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Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.

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AAUP Annual Conference Call for Proposals

The American Association of University Professors (AAUP) has issued the call for proposals for its 2016 annual conference, which will be held in June in Washington, D.C. Information about the call for proposals is available here.


"Flipping" The Tenure Debate

Tenure-stream faculty increasingly account for a smaller slice of the professoriate pie, with part-time adjuncts now comprising a new “faculty majority.” Increasingly, our current system for faculty appointments (i.e., over reliance on contingent faculty labor) is broken and often at odds with ostensible institutional values, such as maximizing efforts related to student success and to promoting goals of equality and fairness.

Many debates related to faculty and tenure center on discussions of why higher education can no longer afford tenure or that tenure really only protects unproductive and recalcitrant faculty. At times, you will hear opponents of tenure say something like, “Good faculty actually don’t need tenure.” When I hear or read a statement along such lines, I wonder how protected part-time, adjunct faculty feel in regard to their professional autonomy and job security. Do they believe that current appointment systems and practices protect them adequately in their professional autonomy and independence? But, wait, I’m getting off track from the topic I wanted to raise. . .

Adopting a term often used in discussions over teaching, perhaps it’s time to “flip” the tenure question in higher education. Instead of focusing on “why” tenure for faculty, let’s instead have a discussion over “why not” expand professional autonomy safeguards, including speech protections, to non-tenure-stream and to non-faculty professionals in colleges and universities. Flipping the tenure debate in this way might help us to question the wisdom of the current management trends in higher education of consolidating authority and control into a smaller and smaller cadre of campus decision-makers and where concepts such as shared governance become something of an inside joke.

Rather than conceptions based on family, community, or citizenship, colleges and universities increasingly seem reliant on the language of customer (i.e., students) and employee (faculty and staff) to describe what it is we do and how we (should) operate. Flipping the tenure debate could help us question whether we have become too reliant on hierarchical administrative models and, by extension, senior managerial authority, as opposed to reliance on professional knowledge and expertise. With such an inquiry, we might find that, rather than the specter of tenure, a greater risk to the long-term vitality of higher education comes from the outsized role that managerial authority increasingly has come to play at many colleges and universities.

Beyond faculty roles, colleges and universities could examine whether non-faculty professionals, especially those working in front-line positions with students in such areas as student affairs and academic advising, possess sufficient professional independence to voice their views and opinions in discussions and debates over institutional policies and practices [and this would include being able to offer views contrary to tenured faculty]. I wonder how many campuses conduct anonymous surveys over the issue of whether both faculty and staff feel they are empowered to openly offer opinions and critiques of senior administrative decisions? Importantly, I’m not just talking about freedom based on the largesse of particular administrators. What policies and standards are in place to safeguard professional autonomy and independence, including the ability of those in staff and non-tenure-line faculty positions to voice their views and opinions? If basic professional autonomy protections and safeguards don’t exist at your institution, then ask “why not” and flip the tenure debate.

A re-conceptualization of the professional autonomy issue in higher education away from a singular focus on tenure could yield interesting realizations. Stakeholders serious about student and overall institutional success might conclude that, rather than less professional independence, more professional autonomy, including in the form of speech protections, is needed in higher education, including for non-faculty, to meet the serious challenges faced by colleges and universities. If one really wants to “shake up” or “disrupt” higher education, then why not consider the benefits of enhancing professional autonomy at institutions, both for non-tenure-stream faculty and those in non-faculty roles.

By expanding considerations of professional autonomy in higher education, tenure might be afforded the opportunity to be considered in a new light. If not debated in isolation, rather than a problem to be eliminated, tenure might potentially be viewed alongside a re-fashioned continuum of levels of professional autonomy and independence needed for professionals in colleges and universities to do their jobs effectively and to independently voice their views, both in faculty and non-faculty roles.

Along a re-imagined professional autonomy continuum, differences could still exist among and within institutions for appointment types, both for those in faculty and non-faculty roles. For example, just as it has been suggested for non-tenure-track faculty, multi-year contracts (as opposed to at-will employment arrangements) in which annual review and re-appointment procedures provide some degree of protection against arbitrary dismissals could be implemented for those in non-faculty positions. Standards could be developed to permit professional staff to progress to such contracts following a probationary period, which could even eventually include progression to tenure or an equivalent status for certain types of professional positions.

Amidst the seemingly continual stream of rhetoric against tenure, higher education institutions and policymakers should reflect carefully before jumping too quickly on the “let’s get rid of tenure bandwagon.” Despite its flaws, a strength of the U.S. higher education system stems from the fact that, along with a smaller group of exceptional institutions, we have a number of very good institutions. We should think carefully before dismantling attributes of the system that contributed to this overall success—such as the protection of faculty autonomy through tenure—even while addressing its problems.

Empowering more professionals at institutions, including in non-faculty roles and those in non-tenure-stream faculty positions, could help to spark the kind of creativity needed to address the multi-faceted challenges facing higher education. I’m not sure that increasing over reliance on managerial authority will put us in a position to innovate and to creatively address such issues. Rather than a problem to be eliminated, appointment structures like tenure that protect professional autonomy and independence could be re-imagined as part of the solution to meeting the challenges that face colleges and universities. At the least, “flipping” the tenure debate is a conversation worth having.


