Ensuring Student Accessibility and Academic Freedom in Community Colleges
Explore key issues surrounding student accessibility, past practices, academic freedom, and legal compliance in California Community Colleges. Topics include student access to instructional materials, sources of law for student disability issues, educational codes prohibiting discrimination, academic accommodations, and scenarios on altering programs for students with disabilities.
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CIOs Toolbox: Student Accessibility, Past Practice, Academic Freedom, and 67% Issues California Community Colleges Chief Instructional Officers (CCCCIO) Spring Conference | April 12, 2017 Presented By: Eileen O Hare-Anderson
Agenda Student Accessibility Past Practices and Bargaining Academic Freedom 67% issues As many as we have time for 2
Student Access to Instructional Materials
Sources Of Law Student Disability Issues ADA/Title II regulates public entities including colleges Section 504 of the Rehabilitation Act of 1973 recipients of federal funds T4FFA Education Code and Title 5 Board Policies and Administrative Procedures 4
Education Code and Title 5 No Discrimination In Any Program or Activity Conducted by a Postsecondary Educational Institution Equal Access To Programs To Facilities For All Students Ed. Code, 66270, 72011 5
Academic Accommodation Modify Academic Requirements Auxiliary Aids Course substitution Unless Essential to Instruction Related to Licensing Requirement 6
Accommodations Modification to Provide Equal Access To Facilities and Services Does NOT Have to Be: The Best Available The Student s First Choice 7
Not Required to Alter Program or Lower a Standard When does an accommodation alter a program/lower standards? Extended time to take a history exam? No Extended time to take a typing exam? Yes Why are those different? 8
Not Required to Alter Program or Lower a Standard Chris 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? 9
A Word about Websites Also have accessibility standards Work with your IT folks to make sure accessible There are private for-profit law firms trolling OCR is enforcing 10
Academic Freedom Issues Faculty have academic freedom rights Through 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 Watchlist 12
Academic Freedom Issues Colleges have institutional academic freedom Institutional interest in academic research outside public view Mutual interests of institution and faculty Address possible chilling effects created by external pressures 13
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.) 14
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? 15
Scope of Bargaining and Past Practice Questions
EERA Basics Employees May Form Unions Exclusive representative Duty to Bargain In Good Faith Over Subjects in Scope of Bargaining Wages Hours Other terms and conditions of employment 17
Examples of Mandatory Subjects Health and welfare benefits Leave policies Transfer and reassignment policies Safety conditions Class size Employee evaluation procedures Academic Calendar 18
Past Practice Elements Unequivocal Deliberate and unambiguous. Clearly Enunciated and Acted Upon Clear, open, both parties know Readily Ascertainable over Time Fixed and Established Practice Accepted by Both Parties Several times consistently 19
How To Correct Past Practices Correcting a past practice where CBA silent Notice and opportunity to negotiate No unilateral action before notice Correcting a past practice contrary to CBA provision Publication Time Action 20
Case Study The 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? 21
Adjunct Faculty Entry into the Education Code is painful. Haase v. San Diego Community College District (1980) 113 Cal.App.3d 913 23
67% Rule The Basics Part-time Faculty Members are Temps 67% Of the hours per week Considered a full-time assignment For regular employees With comparable duties Ed. Code, 87482.5 24
Adjunct Faculty: The 67% Rule Can remain a temp forever 2 semester / 3 quarter rule does not apply Prior to Jan. 1, 2009, threshold was 60% If load is from 2009 or earlier use 60% Ed. Code, 87482.5 25
Adjunct Faculty: The 67% Rule If an adjunct exceeds 67% threshold For more than two semesters in three consecutive years Will be classified as a probationary or tenured employee Ed. Code, 87482, 87482.5 26
Adjunct Faculty: The 67% Rule District determines what is full-time Some districts have negotiated different definitions Look at faculty handbook or CBA Womack v. San Francisco Community College District (2007) 147 Cal.App.4th 854 27
Adjunct Faculty: The 67% Rule Calculating 67% Do not include time spent as: Day-to-day substitute Summer session Intersession (unless in CBA) Not-for-credit classes 28
Adjunct Faculty: The 67% Rule Calculating 67% Do not include ancillary activities unless CBA requires Governance Staff development Grant writing Advising student organizations 29
Adjunct Faculty: The 67% Rule Faculty load may be averaged over a year, but only if the employee has a year long contract. This is the road to perdition!! 30
WELL INTENTIONED COMMUNITY COLLEGE DISTRICT
Case Study English 12 LHE Other 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 hours 32
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? 33
Case Study Academic Year 2014-2015 Fall Spring 12 9 12 9 2015-2016 10 ?? 2016-2017 34
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? 35
Case Study Carlos 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? 36
Case Study Academic Year 2014-2015 Fall Spring 12 15 0 0 2015-2016 15 ?? 2016-2017 37
Case Study Dallas 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? 38
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. 39
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? 40
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. 41
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? 42
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? 43
Case Study Academic Year 2014-2015 Fall Spring 6 12 6 12 2015-2016 6 12 2016-2017 44
Thank You! Eileen O Hare-Anderson Partner | Fresno Office 559.256.7800 | eanderson@lcwlegal.com www.lcwlegal.com/our-people/eileen- ohare-anderson 45
