from Inquiry, Volume 6, Number 1, Spring 2001
© Copyright 2001 Virginia Community College System
Return to Volume 6, Number 1
Naquin outlines the legal issues surrounding due process for part-time instructors in higher education.
"Any serious student of higher education who has missed the blip on his or her radar screen of part-time faculty as an issue of serious proportions needs to develop and use another warning system." ( Brewster, 2000, p.66.)
Statement of the Problem
A growing trend at most institutions of higher education is the increasing reliance on part-time instructors. Proponents of this strategy cite cost savings and flexibility as two of the main reasons colleges have increased their numbers of part-time instructors. According to the Chronicle of Higher Education (2000), 421,094 people worked as part-time faculty members in 1997, with over half that number employed by four-year institutions. Furthermore, if federal and state funding continue to decrease while student numbers continue to increase, this trend gives no indication of slowing down.
According to Nelson (1999, p. 30), "In the course of one generation, the percentage of teaching done by part-timers has doubled. Nearly two-thirds of all undergraduate teaching is done by part-time or adjunct faculty and graduate students." As a result of this trend, the American Association of State Colleges and Universities cautions that "because of its potential to adversely affect institutions, the extensive use of part-time faculty should be carefully re-examined as part of a larger re-examination of appropriate faculty mix" (p. 24).
Biles and Tuckman (1986, p.1) define part-time faculty members as "those who teach less than a full-time load." They add that part-time policies are often based on those policies that existed in the past, an era of fewer part-time instructors. For this reason, the potential for problems exists, and administrators should ensure that their current adjunct policies address today’s concerns.
Various national groups have spoken out against institutional policies that allow hiring such large numbers of adjunct instructors. In 1996, the Modern Language Association (MLA) voted down a resolution to penalize institutions that hire part-time professors because the resolution would have penalized the significant number of part-time instructors that want to be part-time (Wilson, 1997). Yet the MLA revisited the part-time issue in its meeting with leaders of the American Historical Association and the American Association of University Professors and called for more groups to get involved, including regional accrediting bodies (Leatherman, 1997).
In addition to forming adjunct policies, administrators must also weave the threads of quality, cost, and flexibility as they create their instructional programs. While few would argue that utilizing adjunct faculty provides program flexibility at a relatively low cost, many educators wonder if the quality of instruction between full- and part-time faculty differs. In an attempt to answer this question, Friedlander (1980) found that the instruction-related practices of adjunct and full-time faculty differed, but whether the less reading and writing adjuncts assign, for example, results in an inferior education remains to be proven. In contrast, Wiles (1998) claims that Northern Virginia Community College’s (NVCC’s) experience shows that part-time faculty receive student evaluations indicating they are as effective in the classroom as their full-time counterparts.
On the other hand, if viewed from the perspective of the part-time instructor, current adjunct policies at many institutions have created a climate ripe for revolt. Adjuncts make an average of $1500 per three-credit course, and they usually get no benefits or job security. Furthermore, many institutions make little attempt to integrate part-time instructors into the culture of the institution. As a result, adjuncts often feel little loyalty toward the institution and an increasing sense of frustration over their situation. Clearly, the complexity of this issue demands that we no longer view the hiring of adjuncts as a "casual departmental affair" (Gappa, 1984, p. iv).
According to Brewster (2000, p. 68), the "part-time faculty is beginning to gain a voice" itself. He adds that the literature increasingly discusses the "potential problems associated with this class of employee." Therefore, a wise administration should realize that trouble might be on the horizon in terms of adjunct policies. In fact, with teaching assistants at various colleges recently granted the right to collective bargaining, the climate of the times seems to favor similar rights being granted to part-time instructors as well.
In particular, a recent historic decision of the regional director of the National Labor Relations Board stated that graduate teaching assistants (TA’s) and certain research assistants at New York University (NYU) are free to unionize. Previously, TA’s employed at private colleges and universities were considered student apprentices (non-employees) and therefore ineligible for collective bargaining rights (Leatherman, 2000).
