Navigating Choppy Waters

Most faculty receive limited information on legal issues associated with their role. In this episode, Kent Kauffman joins us to discuss a new resource he created to help educate faculty on their legal rights, responsibilities, and liabilities. Kent is an Associate Professor of Business Law and MBA Program’s Faculty Liaison in the Department of Economics and Finance at Purdue University. He is also the author of Navigating Choppy Waters: Key Legal Issues College Faculty Need to Know.

A transcript of this episode and show notes may be found at http://teaforteaching.com.

Episode Transcript

(00:00):
Most faculty receive limited information on legal issues associated with their role. In this
episode, we discuss a new resource designed to educate faculty on their legal rights,
responsibilities, and liabilities. Thanks for joining us for Tea for Teaching,

(00:23):
an informal discussion of innovative and effective practices in teaching and learning.
This podcast series is hosted by John Kane, an economist...
...and Rebecca Mushtare, a graphic designer......and features guests doing important research
and advocacy work to make higher education more inclusive and supportive of all learners.

(00:51):
Our guest today is Kent Kauffman, an Associate Professor of Business
Law and MBA Program’s Faculty Liaison in the Department of Economics and Finance
at Purdue University. He is also the author of Navigating Choppy Waters: Key Legal Issues College
Faculty Need to Know. Welcome, Kent. Thank you. Thank you very much
for having me today.Today's teas are:... Kent,

(01:13):
are you drinking any tea with us today? I am drinking a tea, and my tea is what's
called Constant Comment. And I thought that would work for today. And my wife has told me that when
she was a small child, her grandfather used to call Constant Comment Tea, blabbermouth tea,
which is something I hope not to be on your podcast today.

(01:34):
I love this story. How about you, John?I am drinking a ginger peach green tea today.
That's nice. I have a cinnamon tea. Very good. We invited you here today to
discuss your new book, which addresses all sorts of legal issues that faculty
are concerned about much of the time, but really don't have many resources on that.

(01:56):
So why are there so few resources available to faculty on legal issues that faculty may face?
Thank you for asking that question. It is something I've thought about as well. And if
you think about the legal books that are out there that are education related, they're often called
Education Law, and they're usually textbooks for people that are wanting to be Principals,
and they may be in a master's or a doctoral program, and may take an education law course,

(02:21):
often taught by an attorney, unless maybe that's a law professor on campus. And those books tend to
focus on institutional issues related to K through 12 schools, and they're often tort law related,
and they may relate to FERPA matters of student privacy and almost how to protect the institution

(02:41):
from liability. But for faculty, there's not much that I would call personal law for you at
your job, and I think there's perhaps two reasons for that. One is, at new faculty orientations,
those are often run by either HR or some arm of an HR department, and HR… fine people, not casting
aspersions… but they look through their work life through a different lens than faculty do. So often

(03:07):
when it comes to the legal matters that may be discussed at an orientation for new faculty,
including part timers, who are often left to fend for themselves, is basically, “don't discriminate,
don't harass, and make sure that you don't violate FERPA. Have a good semester or a good career.” But
for faculty, the issues that really face them aren't discussed, and I don't think that the

(03:30):
academic profession has caught up to that, to the way that other professions have. So that if you're
an attorney or a doctor or an accountant or some other professional, you might be thinking about
how is what I'm doing at work with these people, clients, and often whether we think of students as
customers or clients, or however we fashion that relationship, they are someone with whom we do

(03:51):
our work regularly. And then with our colleagues, there are liability issues. And I think it's also
just a matter of perhaps this profession having pocket examples of something that's scary, almost
like “I heard of someone who saw Bigfoot,” but not thinking, “I live in that neighborhood too,
maybe I should be aware of those issues.”And I think in your book, you also noted that
faculty are often reluctant to go to HR. Why might there be this resistance to use HR resources by

(04:18):
faculty? Could it be related to the fact that they're the people who gave them the contracts,
and they're maybe reluctant to reveal something that might be perceived as a shortcoming?
I think an HR professional might, hopefully gently, disagree with me on this, but in my view,
absent there being an ombudsperson where you work, and an ombudsperson is really a neutral

(04:40):
person at work given administrative authority to deal with employee-employer conflicts. Absent
an ombudsperson, we have to ask ourselves, where does this person I'm talking to for help get their
paycheck from, and HR works on the administrative side, and I think when you realize that you're
being told by HR what to do and what not to do, if you have a question, or, more importantly,

(05:04):
a concern that is legal related, your first thought might be, well, if I go to them and
they're the ones in charge of hiring me, then I'm sort of like, blowing my cover, if I have
something that's transparent I want to share, and I don't feel comfortable sharing something
transparent because it could come back to bite me. So I think that's an issue to think about,
is like, if I share something, this may not be safe. I don't mean just from a legal standpoint,

(05:29):
because what people should realize is that, unless you're talking to your own lawyer, anything you
say to someone else's lawyer is not confidential with respect to you, and so that legal connection
to your employer through HR isn't intended to be protective of you. So I think there's a fear
standpoint and a question of, if I do this, could this make my situation worse? Maybe I just won't

(05:52):
talk about it all. And for me as a man, I'm just sorry to say this, I apologize, but we often put
our heads in the sand and hope that maybe it'll just go away if I don't think about it. So I think
that there's part of that going on for faculty.So your book is organized in seven chapters,
and each one has a different legal issue assigned to it, and there's a lot of examples throughout

