Higher Ed Law Prof Blog

The last good job in America? by Jim Castagnera

From the Greentree Gazette

When CUNY Graduate College Professor Stanley Aronowitz published The Last Good Job in America: Work and Education in the New Global Technoculture in 2001, reviewer John Marsh observed that the radical-left author was referring “to Stanley Aronowitz, tenured sociology professor. His is a job that pays relatively well, not only affords but rewards time off for reflection, ensures job security, guarantees intellectual and political independence, and, while by no means uncluttered, nevertheless remains largely self-directed.”
By contrast, continues Marsh, paraphrasing Aronowitz, “For… most workers, the weekend is more endangered than some California condors. We check our email six times a day. We own enormous homes that need to be repaired and remodeled. We commute hours to work and hours back home…. We live in an age… that has subsumed the human spirit --- and all its social spaces and work and leisure time --- to the imperatives of alienated work without end.”
Aronowitz/Marsh seem to be describing millennial American lawyers. When, as a young attorney, I joined the Philadelphia mega-firm Saul Ewing in 1983, the managing partner boasted at a new-associate orientation that hourly billing was “the best thing that ever happened in our profession.” In one respect, he was absolutely right. Hourly rates have soared, surpassing inflation by a country lawyer’s mile. According to the August 22nd Wall Street Journal, “The hourly rates of the country's top lawyers are increasingly coming with something new -- a comma. A few attorneys crossed into $1,000-per-hour billing before this year, but recent moves to the four-figure mark in New York, which sets trends for legal markets around the country, are seen as a significant turning point. On Sept. 1, New York's Simpson Thacher & Bartlett LLP will raise its top rate to more than $1,000 from $950. Firm partner Barry Ostrager, a litigator, says he will be one of the firm's thousand-dollar billers, along with private-equity specialist Richard Beattie and antitrust lawyer Kevin Arquit. The top biller at New York's Cadwalader, Wickersham & Taft LLP hit $1,000 per hour earlier this year. At Fried, Frank, Harris, Shriver & Jacobson LLP, also of New York, bankruptcy attorney Brad Scheler, now at $995 per hour, will likely soon charge $1,000.”
What has hourly billing meant to lawyer’s clients? In the words of one maverick law firm, Traverse Legal, PLC, “Lawyers who bill by the hour typically spend their time thinking about hours rather than results. Few hourly billing attorneys tell their client what they will be delivering and the costs upfront. Once deliverables are defined, a value billing attorney simply asks himself/herself the same question each moment of each day: ‘How do I deliver the deliverables I have promised the client?’ Instead of cases just meandering forward, each day the lawyer’s required to think strategically…. The lawyer has tremendous incentive to achieve that result sooner, rather than later. This is because hours of time now count against him/her in contrast to the hourly billing approach where hours count against the client.”
An analogy might be drawn to the classroom, where one might argue the tenured professor worries about delivering the best possible educational product, while the contingent faculty member focuses on getting in, getting out, and getting on to the next gig.
What has hourly billing meant for law firm partners and associate attorneys? Indiana-Bloomfield law professor Bill Henderson reported last May that “many firms are actively thinning the ranks of equity partners.” This perception was confirmed for me by Eric Gouvin, associate dean for academic affairs and a full professor of law at Western New England College’s law school.
“Sometimes it’s pretty unceremonious,” he says. In many firms “partners have given away almost all their rights. Running the firm is delegated to a committee, which runs the firm like a business. Underperforming partners are given a warning and then shown the door.” He adds that “the EEOC has been watching this. The agency’s position often is that so-called partners have ceded so many rights that they are really employees. They are no longer partners, the way they actually work on the ground.”
If many law firm partners are in this difficulty, what of the associate attorneys? University Professor David Luban of Georgetown recently drew an analogy between big-firm associates and classic “exploited workers,” as Karl Marx might have called them. “With overhead, an associate costs a law firm double her salary…. Thus an associate must bill 1,500 hours simply to pay for herself. Because not every hour can be billed, that is about 1,800 hours of work… six hours a day, six days a week…. The rest of the day is the ‘unpaid labor’ generating the surplus value --- value that the partners appropriate.”
Lest this sounds too onerous, let us remind ourselves that we are talking about 26-year-olds earning upwards of $150,000 per year and billed out at $200 or more per hour. Little wonder that big firms have no trouble recruiting top law school graduates.
Perhaps the same may be said of higher education. The American Association of University Professors bemoans the decline of tenured and tenure track faculty as a percentage of the total professorate. In December 2006 the AAUP reported that since the seventies the representation of tenured and tenure track teachers at some 2600 institutions tracked had declined from 57 percent to 35 percent, while the comparable figures for full- and part-time contract faculty reflected an increase from 43 percent to 65 percent during the same period.
However, caution knowledgeable observers, it would be a mistake to assume that these contingent faculty are all “exploited workers.” To the contrary, comments Eric Gouvin, “I’ve been at my law school for 16 years. For faculty of my generation, this is unusual. There has been a generational shift about how much loyalty is owed to a place. Many young faculty feel, ‘I’ll do what I contract to do, but don’t expect a long-term commitment.’ Some also feel, ‘I’d rather get paid at market value, then get tenure. I’ll trade some security for salary.’” Others, he adds, may stick around until they attain tenure, then transport that job security to a better-paying or more prestigious venue.
Dr. Anthony Liuzzo, a JD/PhD who runs the MBA program at Pennsylvania’s Wilkes University and who at 60 is a generation ahead of Gouvin, agrees. “In some ways this is reflective of the larger economy,” he contends. “I’m not even sure junior faculty want tenure.”
He continues, “Older faculty appreciate loyalty and longevity. Our parents worked for the same companies all their lives. I ask my MBA students would they be interested in working for a company for 30 years and they laugh at me. This may be true of newly minted Ph.D.s as well.”
Furthermore, the professorate has its counterparts to law’s $1,000/hour mega-partners. Some law professors at top schools now earn upwards of a quarter-million dollars per academic year, while top medical professors, such as at NYU, have long been earning in excess of a million dollars annually.
Predicting that the tenure system “will be dented on a number of fronts” in the coming decades, he demurs that “exploited is an over-statement” when it comes to considering the roles of contingent faculty. Describing himself as a “free-marketer,” he speculates, “The decline of tenured faculty and the tenure system may not be such a bad thing. There will be more mobility. If tenure somehow went away, there’d be a lot of openings… 20-25 percent might be forced out. This would drive up wages. It might be good for both individual institutions and for (competent) faculty.”
On the other hand, he wonders if it might be “bad for the industry. The benefits of tenure include shared governance. Without tenure, all power would be transferred to the administration, which is primarily interested in the short term, while the tenured faculty tend to take the long view. Higher education would wind up with the same problems that plague corporations which quest only for short-term profits.” His comments echo the concerns expressed by Traverse Legal about hourly billing.
Western New England’s Gouvin takes a different tack on these points: “The broadest trend I see is how philanthropy is administered. It’s all about accountability. Administrators turn to the for-profit playbook. An institution’s biggest cost is people. Lots of institutions are aggressively paring down their people costs by cutting tenured faculty to the bare minimum. The problem for administrators is that there’s no comparable private-sector playbook for managing tenured faculty. Tenure protects dead wood. That’s the terrible side of it. Administrators have to turn to the ‘soft side’ in order to try to make these folks more productive.” Thus, he says, the trend toward trimming down the tenured ranks.
In the last analysis, it seems that while both life-time law partners and tenured faculty are declining as percentages of their respective professions, neither category is likely to vanish in any reader’s lifetime. And while both associate attorneys and contingent faculty are working harder than ever, the monetary rewards are often commensurate with the demands and the insecurity… at least so far.
However, if the parallel paths being pursued by these two professions are destined to converge a bit farther down the 21st century road, the point of convergence might not bode well for either contract faculty --- or even tenured professors below the level of the well-endowed mega profs --- or for the lower ranks of law partners and associate attorneys. Outsourced legal work, primarily to Indian lawyers and paralegals, has been estimated at $163 billion --- yes, that’s billion --- for calendar 2006. The higher education analogy would seem to be distance learning, which some disgruntled faculty have labeled “prof in a box.” In other words, the majority of practitioners in both professions may be destined to endure the hard side of globalization, and as a result of much the same technological advances.
But that’s for tomorrow. What of “the last good job in America” today? Here Eric Gouvin probably should get the last word. “I certainly think I do have the best job in the legal world. Every day I wake up and thank God.”

