Conflict, legal threats come with being chair

By Bridget Murray

Day after day, students filed in to see David Martin, a psychology department head, all with the same complaint: Their untenured psychology instructor hadn't taught the material and had left them feeling incapable of understanding it.

Martin gave the faculty member several chances to improve, warning her, for example, about the poor student evaluations and referring her to a center that offered teaching seminars and help with lectures. But time after time, appraisals of her teaching came back negative. Eventually Martin, with the recommendation of his personnel committee, took action and decided not to renew her contract.

Several months later, he was defending that decision in court.

And he's not the only chair who's faced legal action. Handling legally explosive situations is increasingly one of the hazards of being a chair. University litigation is on the rise--at least three claims hit the average academic institution per five years, triple the number of years past, according to a 1997 study by the risk-management consulting firm Tillinghast-Powers Perrin.

Personnel and student dismissal conflicts are typically the focus, and discrimination is most often the charge, but the most obscure of scuffles can turn litigious. Lawsuits can result from a pat on the head that's interpreted as sexual, a negative reference letter that's considered vindictive or a denial of someone's request to teach a course that's viewed as discriminatory. And because department chairs are the first line of administrative command, they're often pulled in.

Handling conflict is one of the most time-consuming responsibilities for chairs, and the demands involved take many of them by surprise. Most do their best to resolve disputes in the department, university or professional school. But that's not always possible.

"You're lucky if you're a chair 10 years and haven't been to court," says Martin, who has left the department where his court case originated and now chairs the psychology department at North Carolina State University.

Yet few chairs take on the job prepared for the legal aspects, and universities seldom provide formal training, though more are beginning to. Mostly it's up to chairs to make sure they follow university personnel procedures, investigate how much their institution will back them legally, talk to the right people when legal threats arise and, perhaps most importantly, document their decisions.

Preventing legal action requires tedious attention to detail, says Kent Weeks, a lawyer with Anderson, Russell and Baker in Nashville, Tenn. "This is the price for having amore open, less discriminatory employment system," says Weeks, who writes on the legal pitfalls of being chair. "The paper trail is now part of the job."

Knowing the drill

Even if the paper trail doesn't prevent chairs from going to court, Weeks says, it shows whether they followed correct departmental procedures. In Martin's case, for example, he proved he'd clearly warned the faculty member that she was underperforming, offered her routes to improve her teaching and gave her advance notice of termination.

This demonstrated his adherence to "due process"--the set of prescribed steps through which administrators handle sensitive personnel matters. By showing he'd taken those steps, Martin's university eventually won the lawsuit. But not before he'd spent upwards of eight hours a week on the case for a year and had suffered considerable emotional stress.

Martin isn't embittered by the experience, though. Since then he's taken a philosophical view on litigation.

"It's unpleasant, but it's something you have to be willing to put up with," he says.

Besides knowing departmental procedure, he suggests having a working knowledge of higher education law, gleaned from reading commercially available books and materials provided by law offices at universities or professional schools, as well as from attending related workshops. As yet, few institutions offer such training, but some have started to. For example, Arizona State University offers new administrators a workshop that covers litigation prevention and introduces them to the university's law office.

Ensuring coverage

While departmental manuals clearly set out procedures for handling such matters as hiring and evaluating faculty, designating student teaching responsibilities and handling cases of academic misconduct, other legal concerns are murkier. Many chairs wonder if they can be held liable when conflicts become particularly personal--if for example, they're accused of harassment and persecution for denying somebody tenure.

The answer, says Weeks, is usually no. In most cases, if chairs act "in the scope of their job," the institution is liable, not the chair, he says. Usually the suit names the chair, who must produce documents. But the institution's insurer will cover attorney fees and pay if the suit is lost.

"As long as I'm not negligent the university will back me," says Robert Lyman, PhD, psychology chair at the University of Alabama, whose record-keeping once freed him from a tricky legal skirmish involving a clinical PhD student he had asked to withdraw.

"I'm not losing sleep," says Lyman, "but I'm careful."

However, says Weeks, in some exceptional cases, chairs can be held liable, most likely if they're charged with harassment, defamation in reference letters or "when it looks like they're out to get someone."

In such cases, institutions may claim it's a personal conflict outside the scope of the chair's job.

Some chairs fear that possibility and seek their own coverage. Virginia O'Leary, PhD, psychology chair at Auburn University in Alabama, carries personal liability insurance through Marginnis and Associates in Chicago. O'Leary pays a monthly premium of $130, which covers her for up to $1 million a lawsuit.

Allen K. Hess, PhD, psychology head at Auburn University's Montgomery branch also carries liability insurance and self-insures by being aware of legal issues and procedures and having his own fund. Hess once terminated a faculty member, having cleared the action through the dean and academic affairs office. The faculty member took legal action and, at first, the university attorneys denied Hess their services. Hess pointed out that he had cleared the action with higher authorities and that he had been acting as the university's agent, which convinced the attorneys of the university's obligation to represent him. But, he says, the case proves that chairs can't be sure of institutional coverage.

Seeking counsel

For the most part, personal insurance coverage is easy to get. Such organizations as the American Association of University Professors offer it at relatively inexpensive rates of $75 a year for $500,000 of coverage and $125 a year for $1 million of coverage.

But many lawyers and administrators consider it unnecessary. Most chairs can head off lawsuits if they seek advice from upper administrators and legal advisers, says Ann Franke, a lawyer for United Educators Insurance.

Which is exactly how psychology chair Jean Ann Linney, PhD, of the University of South Carolina, says she recently prevented a lawsuit. One of her graduate students, who had publicly opposed affirmative action and coverage of cultural diversity issues in the curriculum, wished to teach a course on the "Psychology of the African-American Experience."

Linney felt uncomfortable about the student's intentions. She knew he wasn't qualified to teach the course based on his training and areas of research, but wanted to be sure she responded appropriately. She contacted her university's discrimination office, which advised her to deny him the position and keep all related correspondence. When he filed a grievance she was ready; she forwarded all their correspondence to the discrimination office, which resolved the dispute internally.

Linney's case is further proof that ultimately, records are a chair's best defense. As North Carolina State's Martin puts it, "If you're fair, calm and backed by paperwork, you're covered."

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