However, officials at NYU are concerned that bargaining with the TA’s could infringe upon the full-time faculty’s academic freedom, as the full-time faculty would no longer feel free to decide who teaches what, when they may teach, and how they may teach (Leatherman, 2000). Because groups at other higher education institutions may cite this ruling as precedent, the possibility of granting other rights to part-time employees certainly looks more favorable.
As further evidence of the increasing bargaining power of part-time employees, on March 13, 2000, part-time instructors at Roosevelt University voted to unionize in an attempt to achieve yearly contracts, remuneration for cancelled courses, and a more equitable system of deciding who teaches what. An increase in the average salary to $2000 per course plus the offer of benefits like health insurance will also be put on the bargaining table (Schneider, 2000b).
Other part-time instructors have also recently exercised their right to collective bargaining. For example, in February 1998, part-time instructors at Columbia College voted to unionize, citing fair compensation as their motivator. These faculty members are looking for "higher wages, health benefits, some job security and more voice in governing the college" (Leatherman, 1998).
Without such legal protection, part-time employees are very vulnerable. Nelson (1999, p. 30) describes them as the "new migrant worker of the education industry." Contrary to the academic freedom full-time faculty possess, Nelson believes that part-time faculty members have "very little intellectual independence." Some can be fired without notice; others have little academic freedom and little time to stay current in their fields. In the end, he feels that the "quality of education at many schools has declined, and the intellectual independence and integrity of the faculty have been seriously undermined" (Nelson, 1999, p. 31).
Wiles (1998, p. 90) concurs, stating that most "part-time faculty are marginalized. They have no voice in curricular development, in textbook selection, in the work of their respective divisions, or generally, in the governance of the institution. The resulting credentials without credibility, responsibility without authority, and expectations without rewards means that part-time faculty are asked to serve with loyalty and dedication without enjoying reciprocal trust and professional respect from their institutions."
This paper will examine the legal issues surrounding due process for part-time instructors in higher education. Given the current trend of employing increasingly larger numbers of part-time instructors and the climate of the time that seems to favor increasing the rights of part-time employees, such an examination should lend the legal insight crucial for solving this dilemma.
The due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution ensure that individuals are not deprived of the basic rights of life, liberty and property in an unfair and arbitrary manner. These rights include:
·The right to be heard with respect to economic and professional interests in a meaningful and effective way.
·The right to petition for redress of economic and professional grievances in a meaningful and effective way.
·The right to bargain individually or collectively with one’s employer with respect to the terms and conditions of employment.
·The right to associate together through a chosen representative for the purpose of negotiating with an institution with respect to economic and professional interests on an equal basis.
·The right to confront one’s accuser, to have an impartial and fair hearing, and to have the right of an appeal to an impartial adjudicator (Biles and Tuckman, 1986, pp.101-102).
Due process litigation has resulted from issues of dismissal, nonrenewal, and a desire for access to the tenure track by the part-time faculty while compensation issues have resulted in equal protection litigation. The Supreme Court’s Roth and Perry decisions (both in 1972) provided most of the controlling precedent for due process decisions. In these cases, the Court ruled that a college employee must show "a property right or legitimate claim of entitlement to continued employment" before he can be afforded due process in the nonrenewal of his employment. The Court also added, however, that the property right need not have been "explicitly granted by the college, but may accrue as a matter of law, policy, common practice and acquiescence" (Leslie, Kellams & Gunne, 1982, p. 48).
Historically, part-timers have found it very difficult to establish a property right of entitlement to continued employment because of three factors. First, the explicit and statutory language most institutions use in their contracts and faculty handbooks clearly establishes adjunct instructors as separate from and less privileged than full-time instructors. Hence, this absence of property right is most often accomplished by institutional policy rather than statute or regulation as is the case in the State University of New York and the community college system of California. Nationally, at least 85% of all part-time faculty are ineligible for tenure (Leslie, Kellams & Gunne, 1982).