A profession at risk: Using post-tenure review to save tenure

Buy the book here

Michigan State's post-tenure review policy

The policy

North Carolina State's post-tenure review policy

The policy

University of Colorado's post-tenure review policy

The policy

A primer on post-tenure review, by Jim Castagnera

Introduction. Once faculty members are awarded tenure, there may be institutional concerns regarding how to ensure that they remain productive members of the academic community. One mechanism to address that concern has been the establishment of some form of post-tenure review system. In recent years, a number of states have instituted some form of post-tenure review, either by legislative mandate or by the state higher education system regulations or policies. This trend particularly affects public institutions, driven by increasing demands by legislators and the public for greater faculty and institutional accountability. Proponents of post-tenure review argue that it is critical to ensuring public (and state legislators’) confidence in and support for higher education when resources are constrained. Opponents of post-tenure review claim that the review undermines tenure and may pose a threat to academic freedom, as well as affecting the creativity and scope of research and scholarship.

Post-tenure Review Policies. A primary concern for any institution adopting post-tenure review is to determine what is the primary purpose of the process – is it formative, to help identify the strengths and weaknesses of faculty members, and provide assistance in helping them improve; or is it summative, to assess performance and possibly serve as the basis for dismissal or disciplinary proceedings against faculty members? Faculty members are likely to be suspicious of proposals for any form of post-tenure review, viewing it as a mechanism to increase workloads, to monitor their scholarly performance, or as a means to dismiss older faculty. That suspicion is likely to be greater if the proposed system of review is to be summative, or if the system is identified as formative but the results of the review may be used for disciplinary purposes. An approach that may minimize faculty suspicion would be to create a formative review system that provides support and resources to faculty whose performance is found to be below expectations. The system should provide for a written performance plan setting out a path for improvement, and include annual assessments of compliance with the performance plan. Several years of noncompliance with the performance plan by the faculty member could be the basis for initiating disciplinary action against that faculty member.

The post-tenure review system should be developed through a process that allows a major role for faculty. If the faculty is unionized, state and federal labor law require that the administration negotiate with the union over the development and implementation of the policy because the policy will affect the terms and conditions of employment for the faculty. The system developed must be consistent with the collective bargaining agreement. If the faculty are not unionized, the institution may still choose to adopt a policy of post-tenure review and to include the in the faculty handbook. As such, the review system would become part of the employment agreement and would be governed by the general principles of contract law.
The adoption of a policy of post-tenure review requires the institution to address a number of considerations. Given the wide varieties of academic scholarship and research, the institutional policy may set general procedures and provide a template for the review, while allowing the various academic units (schools or departments) to develop appropriate standards and criteria for the review. As noted above, a primary consideration is the purpose of the review – is it formative or summative? Formative systems are more easily accepted and divorcing the review process from any disciplinary procedures will help allay faculty resistance to the adoption of a review policy. The policy should be linked to the provision of institutional resources to support faculty development and improvement. The question of who will direct the review process is an important consideration – the policy should be developed through the institutional governance structure, ensuring faculty involvement in the development of the policy. A related concern is who actually conducts the review -- faculty are likely to resist having the dean or department chair perform the evaluation. Will the department or a unit-wide body review the faculty member? Will a separate mechanism be created, or will the policy may be implemented through the existing institutional structure for tenure and promotion. The process may involve the use of external reviewers – individuals from other institutions but in the same discipline as the faculty being reviewed.
A second consideration is determining what will trigger the review. Will the review be periodic, reviewing a portion of the tenured faculty every so many years, or will the review be selective or triggered by certain events? A periodic review process may require the expenditure of a great deal of time, effort and resources; if only a very few faculty receive negative evaluations, the process may be perceived as overkill. A targeted review process may be viewed as a better use of institutional resources by focusing on underperforming faculty. If the review is to be selective or targeted, it is imperative to spell out clearly the basis for the review or the events that will trigger a review. The criteria need to recognize that producing quality scholarship does not necessarily involve a regular or efficient process. Who can request a review – the department chair, the dean, the faculty member? Targeted or selective reviews present other potential problems -- they create a stigma associated with being targeted as a “problem faculty,” and the process may not be perceived as truly diagnostic. Targeted reviews may also damage relationships among faculty colleagues, and could result in claims of discrimination based on age or other prohibited grounds. Many institutions have provisions for both periodic and triggered reviews – examples include reviewing tenured professors and department chairs at least every five years, or reviewing faculty who receive at least two consecutive annual reviews indicating unsatisfactory performance. In addition to such formal reviews, faculty are generally subject to annual salary reviews and review for sabbaticals.
Another consideration is who will receive the results of the review, and how specific are the results. If the purpose of the review is formative, the review should identify the strengths and weaknesses of the faculty member; the results of the review should provide constructive feedback to the faculty member. Is the evaluation report to be written by committee or an individual? Is it to be approved by the department chair, the dean or provost? Does the report become part of the faculty member’s file, and will it be used for allocating sabbatical opportunities or to determine teaching loads?
Perhaps the most important consideration for a post-tenure review policy is what are the consequences of the review. If there are no significant consequences attached to the review process, it will lose credibility with the faculty. It is crucial to link the review to the allocation of resources for faculty development. If the results of the review are negative, a written, individualized performance plan should be developed, and the faculty member should be provided with resources sufficient to allow her or him to improve performance. In addition to the performance plan, the faculty member should be provided with a mentor to provide advice and assistance. The system should have a means to monitor the faculty member’s compliance with the performance plan, and the faculty member must be informed about the consequences of not complying. If there is a faculty union, the union should be involved in negotiations over the impact of a negative evaluation. Continued non-compliance may be the basis for initiating disciplinary or dismissal proceedings; at the least it should affect salary increases and opportunities for load relief or sabbaticals. The review process also should provide for some recognition of positive evaluations; high level performers may become cynical if the policy only focuses attention and resources on “problem faculty.” High performers should be eligible for special bonuses or salary increments, and other benefits such as load relief.
Lastly, the review process must incorporate some means for appealing the results; an appeals mechanism is a key component of the principles of due process. At the least, the faculty member should be provided with an opportunity to respond to the evaluation. If the evaluation report is to become part of the faculty member’s personnel file, the faculty member’s response should be included as well. Where the review process is entirely formative, an informal appeals process involving consultations with the faculty member, department chair and dean may be appropriate. For review systems that may also trigger disciplinary proceedings, a more formal appeals process should be provided. Does the existing appeals process within the institutional governance structure provide sufficient protection for the faculty member receiving a negative evaluation? What are the criteria for bringing an appeal – can the faculty member appeal on the merits of the evaluation, or is the appeal restricted to procedural issues only?
The American Association of University Professors policy has generally been critical of post-tenure review, but emphasizes that any evaluation system should be directed toward faculty development and improvement. A policy statement adopted in 1983 stated:
The Association believes that periodic formal institutional evaluation of each postprobationary faculty member would bring scant benefit, would incur unacceptable costs, not only in money and time, but also in dampening of creativity and of collegial relationships, and would threaten academic freedom.

An AAUP report prepared in 1999 declared that “post-tenure review ought to be aimed not at accountability, but at faculty development.” The report also emphasized that the post-tenure review process should be developed and carried out by the faculty, and must not be a re-evaluation of tenure. The process must be conducted according to standards that protect academic freedom and must not be used to shift the institution’s burden of proof to show adequate cause for dismissal to the individual faculty member to show cause why he or she should be retained. If recurring evaluations reveal continuing problems that have not been improved after several efforts, then the institution and the faculty member should explore some other, mutually-agreed alternative, such as separation or reassignment. If no acceptable solution can be reached, then the institution may invoke dismissal or disciplinary proceedings before an appropriately-constituted body of peers. In such proceedings, the institution has the burden of demonstrating adequate cause; evaluation records are to be admissible but are subject to being rebutted as to their accuracy.

