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Title

Syllabi and Depositions

Yes, a syllabus is a contract.

November 27, 2018
 
 

Yes, a syllabus is a contract. John Warner posted a thoughtful piece yesterday in which he tried to escape the language of contract, preferring to think of his syllabus as “some mix of plan, promise, and manifesto.”  He pointed out that students don’t really get to negotiate syllabi, and that some classes are required, so the language of voluntary agreement seems strained. Worse, legalisms can get in the way of recognizing the particularity of students.

To which the admin in me says, that’s all well and good, but it’s also a contract.

If you’ve ever had to give a deposition, you’ll know what I mean. 

If a professor’s grading practices or classroom practices are challenged by outside agencies -- whether private attorneys or state divisions of civil rights enforcement -- what matters is whether the professor stuck to the policies denoted in the syllabus. Significant deviations from the syllabus, especially bespoke ones for particular students, raise signal flares for “arbitrariness.” At that point, the burden of proof shifts to the professor to show that a given decision or practice wasn’t discriminatory. Proving a negative is a tough job.

In reading Warner’s piece -- which I consider well-intended, humane, and done with the obvious and unobjectionable goal of doing right by students -- I was struck that he assumed that any dispute would be contained within the classroom. That’s possible, but far from certain. Colleges have appeal procedures for students, and once an aggrieved student has exhausted the internal processes, she can go external.

When that happens, the rules change dramatically.

When the venue in which the dispute takes place moves from the classroom to some external setting, nuance gets lost.  Suddenly what matters isn’t what you “know,” but what you can prove to someone who wasn’t there at the time, and who may never have been in your position. 

As with writing, audience awareness matters. A tweak that may seem obvious or unobjectionable to an experienced teacher may strike a civilian as high-handed or devastating.  Let’s say that you notice that students struggle with exams, but do pretty well on group projects, so you “call an audible” and substitute a group project for an exam mid-semester. A student who did well on an exam but who struggles with group work cries foul, and cites the syllabus. If that dispute makes its way to me, in the absence of something compelling, I’d have to side with the student. That’s because a syllabus is a contract, and you’ve breached it.

In my experience, campus administrators have generally (and properly) given broad deference to faculty in matters like these.  But that’s because we have some understanding of how classes actually work. Move the venue outside the academy, and you’re suddenly being judged by people who have never taught a class in their lives.  Some of them may even harbor longstanding grudges against past professors or teachers who treated them dismissively. The farther you get from the syllabus, the more you leave yourself open to that.

As we careen towards the end of the semester, I’ll reissue my periodic warning to well-meaning faculty everywhere: extra credit is a minefield.  If you must do it -- a major “if” -- then you need to offer it to everybody, and in writing. Offer it to some and not others, and you’re laying yourself wide open to claims of bias.  Offer it verbally but not in writing, and you’re defenseless against disputes about what you said. If you must do it, put it in writing and offer it to everyone. Better yet, don’t do it at all.  Let the grade reflect how the students performed in the class.

In grade disputes and similar sorts of hearings, I’ve never had a problem defending a professor’s policy that she included in the syllabus and followed in practice.  If she gives three exams, one paper, and a class participation grade, then that’s what she gives. That’s not open to dispute. But if she goes rogue and starts improvising, it’s much harder to defend her, even if she meant well. 

It’s dreary to focus on legalisms, I’ll admit, but we can’t just wish them away.  I think of a syllabus as a combination of offense and defense. Offense is the inspirational part; defense is the “what if I get sued?” part.  You need both. Yes, it’s frustrating that people who have no idea how classes work can sit in judgment, but they can. Playing a little defense upfront can prevent much greater harm later.  By all means, make a plan, a promise, and a manifesto. But give a moment’s thought to that awkward moment when a lawyer with an agenda asks pointed questions about battlefield decisions you made with the best of intentions. Those moments are even less fun than writing syllabi.

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