The second factor contributing to part-timers’ exclusion from job security is their waiver of such a right. Often these waivers are written into the employment contracts of part-time instructors, or they may be a part of the collective bargaining agreement. At other times the behavior of the part-time instructor results in a waiver of such rights. For example, in Coffey (1977), the part-time instructor resigned because of alleged inequitable treatment and then obtained part-time employment elsewhere. The California courts ruled that "her voluntary resignation (followed by a new part-time job elsewhere) essentially cost her the right to claim continuity and the security rights she might have won" (Leslie, Kellams & Gunne, 1982, p. 49).
Finally, adjunct faculty can be placed in a category unprotected by due process of the law because of the functional differences in their job descriptions or job requirements, which create doubt about their inclusion in the tenure regulations of full-time employees. This was the case in the Board of Trustees v. Sherman, (1977) and Pryles v. State of New York, (1975). In these cases, the courts ruled against the part-time faculty members because of their lack of functional similarities with full-time faculty members in terms of jobs, rights, and obligations (Leslie, Kellams & Gunne, 1982).
On the other hand, in other cases the courts have recognized part-time faculty members’ due process rights. This was seen most recently in Washington State, where part-time community college instructors won the right to have the work they do outside the classroom counted toward their retirement benefits. In this instance, a Washington state court ruled that state institutions must count the hours adjunct faculty member spend preparing for class, advising students, and grading papers when determining the faculty members’ retirement benefits eligibility. Part-time instructors won the right to have the same non-contact hours that full-time faculty receive calculated into the number of hours they work, thereby making them eligible for benefits (Schneider, 2000a).
The Washington court based its ruling on a 1996 State Department of Retirement Systems regulation requiring community colleges to determine eligibility for benefits based on the number of hours a part-timer spends working both outside and inside the classroom. The plaintiffs asked for retroactive payments to 1977. Keith Hoeller, the cofounder of the Part-time Faculty Association said, "This ruling takes one of the support structures away from the system of faculty apartheidćthe two-tiered system where the minority full-time faculty dominate over the majority part-time faculty. Hopefully, this ruling will bring that system down." This ruling is significant because it has set a precedent for adjuncts to receive other benefits they have previously been denied (Schneider, 2000a).
In addition to mandating benefits for part-timers, the law may also protect their job security. For example, in Perry v. Sinderman (1972), the Supreme Court established that a series of short-term contracts might, under certain conditions, establish a legitimate expectation of reemployment. Sinderman, who had taught for ten years at a Texas junior college, was awarded de facto tenure because of his long service and because the college expressed "the spirit of tenure" in its policies. However, the Supreme Court held that proof of such property right only obligated college officials to grant the plaintiff a due process hearing where the plaintiff could be informed of the reasons for his dismissal and be allowed to challenge these grounds. Sinderman was not entitled to re-instatement (Gappa, 1984).
In another tenure issue for part-time instructors, California statutory provisions allow part-time instructors who teach at least 60% of a full-time load for two semesters in a three-year period to be eligible for tenure. One school district, however, tried to avoid granting adjunct instructors tenure by yearly issuing them blanket dismissals and then rehiring the faculty the following semester. In Balen (1974), the court ruled that although the Peralta Junior College District routinely dismissed all part-time faculty members at the end of each year, it also routinely re-hired them at the beginning of the next academic year. Thus, the District had created an expectancy of reemployment, which gave part-time instructors of this district job continuity that made them eligible for tenure (see Leslie, Kellams & Gunne, 1982; Albert & Watson, 1980; Gappa, 1984).
The next landmark decision, Connecticut v. State Board of Labor Relations (1977), created status and due process rights for part-time instructors who teach more than seven and a half hours per week. One such protection was the right to belong to a collective bargaining unit (Eliason, 1980).
According to Leslie, Kellams & Gunne (1982, p. 51), "Part-timers can establish vested rights to job security and due process; they are not necessarily casual employees who have no rights." They advise institutions of higher education to be sure that policies clearly delineate those faculty members who are eligible for job security and benefits and those who are not. This can be done via state laws, administrative regulations, or institutional policies.
What happens, however, when a state allows each institution to set its own individual adjunct policy, and an adjunct is employed at more than one state institution?