Post-Tenure Review: Legal Issues. There have been a number of court decisions involving post-tenure review; in most cases, faculty challenges to actions pursuant to the policy have been unsuccessful. The challenges generally involve claims for breach of contract, discrimination, or claims under state labor laws.
In Wurth v. Oklahoma City University, the university dismissed a tenured professor for incompetence through the university’s “for cause” procedures. The faculty member sued the university for breach of contract; he claimed that the university had to follow the post-tenure evaluation procedures set out in the faculty handbook, rather than the “for cause” procedures in order to dismiss him for incompetence. The trial jury ruled in favor of the university, and Wurth appealed. On appeal, the court affirmed the trial court. The court noted that termination for failing to improve unsatisfactory performance was different from being discharged for cause unrelated to performance. For adverse personnel actions based on performance, evaluations and the opportunity to improve performance are legitimate safeguards given to tenured employees,. But a tenured faculty member may also be discharged for cause, such as conduct involving moral turpitude or failure to maintain the level of competence necessary for tenure. Evaluation of performance does not necessarily relate to such cause.
Barham v University of Northern Colorado, involved a tenured faculty member who was due for his triennial evaluation. While the evaluation was pending, the university charged the faculty member with unacceptable job performance and unprofessional conduct. The university did not complete the triennial evaluation, but initiated “for cause” dismissal proceedings; the faculty member was suspended with pay pending the completion of the proceedings. The faculty member sought judicial review of the Board of Trustees’ decision to dismiss him, arguing that the completion of the triennial evaluation was a prerequisite for dismissal, and failure to do so was a denial of his due process rights. The court disagreed; in affirming the discharge, the court stated that the procedures for evaluations and the procedures for dismissal for cause operate independently under the Codification of University policies, procedures and regulations [the Code]. The evaluation reviews were for the purpose of encouraging and documenting individual achievement and rewarding contribution toward the university’s goals. The Code did not mandate that the evaluation process be concluded prior to the initiation of dismissal proceedings; the dismissal proceedings could be initiated at any time.
In Wiest v. State of Kansas, a tenured associate professor had received two unsatisfactory annual evaluations and had failed to cooperate with the proscriptive plan that had been designed to help him improve his performance. His dean notified him that his faculty appointment would be terminated, and he appealed that decision to the university provost. The provost upheld the termination, and Weist then filed an appeal with the faculty senate grievance committee. After a hearing, the grievance committee recommended to the university president that the termination decision be upheld. The faculty member then sought judicial review of the termination decision, and the trial court affirmed the decision. Wiest then appealed to the Kansas Court of Appeals, which also upheld the decision to terminate. The court stated that there was “[S]ubstantial competent evidence” supported the finding that the university followed its policies and terminated Weist based on two successive less than satisfactory evaluations.
In Wurth v. Oklahoma City University, the university dismissed a tenured faculty member for incompetence, using the “for cause” procedures outlined in the university handbook. The faculty member sued, claiming that the university was required to follow the “termination for failure to improve” evaluation procedures in the faculty handbook in order to dismiss him for incompetence. The trial court held for the university, and the court of appeals affirmed. The court held that the university could use the “for cause” procedures for discharging a faculty member for performance-related reasons, and was not required to use the evaluation-related procedures.
The case of Johnson v. Colorado State Board of Agriculture, involved a challenge by a tenured professor to the adoption of a post-tenure review policy. The policy, adopted in 1997, required reviews of tenured faculty at five year intervals; the faculty member received unsatisfactory evaluations in 1997 and 1998. The faculty member filed suit seeking declarative and injunctive relief, on grounds that the university’s implementation of the policy retroactively changed his contract of employment. The trial court granted summary judgment for the university, and the faculty member appealed. The appeals court upheld the policy; it was a procedural change that did not take away any vested rights or impose any new obligations or duties. The fact that the policy allowed the university to consider past reviews did not make the policy retroactive.
A faculty member successfully challenged termination proceedings in State of Nevada, University and Community College System v. Sutton. The university sought to terminate a tenured professor who had received two successive unsatisfactory evaluations in 1990 and 1991. Before a termination hearing was held, the faculty member and the university reached a settlement. The faculty member subsequently filed suit against the university for breaching the settlement agreement. The court held for the faculty member, and in 1999 ordered the university to continue the faculty member’s employment “unless and until such time as his tenure is revoked by hearing held pursuant to the university code.” The university then sought to initiate a termination hearing based on the original unsatisfactory evaluations. A hearing was held, and the hearing committee recommended that the faculty member’s employment be terminated. The university president terminated the faculty member, effective December 21, 1999. The faculty member again filed suit, bringing claims of breach of contract, breach of the implied covenant of good faith and fair dealing, and violation of due process. The trial court held for the faculty member on the claims of breach of contract and breach of the implied covenant of good faith and fair dealing. The university appealed, and the Supreme Court of Nevada affirmed the trial court decision. The court held that the faculty member’s contract incorporated the university code, which required that any hearing must be held within six months of the filing of a complaint. Under the settlement agreement, the university could not rely on the evaluations from 1990 and 1991, and had no authority to hold the hearing. The university breached the contract by proceeding with the hearing, and the result of the hearing and any decision rendered was of no effect.
The case of Lubitz v. Wisconsin Personnel Commission dealt with claims of discrimination and retaliation. A faulty member had a serious health condition. The faculty member had requested, and was granted, a series of full-time and partial leaves of absence. After several years of such leaves, the university informed the faculty member that it would oppose future leave requests because his absences affected its ability to provide instruction to students. The faculty member returned to full time employment, and was reviewed pursuant to the post-tenure review policy. The evaluation raised concerns about cancelled classes, missing department meetings and lack of participation on department committees. The faculty member was subject to a performance plan, and his merit pay “points” were reduced. The faculty member filed a complaint with the state personnel commission, alleging that his merit pay was reduced and he was given a negative evaluation in retaliation for his taking medical leave. The commission held for the university, and the faculty member sought judicial review. The trial court reversed the commission’s decision, and the university then appealed. The court of appeals reversed the trial court and upheld the commission’s decision; the court held that there was substantial evidence in the record to support the determination that the university actions were not taken in retaliation for the faculty member’s taking medical leave.
In Moosa v. State Personnel Board (Cal. State Univ.) , a tenured faculty member was temporarily demoted on grounds of unprofessional conduct and refusal to perform the normal and reasonable duties of his position because he refused the dean’s directive to prepare and submit an improvement plan. The state Personnel Board upheld the demotion, but reduced it to one year; the faculty member sought judicial review of that decision. The trial court granted summary judgment in favor of the university, but the court of appeals reversed. The court of appeals held that the dean’s directive was inconsistent with the collective agreement, which authorized “discussion . . . along with suggestions, if any, for improvement.” The faculty member therefore had no duty to obey the dean’s order, and the refusal to comply could not be used as grounds of unprofessional conduct.

