Student Accessibility Past Practice Academic Freedom and 67 Issues California Community Colleges Chief Instructional Officers CCCCIO Spring Conference April 12 2017 Presented By Eileen OHareAnderson ID: 587471
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CIO’s Toolbox:Student Accessibility, Past Practice, Academic Freedom, and 67% IssuesCalifornia Community Colleges Chief Instructional Officers (CCCCIO) Spring Conference | April 12, 2017
Presented By: Eileen O’Hare-AndersonSlide2
AgendaStudent AccessibilityPast Practices and BargainingAcademic Freedom67% issuesAs many as we have time forSlide3
Student Access to Instructional MaterialsSlide4
Sources Of Law – Student Disability IssuesADA/Title II regulates public entities including collegesSection 504 of the Rehabilitation Act of 1973recipients of federal funds – T4FFA
Education Code and Title 5
Board Policies and Administrative ProceduresSlide5
Education Code and Title 5 No DiscriminationIn Any Program or Activity Conducted by a Postsecondary Educational Institution
Equal Access
To
Programs
To
Facilities
For All
Students
Ed. Code, §§ 66270, 72011Slide6
Academic Accommodation Modify Academic RequirementsAuxiliary AidsCourse substitution
Unless
Essential to Instruction
Related to Licensing RequirementSlide7
AccommodationsModification to Provide Equal AccessTo Facilities and ServicesDoes NOT Have to Be:
The Best Available
The Student’s First ChoiceSlide8
Not Required to Alter Program or Lower a StandardWhen does an accommodation alter a program/lower standards? Extended time to take a history exam?NoExtended time to take a typing exam?Yes
Why are those different?Slide9
Not Required to Alter Program or Lower a StandardChris is a blind student. She is enrolled in a Biology course at your college. The faculty member says Chris cannot participate because students must use a microscope in the course. Chris says there are other ways she can participate.What result?Slide10
A Word about WebsitesAlso have accessibility standardsWork with your IT folks to make sure accessibleThere are private for-profit law firms trollingOCR is enforcingSlide11
Academic FreedomSlide12
Academic Freedom IssuesFaculty have academic freedom rightsThrough policies and contract Through First Amendment right to academic freedom in “scholarship and teaching.”
Areas of concern
Students recording in class
Social media
Protecting political speech
Example: Professor
WatchlistSlide13
Academic Freedom Issues Colleges have institutional academic freedomInstitutional interest in academic research outside public viewMutual interests of institution and faculty
Address possible chilling effects created by external pressuresSlide14
Case Study – Academic Freedom A faculty member prepared and circulated draft excerpts from his in-progress book “The Ivory Tower of Babel” and a “7-Step Plan” relating to substantial restructuring of faculty responsibilities at the College. After he circulated the materials, he was given negative annual performance reviews, which allegedly contained falsehoods. He has claimed retaliation for exercising his First Amendment rights.
Demers v. Austin (2014)
746 F.3d 402 (9th Cir.) Slide15
Case Study – Academic Freedom Dr. Smith teaches a modern art history class at the College. As part of his teaching style, he persistently uses profanity and vulgar sexual talk to underscore the “shock art” that predominates his curriculum. One day a student complains to the administration. The District admonishes Dr. Smith that he can teach the same pieces of art, but cannot use any vulgarities in his class.
Violation of free speech and academic freedom?Slide16
Scope of Bargaining andPast Practice QuestionsSlide17
EERA BasicsEmployees May Form UnionsExclusive representativeDuty to BargainIn Good FaithOver Subjects in Scope of BargainingWagesHours
Other terms and conditions of employmentSlide18
Examples of Mandatory SubjectsHealth and welfare benefitsLeave policiesTransfer and reassignment policiesSafety conditionsClass sizeEmployee evaluation proceduresAcademic CalendarSlide19
Past Practice ElementsUnequivocalDeliberate and unambiguous. Clearly Enunciated and Acted UponClear, open, both parties
know
Readily
Ascertainable over
Time
Fixed
and Established Practice
Accepted
by Both
Parties
Several
times
consistently Slide20
How To Correct Past PracticesCorrecting a past practice where CBA silentNotice and opportunity to negotiateNo unilateral action before notice
Correcting a past practice contrary to CBA provision
Publication
Time
ActionSlide21
Case StudyThe District has a past practice of accepting employees’ Sick Leave Request/Report of Absence as long as it is submitted within the pay period the employee returned to work. The CBA requires it be submitted by the end of the employee’s first day back. Sarah submits her form a week after returning (but within the pay period) and it is rejected and the absence deemed unauthorized. Sarah objects and files a grievance claiming that the request violates past practice.
Is the District bound by past practice? Slide22
67% IssuesSlide23
Adjunct Faculty“Entry into the Education Code is painful.”