(06:14):
each of those chapters with resolutions of cases interspersed throughout where you're
asking the reader to think about making the call on a decision to the case. Can you talk
a little bit about why you organized the book in this way? In some ways,
it kind of does some pre-testing throughout the book. Can you talk about the format and
why you made some of the decisions you made?I think that first of all, my working life is

(06:37):
trying to teach the law to people who, most of whom, are not planning on going to law school and
so not working in a law school environment where I'm teaching students who actually
intend to either complete a law degree or become attorneys. I'm teaching the law to non-lawyers as
undergraduate and graduate students who don't have, many of them, an intent of doing what I

(07:01):
do for a living or getting a law degree. So I've always tried to stress in my teaching, how can I
not dumb down the content but make it accessible? And I think the law is either extremely boring or
it could be really interesting. And one way that the law can be interesting is through narrative.
And case law provides stories. And if you can find good cases, cases that apply to your topic

(07:23):
and have a unique fact pattern, then it creates that neuron connector to remembering the content,
because it connects to a story. So I like stories, and even though I can say I'm young enough to not
know when Perry Mason was first on TV, but I'm old enough to know when Perry Mason was around
on syndication. Every Perry Mason, the first TV lawyer… every Perry Mason episode starts

(07:47):
with “the case of” and as a child, I liked reading Hardy Boys mysteries. If you know those childhood
mysteries, they're always like “the case of,” right? And so I just thought that: 1, providing
readers a chance to find at the beginning of each chapter, but then interspersed through the
chapters’ narratives and asking them you decide based upon the clues. Every good mystery should

(08:11):
have clues provided to the reader or the viewer or the listener. The clues are in the paragraphs,
and at the end, I'll give you that story again. You tell me what you think the outcome is, based
upon the clues provided… hopefully, they're not mysterious clues… but they're clearly explained,
but I don't give the answer throughout the chapters, and that might allow you to more

(08:32):
critically apply that content. Secondly, one thing that's great about the law is you can always say I
was never wrong. You can always say I was in the dissenting opinion. So you can say I don't think
that that case came out the right way, even though it looks like I was wrong. I applied the law.
Because legal principles should be generally agreed upon and neutral, but we might apply
them differently. So I think there's a learning component to that style of writing the chapters

(08:55):
the way I did, and hopefully there's an interest component as well. And then, like you mentioned,
pre-test, post-test, it's a really interesting teaching technique to ask people at the beginning
to determine something they might not know the answer. And so they're using their instinct or
their gut, and then we can give them a chance at the end to say, go back and reassess your initial
answer. Has it changed based upon the content? So hopefully it provides also a palette cleansing

(09:20):
method of reading the book, where legal books can almost become not just monotonous, but they can
almost induce a brain tumor, where it's just words after words after words, and you're thinking,
This person is writing for themself. They're just writing for themself. And I'm trying to write
something that is intended for the reader. And I think sometimes the narrative cases I provide

(09:41):
in the “you make the call” features, just cleanse your palette and let you catch your breath before
going on to another part of the chapter. And it prepares you for thinking about it,
and you're waiting to see what conclusion the courts reach, which is very much like those
old Perry Mason episodes, where all of a sudden there would be this surprise decision at the end,
or new evidence would come up that would resolve that case.

(10:02):
I love all that suspense. Speaking of narratives, in the first chapter,
you tell a little story about the first time grading a student exam, and what the student
response was to this, can you share that story?Yeah, a lot of life is trial and error, and for
me, a lot of my life is more like error and trial. And so I was a recent law school graduate,
pretty recent, and I had been not hired for a job I had been hired for due to a federal hiring

(10:28):
freeze. So I was working in a factory making, I think, less than minimum wage. I think they were
cheating on the pay. And I tried to find jobs, and fortunately, found some part-time college
teaching jobs that I had wanted to do sometime later on in my career. And I was working at two
different colleges. And at one of the colleges, I was teaching criminal law, which was right up

(10:49):
my alley. I love that subject, and I was eager to do this thing that I had enjoyed being in
a student in a law class. This was a brand new program at this college. These students had a new
department chair who did not have a background in academia. He'd come from private industry,
governmental work, and he had been giving them something I didn't even realize, which was

(11:12):
practice quizzes or practice tests. And you might know this, but in law school often, not always,
but there is one exam at the end of the semester that determines your entire success or failure in
that class. And I wasn't doing that, but I was doing something that I had done in law school,
which is the anonymous graded exam, but I didn't give them practice exams, and when they asked for

(11:33):
them, that seemed almost like a foreign language to me… a practice exam? And I was so busy anyway,
so I didn't have time to grade practice exams. So I immediately said, like, “No, practice exams,
it’s not a practice driving exam. We're just doing the test. And I don't know what had happened.
Maybe I was just simply, first of all, too green for my own good, maybe too eager to be law school
like but it didn't go well. And I was accused of grading people unfairly, not just wrongly,

(11:58):
but unfairly. And the department chair, having no background in academia and no legal background,
he kind of implied to me that I should be very frightened by these accusations,
and I had no idea what was going on. Because my tests were anonymous, I didn't even understand
how it could be unfair to someone unless there was a number I didn't like, like, “Oh,
you had number 12, and I never liked being 12, so I'm gonna grade your test really hard.” To me,

