Dissent does history: the "shared governance" wars at the South Orange County Community College District (1995-2005)

Background:

• With regard to academic matters (as opposed to workplace matters), in college governance, faculty are represented by the ACADEMIC SENATE, an organization made up of the faculty or their representatives. 
• Typically, in a multi-college system such as the SOCCCD, there is one academic senate per college. 
• In recent decades, for better or worse, the notion that faculty should have a key voice in college/district "governance"—given faculty expertise in academic matters—has flown under the banner of "shared governance," the idea being that the board of trustees, admittedly the ultimate governance "decider," ought normally to accept the recommendations of the faculty senate—i.e., the faculty—with regard to academic matters. (Strictly speaking, the sharing should extend to other groups as well: students, staff, et al.) 
• Here are the eleven "Academic and Professional matters" over which academic senates ought normally to be authoritative, according to California law: 1. Curriculum. 2. Degree and certificate requirements. 3. Grading policies. 4. Educational program development. 5. Standards or policies regarding student preparation and success. 6. College governance structures, as related to faculty roles. 7. Faculty roles and involvement in accreditation processes. 8. Policies for faculty professional development activities. 9. Processes for program review. 10. Processes for institutional planning and budget development. 11. Other academic and professional matters as mutually agreed upon.
• Owing to the peculiar origins and histories of community colleges, the ideal of shared governance—or "collegial consultation" as it is known legally—has not been as firmly established in state community college systems as it has been in state university systems and elsewhere. In California, in the 1980s, that deficit was addressed through legislation ("AB 1725").
• 
  In 1996, the SOCCCD faculty union pursued a quid pro quo arrangement with a set of conservative trustee candidates (Frogue, Williams, & newbie Fortune; Lorch was not then up for reelection). Starting in December of 1996, these four union-backed conservative trustees—the notorious "Board Majority"—while friendly to union leadership contract goals (high salaries for senior faculty, etc.), commenced pursuing their "conservative" agenda, including running the district "like a business." The goal of "shared governance" was thus discarded and the era of board micromanagement began. That soon jeopardized the two colleges' accreditation status (see Times; 4/98). Further, the board majority's so-called "fiscally conservative" policies put the district at dire risk, fiscally. In 1997, the district was placed on the State Chancellor's Office's "priority 2" watch list. 
• In 1998, the union supported the trustee candidacies of two avowed anti-unionists and members of the Christian right: Nancy Padberg and Don Wagner. After the election, the board majority was a 5-member block: Nancy Padberg, Don Wagner, Steve Frogue, John Williams, and Dorothy Fortune. David Lang and Marcia Milchiker were then the "board minority," and were essentially rendered powerless by the majority. (In 2005,  Lang essentially changed sides, utterly betraying his faculty supporters, by allying himself with trustee & OC GOP chief, Tom Fuentes—Frogue's appointed replacement—for the sake of furthering Lang's political ambitions.)
• Our district changed its name from the "Saddleback Community College District" (SCCD) to the "South Orange County Community College District" (SOCCCD) in 1997. (To keep things simple, I'll refer only to the SOCCCD.)

1997: Frogue, Fortune, Lorch, Williams

SHARED GOVERNANCE

    In American universities, the notion that professors (and students, et al.) should play a key role in the governance of their institutions—famously advocated by the American Association of University Professor's 1966 "Statement on Government of Colleges and Universities"—has been a cherished, if uneasily maintained tradition, but, by the 80s, it was under attack again by trustees and presidents. 

     By 1991, the assault became so serious that the AAUP began a "blacklist" of institutions where boards or chancellors made unilateral decisions concerning tenure or curriculum. (For a good overview of the "shared governance" issue as it was understood at the time, see "‘Shared Governance’ Under Siege: Is It Time to Revive It or Get Rid of It?," Chronicle of Higher Education, January 30, 1998.)

     In the 80s, given a history of relative disregard of "shared governance" at California community colleges, Californian voters legislated shared governance for the community colleges (AB 1725), but this did not prevent the system from suffering the same tensions between partisans of faculty empowerment, on the one hand, and those who wished to run colleges like corporations with obedient "employees," on the other.  