Stetson's Annual Conference on Law and Higher Education

The Center for Excellence in Higher Education Law and Policy is finalizing the schedule for Stetson’s 37th Annual National Conference on Law and Higher Education, which will be held from February 11–15, 2016.

Visit for registration information.


O'Bannon Case Update

The NCAA’s legal battle with Ed O’Bannon saw a momentum-changing play at the U.S. Court of Appeals for the Ninth Circuit yesterday. In a split decision, a three-judge panel issued its opinion in the Ed O’Bannon case. The panel partially affirmed the U.S. District Court for the Northern District of California's ruling, briefed by Joy Blanchard below, that the NCAA violated antitrust laws by prohibiting student-athlete compensation for the use of their names, images, and likenesses. However, the panel also vacated a crucial element of the district court’s judgment that would have required the NCAA to permit member schools to compensate student-athletes up to $5,000 annually, above student–athletes’ full cost of attendance, for the use of their names, images and likenesses.

The appellate panel unanimously agreed with Senior Judge Wilken’s district court holding that NCAA rules violate federal antitrust laws: “The NCAA is not above the antitrust laws, and courts cannot and must not shy away from requiring the NCAA to play by the Sherman Act's rules. In this case, the NCAA's rules have been more restrictive than necessary to maintain its tradition of amateurism in support of the college sports market. The Rule of Reason requires that the NCAA permit its schools to provide up to cost of attendance to their student athletes. It does not require more.”

However, the panel was divided on the issue of deferred compensation. Judge Bybee, writing for the 2-judge majority, found that “[t]he difference between offering student-athletes education-related compensation and offering them cash sums untethered to educational expenses is not minor; it is a quantum leap. Once that line is crossed, we see no basis for returning to a rule of amateurism and no defined stopping point.” However, in his dissent, Chief Judge Thomas interpreted the standard of review differently from the majority to conclude that the district court’s $5,000 deferred compensation judgment was not clearly erroneous: “I cannot agree with the majority that the district court clearly erred when it determined that paying student-athletes up to $5,000 per year would be ‘virtually as effective’ at preserving the pro-competitive benefits of the current rule.”

How this barn-burner resolves, and what is in store for the NCAA—which is defendant in a separate proposed class-action suit that scheduled for a class certification hearing in Senior Judge Wilken’s district court today—is anyone’s guess. Given the high stakes of this case, it is not inconceivable that the Ninth Circuit, en banc, would hear this case again, or even that this case could finally reach the buzzer on the floor of the Supreme Court. Stay tuned, because the Ninth Circuit’s panel decision yesterday may only be half time.


One step forward, one step back: Appeals court rules on O'Bannon suit

On Wednesday, the 9th Circuit issued a ruling in O'Bannon v. NCAA upholding a previous decision finding that NCAA restrictions capping student-athlete scholarships violated antitrust law. However, two of the three judges on the appellate panel agreed that the district court's ruling that FBS football and men's basketball programs should set aside $5000 per year per student-athlete in deferred compensation would irrevocably alter the nature of amateur collegiate athletics.

The O'Bannon case began in 2009, filed by former UCLA basketball standout Ed O'Bannon. He challenged the NCAA's provision that all student-athletes must surrender rights to their likeness and image in perpetuity. O'Bannon, who played for the Bruins in the mid-1990s, was prominently featured in a videogame the NCAA produced in coordination with EA Sports yet received no compensation for the use of his likeness. That class action lawsuit went to trial, and in 2014 U.S. District Judge Claudia Wilken agreed that NCAA rules prohibiting student-athletes from receiving compensation beyond tuition, room and board, and books violated antitrust law. (At the time, athletic scholarships fell on average $3,000 short of what woud be covered under the federal definition for full cost of attendance.)

Like Judge Wilken, the 9th Circuit panel utilized the "Rule of Reason" in its analysis. In those cases, plaintiffs must first demonstrate an illegal restraint of trade exists. Then the defendants are allowed to argue that such regulations provide procompetitive benefits. Finally, in order to prevail, the plaintiff must show that the procompetitive benefits can be achieved in a less restrictive manner. The court in this case identified two markets: the college education market for student-athletes and the group licensing market. The latter was further divided into live game telecasts, rebroadcasts and archival footage, and sports video games. Only NCAA provisions regarding the latter, sports video games, were declared by the courts as a viable one in which the student-athletes could flourish absent of their affiliation with the member institutions and athletic programs.

One of the judges on the appellate panel, Sidney R. Thomas, dissented in part, finding that the provision to allow funds be set aside in trust for student-athletes to access at the conclusion of their eligibility would not serve to hamper consumer interest in collegiate athletics. This is interesting to note, as later this week Judge Thomas will be hearing another similar case in which Martin Jenkins, a former football player at Clemson University, is seeking to certify a class to expand free market rights for student-athletes and establish a true system of "pay for play."

As CJ Ryan noted in his commentary, the struggle between student-athletes and the NCAA more likely than not is not over. I would predict, if not through O'Bannon, a similar case will eventually head to the U.S. Supreme Court. Could we have another "game-changer" like the Regents case of 1984? Stay tuned.