Analysis of Kunda v. Muhlenberg College - Case Study Example

Kunda v. Muhlenberg College VII of Civil Rights Act of 1964 is designed to prevent employment discrimination on the basis of race, color, religion, sex, or national origin (The National Archives, archives.gov). In institutions of higher education, Title VII defends against academic decisions that are discriminatory. Disparate treatment is a common argument for filing employment discrimination lawsuits Kunda v. Muhlenberg College (1980) presents a case where a faculty member was denied tenure although she had the qualifications for tenure as well as positive peer reviews. 1. The trial court had accepted that Kunda had been the subject of discrimination based on sex and the appellate court essentially concurred with the trial court’s award in as much as the act of discrimination against the woman faculty member had been established beyond doubt by the plaintiff by providing the “additional element” required to establish a prima facie case was present (Kaplin & Lee, 2007, p7). Besides, the appellate court, like the trial court, accepted Prof. Kunda’s claim that Muhlenberg had failed to counsel her, but not her similarly-placed male colleagues, as regards the need for a master’s degree for consideration of promotion which could be construed as “purposeful discrimination on the basis of sex.” (p.8). Regarding the aspect of ‘conditional tenure,’ the courts have accepted and distanced themselves from trampling on the independence of the “academic judgment” of the Muhlenberg’s Board of Trustees who, nevertheless, have to fulfill their obligations and responsibilities to the faculty without bias (Kaplin & Lee, 2007). Hence, the judgment of both the trial court and the appellate court is a balanced award without infringing upon the rights of the college or of the faculty. 2. The Court did not recommend another review of Prof. Kunda’s tenure by the college because in the Court’s view the Muhlenberg’s Board of Trustees had patently erred in not promptly notifying Prof. Kunda regarding her not possessing a master’s degree as being the reason for the denial of a promotion and/or tenure to her, every time her case had come up for review before the empowered committee, the Faculty Personnel and Policies Committee (FPPC). Furthermore, FPPC had granted tenure/promotion to male candidates similarly placed while denying the same to Kunda although every member was appreciative of her caliber, scholarship and teaching abilities which led the Court to come to the conclusion that there indeed was a case of disparate treatment discrimination against Kunda for being a woman. Hence, the Court’s directive was that the college should grant Prof. Kunda tenure and back pay. 3. The dean had vetoed Prof. Kunda’s promotion and extension of tenure at every review on the ground that she lacked a master’s degree, citing the provisions in the Faculty Handbook but agreeing with the rest of the committee about Prof. Kunda’s abilities. According to FPPC, “……Kunda was an excellent teacher who had developed several new courses, participated in numerous professional organizations related to her specialty of dance, taken some post-graduate courses, published in her field, and presented a television series on physical fitness.” (Kaplin & Lee, 2007, p 9). Hence, there would be no credibility had the President judged Prof. Kunda’s scholarship and teaching to be inadequate. References Kaplin, William and Lee, Barbara. (2007). ‘Cases, Problems and Materials’. For use with The Law of Higher Education Fourth Edition: Student version. NACUA, 812 pp. The National Archives. http://www.archives.gov/education/lessons/civil-rights-act/ Accessed 28 March 2009 California Faculty Association v. The Superior Court of Santa Clara County Uncertainties in agreements can often lead to disputes. Contract language should, therefore, stipulate the contractual terms clearly, unambiguously and completely to avoid disputes. Also, in the event of a dispute, clarity of language in the contract will afford a fair remedy to the ‘grievant’ party. In the academic situation, while all parties to a contract have to abide by the general law of the land, express provisions need to be incorporated to cater to the special requirements involving the faculty. The contract language should expressly state, cite and recite the entry requirements of qualification for every position; mention exceptional waivers, if any; specify the performance expected of the entrant during the initial probationary period in order to become eligible for future consideration of promotion and/or tenure; and enunciate post-promotion/tenure expectations. The mission and the goals of the institution should be clearly spelt out and notified in the Faculty Handbook which should become a part of the contract. The senior faculty members who would form the review committees should have their specific roles, duties and obligations described clearly in the contract language so as to ensure fair play in the faculty performance review process; to avoid decisions that are biased, influenced or infected with discrimination, unlawful or inappropriate (Kaplin & Lee, 2007a). Their role as reviewers should be open and transparent strictly in accordance with specific benchmarks and guidelines open for review at each and every stage. Reasons for their decision, be it a recommendation or rejection, should be recorded and adverse remarks communicated to the faculty under review. A grievant should have the right to seek a clarification and reconsideration of a genuine grievance. An in-built system of internal “dispute resolution” for reconsideration by the panel should be embedded in the contract. In the event of the decision of the panel still being negative, the reasons thereof should be recorded and communicated and the grievant should have the right to seek redressal and remedy through reference to an external and independent arbitrator. However, “ADR systems such as arbitration…..are useful in channeling disputes away from the courts,” but “they require extensive internal processes……..in order to be effective”. (Kaplin and Lee, 2002b, p79). The benchmark requirements for empanelling an arbitrator should be specified in the contract so as to ensure that the person selected is qualified, competent and capable of taking an independent and unbiased decision and who is not unduly influenced by the parties to the contract. Furthermore, the appointed arbitrator should be acceptable to both the parties. An arbitrator’s award should be final and binding on the parties unless a patent error of transgressing his(her) jurisdiction or the law of the land or what is laid down in the contract language is detected. Also, an arbitrator’s independent domain should be unquestionable. There is no harm in arming the arbitrator to “award tenure” if that is the only way of according justice to the grievant provided the parties have the right to appeal the award in a court of law. In conclusion, the contract language should clearly and explicitly state what is expected of each of the parties to the contract at each stage of employment, promotion, and grant of tenure so as to make the entire process flawless and unbiased and protect the interests of the parties. References Kaplin, W. & Lee, B. (2007a). ‘Cases, Problems and Materials’. For use with The Law of Higher Education Fourth Edition: Student version. NACUA, 812pp. Kaplin, W. & Lee, B. (2007b). The Law of Higher Education. Fourth Edition: Student Version. John Wiley and Sons, 709 pp. Read More