I Fought the Law…

September
2011
Richard Mahon, Chair, 2010-2011 Educational Policies Committee

Resolution 17.01 F10 "Responses to Violations of Law, Policy, and Procedure" asks the Academic Senate to "develop a resource document to provide guidance to local senates in reacting to and dealing with administrative violations of state and local policies and regulations." Such a resource document would presumably help faculty members identify the authority responsible for responding to violations of law or regulation and how to effectively notify that authority so that the violation will stop.

A variety of authorities can be identified with regard to California community colleges, among them local boards of trustees, the Chancellor’s Office, and the Accrediting Commission for Community and Junior Colleges. What follows focuses on violations of educational standards. The fear that criminal activity may be taking place on campus should be referred to local district attorneys or grand juries, and a persistent pattern of enrolling classes beyond safe levels might be taken up with the local fire marshal.

Seeking remedy to a violation of law or regulation from local trustees can be difficult, since by design local trustees rely on local administration both to obey the law and to guide the board in the proper application of law and regulation. If local administrators can be brought to acknowledge that a practice of the college is in violation, then local trustees are likely (one would hope) to require prompt correction of the violation. But if administration itself persists in the violation, it is unlikely to acknowledge to the local board that it has violated law or regulation.

The next step might be the Chancellor’s Office. After all, the Chancellor’s Office dispenses apportionment to districts, and clear evidence that a district is in violation of Education Code or Title 5 regulations should be of concern to the Chancellor’s Office. Education Code §70901 mandates that the Board of Governors establish minimum conditions entitling districts to receive state aid. Currently there are some 15 minimum conditions that districts must meet in order to receive state funds. The Board of Governors can withhold funding from any district that does not meet established minimum standards. One of the minimum conditions that districts must substantially meet in order to receive state aid is to support local academic senates as per the regulation. Years of funding reductions, however, leave the Chancellor’s Office with inadequate staff to keep up with all the services it should provide and notably short in the Title 5 enforcement department.

Nevertheless, the Chancellor’s Office does provide a vehicle for seeking legal advice. Just as local boards, chancellors, and presidents have the standing to seek legal advice, so do local academic senates. Appeals for advice from local academic senates have low priority for staff time: "Although Legal Affairs is not required to issue opinions for individuals, constituent groups or representative organizations, it may do so at its own discretion when time and staffing permit." For more information on seeking information through the Chancellor’s Office, see "Guidelines for Seeking Informal Legal Advice and Written Legal Opinions" at www.cccco.edu/Portals/4/Legal/guidelines/guidelines_for_legal_advice.pdf.

If the problem concerns the administration’s interpretation of Education Code or Title 5, the Community College League provides a "Board Policy and Administrative Procedure Service" in conjunction with the law office of Liebert Cassidy Whitmore. If the college subscribes to the service, a review of the criteria for minimal legal compliance may provide the clarity that the administration and, perhaps, the local board needs. The service is summarized at www.ccleague.org/ i4a/pages/index.cfm?pageid=3312#liebert.

If the administration agrees that there might be a problem and wishes to engage in a dialog, the senate and administration could request "Technical Assistance." The summary of the service, as it appears on the Academic Senate website, is to "help districts and colleges successfully implement state law and regulations that call for effective participation by faculty, staff and students in district and college governance. The services offered will be most effective if used before major conflicts arise and prior to a heightened level of local unilateral action by any the parties involved in the local decision-making process." While the visit will not result in legal advice, in many cases the dialog leading up to and resulting from the visit can help parties resolve differences amicably. The service is described at www.asccc.org/services/technical-assistance.

If the violation causes the college not to meet accreditation standards or eligibility requirements, an urgent letter to the Accrediting Commission for Community and Junior Colleges (ACCJC) might get more attention. An article by Terry O’Banion in the Summer 2010 issue of FACCCTS on "The Faculty and The Rogue Trustee" told the story of Maricopa Community College in Phoenix, Arizona where an anonymous complaint to the regional accreditor ("The Higher Learning Commission") led to an ad hoc review by external educators which in turn provided leverage to the district to insist on additional training to trustees on observing their proper role.

There are also a variety of federal agencies that can be asked to respond to specific kinds of violations, including the Office of Civil Rights and the Equal Employment Opportunity Commission.

A sense of proportion should be maintained when considering whether to pursue action on a suspected violation of law or regulation. Many violations are probably unintentional and a collegial and perhaps discrete pointing out of the lapse may be all that is necessary for the issue to be addressed and resolved. Some violations, however, begin innocently, but become known and yet continue to be unresolved. In cases where violations begin to affect the ability of the college to carry out its mandate and fulfill the public trust, such issues must be addressed and resolved.

The articles published in the Rostrum do not necessarily represent the adopted positions of the academic senate. For adopted positions and recommendations, please browse this website.