In 1998 the Virginia General Assembly directed the State Council of Higher Education in Virginia (SCHEV) to "study policies regarding the use of adjunct faculty at Virginia’s public colleges and universities" (SCHEV, p. 1). In particular, the Assembly wanted to determine if part-time instructors who taught at two or more state institutions and carried a full-time course load should be eligible for the salary and benefits of full-time faculty members.
The Council’s investigation concluded that no state or institutional policies exist regarding adjunct faculty employed at more than one state institution. Despite the potentially litigious situation this creates, the Council’s report ends with a weak recommendation to "pursue with the institutions the possibility of collecting information from adjunct faculty about employment at other state and/or private institutions to allow analysis of ‘full-time’ workload" (SCHEV, 1998, p.6). Seemingly to excuse itself from the need for a stronger response, the Council cites anecdotal evidence that suggests that less than 5% of the state’s adjuncts might be teaching a full-time load without appropriate benefits (SCHEV, 1998).
SCHEV’s report illuminated Virginia’s lack of a systemic response to the employment of adjunct faculty, which could potentially lead to the exploitation of these part-time instructors. For example, unlike the controls on average faculty salaries SCHEV provides for full-time faculty, state institutions of higher education have no state guidelines for adjunct faculty compensation (SCHEV, 1998). Although the absence of a state policy allows an institution complete authority and flexibility in terms of allocating its state appropriations, the lack of any state guidelines could lead to institutional exploitation of adjunct faculty members with reference to their compensation.
Furthermore, although state funds pay the salaries of adjunct instructors, Virginia does not collect data on its adjunct faculty members centrally. This has led to a lack of understanding of adjunct issues at the state level, including an inability to reach a state consensus as to the definition of an "adjunct" (SCHEV, 1998).
In summary, in the event of a grievance from a part-time instructor, Biles and Tuckman (1986) recommend that a specific timetable be applied to the faculty grievance procedure so that complaints can be handled in a more judicious manner and to ensure due process for part-time faculty is accorded. In this way, part-time faculty can obtain a timely response to their grievance. Biles and Tuckman (1986) also caution institutions to ensure that all institutional documents (e.g. faculty contracts and handbooks) give no expectations for reappointment or permanency of employment because these statements could weaken the institution’s right to terminate at will and become the cause of potential litigation.
What can higher education do about the complex problem of the employment of part-time faculty? The American Association of State Colleges and Universities (AAUP) recommends that part-time faculty should be compensated on the same basis as equivalent full-time faculty. Also, it recommends that faculty development opportunities, including advancement and rewards, should be made available to part-time faculty because investing in part-time faculty is just as important as investing in full-time faculty.
According to the AAUP, present institutional practices fail to reflect the value of part-time faculty appointments. It recommends that institutions adopt the guidelines issued by the "Conference on the Growing Use of Part-time and Adjunct Faculty" held in 1997 and sponsored by ten professional organizations of higher education. As they attempt to improve working conditions for part-time instructors, institutions should offer the following to part-time faculty members:
·standard student evaluations and classroom visitation by evaluators;
·compensation that accounts for responsibilities additional to meeting classes;
·compensation that is equitable within the institution, including the consideration of market and disciplinary differences as well as salary structure across the institution;
·group health insurance offered at either a subsidized rate or at the expense of the faculty member.
If measures are not taken to improve the lot of the adjunct instructor, Brewster (2000, p. 66) posits that part-time instructors could develop a lack of loyalty to the institution as a result of the lack of loyalty they perceive from the institution itself. These faculty members will then only appear on campus at times when they are compensated, and they will have a tendency to be transient. To alleviate these difficulties, he recommends that part-time faculty members be included in the decision-making process at the institution and that their professional development be supported both at the campus and system level.
Wherever possible, granting part-time faculty members partial benefits and full recognition for the work they do could defuse the potential litigious situation created when members of this group feel they cannot rely on collegiality to protect them. Given that their numbers often match or exceed those of the full-time faculty, their perspective should be welcomed in reference to the governance of the institution, and they should have a voice on faculty senates. In the same respect, offering part-time faculty members opportunities for professional development would improve their self-esteem and benefit the institution in the long run.
