LARC Cardoso Law (Yeshida Univ)
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Faculty Handbook as Contract
Get PDFColleges and universities, like other employers, typically have in place policies that govern the employment relationship with their faculty. Many such policies—policies against employee misconduct or policies on accommodations for persons with disabilities—are comparable to what employees might encounter outside of academia. Most higher education institutions also have in place policies that are more unique to academia, such as policies establishing shared governance bodies, affirming academic freedom as a core value, or outlining procedures on the granting and revocation of faculty tenure. These faculty policies may be aggregated in a faculty handbook, published separately on the institution’s web site, or, in the case of public institutions, adopted through legislative enactment. It is often unclear, however, whether college or university commitments that have been adopted and published in such policy documents—referred to here for ease of reference as “faculty handbooks”—are contractually binding. The enforceability of faculty handbook policies is also central to establishing a faculty member’s property interest in continued employment for purposes of bringing a constitutional claim against a public employer.
The security of college and university faculty employment is more tenuous than it used to be. Although this is particularly true for untenured faculty, tenured faculty are not immune from employment insecurity. Tenure is not a lifetime guarantee of employment, and recent state measures aimed at weakening tenure have raised questions regarding the future of tenure in higher education. For example, Wisconsin stripped tenure protections from its state statutes in 2015, vesting in the university system’s regents authority over tenure policies, and broadening the grounds on which tenure could be revoked. In 2021, the University System of Georgia’s Board of Regents approved changes to the system’s post-tenure review policy, requiring tenured faculty to undergo a performance review every five years, mandating a “performance improvement plan” in response to unfavorable reviews, and requiring universities to “take appropriate remedial action” if the faculty member has made insufficient progress on the improvement plan. Florida’s new post-tenure review policy appears to go further to politicize the post-tenure review process, and even more extreme bills have been proposed in other states. Financial constraints precipitated by the COVID-19 pandemic prompted a number of institutions, including the University of Akron and the University of Kansas systems, to abrogate tenure.
Perhaps even more significant than these recent, politicized events is the shift in the makeup of higher education faculty that has occurred in the United States—from a majority of faculty on the tenure track, with a small minority of non-tenure-track faculty in 1970, to the reverse situation today, with tenured and tenure-track faculty in the minority. This shift has diminished the practical significance of tenure and weakened shared governance in colleges and universities.
These recent developments—state laws and regulations aimed at weakening tenure, the financial strain on institutions brought on by the COVID-19 pandemic, and fact that only a minority of college and university faculty are currently on the tenure track—have highlighted the importance of having in place reasonable and enforceable policies governing faculty termination. But the law on the enforceability of faculty handbook provisions (and other institutional policies), like the law on employee handbooks generally, can be confusing and often turns on the specific facts of the case at hand.
Using the lens of college and university faculty termination policies, this Article seeks to make sense of the law governing the enforceability of employee handbooks. Employing case examples from the higher education context, specifically faculty termination cases, this Article identifies distinct features of the employment relationship between faculty and higher education institutions. Unlike other employment relationships, faculty contracts, which tend not to be at will, uniquely illustrate why unilateral contract doctrine is unsuited to determining the enforceability of handbook policies. This Article supports an approach to enforcing handbook commitments that is less strictly grounded in contract doctrine. In the higher education context, such an approach would treat handbook commitments as contractually enforceable but afford colleges and universities flexibility to amend handbook policies so long as modifications are reasonable in light of academic custom, made with reasonable advance notice, and adopted consistent with principles of shared governance. Part I of this Article summarizes the differing approaches U.S. courts have taken to enforcing employment handbook policies. Part II addresses the distinct features of faculty contracts and makes the case for why adopting the approach of Toussaint v. Blue Cross & Blue Shield of Michigan and Bankey v. Storer Broadcasting Co. (In re Certified Question) makes sense in the context of enforcing college and university policies governing faculty termination
Multi-Generation Queer Families: Foregrounding the LGBTQIA+ Children of LGBTQIA+ People
Get PDFIn the last several years, state legislatures have passed a disturbing array of anti-queer laws that target queer (especially trans) children. The basic fear animating these laws is that exposure to LGBTQ people or LGBTQ supportive ideas will somehow turn straight children queer. LGBTQ activists have responded to the concern that exposure to queer people or ideas will make children queer by arguing that sexual orientations are innate or immutable. This immutability argument is problematic, first, because it avoids confronting the normative judgment at the heart of the fear of a queer child by failing to say that there is nothing wrong with a child being queer, no matter how the child\u27s sexuality developed. Second, this argument is bad for queer parents, who may be more likely to have queer children. This Essay argues that advocates of LGBTQ rights should center multi-generational queer families. Multi-generational queer families challenge the idea, internalized by the LGBTQ rights movement, that parents should strive for normalcy in the form of straight children; the acceptance of this idea caused many queer parents to lose custody of their children. Multigenerational queer families are in a unique position to create a new paradigm for how to view queerness. Foregrounding multi-generational queer families will help the LGBTQ rights movement move beyond tolerance for queerness as an immutable trait, and towards the idea that queerness is a way of life that should be celebrated