(12:23):
It seemed impossible how I could be unfair to people whose tests I didn't know who they were.
And so it was really frightening. I might have quit that job right away, had I not truly needed
the money for groceries. And my other experience that same semester was positive, and so having a
mentor who helped me as a part-time faculty member just learn the ropes as to what it means to try

(12:44):
to teach college students, was encouraging to me, but that bad experience really sort of impelled my
curiosity about what it means to think about the risks that are attendant to professional decisions
that faculty make, particularly part timers. I've always been concerned for part-time faculty,
because I was one. I know what it means to be one, and so you sort of identify,

(13:06):
maybe through life, with that early experience, and my experience was not easy. It was difficult.
I took any class I could teach, anywhere I could teach it, often at night, so most of
my classes were at night and with students that perhaps weren't sure if I knew what I was doing.
So I have a sensitivity to part-time faculty and how maybe they don't understand that there

(13:29):
are positive things to think about legally that protect them in their professional decisions.
One of the issues that a lot of faculty have been concerned about for the last couple years has been
the growing use and proliferation of AI tools that many students have adopted to either assist
them in the work or to do much of their work for them, and this is bringing up a lot of questions

(13:51):
concerning academic integrity. And some faculty are very reluctant to address or to penalize
students for suspected integrity violations, because you cannot prove that something was
created by AI. And yet, there's other faculty who routinely accuse many students of academic
integrity violations based on sometimes remote suspicions of AI use. What advice do you provide

(14:16):
for faculty who are facing suspected academic integrity cases involving the use of AI?
I don't want to seem like I don't care about academic integrity, because ethics is something
that I teach specifically and in the graduate world as well, and in another life, I've written
a legal ethics textbook, and so I take ethics very seriously, but it may sound like I don't

(14:39):
in light of my answer. First of all, there's only so much time in the day. And one thing I
tell my college students is that you know you're an adult when you realize you have more things
to do than the time to do it, and then you begin prioritizing what's at the top of your list to get
done. For a full-time faculty member like myself who has expectations of research and publication,

(15:01):
service expectations, some administrative expectations, and then the teaching load,
and regional campuses often have a higher teaching load than main campuses or Research I campuses.
Where I have time in my day to place Sherlock Holmes and detect cheating, I don't have much
time for that, so that's the first starting point. Secondly, AI has provided a new mechanism for both

(15:25):
cheating and cheating detection, but it also provides a mechanism for humanizing your AI use
so that it appears that it was written by a human and often the same AI detection software companies
are providing the AI humanization software technology as well, which to me is if a police
officer was selling you a radar detector. So it's a very confusing world. So I start with this:

(15:49):
AI detection is based upon how AI works. And to me, AI is basically the world's most gifted Mad
Libs book in which it's predicting the next word… fill in the next word… based upon the fact that,
and this is a whole other copyright issue, what's called web scraping, where AI systems are just

(16:11):
like a gigantic reverse hose vacuuming up the world on the internet. And then,
it's called fine tuning, training their systems to get used to words and common words. So if I said
to an AI system, “I would like a cup of…” they're gonna say “coffee,” because that's been fed into
their system so much. But what if I'm about to go fishing, the word should be “worms.” “I’d like a

(16:36):
cup of worms,” right? And so AI is like what seems natural based upon what we've been trained to
say. And AI detection, in my view, and I'm not a computer scientist, works in reverse of that, and
it's based upon what's called perplexity. And the lower the perplexity of the language a detection
system is noticing, and that means how common the language is, which is why the Constitution has

(17:01):
been flagged as being written by AI. If you think about how 18th-century writers with quill pens
were flagged as being AI written. It's because the Constitution has become so ubiquitous in AI
systems that when they see that language, it looks like a computer wrote it. And so the danger with
AI detection is that if you work, as I do, for a state university, you owe your students a higher

(17:24):
level of protection, due process protection, because we're an arm of the state government.
A private school, university or college, doesn't owe students anything beyond contract-provided
protections or what would violate what's known as the “arbitrary and capricious” standard. So
I have to be on very, very strong ground on which to accuse a student of cheating by use

(17:45):
of AI. But to me, AI detection is almost as if the AI system is looking into a pool of water,
and if they see a reflection of themselves, they say that was written by myself, right? And another
problem is burstiness. So burstiness is where AI detection systems look for the lack of monotony

(18:05):
in the sentences or the structure of the words of the paragraph. So if you think about someone
who might be a monotonous speaker, if they're a monotonous writer, the same looking sentences,
the same way of verbs and nouns coming together, that flags an AI detection system, because that's
not bursty. So between all those problems and then the later problems of privacy and FERPA issues,

(18:27):
should I feed my students work in an AI detection system? Is that really fair? I would just say that
never make an accusation based upon what an AI detection system has told you. That may be grounds
for further investigation. But if you work at a state university and you accuse someone formally
of cheating because an AI detection system has said they've cheated, you're basically accusing

(18:49):
James Madison of cheating as well because his Constitution was flagged for AI. And I'm not
saying students don't cheat, because grown ups and professors cheat as well. What I'm saying
is ask yourself, how would you in a worst-case scenario defend your action on the grounds that
it was reasonable and not violated a student's right at a public college. At a private college,

again, the question should be (19:11):
“Am I treating  them fairly?” So another thing to bear in mind,
if I can just add this, there's a lower standard required for faculty members when they determine a
student has performed poorly academically. So if I give a student an F and they fight that, the legal
standard is way in my favor. If I tell a student they're getting an F for cheating, as opposed to

