The Law of Shared Governance--A Thin Reed Indeed Without a University's Human Resources and Policy Commitment

The University values shared governance.  And most stakeholders--administration, faculty, and Board--speak to the value and place of shared governance within the operation of the university.  Because of that commitment of the current holders of administrative and board leadership roles, it is sometimes easy to forget that the privileges of shared governance, especially for faculty, are not guaranteed as a matter of law, but only as a matter of policy, tradition and in the most enlightened institutions--contract.

(Pix (c) Larry Catá Backer 2013)

This post suggests the narrowness of the legal protection of shared governance.  It  is offered to suggest, first, that legal protection is a secondary guarantee that derives from legal protection of speech by individuals in matters of public interest, and second, that beyond the good will of our administrators, it may be prudent to safeguard shared governance (that is the protection against retaliation and disciplinary action for conduct directly tied to engaging in shared governance) in the human resources policies of a university.  

From  Backer, Larry Catá, Between Faculty, Administration, Board, State, and Students: On the Relevance of a Faculty Senate in the Modern U.S. University (April 2, 2012).

The weakness of the legal framework for the protection of the exercise of shared governance. Equally important, governance remains almost entirely a matter of internal organization developed through and enforced under the rules and other contractual relations that were created in furtherance of the establishment of the organization of the university.  Though there is some law, especially constitutional law, that at times protects the speech of faculty,[1] the application of that law provides little comfort.[2]  It is grounded in an assessment of the value of the speech outside the academic community and involves a post facto balancing of interests that are of little help in determining before the fact whether actions taken in a governance capacity will be protected against retaliation.[3] That balancing can be both excruciating and unpredictable—hardly a standard on which one can be assured of protection before judgment after trial.[4]  

Indeed, from the court’s perspectives, the AAUP’s 1915 vision of the role of the academic is rejected as a matter of law.[5] The judiciary has resisted calls to read into law any form of special relationship between academic and university, instead starting from the presumption that there is substantially no difference in the main between faculty and any other employee of any other enterprise.[6] Though the Supreme Court has left open the question of the applicability of the recent Garcetti case,[7] the courts have in the usual course treated internal governance matters and the protection of conduct related thereto as an employment issue. And indeed, Garcetti would substantially constrain the governance role of the faculty, emphasizing that speech protected includes everything but the core of speech at the heart of shared governance (now understood as a part of the service obligations of faculty).[8] As a result, and giving substantial weight to managerial and administrative concerns centered on the smooth running of an organization,[9] this approach has encouraged some in the business of education to treat the role of the university academic as little more than another cog in an education-industrial complex and subject to the same rules of chain of command and production line efficiency as people who are employed in a production line assembling goods for sale.  Yet, the courts have also shown a wiliness to respect the adoption of the vision of the 1915 Statement as a matter of internal university corporate governance and enforce those understandings in contract.[10] For faculties, those mean the need to more aggressively and precisely ensure that the vision of university governance espoused in theory becomes written into the law of university organization and enforceable as such, for example, as in binding job descriptions or terms of employment.[11]  For that purposes, whistleblower statutes are rarely enough both because they tend to be narrowly applicable and are easily contested on the facts.[12] Failure to institutionalize protections for faculty exercising their governance roles makes cultures of impunity and bullying, treated next, easier to sustain and harder to eradicate.

So, what is the “law” of shared governance?  The basics for public universities are straightforward and general enough to be unhelpful. There is no constitutional right to participate in the governance of universities.[13] However, public universities are state actors that are required to comply with restrictions on state action.  These include protections of faculty speech,[14] and protections against deprivations of life, liberty and property without due process, centering on notice and opportunity to be heard. Public universities are also subject to the 14^th Amendment’s “equal protection of the laws” standard, extending protection enlarged by statute, against discrimination. These all provide a foundation for faculty protections generally, but none are focused on the governance obligations of faculty.

Nancy Rapoport makes provides a good start. 

