Academic Administrator and the Law: What Every Dean and Department Chair Needs to Know, The

The Academic Administrator And the Law: What Every Dean and Department Chair Needs to Know

J. Douglas Toma and Richard L. Palm. Washington, D.C.: ASHE-ERIC Higher Education Report, 1999, 165 pp., $24.00

DONNA R. EUBEN

RECENT NEWSPAPER HEADLINES tell the story: "Jury Awards $12.7 Million to a Woman Denied Tenure," reported the New York Times, while the Wall Street Journal announced that "Award in Reverse-Discrimination Case to Further Stir Academic-Hiring Debate." A 1997 survey of colleges and universities found that the legal claims against higher education institutions have grown significantly, particularly among public institutions. Discrimination claims accounted for about one-half of all employment lawsuits on campuses in 1997, up from 25 percent in 1992 and 30 percent in 1995.

The rise of litigation signals the death knell of yesterday's "gentlemen's club," a phrase coined by William Kaplin at the Catholic University's School of Law to describe the unspoken agreement that a professor who suffered an adverse employment decision would simply acquiesce or leave to avoid the label of troublemaker. Michael Olivas at the University of Houston Law Center identifies two reasons for the club's demise. First, professors who are denied promotion or tenure no longer avoid legal action for fear of the troublemaker label, perhaps in part because of the increasing scarcity of tenure-track positions. Second, federal and state civil rights laws, as well as collective bargaining agreements, have changed the power relationships between faculty and administrations in colleges and universities.

As a result, administrations not only use lawyers to scrutinize the legal consequences of decisions, but also expect administrators to think about potential liability in their daily work. The Academic Administrator and the Law: What Every Dean and Department Chair Needs to Know seeks "to provide the background that deans and chairs require to recognize potential legal problemsbefore they arise and as they arise-and the ability needed to ask the appropriate experts on campus the right questions in an attempt to resolve them." The primer attempts to explain the law in "nonlegalese" so that administrators will recognize the legal issues raised in their work, "be active participants in resolving legal issues," and consider and implement preventive legal strategies.

Toma and Palm have a difficult balancing act. They want to provide enough information to administrators to raise the red flag regarding potential legal issues, but not enough to "cause paralysis in taking necessary action" in their daily work. This dual purpose plays itself out as the authors review overarching legal principles, as reflected in their discussion of academic freedom, and provide helpful legal dosand-don'ts checklists, such as permissible and impermissible employment interview questions about marital status, pregnancy, and plans to raise children. The book is generally accessible and user-friendly. It familiarizes administrators with an overview of the sources of law, the roles of university and college counsel, the judicial process, external regulation, student affairs, and basics of employment law for faculty and staff.

There is a cost, of course, to making complex legal and policy issues accessible. The organization of the book-with sections on faculty and staff, on the one hand, and students, on the other-is sometimes problematic. At times the book tends to blur the differences between faculty and staff, and tenured and nontenured professors. For example, the topic of reappointment, tenure, and promotion is applicable only to faculty, not staff, and legal questions triggered for faculty members by issues of due process, for example, can vary with their status as probationary or tenured. At the same time, the book's organization also imposes somewhat artificial distinctions within substantive areas of the law that are not terribly helpful, such as its separate discussions of the Americans with Disabilities Act and affirmative action as applied to faculty and staff and then to students. Yet in these evolving areas of the law, the treatment of students informs and shapes what can happen to professors, and vice versa. For example, if a university provides an interpreter as a reasonable accommodation for a hearing-impaired student, a hearingimpaired faculty member may expect the same accommodation for the same disability. And affirmative action issues in student admissions often reflect and shape affirmative action considerations in the recruitment and promotion of faculty and staff.

The worthy goal of making higher education law accessible to administrators also sidesteps the complexity of decision making in higher education. The concept of shared governance and its effect on legal issues is not discussed. For example, faculty hiring decisions typically involve professors, not just administrators. Toma and Palm's warning that "[t]hose conducting interviews and making hiring decisions must exercise care" will therefore be ineffective unless it is also aimed at faculty. Similarly, both faculty members and administrators play a role in the dismissal of professors and in decisions affecting student admissions and affirmative action.