Rebuke for Regents Over Tenure

Kentucky's community-technical college system abused its power in eliminating tenure for new faculty members, state's attorney general says.
September 24, 2009

The governing board of the Kentucky Community Technical College System overstepped its authority when it voted in March to eliminate tenure for faculty members hired after last July 1, Kentucky's attorney general said in an advisory opinion Wednesday.

The opinion does not technically have the force of law; in other words, the attorney general cannot directly compel the two-year college system to restore a policy that grants tenure. But the opinion essentially warns KCTCS, a spokeswoman for the attorney general said, that it "could open itself up to liability if a lawsuit is filed" -- say, by one of the faculty groups that are deeply unhappy about the policy change.

And while the opinion does not propose any specific solution, said the spokeswoman, Allison Martin, "it will be up to the [KCTCS] board and its counsel to remedy the situation, so it complies with Kentucky law and the recommendations of the Office of the Attorney General."

A spokeswoman for the community-technical college system's administration, Terri Giltner, said officials there had just received the opinion and had not had time to review it. While the system's Board of Regents will begin a previously scheduled meeting today and is likely to discuss the matter in executive sessions, Giltner said, there is little chance that its members will reach any decisions before the meeting ends Friday.

In March, the KCTCS board voted, after months of debate, to stop awarding tenure to new faculty members and shift instead to a system of term contracts that would increase in length over time. Instructors tenured or hired on the tenure track before July 1, 2009 were to be grandfathered in.

System leaders said the two-year institutions in the system needed more flexibility in educating the state's workforce to keep up with evolving and rapidly shifting needs, and that the change might actually be less expensive and allow the system to hire more full-time professors and fewer adjunct instructors.

But faculty leaders objected strenuously to the change, which they said would discourage good faculty members from coming to the system's institutions and ultimately undermine the quality of the education they provide to students.

They vowed to take the fight to the state's legislature -- one of whose members, Rep. Rick Nelson, sought advice from the attorney general, Jack Conway, a Democrat.

Conway's analysis rips apart the KCTCS board's argument that the state law that created the community-technical college system in 1997 gave it broad authority to set employment policies for the system and its institutions. But that same law, the attorney general notes, unambiguously states that new faculty members at KCTCS "shall earn tenure," and that clear-cut statement takes precedence over more general assertions of authority. "Although the board has been given 'exclusive authority' to govern KCTCS," Conway writes, "such authority cannot be over and against that of the General Assembly," which enacted the law and its specific provision assuring tenure for faculty members.

"While the KCTCS Board of Regents has the authority to enact procedures and standards for how faculty are to earn tenure in the future, it is not free to eliminate tenure entirely," Conway concludes.

Faculty leaders at KCTCS welcomed the ruling by Conway, and noted that he is uniquely qualified to interpret the 1997 state law that created KCTCS, since as an aide in the office of then-Gov. Paul Patton, he played a central role in writing it.

"The Faculty/Staff Alliance (AFT 6010) couldn't be more pleased that ... Jack Conway agreed with our legal arguments that the Kentucky Community and Technical College System Board of Regents exceeded its legal authority when it voted to eliminate tenure this March," Barbara Ashley, the union's director and professional development coordinator at Jefferson Community & Technical College. "We hope that the KCTCS [board] will act in good faith to fully reinstate tenure. But we are keeping all legal and legislative options open should they fail to do so."

In other words, Ashley said, the faculty and staff group will continue to press legislators to consider revising the law and will hold out the prospect of suing KCTCS if the regents -- at its next meeting, since it is unlikely to act at the meeting that starts today -- don't back away from the policy they adopted in March.


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