Faculty members are not “employees” of the university in the same sense that other university workers are “employees” . . . .  Faculty members look like employees, to be sure: they get paid by the university; they have certain responsibilities in terms of teaching, research, and service; they have workspace allocated to them by the university.[15]

This draws on the 1915 Statement’s distinction between the professional academic as appointee rather than employee.[16]  The courts have sometimes adopted this distinction in developing legal frameworks for the relationship between academic and university.  But the effect of that adoption have hardly furthered or deepened the structures of shared governance within the university. Indeed, one might suppose that the adoption of this distinction has had the opposite effect.  A principal legal effect of this distinction, when adopted by courts, produced a curious result.   In 1980, the Supreme Court held that faculty members at Yeshiva University were managers not entitled to union representation because they shared governance over the university with administrators.[17]  But the irony is that, to arrive at this conclusion, the Supreme Court essentially defined the notion of “appointee” as generated in the 1915 Statement, as a managerial employee.  The employment relationship remains at the heart of the relationship. Some faculties seek to reduce the managerialism inherent in shared governance when they wish to acquire collective bargaining rights,[18] and administrators seek to emphasize and empty managerialism when they seek to strip faculty of collective bargaining rights.[19]  

As a consequence, shared governance must continue to be understood within the context of the employer-employee relationship as understood in the United States.  The fact that faculty are managerial employees suggests higher status, perhaps some accountability as well,[20] but it also emphasizes the substantial limitation of faculty protections, as employees, against their employer university.  The basis of legal protection for faculty engagement in governance, then, is reduced to the management of the relationship between constitutionally protected speech rights and the authority of an enterprise to manage its operations as it sees fit.[21]  This touches on individual rights to criticize the management of a department, [22] or to intervene in faculty hiring.[23]  It also touches on balancing between the employees paramount duty to perform his or her duties to teach and research against the clearly subsidiary obligation to engage in governance—again reduced, in the legal discourse, to little more than a species of constitutionally protected speech.[24]  Insubordination, though, understood as the refusal to perform her duties, remains actionable, however that is defined by a university.[25]  Courts under this speech-employee obligations balancing standard, however, tend to abstain and leave the university with a wide discretion to discipline.[26]  One at least one expressed the view that like other employees, faculty retain merely a property interest in their salaries.[27] And in any case, the implications of the Garcetti case,[28] have yet to be worked out.

But absent form this is any indication that group speech, beyond the right to bargain collectively, a right nicely constrained by notions of managerialism in the Yeshiva University case, is entitled to any protection.[29]  While an individual faculty member may rely, to the extent she can, on speech rights, a university faculty senate may not![30]  The only recourse, as a collection of individuals, is the slim one of academic freedom.[31]   And, indeed, the 1^st Amendment standard appears to be quite a thin reed on which to support a vigorous protection of shared governance. Consider the Clinger case,[32] in which the Court refused to protect against retaliation a professor on the basis of advocacy before the university faculty senate in favor of a no confidence vote against members of the Board of regents.[33]

It follows that the “law” of shared governance is essentially internal and contractual. A 2008 Report of the Intra-University Relations Committee of the Penn State University Faculty Senate nicely illustrates the point.[34]  The object of the report was the governance rights of contract faculty.  The context for the discussion was university policy, and the conclusion was a dispersion of discretion to unit administrators and faculty with a vague plea for uniformity around vague best practices.[35] The best that came from this project was a request that “the Provost ensure that all deans develop guidelines on fixed-term faculty roles in unit governance, clearly communicate those guidelines to all unit faculty, request that unit leaders follow the guidelines, and lead revision of policies as unit practices evolve.”[36]  In the absence of law, anemic indeed!. “The University’s right as employer to achieve the organization’s goals must prevail.”[37]

---

[1] See, e.g., Pickering v. Board of Education, 391 U.S. 563 (1968).

[2] Judith Areen,  Government as Educator: A New Understanding of First Amendment Protection of Academic Freedom and Governance, 97 GEO.L.J. 994 (2009).

[3] See, e.g., Edwards v. California University of Pennsylvania, 156 F.3d 488 (3rd Cir. 1998), cert. denied, 525 U.S. 1143 (1999).

[4] For an example of the difficulty and post facto nature of protection, see the analysis in de Llano v. Berglund, 282 F.3d 1031 (8th Cir. 2002).

[5] These are touched on in Donna R. Euben, Academic Freedom and Professorial Speech, Presentation to the 25^th Annual Conference on Law and Higher Education, Stetson University College of Law, Feb. 2004, available http://www.aaup.org/AAUP/programs/legal/topics/prof-speech.htm.