Conservative push-back, especially at SOCCCD

     By late 1997, SOCCCD became the poster child for conservative push-back against shared governance, though, in many ways, the problems of the district were unique. Indeed, they were bizarre—what with its Holocaust-denying trustee (Frogue), an illiterate and brazenly autocratic college president (Mathur), and its gay-bashing union (the Faculty Association). Adding another bizarre twist, in late '98, owing to support from the faculty union PAC, Wagner and Padberg joined the board. These two were affiliated with Education Alliance, a Religious Right group whose leader, Mark Bucher, was the chief advocate and author of Proposition 226, the 1998 initiative that sought to remove unions as players in California politics. 

     At SOCCCD, the conservative "Board Majority" usually claimed to embrace shared governance—while also claiming that the faculty failed to understand their role within it. On occasion, however, Board Majoritarians explicitly rejected it, despite the existing law requiring it. For instance, during the May '97 Board meeting, Mr. Frogue, then president of the Board, distributed a brief essay of his entitled "Comments on Shared Governance" in which he asserted that shared governance is "dysfunctional" and does not "work." He noted that 200,000 voters cast ballots for the victorious trustee candidates in November (of '96) and that the Academic Senate presidents were chosen by a mere handful of faculty.  

     In fact, starting in December of '96, the BM-dominated Board ceased even pretending to consider the advice of faculty as expressed through its agents, the faculty senates, while it often did the bidding of the union Old Guard (the union's secretive inner circle & allies), whose members were sometimes appointed as administrators and whose "enemies" among administrators were removed or otherwise encouraged to seek employment elsewhere.

     Meanwhile, the district's "Shared Governance Leadership Handbook" (of Fall '96) stated, "The Saddleback Community College District Board of Trustees fully supports AB 1725 and the spirit of shared governance. Implementation of shared governance in the SCCD is through a structure of councils and governance units designed to ensure all entities the right to participate effectively in district and college policy making."

     In 1996, the district had approved Board Policy 2100.1—"Delegation of Authority to the Academic Senate"—which, in response to Title 5 of the California Code of Regulations, mandates that "the governing board delegates to the college academic senates responsibility for and authority over academic and professional matters," such as curriculum and institutional planning. 

An Irvine Valley College event

December '99: Chancellor Sampson makes his move

     The nadir commenced in late 1999, with an explicit initiative by then-Chancellor Cedric Sampson, who seemed to insist on a deliberate misreading of state law. As the Times (11/27/99) reported,

       The faculty senates at Irvine Valley and Saddleback colleges vow to fight—in court, if necessary—a suggested policy change aimed at reducing their power and giving the Board of Trustees more say over academic matters...Sampson’s recommendation would change the senates’ role from “authority over” academic and professional matters to “responsibility for advising the board” on those matters...“The board felt it delegated too much authority to the faculties and it needs to clarify and correct some of the policies,” Sampson said...According to Sampson, the wording change would bring the board policy more in line with state regulations...Peter Morrison, senate president at Irvine Valley, disputes Sampson’s reasoning: “The board policy is exactly in compliance with [state] regulations.” 

The Senates could only watch

     During the December '99 board meeting, Sampson was asked whether the board was able unilaterally to change the policy in this fashion. His answer: "Yes." In fact, however, BP 2100.1 states that "This policy is a mutual agreement between the governing board and the academic senates and may be modified upon mutual consent of the parties." 

        One need only read board policy 2100.1 and Title V, section 53203, to see that Sampson’s assertion—that 2100.1 is in some sense out of compliance with Title V—is erroneous. Title V states that “the governing board” may elect “to rely primarily upon the advice and judgment of the academic senate.” Our board policy says that the “governing board...will rely primarily upon the advice and judgment of the academic senates.” 

