be afforded such rights as access to a hearing committee and the opportunity to call witnesses and challenge any evidence presented against them.
Left unclear in the document, Ms. Franke said, was whether faculty members with disabilities were entitled to the same due-process rights as other faculty members, or if any potential termination of them was to be carried out through the abbreviated procedure described in the section of the document dealing specifically with them.
‘Well Intentioned’ but ‘Paternalistic’
Laura Rothstein, a professor of law at the University of Louisville who has studied disability law for more than 30 years, said she believes the AAUP’s previous policy recommendation “was well intentioned,” with the apparent goal of helping colleges deal with employees with disabilities in a manner that preserved their privacy and avoided any potential embarrassment. “It was paternalistic,” she said, “but it would protect them.”
Ms. Rothstein said she had recommended to the AAUP panel devising new recommendations that it consider giving faculty members who have a disability and face dismissal the option of going through a more-private process that it had been recommending, while explicitly guaranteeing those who want it access to the same process other faculty members go through. In a speech last year at the Stetson Conference on Higher Education, she argued that it was becoming increasingly important for colleges to ensure their personnel policies complied with the Americans With Disabilities and Rehabilitation Acts because the elimination of the mandatory retirement age and a shaky economy have resulted in an upswing in the number of faculty members’ complaining of disability discrimination.
In an interview, Robin L. Shaffert, senior director of corporate social responsibility for the American Association of People With Disabilities, said one of her primary objections to the AAUP’s old recommended policy was that it “set up a different framework for evaluation of people with disabilities.” Under it, she said, the possession of a disability—and not a decline in performance—triggered a review process to determine whether a faculty member was adequately carrrying out job-related tasks, and the faculty member’s disability, in itself, was inappropriately considered in determining whether that person should be kept on.
“We are very glad to hear that the American Association of University Professors discarded this policy,” Ms. Shaffert said.