Other Approaches to Manage Faculty Productivity. Apart from post-tenure review, there are other means available to institutions to monitor and manage the productivity of tenured faculty. These approaches may also raise various legal issues.
Merit Pay. One of the most common approaches is the use of merit pay to recognize performance or to sanction decreasing productivity of faculty; it is becoming increasingly important in academia. The effectiveness of a merit pay system depends upon the validity of the information used to determine “merit.” The merit pay system must clearly define the criteria by which performance will be assessed. The design of a merit pay system may be difficult, given the variations in the nature of academic scholarship, and the need to balance the use of quantitative measurement with subjective evaluation. The system must be transparent, and have clear objectives. A merit pay system requires a system of annual reviews in order to support annual salary decisions; the reviews are usually carried out at the department level, subject to review by a dean or associate dean. The system should involve a feedback mechanism to provide relevant information to the faculty members, and should also provide for some appeals procedure to allow faculty to address errors of procedure or substance.
It is also crucial to ensure that merit pay is not used to squelch faculty speech of academic freedoms; many legal challenges to merit pay decisions involve freedom of speech issues. The case of Hollister v. Tuttle , involved a faculty member at Portland State University who claimed that he was denied a merit pay increase because he spoke out against feminist criticism of male writers and against the increase in feminist-oriented courses in the English Department. The trial court granted summary judgment for the university and individual defendants; on appeal, the U.S. Court of Appeals for the Ninth Circuit held that such speech was constitutionally protected, and the denial of merit raises in retaliation for such speech would be a violation of the faculty member’s constitutional rights. The U.S. Court of Appeals for the Seventh Circuit reversed a grant of summary judgment in Power v. Summers. The court allowed a suit against Vincennes University by faculty members alleging they were given lower merit raises (approximately $400 when the average raise was $1000) because they were outspoken on matters of faculty salaries. The faculty members sought an injunction ordering the university to raise their base salaries to reflect the merit increases they should have been awarded. The university admitted that merit raises were used to award faculty who combated “dissension” or “divisiveness;” the court of appeals stated: “we certainly cannot say as a matter of law that denying a raise of several hundred dollars as punishment for speaking out is unlikely to deter the exercise of free speech . . . .”
Merit pay decisions may give rise to claims of discrimination by faculty who are denied raises or who receive below average raises; such claims may be combined with claims of retaliation against faculty for being outspoken. Such was the case in Harrington v. Harris ; three white faculty members at Texas Southern University, a public historically black university, received lower raises than other, African-American faculty. The white faculty members claimed that their lower merit raises were in retaliation for their involvement in criticism of the law school dean, in a no-confidence vote against the dean, and in forwarding complaints to the American Bar Association. The trial court held that the underpayment of the plaintiffs was in retaliation for their exercise of first amendment rights, was due to race discrimination, and the arbitrary and capricious nature of the merit pay decisions violated their due process rights under the fourteenth amendment ; the court awarded them compensatory and punitive damages. On appeal the U.S. Court of appeals for the Fifth Circuit reversed the trial holding on the first amendment issue; the court of appeals held that the issue was simply a dispute over the quantum of pay increases, and did not rise to the level of a constitutional deprivation. The court did affirm the trial court decision that the differential merit raises reflected race discrimination because the white faculty did not receive equal credit and consideration for their achievements; and that the arbitrary nature of the pay decisions was violated the plaintiffs’ right to due process. In Kovacevich v. Kent State University , the court held that the university’s merit pay system reflected embedded gender discrimination. The opaque decision-making process at the administrative level did not reflect the peer assessment of faculty performance, and rewarded men disproportionately in comparison to women; the court held that the merit pay system violated both the Equal Pay Act and Title VII of the Civil Rights of 1964, as amended.
Challenges to merit pay decisions based on contractual claims have generally not been successful. In the case of Meyer v. Univ. of Akron , the Ohio Court of Claims rejected a breach of contract claim by a faculty member who was denied merit increases and opportunities to teach summer school courses because of negative evaluations. The court held that the such actions, taken in response to the faculty member’s negative evaluations, did not violate any university policies. The court characterized the faculty member’s claim as essentially disputing a “judgment call” made by his academic superiors; the court noted for the proposition that “The law is well-settled that trial courts generally defer to the academic decisions of colleges and universities unless there has been such a substantial departure from the accepted academic norms so as to demonstrate that the committee or person responsible did not actually exercise professional judgment.” In Sack v. North Carolina State Univ. , a faculty member filed a grievance against his department chair for failing to give him a merit raise. The university made funds available to grant such raises to 50% of the faculty of the History Department, and the plaintiff claimed that he was overlooked because of “personal reasons.” The university grievance committee held that the denial of a raise was proper; the university president and the governing board upheld the committee’s finding. The faculty member sought judicial review of the decision, and the trial court vacated the board’s order and ordered chair to list the department faculty by publication and give the plaintiff a merit raise if he was in the top 50%. The university on appealed, and the court of appeal reversed the trial court order. The court of appeals noted that the plaintiff had not shown that any statute or university regulation entitled him to a merit award; the court held that the grievance committee had properly weighed the evidence in the case, and the denial of an award was not based on personal malice.
Another approach is the use of variable teaching loads, with an emphasis on teaching or on research; that may be coupled with a restriction on opportunities for overload teaching or other extra activities. Again, the criteria for such determinations should be clearly defined, in order to minimize claims of discrimination. In Boise v. Boufford, the U.S. Court of Appeals for the Second Circuit held that a reduction in teaching load from five course to four courses was not a sufficiently adverse an employment action to give rise to a claim of age discrimination; the university had shown a legitimate reason, the decline of scholarly vigor, to justify the action. Other approaches could involve the reassignment of the faculty member for a special project or for an administrative positions, or selection for appropriate professional development activities.
Formal disciplinary action should be used only as a last resort, after all other strategies have failed to improve a faculty member’s performance or productivity. Any such action taken must be according to the formal university policies, and should involve a faculty body in the determination of whether the university has demonstrated adequate cause for disciplinary action.

New FMLA rights for families of military, while family-responsibility discrimiantion suits increase

At the end of January, the president signed the National Defense Authorization Act for Fiscal Year 2008. The statute amended the FMLA to provide, among other things, up to 26 weeks of leave in a 12-month period for family members for injured service men and women.
On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. 110-181. Among other things, section 585 of the NDAA amends the Family and Medical Leave Act of 1993 (FMLA) to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

