Merle H. Weiner, a professor of law at the University of Oregon, received two rude surprises after the University of San Francisco Law Review published her article about how international courts treat domestic-violence victims.
The first was that the plaintiff in a case she had cited in her footnotes accused her of defamation and threatened to sue her if she did not remove a reference to him in versions published online.
The second was that the University of Oregon’s administration decided that she would be on her own if she chose to put up a fight. While sympathetic to her arguments defending the article, the university said it bore no responsibility for her published scholarship and therefore did not intend to provide her with legal representation or to pay any of her potential costs.
Unable to afford a court battle, Ms. Weiner agreed to remove the reference.
Looking back on the episode, she says, she regrets not having protected herself in advance with an insurance policy that could have paid a defense lawyer’s fees and other costs arising from the dispute. She carries her own professional-liability insurance now, and makes a point of urging other scholars to get coverage. “You can never be sure your institution is going to provide you with legal counsel.” she says.
Ms. Weiner is not alone making such arguments. Given the threat of litigation that surrounds much of the work done by college employees these days, many lawyers and experts on higher-education law say faculty members in virtually any academic field would be wise to consider getting their own liability coverage.
Several higher-education organizations offer professional-liability insurance to their membership (see box, this page). Among them, the American Association of University Professors’ executive committee is discussing ways to more aggressively promote its plans, which currently are purchased by well less than a tenth of its members. The AAUP also is collecting data from members on how much they use the plans—which offer up to $500,000 in liability coverage for $75 a year or up to $1-million in coverage for $125—and is considering offering policies that cost more and provide more-expansive coverage.
“Far fewer people carry it than should carry it,” says the AAUP’s president, Cary Nelson. “It is not very expensive, and I think it should be something everybody has.”
A Waste of Money?
Not everyone who advises colleges and their employees on insurance and risk management thinks such policies are worth the cost.
Allen J. Bova, director of risk management and insurance at Cornell University, says faculty members there are protected by the university’s comprehensive liability coverage. “I have not seen any cases where the institution has said, No, we are not going to protect you.” About the only faculty members who need such insurance, he says, are those who also work as independent contractors outside the scope of their college employment.
Similarly, Barbara A. Davey, a former insurance broker who is now a risk-management specialist at the University of Notre Dame, says her institution backs its faculty members for liability claims associated with their jobs, even when the university’s own insurance policy does not cover the costs. Although she sees professional-liability insurance as sensible for faculty members who independently perform contract work or are in fields such as medicine, where malpractice lawsuits are common, she rarely hears of professors in other disciplines buying such policies.
But it is important to remember that “the university’s policy is protecting the interests of the university,” and not necessarily those of its employees, says Beverly C. Costello, a senior vice president at Marsh Inc., which administers insurance policies both for colleges and for individual professors.
Most obviously, faculty members should not expect their colleges to cover their legal costs if the college itself is on the opposite side of a dispute, such as a fight over a tenure denial or a charge of misconduct.
In other cases, though, Mr. Nelson, of the AAUP, says liability insurance can protect a professor’s academic freedom. He says he often hears of college administrators’ trying to avoid lawsuits by urging faculty members to raise grades disputed by students or retract statements disputed by some corporation, and warning those professors that the college will not stand by them in court if they refuse.
Even colleges that initially go to bat for their professors in court sometimes turn around and agree to legal settlements against professors’ wishes—for example, by no longer publicly challenging allegations that a professor committed wrongdoing. Such faculty members are in “a better position to stand their ground” if they have liability insurance, Mr. Nelson says. “It enables you to act on principle rather than fear.”
Tough Sell
Gauging how many faculty members buy professional-liability insurance is difficult, in part because insurance companies regard data on their consumers as proprietary. Interviews with officials of several of the academic associations that offer members such insurance suggest, however, that interest in it is spotty.
Of about 1,700 AAUP members who had responded as of mid-September to the survey being conducted by the group, about 100 said they had some form of professional-liability insurance, whether obtained through the group or from some other source, says Martin D. Snyder, an AAUP spokesman.
K. Lee Herring, a spokesman for the American Sociological Association, says financial data his group receives from the firm that administers its liability policy shows that “very few of our people actually take advantage of it.” Rosemary G. Feal, executive director of the Modern Language Association, says she has never heard one of her group’s members ask about the liability insurance plans it offers, suggesting that interest in them is low.
A large share of the faculty members who have professional-liability insurance acquired it through union membership. The National Education Association, which has about 200,000 college employees among its 3.2 million members, provides professional-liability insurance at no extra cost to any dues-paying member who needs it, and has a separate legal-services program that offers its members legal representation. Bill Raabe, the union’s director of collective bargaining and member advocacy, says providing professional-liability insurance costs the union about $10-million a year, or less than $4 per member. Many locals of the American Federation of Teachers also offer professional-liability insurance as part of their membership packages.
At some private colleges, contracts between the institutions and their employee unions provide faculty members with professional-liability insurance as a benefit.
Consumer Advice
The question of whether professors need professional-liability insurance depends partly on the degree to which union contracts, college policies, or state laws require their institutions to indemnify them—to legally and financially stand behind them—in the event of a lawsuit.
Rachel Levinson, senior counsel at the AAUP, says that colleges generally cover employees for acts within “the scope of their employment,” but that “the breadth of the scope of employment can vary from state to state, institution to institution, and case to case.”
Philip G. Villaume, a Minneapolis lawyer who teaches classes on school law at the University of St. Thomas, in nearby St. Paul, says he advises faculty members to buy “umbrella” liability policies, covering eventualities that their institutions do not, usually at a cost of $1,000 to $1,500 per year. But the insurance company he once had referred them to, Horace Mann Educators Corporation, no longer offers such policies. Of the other lawyers and legal experts interviewed for this article, those who recommend that faculty members buy professional-liability insurance say most professors can be adequately covered with policies costing less than $200 per year.
“Not all insurance policies are created equal,” says Ann H. Franke, president of Wise Results, a Washington legal and consulting firm specializing in higher education. “See if the policy you are buying for $75 to $150 gives you real protection.” She advises faculty members shopping for insurance policies to ask whether they provide adequate coverage against claims such as discrimination or harassment and whether they count the cost of legal representation against coverage maximums.
Several lawyers say that, for most professors, being sued is so unlikely that the question of whether to buy professional-liability insurance boils down to one thing: the value of peace of mind. Kent M. Weeks, a Nashville lawyer who represents professors, says, “For 75 to 100 bucks, it can be a very good sleeping pill.”
