Law school faculty at Albany Law are entitled to significant employment protections derived from a range of legal sources. Such protections can be found within (a) the terms of an individual employment contract, (b) the rules adopted by the Albany Law School Faculty Handbook (and approved by the Board of Trustees), (c) the Bylaws of Albany Law School, (d) the accreditation standards mandated by the American Bar Association (“ABA”), (e) the articles of membership mandated by the American Association of Law Schools (“AALS”), (f) the principles identified in AAUP Statements and Reports, (g) and state and federal employment law.
The rules that apply to faculty differ according to professional status and title, although all faculty enjoy certain protections relating to academic freedom and notice.
(1) Rules Concerning the Termination of Tenure-Track Faculty
Non-tenured, tenure-track faculty possess important employment protections. The rules contained in the Albany Law School Faculty Handbook provide that tenure-track faculty (whether “doctrinal” or “clinical”) cannot be terminated (absent the formal declaration of a financial exigency) unless:
- The Dean and a majority of the tenured faculty concur that the tenure-track faculty member is not making satisfactory progress towards promotion or tenure; and
- The terminated faculty member is “notified no less than December 1st of the current contract year.”
In terms of appropriate notice for “tenure-track faculty,” the Faculty Handbook provides that a faculty member must be notified prior to December 1st of the current academic year to the extent a contract will not be renewed.
(2) Rules Concerning the Termination of Tenured Faculty
Tenured faculty also possess significant internal and external legal protections against dismissal or changes in status. The Albany Law Faculty Handbook rules concerning tenured faculty allow dismissal only for “adequate cause” (Appendix B, Section III). Adequate cause is defined under the rules as incompetency as to faculty obligations, the non-performance of faculty obligations, professional misconduct rendering the faculty member unfit for association with students, mental or physical incapacity to perform faculty duties, or the financial exigencies of the law school. It should be further noted that the Faculty Handbook expressly incorporates AAUP tenure-track and tenure protections on the first page of the handbook (Faculty Handbook, “Terms of Employment Applicable Only to Faculty” at p. 1 (expressly adopting the definition of academic freedom contained in the AAUP “1940 Statement of Academic Freedom and Tenure (endorsed by the Association of American Law Schools in 1946) and the 1966 Statement of Professional Ethics”)).
Before a tenured faculty member can be dismissed either for adequate cause or financial exigency, the Faculty Handbook rules require the approval of the tenured faculty following the creation of a “dismissal” panel of tenured faculty and Board members. The faculty member subject to dismissal is entitled to sufficient notice, as required under ABA and AALS standards, and has the right to counsel, to present and examine evidence, and to cross-examine witnesses. Violations of academic freedom or tenure rights can be redressed, inter alia, through utilizing (a) the internal procedures set forth in the Albany Law Faculty Handbook, (b) ABA complaint procedures, (c) AALS complaint procedures (see Executive Committee Regulations for the AALS: Chapter 4 (Procedure for Committee on Academic Freedom and Tenure)); and, ultimately, (d) litigation. Possible remedies include reinstatement, backpay and damages, while possible AALS and ABA sanctions against a member school include censure, suspension, or exclusion from the AALS and ABA.
(3) Rules Concerning the Declaration of Financial Exigency
Dismissals of faculty under the guise of financial exigency must comport with general principles of due process and abide by the rules set forth by the Albany Law Faculty Handbook, the ABA, the AAUP, and AALS. Importantly, the Albany Faculty Handbook lists financial exigency as one example of “adequate cause” allowing for the dismissal of faculty members. By linking the concept of “adequate cause” to financial exigency, it is clear that Albany Law’s procedural rules provide that dismissals on the grounds of financial exigency can only occur with sufficient notice upon the approval of the tenured faculty following the creation of a “dismissal” panel of tenured faculty and Board members (see supra Part 2).
The Articles required for AALS membership further provide that the faculty “shall exercise substantial control” over changes in faculty status and the termination of faculty (AALS Article 6: Requirements of Membership, Section 6.5 (“Law School Governance”)). The AALS defines “substantial control” as requiring reasonable faculty notice and approval of terminations. To those ends, the AALS rules provide that member schools must provide the following procedures to faculty before terminations or changes in status:
- “The faculty…, assembled in a meeting of which suitable notice has been given, makes the initial choice with respect to faculty appointments or changes in faculty status for submission through any intermediate approving authorities to the final appointing authority;
- Except in rare cases and for compelling reasons, no decanal, or faculty appointment or change in status is made over the expressed opposition of the faculty (acting as a whole or by a representative portion determined by reasonable criteria).”
The 1940 Statement on Academic Freedom and Tenure by AAUP, expressly incorporated by both the Albany Law Faculty Handbook rules and AALS membership rules (and referenced by ABA accreditation standards), further provides that “termination of a continuous appointment because of financial exigency should be demonstrably bona fide.” AAUP describes the procedural safeguards available to faculty in the context of financial exigency as follows:
“There should be early, careful, and meaningful faculty involvement in decisions relating to the reduction of instructional and research programs. The financial conditions that bear on such decisions should not be allowed to obscure the fact that instruction and research constitute the essential reasons for the existence of the university. Given a decision to reduce the overall academic program, it should then become the primary responsibility of the faculty to determine where within the program reductions should be made. Before any such determination becomes final, those whose life’s work stands to be adversely affected should have the right to be heard.
Among the various considerations, difficult and often competing, that have to be taken into account in deciding upon particular reductions, the retention of a viable academic program should necessarily come first. Particular reductions should follow considered advice from the concerned departments, or other units of academic concentration, on the short-term and long-term viability of reduced programs.
As particular reductions are considered, rights under academic tenure should be protected. The services of a tenured professor should not be terminated in favor of retaining someone without tenure who may at a particular moment seem to be more productive. Tenured faculty members should be given every opportunity, in accordance with Regulation 4c of the Association’s Recommended Institutional Regulations on Academic Freedom and Tenure, to readapt within a department or elsewhere within the institution; institutional resources should be made available for assistance in readaptation.
In some cases, an arrangement for the early retirement of a tenured faculty member, by investing appropriate additional institutional funds into the individual’s retirement income (ordinarily feasible only when social-security benefits begin), may prove to be desirable if the faculty member is agreeable to it. In those cases where there is no realistic choice other than to terminate the services of a tenured faculty member, the granting of at least a year of notice should be given high financial priority.
The granting of adequate notice to nontenured faculty should also be given high financial priority. The nonreappointment of nontenured faculty, when dictated by financial exigency, should be a consideration independent of the procedural standards outlined in Regulation 4c, with one exception: when the need to make reductions has demonstrably emerged after the appropriate date by which notice should be given, financial compensation to the degree of lateness of notice should be awarded when reappointment is not feasible.
A change from full-time to part-time service, on grounds of financial exigency, may occasionally be a feature of an acceptable settlement, but in and of itself such a change should not be regarded as an alternative to the protections set forth in Regulation 4c or as a substitute for adequate notice.” AAUP Operating Guidelines: http://www.aaup.org/report/institutional-problems-resulting-financial-exigency-some-operating-guidelines. See also AAUP Report on Financial Exigency: http://www.aaup.org/report/role-faculty-conditions-financial-exigency.