The provisions in the NDAA providing this leave were effective as of the date of the President’s signing. The Department of Labor is working quickly to prepare more comprehensive guidance regarding rights and responsibilities under this new legislation. In the interim, WHD will require employers to act in good faith in providing leave under the new legislation. Because the NDAA amends the FMLA, FMLA-type procedures should be used as may be appropriate (for example, procedures regarding substitution of paid leave and notice).
The NDAA also permits an employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” By its express terms, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.” DOL is expeditiously preparing such regulations. In the interim, DOL is encouraging employers to provide this type of leave to qualifying employees.
The international law firm of Morgan Lewis, headquartered in Philadelphia, has advised its clients, “With almost 250,000 soldiers in active duty across the world, we expect that the FMLA amendments will have a significant and immediate impact on employers. Employers will face immediate requests under the new law and, to that end, must take steps to understand their obligations as quickly as possible. As an initial matter, employers are advised to review their leave policies and consider revisions
that will cover the new types of leave now provided by law. Employers are also reminded that there is a great deal of uncertainty with respect to a number of key
terms in the new law. DOL is expected to issue regulations to help define, for example, a ‘qualifying exigency’ for purposes of leave. Similarly, while the law provides that eligible employees are entitled to an extended 26week leave only once in a single 12month period, serious disagreement already exists as to the intention of the amendment in this regard, requiring DOL clarification.”
Family-Responsibility Discrimination suits on the increase. Another major American firm based in Philadelphia, Pepper-Hamilton recently cautioned its clients, “Competing work and family responsibilities are a challenge for many employees. Employers are caught in the middle. They must balance the impact of employees’ needs to care for their children and parents against their primary mission – running a business. But when employers make employment decisions based on sex stereotypes about caregivers or favor employees who don’t have family responsibilities, affected employees have sued for ‘family responsibilities discrimination (FRD).’
“The Equal Employment Opportunity Commission (EEOC) attributes the increase in claims of family responsibilities discrimination to the significant increase in the number of women working outside the home. Women now comprise almost half of the U.S. workforce. But women are still the primary caregivers in most families.
“This trend is particularly prevalent with women of color, who are more likely to be raising children in a single parent household and are more likely to be responsible for caring for extended family, such as grandchildren or elderly relatives. And, as people live longer, employees are increasingly responsible for caring for elderly parents. This has led to a rise in ‘sandwich’ caregivers – employees who have care giving responsibilities for both children and parents.” [http://www.pepperlaw.com/pepper/publications_update.cfm?rid=1346.0]
A recent study of family-responsibility suits that went to trial reports the following information: “Th e number of such cases has grown from a total of eight in
the 1970s, when the fi rst case was heard in U.S. courts, to 358 in the fi rst half of the 2000s. In the last decade (1996-2005), the number of family responsibilities discrimination (FRD) cases fi led grew nearly 400% from the previous decade, from 97 cases to 481. This report describes where the cases are most prevalent – in which
industries, amongst which kinds of workers, and in which parts of the country. It discusses case outcomes, as well as possible causes for increased fi lings. Analyses show that rapid growth in (FRD) lawsuits began in the 1990s and continues today. Increases are correlated with media coverage of high-profile lawsuits involving maternal
wall discrimination; growth in the number of employed mothers; diff usion of information about FRD cases amongst the legal profession; and changes in law making it more attractive to fi le discrimination lawsuits. FRD lawsuits have now been heard in 48 of 50 states and the District of Columbia. More FRD cases have been fi led
by non-professional employees than by professionals, and plaintiff s are more likely to win FRD lawsuits than other types of employment discrimination cases. Th e average award is just over $100,000; the largest award to date is $25 million. Th e lawsuits analyzed in this report make a strong case that companies’ eff ective handling
of workers’ caregiving responsibilities is an issue of risk management; companies that mismanage their work/life programs tend to fare poorly in court. Amongst companies sued for discriminating against workers with family responsibilities are nearly 30 that have been designated as ‘Best Companies to Work For’ by Working Mother
magazine or have been touted by Fortune’s “Most Admired” list as amongst the best in the nation for treating employees well. Companies such as IBM, Wal-Mart and UPS have been sued multiple times.” Mary C. Still, “Maternal Wall: U.S. Lawsuits Charging Discrimination Against Workers with Family Responsibilities,” http://www.uchastings.edu/site_files/WLL/FRDreport.pdf
Pepper Hamilton provides the following advice to employers:
“Employers should be wary of:
• not hiring or promoting a caregiver because of assumptions about his or her commitment to work
• crafting employment application scenarios that would, in essence, exclude parents with children
• crafting work schedules specifically designed to conflict with caregiver responsibilities
• falsely reporting caregiver employee errors to create an employee termination opportunity
• promoting an employee without caregiver responsibilities over a more qualified caregiver employee
• firing or suggesting an abortion, in lieu of firing, to an employee
• firing or demoting an employee returning from maternity or paternity leave.”
[http://www.pepperlaw.com/pepper/publications_update.cfm?rid=1346.0]

Making your college military-friendly

From Inside Higher Education

Gallaudet, ever on the edge of turmoil, retains interim prez

From the Chronicle of Higher Education

The importance of diversity training in your school's admissions office

From the Greentree Gazette

Some small schools survive, despite problems that closed Antioch

From the Greentree Gazette:

The Mice That Roar: Small, Sectarian Colleges Resist
Efforts to Extinguish Them
By Jim Castagnera
Special to the Greentree Gazette
I first met Jim Noseworthy early in the present decade at a workshop on serving disabled students. The program was put on by the University of New Hampshire’s extension division at a hotel outside Washington, D.C. Serendipity put the Doctor of Ministry, whose prominent proboscis fits his surname, at the same table as I. We lunched together and hit it off, and after that kept in sporadic contact.
In August 2003, after sharing a recent op-ed piece of mine with Jim, he wrote back to me, “I have left the United Methodist Board of Higher Education and Ministry and now serve as president of United Methodist-related Hiwasee College in Madisonville, Tennessee.” His missive on Hiwassee College stationery continued, “I moved in February to a situation which is both challenging and delightful. I am glad to back on campus and working with such marvelous individuals as we shape the future of this two-year college.”
If the Southern Association of Colleges and Schools gets its way, Hiwassee College has no future.
SACS’s Commission on Colleges is the accrediting body for higher education institutions in 11 southern states, including Tennessee. Senior Fellow Jon Fuller of the National Association of Colleges and Universities describes SACS as “The most rigid and bureaucratic of the six national accrediting organizations.” He adds that SACS has a tough task, because, “The South has more fragile institutions as a percentage of its higher education stock than any other region of the country.”
Absent the SACS imprimatur a college is cut off from federal financial aid funds. For a college like Hiwassee, whose fewer-than-500 rural students almost all rely on substantial financial aid, such a sanction is fatal. SACS, however, is finding that Hiwassee is hard to kill.
Hiwassee, which awards associate degrees, was first accredited by SACS in 1958. That accreditation was confirmed most recently in 2000. The Reaffirmation Committee noted that at the millennium Hiwassee had many “financial challenges.” The committee’s report cited deferred maintenance, projected-revenue shortfalls, and inter-fund borrowing among those “challenges.” SACS required a follow-up report. When that document failed to meet the accreditor’s criteria, Hiwassee was issued a warning and required to submit yet another 12-month status report. In December 2002, following review of this second report, SACS placed Hiwassee on probation. The beleaguered college submitted its third report in December 2003, Meanwhile, a so-called Special Committee conducted a site visit to the Monroe County campus.
The college’s accreditation crisis came to a head on January 16, 2004, the date on a SACS letter which informed the Reverend Noseworthy and his staff, “With its upcoming review in December 2004, your institution will have exhausted its probationary status and its period of continued accreditation for good cause. At that time, the institution must be determined to be in compliance with all of the Principles of Accreditation or be removed from membership.” Yet another Special Committee visited Hiwassee in mid-October 2004. The committee’s report was damning. On December 4th Hiwassee defended itself at a Compliance Committee meeting, but the committee voted to remove accreditation. On February 24, 2005, an Appeals Committee affirmed academic capital punishment for Hiwassee.
However, reports of Hiwassee’s demise proved premature. The college took its case to the federal courts. On March 22, 2005, Judge Thomas Vartan of the U.S. District Court for Eastern Tennessee issued a temporary restraining order, restoring Hiwassee’s accreditation. “This is good news,” Rev. Noseworthy modestly understated this early victory. The case then was transferred to the federal court for Northern Georgia, home to SACS headquarters.
On February 5, 2007, following extensive pre-trial discovery and a hearing, Senior District Judge Owen Forrester issued his ruling. In many aspects his honor’s 18-page decision goes against Hiwassee. For example, he rejects the college’s contention that “the entanglement between the (U.S.) Department of Education and SACS in its role as an accrediting agency under the Higher Education Act” makes SACS a “state actor” subject to the 14th Amendment’s “due process” clause. On the other hand, Judge Forrester finds that SACS must be held to common-law principles of fair play.
Having so held, his honor goes on to conclude that a conflict of interest was created when Appeals Committee member Ann McNut suffered a family emergency and was replaced by Jimmy Goodson, a voting member of the Commission on Colleges. Since he had already voted to withdraw Hiwassee’s accreditation, ruled Judge Forrester, “Mr. Goodson did have a conflict of interest and should not have served on the appeals panel.”
Comments President Noseworthy, “We have prevailed on one of the several issues of our case.” However, Judge Forrester found in favor of SACS on many another issue. More ominous is the district judge’s observation that “it is significant to the court that Hiwassee has never front-on challenged the ultimate decision of SACS that Hiwassee failed to come into compliance….” This bit of dicta may prefigure the ultimate outcome of the case, which remains pending as this column is written. On March 16th, Jim Noseworthy wrote to me, “We are awaiting additional action by the judge in the case….” With characteristic aplomb, reminiscent of his 2003 letter, he added, “Hiwassee is a great place to be!”
Hiwassee College is not the only great little place under fire for financial instability. SACS has also been gunning for Edward Waters College in Jacksonville. In 2005 the historically black institution, like Hiwassee, won an injunction in federal court, staving off implementation of the accrediting agency’s decision to withdraw recognition. News photos depicted some of the school’s 900 students marching with signs that said, “EWC must survive!” Fuller of NAICU commented, “A new chapter is opened. It’s going to require accreditors to question some of their procedures.”
Elsewhere it’s not accreditors but donors who are putting pressure on the Lilliputians of our industry to reform or perish. For instance recent reports out of Omaha, Nebraska, tell of Howard L. Hawks, a major donor to both Midland Lutheran College and nearby Dana College, who has advised the two tiny schools to merge duplicative academic and administrative functions or lose his support.
These developments beg the question, “Do such small-enrollment, under-endowed private colleges have a place in the highly competitive, globalized higher education arena?” I asked that question of NAICU’s Jon Fuller. He explained that from Eastern Kentucky’s Pikesville College to New Jersey’s Bloomfield College, these small schools serve local communities “where people grow up with a limited sense of what’s possible.” In other words, absent the Bloomfields, Pikevilles, and Hiwassees, many of these minority and/or rural youngsters would never go to college.
Fuller adds that both federal and accreditation standards use financial stability as a place-holder for quality education, since the latter is difficult to measure. “The fed doesn’t want to have to clean up if a college closes suddenly. What isn’t considered is that many of these schools have been around 100 or 150 years, and I doubt they were ever any less fragile than they are today. Yet they always have a hard time meeting such standards.”
I suggested to Fuller that the pluckiness of these colleges reminds me of the tiny nation in the Peter Sellers film, “The Mouse that Roared.” He retorted, “They remind me of bumble bees. Measure the wing span and the bumble bee shouldn’t be able to fly. Since it does fly, there must be other factors we are failing to measure.”
With regard to the Hiwassees of our world, Fuller cited “deep loyalty” from alumni and “faith communities,” a willingness to sacrifice on the parts of administrators, faculty and even students, and --- perhaps most significant where the likes of Jim Noseworthy and Hiwassee are concerned ---- “an ethic which says, attend to the needs of today and somehow tomorrow will take care of itself.”
Concludes Fuller, “At a time when the Spellings Commission is concerned with degree completion and eight Asian and European nations boast higher percentages of college graduates than the U.S., it’s hard to understand why anyone would want to mess with these colleges.”

