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Published by: dsaitta on Jun 07, 2012
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American Association of University ProfessorsColorado ConferenceStatement of Position on Non-Tenure Track Teaching FacultyJune 2012
In April 2012, Governor John Hickenlooper signed House Bill 1144 authorizing enforceablecontracts between non-tenure track teaching faculty (NTTF) and Colorado institutions of highereducation. The previous law provided that such employees were employed “at will” and could beterminated at any time for any reason except an illegal one. The legislative modificationauthorizes NTTF to be given teaching contracts for a period of up to three years. As a result of this change, Colorado AAUP urges administrators to clarify the classification of classroomteachers at an institution, to develop due process guidelines for employees hired under fixed termagreements, and to establish a standard for the ethical treatment of contingent workers. Thisdocument describes the CO-AAUP’s position on NTTF employment.
Contractual Relationships Are Not Tenure
Prior to the clarifying language in HB 1144, contracts for the NTTF were illusory documents.Individuals might be given assurances about the length of their contracts, the renewal of anappointment, the title of the position, and other terms and conditions of work. Such agreementswere not enforceable, and any individual who was terminated or not renewed had no recourse toproceed on a contract claim. Any protections that were available fell outside the scope of thepurported contract. As a result, administrators could make promises covering various dimensionsof the job, and all promises were meaningless. HB 1144 changes the legal environment forcontract employees in the state’s higher education system.As a practical matter, there are only two meaningful categories of teachers at the state’s collegesand universities: the “regular” appointments who are either progressing toward an award of tenure or who have been granted tenure, and any other teaching employee. Tenure is a statusattained through suitable teaching, research, and service activities as defined in various policymanuals and departmental codes. The status and rights of tenure track faculty are typically setforth in some detail, including how tenure is awarded and what procedures will be followed toterminate a tenured faculty member. Those rights definitively categorize one kind of employee.All other teachers are non-tenure track employees, regardless of whatever nomenclature might beattached to their appointments. Tenure track faculty have job titles and specified procedures foracquiring tenure and indefinite, long-term employment, but non-tenure track faculty do not.Instead, their rights and protections are embodied in the terms of their contracts. AAUP takes theposition that NTTF teachers need contractual guarantees of due process with regard to theircontinued employment. To provide meaningful guarantees and protections, administrators needto promulgate uniform guidelines covering the process of creating and terminating agreementsbetween NTTFs and the institution.
Contract Provisions
The import of HB 1144 is to protect contractual commitments for a term of up to three years. Astestimony at the House hearing makes clear, the bill does nothing to mandate the conditions of agreement but leaves all relevant terms to the parties. Accordingly, compensation, performancestandards, and any other matters are covered by the agreement, and agreements can be negotiatedat the departmental or college level at the discretion of the unit. That process includes the precisetitle of the position. For example, if any NTTF currently holds a classification such as “lecturer”or “senior instructor,” such designation can be included in the contract, and the employee’sappointment as an at will employee can be changed to a three-year agreement or less. Thatmodification protects the NTTF by transforming an illusory contract to a binding commitment onboth sides. All other conditions of employment, including health insurance, pensions, sick leave,and any additional terms, are subject to departmental or college determination.One of the most problematic issues in NTTF employment is contract termination or non-renewal.On the one hand, NTTF are distinguished from regular faculty by a lack of job security; anNTTF appointment is by definition “contingent.” At the same time, a lack of security can lead tounfair treatment, abusive work environments, and a lack of commitment from the employee. Asimple, expedient solution to the problem is to provide as a part of any NTTF contract, a minimaldue process procedure if the contract is terminated or not renewed. An example follows.