[6] See, e.g., Boring v. Buncombe County Board of Educ., 136 F.3d 364 (4th Cir., 1998) (but contrast the strong dissent, id., Motz, J., dissenting, at 375); but note some willingness to concede a governance space based on the traditions of the university related to academic freedom, e.g., Mailloux v. Kiley, 323 F.Supp. 1387 (D.Mass,1971); Johnson v. Lincoln University, 776 F2d 443 (3^rd Cir. 1985) (protection of faculty leading criticism of university president for decision to reduce teaching staff, broadly reading public matter 1^st Amendment protection).  Accord, Bloch v. Temple University, 939 F.Supp. 387 (E.D.Pa. 1996) (complaints about physics lab a matter of public concern. See also Schrier v. University of Colorado, 427 F.3d 1253 (10^th Cir. 2005) (comments by department chair over relocation of a center was a matter of public concern).

[7] Garcetti v. Ceballos, 547 U.S. 410 8(2006) (“Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. See post, at 12–13. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” Id., at --)

[8] See the AAUP’s argument in Sadid v. Idaho State University, Supreme Court of Idaho, Docet No. 37563-2010Amicus brief (Jan. 2011).  Available http://www.aaup.org/NR/rdonlyres/82F85E7D-3EDC-45CC-AF41-716159410D18/0/Sadidamicusbrief.pdf (“Subjecting professors to retaliation for the viewpoints they express in the self-governance process because their participation in institutional governance relates to their professional faculty role would effectively give the university administration a means of regulating viewpoints with no exposure to court review.” Id., 32). For a criticism of the result, see, e.g., William A. Kaplan and Barbara A. Lee, I The Law of Higher Education: A Comprehensive Guide to Legal Implications of Administrative Decision Making 671 (4^th Ed., San Francisco: Jossey-Bass, 2006) (“When a court ends its inquiry because the speech is not a matter of public concern, as strictly conceived in Ayoub, Colburn, and Dorsett, it never considers the vital participatory role professors may play in shared governance systems or the constructive impact that speech about ‘institutional concerns’ may have on institutional operations over the long run.” Id., 672) (citing Dorsett v. Board of Trustees for State Colleges and Universities, 940 F.2d 121 (5^th Cir. 1991) (challenge of departmental decisions and resulting discipline a matter of private not public concern and not protected against action by university);  Ayoub v. Texas A.&M. University, 927 F.2d 834 (5^th Cir. 1991) (concern over salary not protected under 1^st amendment as private speech); Colburn v. Trustees of Indiana University, 973 F.2d 581 (7^th Cir. 1992)(dismissals as a consequence of factional fighting within department deemed private and not protected)).

[9] See, Michael A. Olivas, Opinion Piece:  Garcetti:  More Chilling Than the Unabomber, AAUP, Protect the Faculty Voice Program, available http://www.aaup.org/AAUP/programs/protectvoice/opinions/Olivasop.htm. The majoirty opinion suggested: “Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.” Garcetti, supra, at Section II.

[10] See, e.g., Greene v. Howard University, 412 F.2d 1128 (D.C. Cir. 1969).

[11] This is a point emphasized in Garcetti, supra,  Section III.

[12] For example, the Pennsylvania Whistleblower Law (43 P.S. Sec. 1421 to 28) protects employees against retaliation for good faith (understood as reasonable cause) reporting of waste or wrongdoing, but defines wrongdoing narrowly to include only violation of law designed to protect the public interest and not merely technical or minimal in nature.  They offer less than perfect protection.  See,  Scott James Preston, Whistleblowing in Intercollegiate Athletics, University Business, March 28, 2012, available http://www.universitybusiness.com/article/whistleblowing-intercollegiate-athletics (discussing Glenn Hedden v. Kean University, Case No. L 002278-11 (N.J. Super. Ct., complaint filed June 13, 2011).

[13] Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984).  But of course, the Constitution does not prohibit a university from enshrining those rights within its own internal rules. .

[14] discussed above, notes ----.

[15] Nancy Rapoport, Academic Freedom and Academic Responsibility, 13 Green Bag 2d 189, 192 (2010). And yet, Dean Rapoport also makes the case for faculty disengagement, suggesting a lack of expertise, an unwillingness to contribute appropriately, cronyism at the margins, and an inefficient deliberative pace that makes it impossible to run the business of the university Enterprise appropriately. These are the classic arguments of the “new” administrative model underlined Benjamin Ginsberg, The Fall of the Faculty: The Rise of the All-Administrative University and Why it Matters 38 (New York: Oxford University Press, 2011).   

[16] 1915 Statement, supra, and discussion supra, notes 21-23.

[17] N.L.R.B. v. Yeshiva University, 444 U.S. 672 (1980).

[18] See, e.g., Point Park University v. NLRB, 457 F.3d 42 (D.C. Cir. 2006).