(19:34):
poor performance, then that standard is raised for me as the accuser. So a professional decision
based upon poor performance puts a faculty member on a stronger legal ground than a decision that's
based upon accusing a student of cheating. And it isn't to say students don't cheat. It
isn't to say that students shouldn't be caught cheating. But I think there should be sort of a
triangular approach of maybe someone else should read this as well. What do they think? And then

(19:58):
can I ask the student to support their work, or is it better off to say this doesn't seem like your
writing. I'm not certain what's happening here, and maybe just that sort of concerning statement
early on might prevent it from later happening. So I do care about cheating, but I do care more about
fairness to the students and then the risk that I might involve. By way of example, there's a famous

(20:23):
case where a professor put their students’ work into ChatGPT… well, ChatGPT isn't meant to check
for cheating… and accused students of cheating because of ChatGPT. And again, is that fight worth
having based upon what a computer is telling you has happened? It's a cause of concern for me.
So along those same lines around FERPA and intellectual property,

(20:46):
some faculty are also beginning to use generative AI tools to evaluate and provide feedback to
students. Can you talk a little bit more about intellectual property and or FERPA issues
associated with that practice as well?Sure, one of my favorite cases related to
intellectual property is one of the weirdest lawsuits ever, where a British photographer
was sued by PETA (People for the Ethical Treatment of Animals) in an American court over his book of

(21:12):
selfies taken by Indonesian monkeys and the formal name of them, I just can't pronounce accurately,
but the court called them monkeys, so I'm going to call them monkeys. And so you had an organization
suing on behalf of an Indonesian monkey in an American court over who owned the copyright of
a selfie taken by a monkey with the camera of a photographer. And the upshot of that case is,

(21:34):
rather than Solomon splitting the baby in half, he sent everybody home, and the judge said to PETA,
you can't bring this lawsuit because you can't sue on behalf of the monkey. And he said to
the photographer, you don't own the copyright, because the monkey took the selfie, and said to
the monkey, you don't own the copyright, because copyright is for humans, and that's the starting

(21:55):
point for me. AI is not human, and copyright is for humans. Corporations can own a copyright,
but that doesn't mean that they've created the copyright. So the book copyright, I don't own,
Rowman and Littlefield does, but the copyright initially started with me, and I transferred
it to the publisher. So the starting point is, copyright is for humans. Then we ask, “Well then,

(22:17):
can generative AI create copyrightable work?” And that answer is initially “No,” and there
are examples of that where courts have said and the copyright office have said, “No,
it's for humans.” But one can use generative AI in a maneuverable way that you're significantly
adjusting or choosing or selecting the output, and the Copyright Office has said where a human

(22:41):
author has adjusted or significantly manipulated the output, then it is possible. So I would say
that a faculty member could own copyrightable work that came out of AI provided that it just wasn't:
“Please give me this” and what came out of it belongs to them. It does not. However,
you can still own something that you don't own as a copyright. That's what trade secrets are

(23:05):
for. And so it's possible to own a work that is not protected by intellectual property law,
traditionally, but for copyright purposes. I guess my last example would be if I took an essay that I
was writing that I wanted to publish on a blog, let's say my own blog, but I was having trouble
getting it down from 2000 words to 1800 words, and I put that into AI and said, Take out 200 words,

(23:28):
I would argue that that belongs to me, because it started with me and it was my copyrighted work,
and I used the AI system as almost like an assistant to help me edit my work,
as opposed to saying, “Please write me an 1800 word essay on this topic.”
What about the work that students have created and submitted, though, so that if a student submits
a paper, and then the faculty member uploads that to a generative AI system, which may be

(23:52):
used for future training of that AI system, is that a violation of the student's intellectual
property rights? Or FERPA?
It's a really good question. I'll take the FERPA one first, which is, there's a hard question to
ask, which is, “Is it possible that student work qualifies as an education record?” And one problem
with FERPA as a statute is that it by itself, is over 3800 words long. And so you're dealing with

(24:16):
a statute that is so long that, like it needs its own library by itself to come with the regulations
that come in addition to FERPA. So FERPA is so labyrinth, it's very, very hard to figure out.
And when I take my required FERPA quizzes as part of my status on campus, I don't pass them on the
first time with a perfect score either. But, like, how did I get that wrong? I'm supposed to know

(24:37):
this stuff. So I would argue that student work on its own would not qualify as an education record
in light of the definition. But you could find how it could, so there is a real FERPA issue at stake
there, and so I would recommend erring on the side of not violating FERPA. Now, just as an aside,
one good thing about FERPA is that, for us as faculty, we cannot be liable for violating

(25:01):
FERPA. FERPA as a statute, is the stick, not the carrot. What it really does is it says you risk,
as an institution, losing federal funding if you have a policy or a practice of violating FERPA,
and in lawsuits where students have sued for violations, every court has said FERPA does
not grant personal liability, which comes with monetary damages, so no faculty member could