       In truth, the board had engaged in persistent and defiant violations of Title V, section 53203. The latter says that, when the board elects to rely primarily on the senate, “the recommendations of the senate will normally be accepted...If a recommendation is not accepted, the governing board or its designee, upon request of the academic senate, shall promptly communicate its reasons in writing to the academic senate.” Accordingly, our board policy states, “If a recommendation of the senate is not accepted, the governing board or its designee will promptly communicate its reasons in writing.” But on several occasions, the board had failed to accept the senate’s recommendations (on matters over which it is given authority by BP2100.1). Then the board has failed to provide the required reasons in writing.

      In December, Sampson announced that he would soon recommend this change to lessen the Senates’ authority. He also said that he would seek the consent or agreement of the faculty senates. If, however, the senates would not agree to the change, said Sampson, the board would make the change unilaterally.

       But, again, the district's policy stated that “This policy is a mutual agreement between the governing board and the academic senates and may be modified upon mutual consent of the parties.” It mentions no exception to this requirement.

       During the December meeting, Sampson drew the board’s attention instead to an “exception clause” in Title V, which gives to the board the right, under special circumstances, to make a unilateral decision. According to Title V, the board can indeed make a unilateral decision—when the status quo “exposes the district to legal liability or causes substantial fiscal hardship”—but only after it has made a “good faith” effort to “reach agreement” with the senate. Sampson, winking and purring through his nose, argued that it was the board’s prerogative to judge whether these exigent conditions obtained; thus, if it so judges, it can make a change unilaterally.

Raghu P. Mathur

     In January (of 2000), there was a joint meeting of the two colleges' Academic Senates. Dissent reported as follows:

     ...[W]e headed to BGS for a joint meeting of the academic senates, with [Saddleback College's] Anne Cox and [Irvine Valley College's] Peter Morrison presiding. The chancellor, of course, has recently expressed his intention to urge the modification of the board policy concerning delegation of authority to the academic senates. This effort by the chancellor (and, no doubt, by the Board Majority) to reduce senate authority turned out to be the sole topic of the meeting....

     Anne introduced some visitors, including Linda Collins of the State Academic Senate and trustees Nancy Padberg and Don Wagner. Wagner explained, rather ominously, that he will “report back to the board” what the senators have to say. He then added, contrary to all reason, that there is no effort afoot by anyone to change the scope of the exiting board policy regarding delegation of authority....

     Peter laid out the essential facts regarding the “delegation of authority” caper. Basically, the board policy that defines delegation of authority to the senate (giving to the senate authority in 11 areas) explicitly precludes a unilateral change of the policy by the board. So, asked Peter, can the board act unilaterally? “Let’s hope that we don’t get there,” said Peter, for no one wants to pursue this matter in the courts.

     There was some disagreement concerning whether the change that the chancellor intends to recommend is “substantive.” After a while, partly owing to remarks by Ms. Collins, who seemed to be pretty sharp, it became abundantly clear that, contrary to the chancellor’s defenders—the Old Guard and Wagner/Padberg—the proposed change is indeed substantive.

Wagner

     At one point, I asked whether the board has in fact violated the existing policy—by failing to accept the senate’s recommendations (in the specified areas) or failing to provide written reasons for failing to accept them, as the policy requires. Eventually, it became clear that the board has indeed done so on several occasions. Such, at any rate, was the judgment of officers and senators of the Saddleback Academic Senate.

     A defensive and clueless Nancy Padberg declared that there has been an “ongoing dialogue” for six months about these proposed changes, a point handily refuted by Anne Cox, who explained that no one had heard of the chancellor’s proposal until November or December. Anne and others rejected the notion, expressed by Sampson, that the senate does not understand its role. The problem, they suggested, is that the board does not accept the senate’s recommendations, contrary to board policy.

     Someone (Anne?) offered the example of the Community Ed program that was in direct conflict with credit courses. In that matter, the Senate’s recommendation was simply ignored, and no written explanation was provided. “Professional leave” was also cited.