Haase
v. San Diego Community College District
(1980) 113 Cal.App.3d 913Slide24
67% Rule – The BasicsPart-time Faculty Members are Temps67%Of the hours per weekConsidered a full-time assignmentFor regular employeesWith comparable duties
Ed. Code, § 87482.5Slide25
Can remain a temp forever2 semester / 3 quarter rule does not applyPrior to Jan. 1, 2009, threshold was 60%If load is from 2009 or earlier use 60%
Ed. Code, § 87482.5
Adjunct Faculty: The 67% RuleSlide26
If an adjunct exceeds 67% thresholdFor more than two semesters in three consecutive yearsWill be classified as a probationary or tenured employeeEd. Code, §§ 87482, 87482.5
Adjunct Faculty: The 67% RuleSlide27
Adjunct Faculty: The 67% RuleDistrict determines what is “full-time”Some districts have negotiated different definitionsLook at faculty handbook or CBA
Womack v. San Francisco Community
College District
(2007) 147 Cal.App.4th 854Slide28
Adjunct Faculty: The 67% RuleCalculating 67%Do not include time spent as:Day-to-day substitute
Summer session
Intersession (unless in CBA)
Not-for-credit classesSlide29
Adjunct Faculty: The 67% RuleCalculating 67%Do not include “ancillary activities” unless CBA requiresGovernance
Staff development
G
rant writing
A
dvising
student
organizationsSlide30
Adjunct Faculty: The 67% RuleFaculty load may be averaged over a year, but only if the employee has a year long contract.
This is the road to perdition!!Slide31
WELL INTENTIONED COMMUNITY COLLEGE DISTRICTSlide32
Case StudyEnglish 12 LHEOther humanities, soc sci, business, P.E., foreign languages, STEM 15 LHE Allied Health 18 LHE Vocational Programs 21 LHE Counseling 35 hours Other non-instructional 35 hoursSlide33
Case Study Andrew is an adjunct faculty member in Spanish. He worked for the District 12 LHE during the Fall 2014 semester. He worked 9 LHE in the Spring 2015 semester. He worked 12 LHE in the Fall 2015 semester, and 9 LHE again in the Spring 2016 semester. He worked 10 LHE in Fall 2016. The District would like to assign him 12 LHE again in Spring 2017.What result?
Slide34
Case StudyAcademic Year2014-2015
2015-2016
2016-2017
Fall Spring
12 9
12 9
10 ??Slide35
Case Study Bettie is an adjunct nursing instructor. She has worked 10 LHE for each of the last eleven semesters. This semester, one of the nursing faculty will be away on sabbatical. The District would like to assign Bettie to a full-time load for one semester.What result?Slide36
Case StudyCarlos was first employed by the District in the Fall 2014 semester to teach 12 LHE in the math department. He was employed by the District in the Spring 2015 semester to teach full-time in the biology department to replace a teacher on long term illness leave. He was employed full-time in the Fall 2015 semester to teach physiology.What result?
Slide37
Case StudyAcademic Year2014-2015
2015-2016
2016-2017
Fall Spring
12 15
0 0
15 ??Slide38
Case StudyDallas has taught a voice class in the music department for five years. He teaches it three LHE. In addition, he has worked nine hours per week to accompany the choir. In this assignment, he plays the piano during rehearsals and performances, he works one-on-one with soloists, and when the choir instructor is late (which is often), he conducts the choir in warm up exercises.Is Dallas still an adjunct?
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Case Study Eunice is a full-time tenured member of the English department. In addition to her regular load, she teaches an “overload” each semester. In the Fall 2014 semester, she taught 9 extra LHE. In the Spring 2015 semester, she taught 6 extra LHE. In the Fall 2015 semester, she taught 9 extra LHE. In the Spring 2016 semester, she taught 3 extra LHE. In the Fall 2016 semester, she taught 9 extra LHE. Slide40
Case Study Now, her department chair wants to limit her overload to 3 LHE. Eunice informs him that she has tenure in her overload assignment.
What result?Slide41
Case Study Felicity is a counselor. In Spring 2016 semester she was employed full-time to replace another counselor on sabbatical. In the Fall 2016, she worked 25 hours/week. The Department Chair wants her to work Spring 2017 to replace an employee on long-term illness leave. Slide42
Case Study When told that he can only employ her 23 hours per week, the Department Chair asks Felicity if she will agree to forgo any claim to permanency so that he can give her the full-time assignment. Felicity, who really loves the flexibility that her adjunct status has afforded her, agrees with alacrity.What result? Slide43
Case Study Greg is employed by the District each year as an assistant coach. He coaches men’s soccer during the Fall semester and women’s track during the Spring semester. He is required to meet MQs for physical education. He only works 6 LHE during the Fall semester, but he works 12 LHE during the Spring semester. He has been
like this since
Fall 2007
.
Is he an adjunct?
Slide44
Case StudyAcademic Year2014-2015
2015-2016
2016-2017
Fall Spring
6 12
6 12
6 12Slide45
Thank You!Eileen O’Hare-AndersonPartner | Fresno Office559.256.7800 |
eanderson@lcwlegal.com
www.lcwlegal.com/our-people/eileen-ohare-anderson