Academic-employment policies are designed to accommodate some level of uncertainty, but no colleges were prepared for the disruptions to our working lives caused by the global pandemic — or the many legal issues that have come along with it. Colleges can barely use the most equivalent situation in history to help guide them. The business of higher education was scarcely a business at all during the last major pandemic over 100 years ago; the structures of modern academic employment were in their infancy at that time.
Yet colleges are not in completely uncharted legal waters either. Here are some tips for institutions on how to avoid major legal pitfalls in the Covid era.
The pandemic does not justify every employment decision. The American Association of University Professors has already raised concerns about some of the steps taken by colleges to eat away at shared governance. Existing employment policies and faculty handbooks deserve respect; accreditation standards embedded with longstanding principles for academic employment did not disappear. Institutions that revise academic-employment practices too aggressively are inviting lawsuits. Even laws that shield employers from Covid-related liabilities do not grant institutions license to act with impunity.
Don’t make unnecessary employee cutbacks. Banish from your mind the overworked mantra that “no good crisis should go to waste.” If an institution truly needs to make layoffs and reductions for legitimate business reasons, that is one thing. However, if a college uses the current context to pounce on academic employees, it will inevitably find itself in a courthouse. Why an institution acts is as important as the action itself.
Be careful when revising academic-employment policies and faculty handbooks. Don’t rewrite longstanding policies and procedures without due diligence. Some institutions may be tempted to establish new standards for academic employment without appropriate respect for shared governance. That is a mistake. Employment terms that basically say in legalese, “We can do what we want now,” are inherently suspect; unilateral seizing of power during times of duress is a bad decision legally. Be especially careful if writing “financial exigency” out of a century-long bargain with tenured faculty under prevailing AAUP standards. The law may not look kindly on institutions if they appear to hoard endowment or seem to overly prioritize protecting fixed assets instead of fulfilling contractual obligations to faculty members. Above all, remember that academic employees deserve to be treated fairly and with dignity, especially during times like these.
Academic employees deserve to be treated fairly and with dignity, especially during times like these.
Follow existing policies when rewriting policies. There is a difference between contract revision and breach of contract. An institution’s policy on academic evaluation may historically require academic evaluations at specific, fixed intervals. Creating a new “opt-out or opt-in” option for timing of academic promotion that does not exist in current policies can create employment-law problems down the road. A “choice” to defer a year might be a Hobson’s choice for some employees; someone choosing to opt out might argue later that a lost year created a permanent structural disadvantage. Failure to follow existing rules also has the potential to be discriminatory. For instance, if an institution is already struggling with diversity and inclusion efforts, incentivizing a cadre of academics earlier in their careers to move forward too quickly in promotion and tenure processes might exacerbate existing equal-opportunity legal issues if their promotion or tenure is denied.
Use the strengths — and even the weaknesses — of existing academic-employment policies to everyone’s advantage. Well-written academic-employment policies feature flexibility to adapt longstanding practices. They include the ability to use humanistic judgment in applying evaluation standards for service, teaching, and scholarship. For example, working via Zoom involved a great deal of service that occurred at all hours and at makeshift home workspaces where families competed for physical space and internet access. Good policies will allow evaluators to weigh such service appropriately.
Think also about the variety of challenges related to teaching during a pandemic. Many instructors were teaching in person for several months before vaccinations became available. Life-threatening teaching should be a notable way to meet expectations regarding teaching obligations. (In other industries, hazard pay is common, but many academics experienced pay freezes and cuts at this time.) Scholarship has also been affected. Many established scholars are off track from where they had hoped to be 18 months ago; many new scholars lost the benefit of substantial in-person, live mentoring. It is entirely realistic and desirable to reimagine scholarly productivity and engagement under existing policies. In fact, failure to do so may itself violate existing contractual rights.
The field may not need new policies as much as humanistic thinking about existing policies. Or perhaps an institution’s policies are not ideal. In some instances, the weakness of a policy can be a strength; ambiguity can be used to achieve desirable outcomes. But if that is the case, remember that the law often puts the onus on a party with the upper hand in an ambiguous contract to be fair. Use existing contractual power wisely, then get to work revising those policies as needed.
Resist stereotyping, but be hyper-aware of the nearly infinite variety of equal-opportunity law challenges created by Covid. The best approach now is to engage in holistic, individualized assessment of academic employees. Be cognizant of the lived experiences of each employee in every evaluation process. But avoid quick fixes. For example, if an institution experienced attrition of faculty members from a specific legally protected class, it is not advisable to set out to hire “X” number of members of that class to fix the problem. Instead, use reliable approaches to hire, retain, and develop an inclusive and diverse academic work force. The pandemic has disproportionately impacted people of color, but the law has some boundaries on how we react to these impacts.
Covid will speed up transitions in academic employment that were already in progress prior to March 2020. Consider just one example: pushback against the heavy reliance on student evaluations, particularly anonymous ones, in determining teaching proficiency. If students use anonymous evaluations as platforms to take out their frustrations with their overall college experience during Covid, the use of those untrustworthy evaluations in promotion and tenure decisions could bring legal challenges. Evaluators should be careful about republishing and/or relying upon such evaluations. Even reading them could cause problems for the chair of an academic program in a deposition following a contested termination.
The law often puts the onus on a party with the upper hand in an ambiguous contract to be fair.
Appreciate the context of academic employment in this unique moment. Social mistrust of higher education is widespread; respect for academics is in decline; tenure is receding. Academic freedom continues to approach a legal nadir, yet students are gaining significant procedural protections and expressive rights that mimic tenure rights. Meanwhile, the law increasingly requires and forbids specific teaching and research approaches. The power dynamics of higher education created by rules of law have been changing; Covid is merely a spur.
Academic employment was already at a tipping point pre-Covid. The pandemic will either be the catalyst for positive reformation and reclamation, or create a legal quagmire. My advice is simple: Protect the true wealth of any university — the strength of the relationships among students, faculty, and staff members — in every decision. Students will expect efficient and quality instruction — not a learning experience marred by academic-employment problems. Although society at large may question the value of traditional academic employment practices, students, alumni, and their families will embrace institutions that treat academics with dignity and respect.