Higher Education Law: The Faculty (review)

Given the pervasiveness of the law in our society, it is no surprise that books addressing legal issues in higher education have flourished. Many of us are familiar with William Kaplin and Barbara Lee's large treatise, The Law of Higher Education (Jossey-Bass, 1995), and with Michael Olivas' case book, The Law and Higher Education (Carolina Academic Press, 1997). Robert Hendrickson's The College, Their Constituencies and the Courts (Education Law Association, 1999) and Douglas Toma and Richard Palm's The Academic Administrator and the Law (ASHE-ERIC Monograph, 1999) are treatises like Kaplin and Lee's but on a considerably smaller scale. Poskanzer's Higher Education Law: The Faculty is also a treatise, but it focuses on the faculty with greater breadth and depth than the other books, and, consequently, it provides a narrower view of legal issues in higher education. Thus, its usefulness as a text for a course on, say, higher education law, will depend on how much of the faculty perspective is called for. If the course is a survey of legal issues, then Poskanzer's book likely will be relegated to supplementary status; if the course seeks to provide in-depth discussion of faculty matters, then Poskanzer's text might be a welcome addition to class discussions.

Even if it focuses only on legal issues affecting faculty, Poskanzer's book differs from, and is more interesting than, Terry Leap's Tenure, Discrimination, and the Courts (ILR Press, 1995) or Benjamin Baez and John Centra's Tenure, Promotion, and Reappointment (ASHE-ERIC Monograph, 1995). Rather than organizing the book around common legal categories, such as academic freedom, tenure, employment discrimination, and so on, Poskanzer organizes his text around faculty roles. So the main chapters in his book are called "Scholarship," "In the Classroom," "Faculty as Institutional Citizens," "Faculty as Public Citizens," and "Faculty as Employees."

This organization more accurately reflects faculty life and allows him to theorize about how courts address conflicts over faculty work. For example, given how central scholarship is to faculty life, Poskanzer is able to explain how courts will almost always defer to faculty choices. In organizing the book in this manner, however, Poskanzer unwittingly illustrates just how artificial any categorization of faculty work can be. Categories, regardless of how central and distinct they appear to us always slip into each other, and so I am not certain that this organization of the book made understanding the law any clearer than a more traditional organization around legal categories. Moreover, his schema still requires him to put the traditional legal concepts somewhere. Thus, academic freedom appears more prominently in the chapter titled "Faculty as Public Citizens," yet, arguably, academic freedom's most fundamental application is in what he calls the core functions of the university—teaching and scholarship. Similarly, tenure is discussed in the chapter titled "Faculty as Employees," but its dissociation from academic freedom seems odd to me. At any rate, Poskanzer's organization of his subject made for more interesting reading.

What I found also pleasantly surprising was Poskanzer's willingness to address honestly trends that are problematic for the profession. Thus, Poskanzer recognizes the pitfalls of institutional and professional pursuits of external funding and profits, of graduate-student unionization, of post-tenure review, of policies on faculty-student amorous relationships, and so forth. He provides objective legal analysis of these issues, but as an academic (and as an academic administrator), he gives us his own perspectives, making the book more credible than other books on legal issues.

Given the predominance of his legal perspective, however, one comes away sensing a kind of naiveté about some of his conclusions. This is a problem I find endemic to books addressing the law. By focusing on legal texts, one fails to see how extra-legal pressures makes academic life even more precarious than the authors of such books assume. For example, on page 60, Poskanzer...