Populists in Power and Constitutional Counternarratives
Get PDFIn this essay I shall comment on A Pluralist Theory of Constitutional Justice by Professor Michel Rosenfeld, by developing three points that have to do with the legacy of Carl Schmitt’s constitutional theory. The first is about the progressive weaponization of constitutional law that characterizes what I call the populist constitutional counternarrative. In particular, I will explore how populists in power use constitutional law. The second point has to do with the notion of constituent power in a context of comprehensive pluralism. The third point is about the relationship between constitutionalism and political theology. The intuition behind this is that populisms (in the plural) have evolved, so to speak, to the point of constructing a true constitutional counternarrative. By constitutional counternarrative, I mean the abuse of the categories of constitutional theory and the tools of constitutional law with the aim of manipulating the wording of constitutional provisions
The Universal and Its Others: Dialectics and Conflict in Comprehensive Pluralism
Get PDFSince the release of Rawls’s A Theory of Justice in 1971, discussions on the role of groups, redistribution, and symbolic recognition have gained unprecedented attention in North America and Europe. How can we ensure equal recognition among groups and foster equitable access to goods in a way that provides fair distribution not only among groups (plurality) but also within groups (the singular) so that all are politically and socially included on a common shared basis (the universal)? While the approach to this question differs between America and Europe—think of French republican universalism and the historical evolution of the concept of nation, along with its recent impact on secularism—it has also been diversified by third world perspectives. “Provincializing Europe,” to borrow Dipesh Chakrabarty’s book title, also means provincializing a certain universal affirmed as globally valid while denying the plurality and singularities that resist it, or, indeed, other discourses on the universal, other universals. To reconceptualize the minimums of justice and establish a more inclusive universal, it is also crucial to integrate not only postcolonial critiques but also perspectives that have been historically overlooked, such as those of women, sexual minorities, and the subaltern, within this overarching universal framework. Despite the Western-centric focus of Michel Rosenfeld’s book, A Pluralist Theory of Constitutional Justice, as highlighted by Daniel Bonilla Maldonado, it offers a sophisticated conceptualization of the universal. This conceptualization provides an original and fruitful approach to articulating the relationships between the three key elements—the singular, the plural, and the universal—ultimately allowing for the development of a comprehensive pluralist theory within the context of liberal democracies.
The approach through which Rosenfeld develops his theory deserves to be highlighted for its ability to transcend certain intellectual divides. The formulation of his theory of comprehensive pluralism and the essentials of justice combines a critical dimension with a normative one. This articulation is a strength in Rosenfeld’s thinking, challenging the established notion in philosophy and legal studies that these two perspectives must remain separate. Typically, critical work aims to unveil forms of power and domination—such as class, race, and gender—to denounce them, while normative perspectives construct projects for social, political, and legal transformation. The normative perspective is theoretical: it elaborates a theory of justice, which, most of the time, is an ideal theory. But this division of intellectual work is questionable. On the one hand, critical theories necessarily require a normative standpoint: the critique of inequalities of economic redistribution, lack of cultural recognition, or failures in political representation, to borrow from Nancy Fraser’s framework of “scales of justice,” necessarily needs a substantial and normative concept of equality, and, more broadly, parameters of justice without which it cannot denounce social practices and structures as unjust. The articulation of a normative standpoint with a critical one can also be found in Max Horkheimer’s project of developing a type of critique aimed at social transformations. In other words, critical theories must uncover the parameters that make critique possible and the kinds of transformations they aspire to: critical theories are thus conditioned by a normative theory, both in their principles and purpose. On the other hand, normative theories of justice lose their relevance if they sever all connections to praxis, the reality of social relations, and the forms and structures of power that produce and reproduce injustices. In this sense, theories of justice must integrate a critical dimension, understood as a constant means of adjusting normative statements and establishing a specific relationship to social experience. Theories of justice need, therefore, to incorporate a transitional dimension that reflects how to achieve justice ideals in nonideal contexts. This implies that political philosophy and social philosophy have to be understood as inseparable.
Rosenfeld’s book integrates these two perspectives. It engages with our contemporary, nonideal, and even tragic context marked by tribal politics, globalization, fragmentation, global terrorism, and inequalities. It also puts forth a normative proposal, that of a comprehensive pluralism articulated with essentials of justice that allow for the conceptualization of a pluralist, inclusive constitution. Identifying the minimums of justice makes it possible to formulate a plural universal that integrates the concept of equality in a specific way: equality transforms conflict or disagreements inherent in postmodern societies into a factor of inclusion and freedom, provided that overcoming conflict is perceived as temporary. In other words, the strength of Rosenfeld’s thesis lies in generating a concept of a plural universal, or a pluralization of the universal, while acknowledging conflict as unsurmountable since it is inherent to democratic dynamics.