1. In the event an NTTF appointment is terminated or is not renewed, the individual will be givena written statement of the reason or reasons for the termination or nonrenewal. If the individual isnot satisfied with the statement, he or she shall have recourse to the dispute process below.2. The individual will submit a written statement to the hiring authority, normally the departmentchair or a designee, setting forth reasons for opposing the decision.3. The department chair or designee will respond in writing within five working days reversing orupholding the decision.4. If the individual is not satisfied with the response, he or she may appeal to the Dean of theCollege or the Dean’s designated administrative official. The official will respond in writingwithin five working days either upholding or reversing the decision of the unit administrator.5. If the individual challenges the Dean’s determination, the final stage of appeal shall be to an adhoc committee consisting of three tenured faculty members holding the rank of Associate orabove. The committee will be appointed as follows: one member chosen by the Dean, onemember chosen by the department head, and one member chosen by the individual. Thecommittee will meet and consider the documents submitted in the case, and then render amajority decision in the case. If the committee finds that the decision was arbitrary, capricious, ordiscriminatory, the administrative decision will be overturned and the NTTF will be awardedanother appointment and any back pay lost as a result of the initial decision.6. The dispute process in this contract constitutes a waiver of all other claims to the extentpermitted by law.
The agreement offers protection to the employee in the form of security against arbitrarytreatment and to the institution as a means of minimizing lawsuits and large damage awards.
A Rationale for Action
By taking prompt and immediate steps to implement a coherent, fair, and transparent process fordealing with NTTF, Colorado could set the standard for contingent employment in institutions of higher education. Nothing proposed in this statement requires approval above the unit level;rather, it is a procedural mandate like other directives emanating from an administrator’s office.More importantly, the cost of operationalizing this proposal is zero — it requires no additionalresources for colleges or departments. The plan is also justified in terms of the four criticalfactors affecting higher education in the near future: cost, value, technology, and competition.The first factor is the increasing cost of college education. The
 New York Times
published aseries of articles in May 2012 describing the effects of debt on recent college graduates.According to one report, “Kelsey Griffith graduates on Sunday from Ohio Northern University.To start paying off her $120,000 in student debt, she is already working two restaurant jobs andwill soon give up her apartment here to live with her parents.” The article continues that the totaloutstanding amount of student loans is close to $1 trillion. The Federal Reserve Bank of NewYork was quoted that for “all borrowers, the average debt in 2011 was $23,300, with 10 percentowing more than $54,000 and 3 percent more than $100,000.” According to an AAUP report(
, April 2012), in three decades from 1981-2011, tuition at public four year institutionsrose, respectively, 55.9%, 37.1%, and 72%. Between 1999 and 2009, state support for publicresearch universities fell from around $10,500 per FTE student to below $9,000.As college costs escalate, growing national attention focuses on whether the cost of a collegeeducation outweighs the financial benefit of a degree. Data from the Department of Laborindicate that a college education provides substantially greater earning power than a high schooleducation. Despite that, a Pew Research Poll released on May 17, 2012, showed that mostcitizens are skeptical about the effectiveness of higher education. One finding was that eventhough most parents want their children to go to college, “a majority of Americans (57%) say thehigher education system in the United States fails to provide students with good value for themoney they and their families spend. An even larger majority —75% — says college is tooexpensive for most Americans to afford.” When asked if higher education is doing a good job of providing value for the money, a majority of respondents said colleges are doing a “fair” or“poor” job.Rising tuition and negative perceptions of value feed into new modes of delivering education.Online systems, such as the University of Phoenix, are major influences in the environment of higher education. Recently, a consortium of prestigious universities joined together to form“Coursera,” which will offer free courses from Princeton, Stanford, MIT, and the University oPennsylvania. Their website proclaims, “We offer high quality courses from the top universities,for free to everyone. We currently host courses from Princeton University, Stanford University,University of California, Berkeley, University of Michigan-Ann Arbor, and University of Pennsylvania. We are changing the face of education globally, and we invite you to join us.”Although Coursera does not offer degrees, it will provide certificates of completion. ColumnistDavid Brooks applauds the technological “tsunami” facing higher education and argues that inthe new landscape, “colleges have to think hard about how they are going to take

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