     Maureen S described how, during her tenure as senate president, the senate presidents were marginalized. First, they were moved from the meeting table; then their microphones were removed; and so on. Mickey M, who had also served as senate president, chimed in to explain that, when her hand went up at meetings, she was routinely ignored. There was a time, she said, when the faculty’s voice was valued; no longer. As things now stand, changes are just “given to us.”

     A guy named Martin said we need to be entrepreneurial. Then Lee said something of similar perspicacity.

     Dale C—a Mathur crony—chose that moment to announce: “I think the board is doing a great job,” whereupon Lee clapped loudly and alone.

Here are excerpts from Dissent 42, January 27, 2000, in which I describe the January 24 board meeting (and offer transcriptions of key remarks):

Peter Morrison, IVC

     Discussion of item 22: the Chancellor’s initiative to alter the “delegation of authority” agreement

     CHANCELLOR: Yes, this is an item that I have brought to the board’s attention—I have taken to the chancellor’s cabinet the issue of board policy 2100.1…. 

     The reason why I brought this forward is that I believe there’s confusion in the district about what shared governance means, what the law states, and what our board policy means. This was brought to my attention at the meeting at which the board requested a plan from the administration on a soccer program—a potential intercollegiate soccer program—and the response related to this policy, and the response was that the board did not have authority to make such a request. I believe that that is incorrect, but it does stem from this policy and it needs to be reviewed.

I had discussed this with the governance groups at the Chancellor’s Cabinet and have distributed [it?] to the system for review and would like to request that the board authorize me to enter into discussions with the academic units about a potential change in this policy. I would then bring back to the board the results of those conversations and discussions and be able to articulate to you the positions of the academic senate.

I think there are arguments on all sides of this issue, which I would like to explore with the senates and also perhaps with the state chancellor’s office. The issue really relates to the delegation of authority, and that begins with the legislature, which delegates to you responsibility for approving and managing and directing all of the educational programs of the district.

The issue is first of all, whether you can delegate that entire authority to another group, and, secondly, did this policy in fact do that? And we need to explore those.

     Trustee Wagner asks why discussions of the shared governance issue should be thought to necessitate a change of policy or discussion of that sort of action.

     CHANCELLOR: The problem was, when I tried to discuss this in the Chancellor’s Cabinet, it was as the Chancellor, and the board had not authorized me at the time to do it. And so the discussion was both not on point and I don’t think taken very seriously. The reason for my request, my bringing it to the board and requesting that you ask me to do this is, then, when I go out, I have authority that you have requested that I discuss with the senate these issues, and I believe I could get a better response.

Anne Cox

     Trustee Padberg asks the two senate presidents to “comment.

     In her remarks, Anne Cox takes issue with the Chancellor’s characterization of the position of the Saddleback Academic Senate. The senate has never stated that the Board does not have the right of final approval of curriculum, programs, etc., says Anne. Further, the senate’s response to the soccer proposal was not a rejection of soccer.  Our primary objection, says Anne, was that there is a long-standing process in place concerning curriculum development, and curriculum is among the ten items specified in 2100.1 and in state law that delegate both responsibility and authority to the senates. The board approves, but it is the faculty that is to be relied upon primarily.

     In his remarks, Peter Morrison states that the IVC Academic Senate has no objection to the request, understood only as a request to discuss the board policy with the object of overcoming differences.

 Trustee Frogue alludes to the view of some trustees that the “whole idea” of shared governance is dubious. He accuses someone—unnamed—of hypocrisy. Suddenly, he attacks the academic senates. Senate elections, he says, have been “fraught with irregularities.” He says he wants open hearings concerning shared governance.

Wagner refers to the joint academic senate meetings that occurred earlier in January.... He says he is having trouble finding the problem with the policy. The issues or problems, he says, do not seem “substantive.” He says he will support the chancellor’s request in view of the need for discussion and the apparent disagreements between the chancellor and the faculty.

Trustee Lang [of the "board minority"] says he can’t support the request. The policy is already fairly clear. By pursuing this matter, we are, he says “destroying the fabric of collegiality.”

Trustee Fortune says she supports the recommendation. She says the policy is “fraught with ambiguity,” and refers to the many instances in which, she says, the senate has tried to tell the board what to do.