Antioch College is finally closing

Negotiations failed to save it. From the Chronicle of Higher Education
Some mice roar (see above); others die with a wimper.

E-Discovery resources from NACUA

RESOURCES:

NACUA Resources:
Electronic Discovery and Electronically Stored Information Resources and Links

Additional Resources:
ABA Legal Technology Resource Center, Electronic Discovery
ARMA International
Electronic Discovery Reference Model (EDRM)
Federal Judicial Center, Education Programs and Materials (including Managing Discovery of Electronic Information: A Pocket Guide for Judges, Barbara J. Rothstein; Ronald J. Hedges; Elizabeth C. Wiggins, 2007.)
The National Archives Records Management
The Sedona Conference
Guidelines for State Trial Courts Regarding Discovery of Electronically Stored Information
(August 2006; Conference of Chief Justices)
EDUCAUSE: ESI and E-Discovery Resources
DiscoveryResources.org

Last call for Academic Integrity Conference at Rutgers

Greetings -

The Registration Deadline for the March 6th "Conference on Academic
Integrity" has arrived! Obviously, the weather may have a slight
effect on registration forms arriving on time. So, if your
registration is "in the mail" or you want to register NOW, please
e-mail Matt at ruferg@eden.rutgers.edu or FAX us a copy of your
registration form (732-932-4154) so we can factor you into our
attendance numbers! It's not too late to visit the website below and
register TODAY!

So far we have registrations from colleagues at: Rider University,
William Patterson University, Salem Community College, Community
College of Philadelphia, Muhlenberg College, Carnegie Mellon
University, Thomas Jefferson University, University of New Haven,
University of Pennsylvania, University of Delaware, and Rutgers
University!

We are fortunate enough to have secured the participation of Don
McCabe, one of the founders of the Center for Academic Integrity and
an expert on this important topic. In addition, we will have two of
our University Librarians, one who authored the book "The Plagiarism
Plague" presenting on creating online tools for Academic Integrity
prevention and education.

Profiling users of violent media: any promise in the approach?

Legal Liability for the Virginia Tech massacre: Is profiling worth considering?

Jim Castagnera

May 2007

Part 3 in a series

When the police use profiling, it’s condemned as racist. When the customs service does it, it’s similarly assailed as discriminatory and unconstitutional. Still, it’s being done. Travel & Leisure magazine reported in January, “The Transportation Security Administration (TSA) recently began rolling out a new security program, Screening Passengers by Observation Techniques (SPOT), at dozens of airports around the country.” Time magazine explained, “TSA employees will be trained to identify suspicious individuals who raise red flags by exhibiting unusual or anxious behavior, which can be as simple as changes in mannerisms, excessive sweating on a cool day, or changes in the pitch of a person's voice.” Although such techniques invariably arouse the ACLU, should colleges and universities consider adopting them?

Jim Castagnera

Before you answer, consider the case of Dawson College. On September 13, 2006, Kimveer Gill parked his car in downtown Montreal, removed a cache of weapons from the trunk, forced a passerby to carry his extra ammunition, and walked the short distance to the college’s campus. At the main building’s back entrance he opened fire on students standing on the steps. His hostage ran off with the extra ammunition as Gill entered the building and walked to the cafeteria, where he shot two students. Ordering the others in the room to lie on the floor, he fired randomly until police arrived. Taking two more hostages, he attempted to escape until, shot in the arm, he took his own life. The toll: one student dead, 19 more wounded.

Police later found Kimveer Gill’s profile posted on a website called VampireFreaks.com. In the accompanying photo he wears a black leather trench coat and sports a Beretta Cx4 Storm semi-automatic carbine, one of four guns he took to Dawson College. Visit VampireFreaks.com today and you can purchase “cyber-gothic clothing” on a related link called clothing@F---TheMainstream, and read featured interviews with “Velvet Acid Christ,” “Zombie Girl,” and “Grendel.” Gill’s own VampireFreaks screen name was “fatality 666.” His last login was at 10:35 AM on the day of the shootings.

In the aftermath of the Dawson College shootings, the so-called “Goth” subculture came under sharp attack in the media. Hardly a high school or a college on the North American continent is without its clique of Goth enthusiasts in their leather, chains, piercings, tattoos and bizarre hairstyles. Operators of Goth shops and websites found themselves defending the lifestyle and adamantly disavowing violence. Some expressed shock at the 55 graphically violent pictures posted on Gill’s VampireFreaks web page.

Gill also turned out to be a big fan of the video game “Super Columbine Massacre RPG.” Go to the game’s web site today and you’ll find this statement about the Virginia Tech massacre: “This week, the press is awash with stories about the shooting at Virginia Tech – the deadliest in recent history. Will we remember this tragedy in a week? In a month? In the years to follow? I certainly hope so. I hope we can learn from such sobering events as Virginia Tech, as Dawson College, Ehrfurt, Columbine and all the other horrific shootings modern society has endured. So often the potential for another shooting is just around the corner should we forget the lessons history has to offer us. This process of reevaluation, introspection, and a search for understanding is the value I believe my video game offers to those who play it.” The author, site owner Danny Ledonne is said to have vomited when he learned that Gill was a fan. Presumably Gill wasn’t participating for “reevaluation, introspection, and a search for understanding.”

VampireFreaks and Super Columbine Massacre persist on the web, despite their appeal to the Kimveer Gills out there. No one has definitively proven a clear cause-effect-relationship (albeit the Alabama Supreme Court last year reinstated a $600 million lawsuit against the makers of video game “Grand Theft Auto,” which the plaintiffs blame for the shooting deaths of two police officers and a dispatcher in 2003).

As Goth enthusiasts and video gamers alike point out, tens of thousands of adherents never commit a violent crime. In the absence of a clear causal connection between violence-glorifying cults and games on one hand and campus shooters on the other, academic freedom argues against profiling Goths and gamers as potential threats. And yet … as horrific incidents multiply down the decades, administrators might be forgiven for considering closer scrutiny of students who fall into these categories.