In Part I, I will highlight the uniqueness of Rosenfeld’s method, which leads him to make conflict the central legal-political element of his conception of justice, unfolding from a mid-level pluralism. Then, in Part II, I will focus on the concept of the universal that Rosenfeld develops by complexifying it, considering its internal contradiction from the viewpoint of its relationship to the singular and the plural, and, in Part III, considering its external contradiction in the form of competition between universals. Finally, in Part IV, I will formulate the hypothesis of a metauniversal by considering equality as the principle that makes the comprehensive pluralism inherent in constitutionalism, as advocated by Rosenfeld, possible
Bound to Misfortune: Protecting Juvenile Abortion Through the Right to Travel
Get PDFOn July 1, 2022, the Indianapolis Star reported that a ten-year-old Ohio girl, who had been raped and was six weeks pregnant, had sought an abortion in Indiana. Abortion had been outlawed in Ohio mere hours after the Supreme Court overturned Roe v. Wade, but it remained legal ˙in neighboring Indiana. The Ohio girl was able to cross the state border, get the abortion, and—presumably—return home safely. But if lawmakers like those in Missouri, South Carolina, Texas, and a handful of other states have their way, pregnant© children in abortion-restrictive states will be unable to avail themselves of neighboring states’ abortion-permissive laws.
While many post-Dobbs restrictions have imposed variously severe bans on abortion itself, some states have proposed—and at least one has implemented—a particularly pernicious type of regulation: the travel ban. Some of these proposed statutes mirror the design of Texas Senate Bill 8, imposing no direct restrictions on women seeking abortions. Instead, they would bar third parties from aiding, either physically or financially, out-of-state abortion travel. Such proposals have been met with skepticism in the legal community, and there is extensive scholarship rejecting the notion that states may prohibit abortion travel. Indeed, Justice Kavanaugh explicitly stated in his Dobbs concurrence that such restrictions would be unconstitutional. Such reassurances may be cold comfort to those who cannot travel, but they are vital nonetheless. Before Roe struck down state abortion bans, more than forty percent of abortions were performed on women outside their state of residence. By 2019, that figure had fallen to just over nine percent. With Roe overturned, it seems likely to rebound—and travel protections will be essential.
A subcategory of abortion travel bans exclusively target minors and, unlike their more generally applicable analogues, the constitutionality of such laws is far from clear. For example, a newly enacted Idaho law makes it a crime to procure an abortion for a minor by transporting them within the state. Similarly, a legislative proposal in South Carolina would make it a felony for anyone to bring a pregnant minor to another state to obtain an abortion. More such laws are likely to be proposed soon. The conduct these regulations proscribe is not hypothetical: there is a documented phenomenon of more minors seeking out-of-state abortions when in-state restrictions such as parental notification requirements are imposed.
The threat of juvenile travel bans is significant, and this Note provides a roadmap to protection. It argues that, in the absence of a constitutional abortion right, abortion access can and should be secured through other constitutional doctrines. The right to travel is a strong contender for three reasons: it is deeply rooted in our nation’s legal tradition, it bolsters federalism interests, and it may eventually serve to protect other rights on the Court’s chopping block.
Part I of this Note explores the history and justification of the constitutional right to travel, in both interstate and intrastate contexts. It then explains how fundamental rights in general—and the right to travel in particular—have been evaluated, and occasionally diminished, when applied to minors. Part II identifies a gap in the literature: while there has been litigation over minors’ right to intrastate travel, there has been little academic or judicial analysis of their right to interstate travel. The Part then argues that minors have a fundamental right to interstate travel that should be subject to the same heightened scrutiny as the parallel adult right. Finally, Part II demonstrates why juvenile abortion travel bans are unlikely to survive such scrutiny
Book Talk: Watchdogs: Inspectors General and the Battle for Honest and Accountable Government
Get PDFInspectors General have been called the most powerful public officials you’ve never heard of. They work inside federal agencies, exposing corruption and ferreting out waste, fraud and abuse. But they’re also vulnerable to removal at the whim of the president. Glenn Fine was the Inspector General of the Department of Justice in the Clinton, Bush and Obama Administrations. He was also the acting Inspector General of the Department of Defense from 2016 until 2020, when he was replaced by former President Trump as part of a series of IG firings that the Washington Post called a “slow-motion Friday night massacre.”https://larc.cardozo.yu.edu/event-invitations-2024/1031/thumbnail.jp
Blockchain & Beyond: The Implications of Crypto Enforcement & Policy Changes
Get PDFA panel exploring how policy changes and regulatory enforcement are shaping the future of the crypto industry.https://larc.cardozo.yu.edu/flyers-2024-2025/1011/thumbnail.jp
Violations of Human Rights and Available Remedies Under International Law: The Case of the United Arab Emirates (UAE)
Get PDFhttps://larc.cardozo.yu.edu/flyers-2024-2025/1009/thumbnail.jp
Cardozo Law News Brief: December 20, 2024
Get PDFFeatured Faculty: Jessica Roth Gary Galperin Luis C. Calderon Gomez Matthew Wansley Samuel Weinstein Edward Zelinsky
Campus News: Presiding Justice Dianne T. Renwick \u2786 of the Appelate Division, First Department, To Receive Advancement of Judicial Diversity Award From the New York State Bar Associatio