(25:23):
ever lose a lawsuit over FERPA, because there's no lawsuit provided by FERPA. It doesn't mean
your employment status isn't at risk. So there's a FERPA issue that I think is really serious.
There's a broader issue as to privacy, because, you know much of AI is meant to continually
improve itself. So when I put students’ work, if I were to do that (and I don't) into AI systems,

(25:44):
I'm now taking their property because it is their property, and there's case law on that that work
belongs to them if it qualifies for copyright, right? It's possible that a student's work is so,
forgive me, banal that maybe it doesn't qualify for copyright. Taylor Swift won a lawsuit on the
same grounds to the extent that a court said when she was accused of copyright infringement from
another person's song, the lyrics were so banal, nobody owns a copyright in them. So assuming a

(26:09):
student's work is copyrightable, that's their property, and I shouldn't take it and put it
in an AI system. That's my personal view on that. And then there's a larger privacy issue, which is,
“Do I really have their consent to take their work and their information and put it into an AI
system?” So I again, err on the side of respecting not just the copyright of students’ work,
but their privacy issues as well.Remote proctoring solutions that have

(26:32):
been pretty widely adopted, beginning in the pandemic and continuing at many institutions
use webcams to monitor online testing, and you describe a case where a student challenges
this on Fourth Amendment grounds, and that was upheld during the pandemic. Is the use
of remote proctoring tools, something that faculty and institutions should avoid.

(26:53):
If you're a public institution, then the Fourth Amendment does apply. We tend to think of the
Fourth Amendment only with respect to criminal law matters. Someone came to my home and they looked
for contraband as part of getting ready to arrest me or attendant to prosecuting me, but the Fourth
Amendment can apply outside the criminal law as well, and that Cleveland State example, I think,
is worthy of thinking about where during the pandemic, to check against cheating,

(27:17):
remote webcams were used that you had to turn on your camera and your computer so it could scan
your room so you didn't have things that shouldn't be allowed for the exam. And one student said,
“I have personal items in my room where I live with my mother, and I don't want those to be
observed.” And his lawsuit found a Federal Court that said “You're right. As a public institution,

(27:41):
they're engaged in a search when they're using a remote scan.” That's the first part. It's almost
like thinking about speech. The first question is, “Does this qualify as speech?” Which is why we
know that a t-shirt with an emblem on it qualifies as speech, because speech can be both words and
communication that's non-verbal. So the first question here is, does this room scan qualify as
a search for the Fourth Amendment? And the Court said it does. And then the next question was,

(28:06):
does it violate the Fourth Amendment? And that's where the Court said it did as well.
So I think the remote room scan might come with good intentions, but for public universities,
particularly faculty that are not operating under, let's say, an institutional prerogative on that
stuff, I would again caution on erring on the side of the risk of their cheating, it may be better

(28:26):
for you than the risk of you being accused of violating their Fourth Amendment rights,
because there's an intrusive nature to that. And the Fourth Amendment case law is just there's
hundreds of cases on the Fourth Amendment, but we know at least of one involving an institution,
not the faculty being sued, but the institution. So for those who work in state institutions and
use remote scams. I would just ask yourself this, are you thinking about the fact that this is a

(28:50):
search, and if it is a search, are you thinking about how it is reasonable as opposed to being
unreasonable? And for students who, wherever they live, I think they have a right to say,
I don't want you to look where I live. It's my space. Could I go into an in-class setting and
say to all students who have purses, “I'm going to look for your purses before the exam begins,

(29:12):
because you might be able to use something in your purse to take the test. Or I'm going to check pull
up all your sleeves so I can check your arms.” At some point, we're going beyond what is reasonable
in light of the situation. So I do think there's a concern that faculty at public institutions…
if you work at a private institution, the Fourth Amendment doesn't apply. But we get back to this
prior discussion of “Is it really fair?”Malpractice insurance is used by medical

(29:37):
professionals, lawyers, accountants, et cetera, to protect them from possible
lawsuits. Is this something that faculty might need? We've been talking a lot about when is a
individual faculty member potentially liable versus the institution.
I think insurance is always great to have, not to eliminate risk, but to mitigate the
costs associated with the risk. And the costs are twofold. It's not just the cost that in case you

(30:03):
might be liable or settle. Sometimes people settle, which doesn't mean they are liable,
but for a variety of reasons, they choose to end the litigation in an alternative way. But
the other cost is the cost of the case itself. So the costs of being in litigation are separate
costs to losing or settling the litigation. I have searched repeatedly, even though the AAUP,

(30:25):
which I'm a member of the American Association of University Professors. I know that you can
find various web pages that will say they offer professional insurance. I know that they used to,
but in my search for that, I can't find that the insurance company they say offers
professional insurance truly does anymore, but I do think professional insurance is important,

(30:49):
because the world's best doctor should still be insured against the risks associated with doing
their work professionally. And again, the world's best doctor might still make a mistake, and I like
to think I'm a good driver, but if I didn't have to carry automobile insurance, I still would, and
I carry a policy with the highest limits possible. So we're all living a life where for a ariety of

(31:14):
reasons we're subject to making a mistake, an honest mistake, that still might anger somebody,
particularly a student, who might sue. So I do think insurance is important. I think it's a
hard thing to find. One good thing to realize is that for some states, if you're a state university
faculty member, you might have immunity against liability for professional actions, because there

(31:35):
are some limited immunity statutes that apply to all state actors when they're engaged in what's
called a discretionary function, which often the work professors do is discretionary.
On a somewhat different note, many institutions and many faculty claim that the syllabus is a
contract with students, and that's a topic you address. Is the syllabus, in fact, a contract?