Even administrators who shy away from "profiling" might welcome increased sensitivity among their student bodies. "Snitching" about suspect behavior may not be cool, but it could be crucial. A live-and-let live attitude in residence halls is probably no longer appropriate in our post-VT world ... anymore than a laissez faire attitude at our airports would make any sense in this post-9/11 age of international terror.

To read Part 1 in the series, click here.
To read Part 2 in the series, click here.
From the Greentree Gazette

Relationship of media/entertainment and violence

"Media Violence Research attempts to determine whether a link between consuming media violence and subsequent aggressive and violent behavior exists. Although a majority of social scientists support this link[1], some critics point out that methodological and theoretical problems with the existing literature limit interpretation of findings in this area.
Media violence researchers do not claim that media violence effects are the only or most important cause of aggressive behavior (Huesmann & Taylor, 2002), although some have claimed that media violence research effect sizes are similar to those seen in smoking/lung cancer research [2]. This claim was recently challenged when it was noted that the authors had miscalculated the effect size for smoking and lung cancer [3] as much lower than it actually is. Some authors also conclude that the effect size for media violence research has been greatly exaggerated. [4] [5]
Media violence researcher Rowell Huesmann has said: "Serious aggressive behavior only, occurs when there is a convergence of multiple predisposing and precipitating factors" (Huesmann, 1998; Huesmann & Taylor, 2002). Many other explanations of aggressive behavior exist; for example some researchers have suggested that the pathway to aggression is largely biological/genetic (see the work of Hare, 1993, Larsson, Andershed, & Lichtenstein, In Press, among others), and others have suggested that aggression can be explained by principles of evolutionary psychology. [6].
The advent of television prompted research into the effects of this new medium. Much of research has been guided by social learning theory developed by Albert Bandura. Social learning theory suggests that one way in which human beings learn is by the process of modeling. Social learning theory is compatible with a variety of other theories of aggression and a diversity of research methods, for instance, neurophysiological theory and research."From Wikipedia

Will banning a musical make a campus safer?

At least one university administration seems to think so.From Inside Higher Education

Recruiting college students in Vietnam

From the Chronicle of Higher Education

Next week's "Attorney at Large" Column

Vietnam ReconsideredMore "Attorney at Large" here
By James Castagnera
As we prepare to mark the fifth anniversary of our invasion of Iraq, and as the rhetoric of the 2008 national elections sizzles, allusions to the Vietnam War are inevitable. For instance, one website comments, “A virtual cottage industry has sprung up comparing Iraq with Vietnam. And well that it should. Vietnam cost the lives of not only 58,000 Americans but of three million Vietnamese. Neither the US nor the Iraqi people nor the world needs another such horror.” [http://www.commondreams.org/views04/0419-11.htm]
Our wired world is a world of the constant present. Americans’ lack of interest in and knowledge of history are legendary. The Internet, television, instant messaging, text messaging, and the rest of our electronic gadgets combine to enhance our sense of the “now,” the immediate, at the expense of a longer view. And while our global competitors pursue long-term business plans, our over-compensated CEOs focus on cashing their stock options and opening their golden parachutes as quickly as possible, preferably in the present business quarter.
No wonder, then, that knee-jerk comparisons of Vietnam and Iraq automatically assume that Uncle Sam’s decade-long involvement in Southeast Asia was a “horror.” That’s what our popular culture tells us. The word conjures Marlon Brandon, obese and bald as an egg, muttering “the horror, the horror” in the climax of “Apocalypse Now.” Is this the only possible view of the Vietnam War?
Retired U.S. Ambassador and career-diplomat Edward Marks presents a different take in an article that’s available (where else?) on the Net. Marks argues,
“Given that it has been for some time conventional wisdom that defeat in Vietnam was total, foretold, and deserved, it might be time for a little revisionism. The end of the Cold War might just be the occasion for some speculation as to whether the conventional wisdom is indeed wise, or at least accurate. The Asia of today is not the Asia of the early 1960's and the most obvious event which lies between the two periods and the two Asias is the Vietnam War. Maybe, in the light of later developments, history might now say that the American involvement in Vietnam while tragic was also truly historic.” [http://www.unc.edu/depts/diplomat/AD_Issues/amdipl_6/marks.html]
On what does Ambassador Marks base this claim?
“In all the agonizing then and since over Vietnam and the repercussions in America, few have bothered to look around the area, to run their eyes over developments in Asia, and to relate them to the war and its admitted agonies for the major protagonists.
• Singapore and Hong Kong competed for the title of most prosperous city-state cum shopping mall.
• Indonesia, Malaysia, the Philippines, Thailand, and Singapore quietly formed their own regional organization which has gone from strength to strength.
• The Republic of Korea and the government of Taiwan implemented enormously successful economic development programs.
• And Japan moved in the 60's and the 70's into the ranks of the industrial powers.”
Marks goes on the note, “Even the Chinese dragon was tamed - more or less. President Nixon initiated and successfully pursued a dramatic foreign policy which resulted in Mainland China's becoming the People's Republic of China to the conservative as well as liberal wings of the American political spectrum, in a political shift which was probably one of the most important developments of the Cold War, that is, at least since China went Communist in the first place. The recent visit to the US of the current Chinese president, with all its angst and arguments, is a far cry from the problems we thought we had in the days when we saw China as the junior partner in the coalition determined to destroy us. And, mirabile dictu, diplomatic and trade relations have been recently established with Vietnam.”
If the Marks thesis makes any sense at all --- and to me it does --- then perhaps we owe it to ourselves to try to step back and take a longer view of our current mission in Iraq. From the perspective of an America dependant on Mid-East oil and still under constant threat from Islamic terrorists, a permanent garrison in Iraq may look more realistic on second glance.
After their wins in the Potomac primaries, Barack Obama said of John McCain, “We honor his service to our nation. But his priorities don’t address the real problems of the American people, because they are bound to the failed policies of the past,”
This is a fair criticism, if the policies of the past are truly failed policies. But if, taking the longer view, it appears that America’s victory in the Cold War and the rise of a largely prosperous and peaceful Asia are indebted at least in part to those difficult, divisive days from 1965 to 1974, well, then…
[Jim Castagnera is the Associate Provost/Associate Counsel at Rider University. A collection of his “Attorney at Large” columns is available at www.lulu.com.]

Facebook issue for us lawyers?

Facebook's Fine Print: Trouble for Lawyers?
Picking up on the growing popularity among lawyers of Facebook as a marketing tool, Brian J. Ritchey at the blog More Partner Income issues a caution. He points to an article this week in Britain's The Birmingham Post warning that Facebook could prove to be a minefield for businesses. The source of that warning is U.K. law firm Manby Steward Bowdler, as the Post explains:
Neil Forrest of Manbys says many businesses are unaware Facebook is for personal profiles and not for businesses and highlights the phrase in Facebook's terms and conditions 'you have properly gained access solely for your personal, non-commercial use.'
He also points out that every user agrees not to register for more than one user account, not to register a user account on behalf of another, or register a user account on behalf of any group or entity.From Law.Com

College Board sues test-prep outfit

Suit sez prep for SAT gives students an unfair advantage. From the Associated Press and MSNBC

NACUA seeks nominees

Dear NACUA Members:

The following reminder is being sent on behalf of Melinda Grier, Chair of the NACUA Committee on Honors and Awards, regarding this year's Call for Honors and Awards that will be presented during the 2008 Annual Conference in New York.

We encourage you to submit names of your NACUA colleagues whom you believe should be considered by the Committee for one of the following awards before the deadline of Friday, February 29, 2008.

In addition, NACUA will honor all attorney members who retired in 2007-2008 as part of the Member Recognition ceremony at the Annual Conference. If you are aware of any colleagues who have retired or will be retiring by June 2008, please notify Miriam S. Miller as soon as possible at msm@nacua.org.