For instance, in February 2000, Northern Virginia Community College (NVCC) took one small step toward improving the working conditions of its part-time faculty when it offered its adjuncts who have taught more than one semester at NVCC the opportunity to participate in a group health plan. Although the employee would have to pay all costs, the group plan is allegedly more inclusive than that which would be available individually. The college should continue to look for ways to improve the quality of life for its adjuncts.
Because this situation has taken many years to reach its current crisis potential, educators cannot hope to resolve it instantaneously. However, as part of its strategic plan, each institution should address how it intends to resolve the dilemma of part-time instructors. In this way, the trend will be reversed and the powder keg will be defused. We cannot allow these part-time professionals to be treated with benign neglect any longer.
Albert, L.S. & R.J. Watson. 1980. "Mainstreaming Part-Time Faculty: Issue Or Imperative?" In Using Part-time Faculty Effectively, New Directions for Community Colleges VIII (2): 73-84.
American Association of State Colleges and Universities. 1999. Facing Change: Building the Faculty of the Future. Washington, DC: American Association of State Colleges and Universities.
Biles, G.E. & H.P. Tuckman. 1986. Part-time Faculty Personnel Management Policies. New York: American Council on Education, Macmillan Publishing Company.
Brewster, D. Spring, 2000. "The Use Of Part-Time Faculty In The Community College." Inquiry: The Journal of the Virginia Community Colleges 5 (1): 76.
"Trends in Faculty Employment." 1999. Chronicle of Higher Education Almanac. Online Edition.
Eliason, N. C. 1980. "Part-Time Faculty: A National Perspective." In Using Part-time Faculty Effectively, New Directions for Community Colleges VIII (2): 1-12.
Friedlander, J. 1980. "Instructional Practices Of Part-Time Faculty." In Using Part-time Faculty Effectively, New Directions for Community Colleges VIII (2): 27-36.
Gappa, J.M. 1984. Part-Time Faculty: Higher Education At A Crossroads. ASHE-ERIC Higher Education Research Report No. 3, Washington, D.C.: Association for the Study of Higher Education.
Leatherman, C. October 10, 1997. "Growing Use of Part-Time Professors Prompts Debate and Calls For Action." The Chronicle of Higher Education, online edition.
Leatherman, C. February 13, 2000. "Part-timers Unionize at Columbia College." The Chronicle of Higher Education, online edition.
Leatherman, C. April 4, 2000. "NLRB Official Says NYU Teaching Assistants Are Employees and May Unionize." The Chronicle of Higher Education, online edition.
Leslie, D.W., Kellams, S.E., and G.M. Gunne. 1982. Part-time Faculty in American Higher Education. New York: Praeger Publishers.
Nelson, C. 1999. "Our Campuses Are in Crisis." Nation Forum 79 (1): 30-31.
Rouche, J.E., Roueche, S.D., and M.D. Milliron. 1995. Strangers in Their Own Land: Part-time Faculty in American Community Colleges. Washington, DC: The Community College Press.
Schneider, A. February 7, 2000a. "In Washington State, Part-Timers Win a Battle Over The Calculation of Pensions." The Chronicle of Higher Education, online edition.
Schneider, A. March 15, 2000b. "Part-Timers at Roosevelt University Vote to Unionize." The Chronicle of Higher Education, online edition.
State Council of Higher Education for Virginia. November 17, 1998. Study of Policies Regarding the Use of Adjunct Faculty. Available: http://www.schev.edu.
Wiles, B. 1998. "Adjunct Faculty In The Community College: Realities And Challenges." New Directions for Higher Education 26 (4): 89-93.
Wilson, R. January 10, 1997. "Special Meeting Planned to Discuss Part-Time Professors." The Chronicle of Higher Education, A12.
Debbie Naquin is an Assistant Professor of English and reading at the Loudoun Campus of Northern Virginia Community College. She is also a doctoral candidate in Higher Education Administration at George Washington University.