(31:57):
To me, it’s always been an interesting question, and I remember years ago, in another life at
another college, where I was a department chair, and I was in a meeting, and the person hosting
the meeting was talking about syllabi for the semester, and said that a syllabus is a contract,
so make sure that you don't put anything in your syllabus that could be breach of contract.
And I'd never thought about that before, and I didn't say anything, but I thought to myself,

(32:20):
that doesn't make any sense to me as a lawyer, that a syllabus is a contract. What I came to
discover, and have done some writing about, is that it is really one of the best examples of
folklore where something seems like it would have to be true because it seems natural,
it seems logical to be true, but it really isn't true. Calling something a thing when it's not a

(32:40):
thing doesn't make it that thing. And to call a syllabus a contract, does not make it a contract,
anymore than if I put an engagement ring on a non-human that does not make me engaged. Well,
there's the engagement ring, I must be engaged to be married, and it doesn't mean that I'm
engaged any more than a syllabus is a contract because you say that it is. It looks like it would

(33:03):
be of because of its formality, its requirements. But here's why it's not. It's not for two reasons.
The easy reason is courts have said repeatedly, it's not, because students do sue over a syllabi,
and they allege that they are a victim, loosely speaking, of breach of contract. And every single
time that has happened where you can find it, and sometimes a case may be dismissed,

(33:26):
but there's no record of it, but wherever a legal researcher can find a record of what has happened,
every one of those lawsuits has been dismissed because courts have said they're not contracts.
The more difficult reason to come to grips with this is that a contract is an exchange between you
and the other party, and the exchange has to have legal value. That's called consideration. There is

(33:47):
nothing that you and a student are exchanging in a setting that makes the syllabus a contract. And
so it has the patina of a contract, but underneath it, it's not a contract, and that's a good thing,
but one thing that faculty should bear in mind is don't say that it's a contract, because there's a
doctrine in law that operates sort of like if you say you quack like a duck, you swim like a duck,

(34:10):
then you might be a duck. And so if you insist that your syllabus is a contract, and you make
people sign things and turn them back in to you to prove that they made the agreement with you,
and it's contractual like, you're gonna have a hard time to argue that you didn't make a contract
because of a legal doctrine that comes out of the equity side of the legal system, in which someone
can say, “I relied upon your promise. Now you got to keep it because you caused me to rely upon it.”

(34:35):
So it's possible that a faculty member could be held to the standards of contract law because they
played lawyer in their course when they really didn't need to and shouldn't have. So it's good
news that a syllabus is not a contract.That said, you mentioned that syllabi have
a pretty formal structure. Are there any legal issues that faculty should be concerned
about related to syllabus language? I think, and I'm biased, I think thinking

(34:58):
like a lawyer, rather than saying you're one, is a good idea, because lawyers sort of think about the
possible rainy-day situation. But entrepreneurs, bless their hearts, they think about how sunny
life is going to be. That's why they're going to take those risks. And lawyers often say “yes,
but there could be a storm. And look out, this could happen, and be careful, this could happen,

(35:19):
and don't forget, maybe there's a snowstorm, so bring a shovel.” And so, lots of times lawyers,
from a transactional standpoint, are thinking about the “what if.” So, I think if you think
about your syllabus in a progressive way and say, “Well, what could happen if this is in my policy?”
That provides more clarity to how you draft it better. So I think one thing to do is to think

(35:41):
for yourself after you write your syllabus or craft it or borrow it from someone else,
is “What does this policy mean to someone who didn't write it?” And often it's sort
of like how mediators play a counteractive thought partners with somebody else, even if they're not
in the conflict. So think about, what if someone else read this and they didn't draft it? What
does it mean? So I always suggest under promise and over deliver as a way of thinking about your

(36:05):
syllabus, maybe providing a definition section as well. I don't penalize lateness in my classes. I
try to create an environment where students either need to be there on time or they want
to be there on time. But if you have a lateness penalty that affects the grade, what does it mean
to be late? Have you thought about that? Is there a time period? If there are excuses for lateness,

(36:25):
what does that mean? So a definition section might work, and also in law, it's called a force majeure
clause, it never hurts to just say in writing, this is our schedule, but I do reserve the right
to adjust it when need be, because then that can prevent a student from saying, “but you
said the test was going to be on this date, and I scheduled this on that date, and now I can't take

(36:46):
the test. You must give me an extension.” You might choose to give an extension, but at least
with the force majeure clause style of writing in your schedule of your syllabus, you're letting
students know I respectfully reserve the right to alter something if something outside of our
planning interferes with our schedule.One of the issues that faculty often worry
about is to what extent they might be protected from personal liability

(37:11):
while they're engaged in their jobs. There's a great standard historically in
the law for faculty, and it's called the arbitrary and capricious standard,
and it applies to both private faculty and public university faculty. So it's across the board.
And so despite all of the what I almost feel is overwhelming negative news in the academic world,
both politically and legally, which then becomes personal to faculty, there has historically been