[19] See Sheldon Gelman, Adopting Ohio Senate Bill 5: The Role of Punlic Unibersity Presidents, 75 Alb. L. Rev. 511 (2011-2012).

[20] Steven G. Poskanzer, Higher Education Law: The Faculty 104-05 (Johns Hopkins University Press, 2001) (the author is the president of Carlton College.

[21] Burt see Mabey v. Reagan, 537 F.2d 1036 (9th Cir., 1976) (“A college relies in large measure on faculty self-governance and its contributions to administrative decisions. . . . Although attenuated, an attack on those processes attacks the educational process as well. . . . Open channels of communication are necessary for scholarly research, for teaching, and for the self-governing system” Id., at 1047).

[22] Maples v. Martin, 858 F.2d 1546 (11^th Cir. 1988)   (right to prevent disruptive interference in regular conduct of business trumped right of faculty member to engage critically in that governance)

[23] Harris v. Arizona Board of Regents  (speech disruptive where creative program writing head told faculty candidate that she would not be welcome in the department).).

[24] See, e.g. Hale v. Walsh 747 P.2D 1288 (1987) (department chair union activities and criticism of university finance policies protected speech); Booher v. Board of Regents  (art professor’s stateent to media protected against department censure).

[25] See, e.g., Moosa v. State Personnel Board, 102 Cal.App.4^th 1379 (Ct.App. 3d Dist. 2002) (demotion for failure to provide corrective plan not insubordination); Trimble v. West Virginia Board of Directors, Southern West Virginia Community and Technical College, 549 S.E.2d 294 (Ct.App. W.Va. 2001)(insubordination termination reversed for failure to apply progressive discipline). For Penn State, see, e.g., H.R. 70.  Available http://guru.psu.edu/policies/OHR/hr70.html.

[26] Steven G. Poskanzer, Higher Education Law: The Faculty 116 (Johns Hopkins University Press, 2001)

[27] Huang v. Board of Governors of the University of North Carolina, 902 F.2d 1134 (4th Cir. 1990).; but see Hulen v. Yates, 322 F.3d 1229 (10^th Cir. 2003)(property interest, but based on contract and established practice).  

[28] Garcetti v. Ceballos, 547 U.S. 410 (2006), discussed supra at text and notes --.

[29] Cf. Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984) (no constitutional right of faculty to participate in governance).

[30] The leading case is Searle v. Board of Regents of the University of California, 100 Cal. Rptr. 194 (Cal.Ct.App. 1972) (delegation of authority ot a faculty senate neither exclusive nor irrevocable).

[31] William A. Kaplan and Barbara A. Lee, I The Law of Higher Education: A Comprehensive Guide to Legal Implications of Administrative Decision Making 666 (4^th Ed., San Francisco: Jossey-Bass, 2006)

[32] Clinger v. New Mexico Highlands University Board of Regents, 215 F.3d 1162 (10^th Cir. 2000).

[33] Accord Bunger v. University of Oklahoma Board of Regents, 95 F.3d 987 (10th Cir 1996) (“The First Amendment does not require public universities to subject internal structural arrangements and administrative procedures to public scrutiny and debate.” Id., 992).

[34] Senate Committee on Faculty Affairs, Rights and Responsibilities of Fixed-Term Faculty: Promotion and Governance (Advisory and Consultative) September 9, 2008.  Available  http://www.senate.psu.edu/agenda/2008-2009/Sept0908/appf.pdf.

[35] Ibid. The Report noted:

Members of the Faculty Development Subcommittee of Faculty Affairs asked administrators at both the college and department levels to provide or articulate their policies with regard to the role of fixed-term faculty in unit governance, defined here as participation in college and departmental committees. Allowing for the possibility that practice may deviate from policy, we also asked fixed-term faculty how they understood and felt about their role in governance. To encourage candor we promised to withhold the names of fixed-term faculty respondents. . . . Responses from administrators ranged from attachment of formal policy guidelines, to informal descriptions of practices, to admissions that there really isn’t any unit policy. Responses from fixed-term faculty members included both yes-or-no answers and anecdotes.

Ibid., at 5.

[36] Ibid., 8.

[37] Webb v. Board of Trustees of Ball State University, 167 F.3d 1146 (7th Cir. 1999).  Accord, Feldman v. Ho, 171 F.3d 494 (7th Cir. 1999) (protecting other faculty members from the distractions of an internal dispute overcomes speech rights of faculty member; substantial protection for the right of a university ot choose its faculty; id., at 497).