A close union election at Michigan Tech

From the university's press release:

The faculty vote was 143 against the union
and 136
in favor of it, with six challenged ballots and three spoiled ballots. A
majority of those voting was required to recertify the AAUP.

The secret ballot took place on the Michigan Tech campus on Feb. 20 and
21. The results must be certified by the Michigan Employment Relations
Commission, which conducted the election and will review the challenged
ballots.

The election was called after Professor James Mihelcic
, a
professor of civil and environmental engineering, filed a petition
signed by at least 30 percent of the faculty affected. Michigan Tech has
313 tenured and tenure-track faculty represented by the AAUP, of whom
288 or 92 percent voted in the union election.

In a previous election in 2004, the union prevailed.

Michigan Technological University is a leading public research
university, conducting research, developing new technologies and
preparing students to create the future for a prosperous and sustainable
world. Michigan Tech offers more than 120 undergraduate and graduate
degree programs in engineering, forestry and environmental sciences,
computer sciences, technology, business and economics, natural and
physical sciences, arts, humanities and social sciences.

A conference on effective educational practices in Austin

Discovering, Integrating and Applying Knowledge
Effective Educational Practices for Today's Students and Tomorrow's Innovation

April 10-12, 2008
Austin, Texas
Learn more about the meeting
Register online -- early registration through March 19, 2008.

How do we ensure that today's students actually learn how to apply their learning to complex, cross-disciplinary problems?

This conference will explore the emerging research on engaged learning practices and their implications for current efforts to help more students reap the full benefits of college. The conference will also take a hard look at the institutional barriers that make it difficult to establish and sustain such an environment by examining what works, who benefits, and how to increase institutional commitment and underserved students' access.

Del Val College: Helping Guard Our Food Supply

An Eastern Pennsylvania College Helps Guard Our Dinner TablesMore Castagnera columns available here.
By
Jim Castagnera
Poison toothpaste and dog food from China… salmonella in eggs, botulism in beef, PCBs and mercury in fish… mad cow disease, anthrax… the list of threats to our food is as long as the Klumps’ grocery order. Was a time when farmers drove their trucks through my hometown of Jim Thorpe, hawking their fresh-picked produce. Lancaster’s Amish and South Jersey’s fruit and tomato growers still bring some fine foods to our farmers’ markets. But the hard fact is that we are eating seafood from Southeast Asia, fruit from Mexico and Chile, beef from Australia. Seventy-seven percent of Americans polled believe a terrorist attack on our global food chain is likely.
Tom Kennedy, director of the Food and Agribusiness MBA at Delaware Valley College, fears these folks may be dead right. “The system is very porous,” he says. Consequently, “Food security has now become food defense.”
Kennedy, a lanky, gray-haired Irishman, first became involved in “food defense” at St. Joseph’s University in Philly, where he was a principal investigator on a $ 1.8 million Food and Drug Administration grant awarded under the 2002 Bioterrorism Act. The goal of the grant was to educate executives up and down the food chain, as well as first-responders, who might have to deal with an attack on our food supply.
How vulnerable are we (mostly overweight) Americans? Explains Kennedy, “With profit margins razor thin, the food industry operates on a just-in-time delivery model. This means there’s only a three-day food inventory in most parts of the country. Here on the east coast we have the greatest population densities and largest port facilities.
“Just imagine an anthrax attack on the food center in the port of Philadelphia. Do you remember when a little bit of anthrax shut down the Hamilton, New Jersey, post office for years?” he asks.
So… when Tom Kennedy moved from St. Joe’s to Del Val College in Bucks County three years ago, he brought along his commitment to protecting the American public from agro-terrorism. “After Nine-Eleven, I wondered what an ordinary guy like me could do. I’ve since found out there is a lot.”
Del Val College is unique among the hundreds of colleges and universities here in eastern Pennsylvania. Some 1600 undergraduates, plus a couple of hundred grad students, study everything from horticulture (which makes for a gorgeous campus) to dairy farming. The 600-acre campus just south of Doylestown includes the corn fields where Director M. Night Shyamalan filmed “Signs.”
Kennedy continues to work with colleagues at St. Joe’s, developing what he calls “table-top exercises.” Food industry personnel and first-responders are brought together and presented with a food product, a contaminant, and a scenario, then work to solve the situation. Last time, the threat was to the dairy industry. Tom trekked the 65 participants through Del Val’s dairy barns to give them the feel of the business. “Some of the Philadelphia police had never been on a farm,” he chuckled.
Recently, he went international, taking on a study of Philly’s port facilities, partially funded by sources in Australia. He won’t say how much the Aussies have kicked in… “That’s proprietary.”
Tom wishes ruefully that information on U.S. food inspection and security practices were equally proprietary. “We’re a democracy,” he explains. “Under the Freedom of Information Act, anybody can get a lot of helpful information, if food is the target.” He adds that, “We can’t build walls around our farms.” I look out the window of his car, as we tour the Del Val campus, and note the cattle munching grass right along the highway… point taken.
Del Val’s own farmers’ market on Lower State Road does a land-office business. “People more and more want to get food grown close to home when they can,” observes Kennedy.
After Tom dropped me back at the market, I thought about all I’d just seen and heard. I went inside, grabbed a cart and loaded up on fresh peppers, lettuce, and corn. No, it wasn’t even a three-day inventory, so here’s hoping folks like Tom Kennedy keep the cornucopia safely overflowing.
Jim Castagnera of Havertown is the Associate Provost/Associate Counsel at Rider University.

Mystery Meat creates school lunchroom mess

From the LA Times

Fingerpointing at Columbia...

... over who stole who's work. From the Chronicle of Higher Education.

As campus killings continue...

a report on VTU's self-examination, from the Chronicle of Higher Education.

Latest US Law Blogs for your convenience

Law Blogs Updated on February 20th, 2008

Academic Blog Posts

Green on Rationales for Protection of Private Arms Possession
From Legal Theory Blog on February 20 at 07:47
Michael Steven Green (College of William and Mary - Marshall-Wythe School of Law) has posted Why Protect Private Arms Possession? on SSRN. Here is the abstract: In District of Columbia v. Heller, the Supreme Court is anticipated to finally decide...

Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations:
From The Volokh Conspiracy on February 20 at 00:02
That's the title of a Working Paper that I've co-authored with Howard Nemerov. Abstract:...

Law School Musical
From Adjunct Law Prof Blog on February 21 at 00:10

From Greenhouse Gas to Gasoline:
From The Volokh Conspiracy on February 20 at 14:02
The New York Times reports on an interesting scientific undertaking:...

A Webnar on archiving People Soft Data
From Higher Ed Law Prof Blog on February 20 at 17:14

The Glenn and Helen Show:  Troy Dunn on Raising Rich Kids
From Instapundit.com on February 20 at 04:09
Want to raise a rich kid? Or at least a kid who knows how to make money without waiting for someone else to offer a job? That's what Troy Dunn offers in his new book, Young Bucks: How to Raise a Future Millionaire. We talk to Troy about why parents should ...

Stephen Colbert and the Happy Meal video
From Food Law Prof Blog on February 20 at 06:41

Being Declared Dead When Alive Can Be Problematic
From Wills, Trusts & Estates Prof Blog on February 20 at 11:12
According to Nancy Amons, Woman Says Being Declared Dead Ruins Life, wsmv.com, Feb. 15, 2008: Laura Todd said an 8-year-old typo is affecting everything from her credit to her tax return. "I don't think people realize how difficult it is...

From Ninomania on February 20 at 22:21
Well well -- looks like a good day for federal preemption! Must read now -- OM NOM NOM.....

Lawprofs for Congress?
From The Volokh Conspiracy on February 20 at 16:02
My erstwhile coauthor Larry Lessig (Stanford) is considering running in Northern California as a Democrat (to fill the late Tom Lantos's seat), and Michael Livingston (Rutgers) is officially...

See all new posts.

To customize this daily email, please visit USLaw's Blog Tracking Service.  Reply with any questions, comments, suggestions, or unsubscribe requests.