(37:36):
good news. The starting point is that courts do not accept educational malpractice as a lawsuit.
So that may be a reason why faculty don't think about getting insurance, because there isn’t
educational malpractice, courts don't accept it. They want to be out of the business of evaluating
faculty work. There's 18 million students, even if they're taking multiple classes,
in college across America, and courts do not want to be faced with “My professor committed

(38:00):
malpractice, they're negligent,” all that stuff. So there's no educational malpractice as a general
proposition in American law. That's good. As it concerns the liability of faculty individually
for their decisions, the arbitrary and capricious standard basically says this, if a professor or
an instructor has a rationale for a decision that might have caused consternation or pain, that's

(38:24):
good enough. It isn't arbitrary. I take grading very seriously, and where I work, there's no
legal teaching assistant, so I grade all the work, and I give a lot of essay work as well. So I want
students to know that I like mentally have touched their work and I've read it and I've dealt with it
so that my comments to them reflect that I care about them as students and people so arbitrary

(38:47):
is like, “Okay, I'm gonna throw these things up in the air, and wherever they land, there's your
grade.” That's arbitrary. Capricious is sort of like having that darkened heart towards a student.
If I have a rationale for my decision making, then it's passed the arbitrary and capricious standard,
and I'm safe, and courts accept that, generally speaking, and that's a good thing to think about
and take with you in your work as a faculty member. It's an encouraging thought to realize

(39:13):
that I'm not being judged by whether someone else would have done this, and often we think that's
how it works, like if, in a worst case scenario, faculty member is truly sued over a decision that
affects a student, they might wonder, what if the judge wouldn't have done what I did? And the case
law is wonderful because it shows that when faced with these decisions, judges specifically say it

(39:34):
doesn't matter if I would have or would not have done what you did. It matters whether what you
did passes the rationale test, and if there's a rationale for it, it's not arbitrary, and if
there's no evidence that it was motivated by ill will towards a student, it passes the capricious
part of it, and you're on safe ground. One question that faculty might have is whether

(39:55):
or not these same protections qualify for both full-time faculty as well as part-time faculty.
That is a scary thought, and as you probably know, there are way more part-time faculty in
America than full-time faculty, and there are way more altogether untenured or non-tenured
faculty than tenured faculty. So there's only about 25% of American faculty who are tenured,

(40:16):
and of that, less and less are tenure track. So you have a much higher proportion of part-time
faculty than ever before. And part-time faculty, it may be their gig economy job, it may be that
they teach a bit on the side because they're teaching a class, let's say accounting, that's
adjacent to their professional work, for whatever reasons they're teaching, which is wonderful,
they're underpaid doing what they do, and they're often overworked and also under-supervised to the

(40:40):
extent that they might not know what's going on on their campus or in their department, because they
show up for class often at night, in particular, if it's a regional campus, and then they go home,
they're not going to department events or faculty events. The legal standards apply to everybody,
and there is a case in the book which involved a student being sued by a graduate assistant
who was in the PhD program and was teaching a Master's class at the same time. So you

(41:04):
have a part-time faculty member who was a student themselves faced with a lawsuit,
and they were treated as respectfully, legally, as if they were a tenured professor, and the standard
that was applied to them in the lawsuit was the same that would be provided to any full-time or
tenured professor on campus as well.One of the issues that you alluded to
earlier is that there's a growing amount of political attempt to regulate what is

(41:28):
taught and what can be taught at colleges and universities, as well as challenges to
the speech rights of students. Where do we stand in terms of protection of academic freedom and
freedom of speech in the campus environment?That's not just a thorny question. It's a very
depressing question, I think, because there's the look across the landscape is not pleasant,

(41:51):
and I guess one encouraging thought to take from that is that much of the academic freedom case
law that stands up for the rights of faculty comes from a time period when, in the mid-20th century,
when faculty rights were at risk and you had lawsuits that sort of established grounds for

(42:11):
why faculty should have academic freedom, what it means and how far it goes. Another
thing to take from this is that the American Association of University Professors, the AAUP,
was formed because of the way faculty were being treated politically speaking in their work. So
I think there is a media-driven misnomer that college faculty, particularly tenured faculty,

(42:36):
sort of exist conspiratorially to create an agenda to mind meld their students, to think about the
world in ways that students’ parents might not want. And one problem with that is faculty are too
busy to even conjure up that conspiracy. There's too many things that we're doing to spend time
secretly cloaked up and planning a way to create some sort of academic cult with our students.

(43:00):
And secondly, that isn't what faculty do. And I think of it this way. My analogy would be like,
do people sometimes vote illegally? Yes, they do. Does that mean elections are stolen? No, those are
conspiracy theories. Elections are not stolen. People vote illegally, but it's so infrequent
as to not even be a thought unless someone is peddling a conspiracy theory. Do professors

(43:23):
sometimes do bad things that they shouldn't do? Yes, is it a problem that's national? No, is it
an epidemic? No, not at all. Because, guess what? There are already methods in place to deal with
that. There are departments and administrators and case law where faculty do get held and their
feet are put to the fire for mistreatment or ways of acting in their professions that are

(43:45):
either unprofessional or shouldn't be done, but I think that faculty are now generally targeted
as being almost anti-American. The sad thing about that is that academic freedom is one of the
essentials and the first essential of tenure. So the first purpose of tenure is academic freedom,
and the reason for that is that tenured faculty members are likened to federal judges. That's

(44:09):
often an analogy drawn. Federal judges do things that are often unpopular, but if they don't have
to run for office, then they can engage in their work free from the constraints and the pressures
and maybe even the threats to their livelihood based upon what they will be doing. And so faculty
are given tenure for that reason. The second reason is economic security, and even the faculty

(44:33):
who are tenured don't have their job for life, that's not the case. A contract of employment
that is thought to be perpetual does not mean that it's for life. It means that it just, as granted,
doesn't have an easy ending date. It can be ended. It's just not an easy way to be ended.
So academic freedom is the first purpose of tenure, and so the more and more people that

(44:55):
are not tenured or in a tenure system, the more at risk I think academic freedom is, because part
of academic freedom is the realization that you don't have to go to court all the time to get it,
because it's culturally understood you have it. And the more that faculty are not in the tenure
track or tenured system, I think the less they're cultured to realize they do have academic freedom.

(45:20):
So I think that legislatively, there's a risk of academic freedom in many states as new laws are
passed that impinge, in my view, on what faculty are entitled to teach. Because if you think about
where academic freedom is strongest for faculty, it's actually in the classroom. So it's a weird
phenomena that the strongest point for faculty with respect to the academic freedom is their

(45:41):
instructional decision making and techniques, and yet that is where it is at most, now seemingly
at risk, what they do in the classroom. So it's an irreconcilable concept to me to say
that faculty's academic freedom, including part timers, should not exist in the classroom, when,
in fact, that is where it is most historically by court decision and culture its strongest.

(46:04):
In this landscape where there's this increasing number of contingent faculty
and declining enrollments and the political attacks that we've just talked about, really,
how strong is this protection of tenure for this increasingly smaller population of faculty?
And again, that answer starts with, where do you work? And often the first question is,
where do you work? And if you work at a private institution, then you don't have the

(46:25):
constitutional aspects of protection that public university faculty historically have had. And for
faculty who are tenured in public institutions, they have what's known as a property right in
their employment and to have a property right is in some way referring to the 14th Amendment's due
process clause and the question of whether you have a substantive property right in your job.

(46:48):
Tenured faculty members in public institutions have this Constitutionally connected property
right. Faculty in private institutions who are tenured, they have rights, but they're exclusive
to contract law, what has been granted to them in their tenure documents or their policies on
tenure that solidify their employment as tenured faculty members. So tenured faculty members in a

(47:13):
true tenured system, and it's not the label… someone could be called a full professor,
I'm just an associate professor, but I'm tenured. A full professor might have no tenure. They just
might have a really nice label, but not tenure. So to truly be tenured is to have protection
for your status in your job, that it is extremely difficult, but not impossible, to remove you from

(47:34):
your position. That could include what's called, budgetarily speaking, a reduction in force, and
generally speaking, when there's a reduction in force, it would make sense, perhaps, to start with
a tenured faculty member, because they make more money. Now that isn't always the case, because
sometimes in business schools, the newest hired Business School professor makes more money than a
tenured professor who was hired years earlier and started a lower rate of salary. But even though

(47:58):
it might make sense budgetarily to start removing a tenured faculty member because of their salary,
tenured faculty members have a protected status, and so even in reductions in force, universities
or colleges have to show that they ticked all the boxes carefully that’s required to remove a
tenured professor from their position. And that's why the common phrase is “just cause” or “adequate

(48:21):
cause.” A tenure-track faculty member is really on shaky ground, and a contingent faculty member
who is part time is on exceptionally shaky ground. A tenured faculty member can be fired. They can
be fired for just cause, and it happens. And it happens in cases where it should happen, whether
the phrase “dead wood” with respect to tenured faculty is unfair or not. Understand that we

(48:42):
all work with people that we know perhaps aren't carrying their weight, but they're few and far
between, which is why we know about them, because it's not a common occurrence. But tenured faculty
members can be suspended and they can be fired, including for budgetary reasons, but usually they
can only be fired if the process owed to them by contractually obligatory policy and or the notions

(49:08):
of due process have been followed correctly.So we always end with the question,
what's next? Well, for me,
what's next is perhaps creating a limited series podcast for these topics in which I try to tackle
them in a podcast where I try to explain to people some of the topics that are in the book in maybe a

(49:28):
greater level of depth or explanation. My campus is running a book club or a book group for this
book, so I'm happy to be a part of a book club for faculty on my campus that are reading the
book. And I'm trying to do some speaking on these subjects related to the book, wherever someone
will have me, but particularly to faculty groups as well. So various chapters of AAUP organizations

(49:49):
and other faculty groups as well. Well. Thanks so much for joining us. It's
an important series of topics to be talked about because, as we mentioned right at the top, that
it's not something that's readily available. And, as you mentioned earlier, that narrative
is a really effective way of conveying this information, provoking curiosity,
and it makes it a much more fascinating read than many legal books might be. So thank you.

(50:13):
Thank you for that encouragement, and thank you for inviting me and having me on your
podcast. I appreciate just talking about these subjects, which I think are important to faculty,
but might not always be brought to their attention. So I appreciate this time together.
If you've enjoyed this podcast, please subscribe and leave a review on iTunes

(50:36):
or your favorite podcast service. To continue the conversation, join us on
our Tea for Teaching Facebook page. You can find show notes, transcripts and
other materials on teaforteaching.com. Music by Michael Gary Brewer.