Trustee Williams supports the request.

Trustee Milchiker [also of the "board minority"] objects to the wording of the request, for it speaks of meetings between the chancellor and the senate “to change” the policy. We need to strike “to change,” she says, since, presumably, we are not proceeding with the idea that 2100.1 will necessarily be changed. She motions to amend the item, and this is 2nded by Lang. The motion to amend fails on a 5/2 vote, with student trustee Kalena supporting the amendment.

Milchiker describes the origin of the policy. She says she would support the request if the words “to change” were deleted. She suggests that one must rely on experts in areas in which one has little familiarity. The faculty are the experts regarding curriculum development, etc.

The Chancellor indicates his desire to respond to Milchiker and Lang:

CHANCELLOR: What I’d like to do is respond to that and to trustee Lang because of the apparent misperception that we intend not to rely primarily upon the advice of the academic senates. I presented to you the potential changes that I would like to see in this policy, and the policy is left that we rely primarily on the academic senates in those 10 areas. That would still be exactly what we would do. Our problem is with the delegation of authority, which goes beyond state law, which I would like to align with state law, and secondly that the “rely primarily” areas are wrapped in language that suggest that it’s a mutual agreement.

This is a very complex issue because the state gave authority to you to either rely primarily or reach mutual agreement. And what you did is you said we’ll “rely primarily,” but the whole thing is a mutual agreement—creates confusion about what shared governance really means because what we hear is, “Oh, you can’t change that ‘cuz you delegated that to us; unless we agree, you can’t change it.” But the policy says, “we will rely primarily.”

And so there is no intent to change the status of the academic senate with regard to their advising you and you relying on their advice. There is an attempt to change that little [searches for the right word] flip that creates the imagery that everything is a mutual agreement—not “rely primarily.

(Fortune calls for the question. The vote is taken; the item passes.) [See YouTube] 

The board made its unilateral change of BP 2100.1 at its February 2000 board meeting. And that was that. 

A new focus: the "faculty hiring policy":

Let's move now to late 2002. In Dissent 66 (Oct 7, 2002), I reported as follows:

Intervention sought:

     During an August meeting of the IVC Academic Senate, it was suggested that, given the Chancellor & Board’s exclusion of the Academic Senate from governance, there really is no point in continuing. It was suggested, too, that the Senate might better devote its energies to seeking redress in the courts.

* * *

     On September 12, the exec. cabinet of the IVC Academic Senate sent a letter to State Chancellor Nussbaum, seeking his “intervention” “to secure rights granted to local senates under Title 5” of the Ed Code. The letter cited four examples of the Board’s many actions in violation of “law, policy and process.” 
     The first concerned the Board’s action (Fall 2000) to revise BP6120 (academic freedom), despite objections from the senates. Example 2 was the Board’s adoption (12/01) of a revision of BP5604 (eligibility for admission) despite “vehement” senate objections. Example 3 was the Board’s decision (2/02) to unilaterally revise BP 2100.1 (delegation of authority to academic senates), despite the policy’s explicitly prohibiting such action. 
     The fourth and most recent example concerned “revisions to District hiring policies,” including revisions to the Full-Time Academic Employees Hiring Policy, developed over the summer by Chancellor Mathur. These revisions, said the letter, “are rife with numerous individual violations of law, policy and good practice.” Despite Title 5, “At no time were any of the governance groups on either campus invited to participate, or even alerted to the existence of the committee.” Further, governance groups were given only 8 days to provide “input.” 

* * *

Judge Clay Smith

     The Senate’s letter yielded a response—a letter discovered belatedly, and already opened, in the senate president’s mail box! Dated Sept. 16, the letter, from Ralph Black, attorney for the State Chancellor’s Office, requested further info to determine whether his involvement “would be warranted.” Black offers a jurisdictional point: “Unless faculty hiring is listed as an ‘academic and professional matter’ under the SOCCCD shared governance policy..., faculty hiring does not fall under the jurisdiction of [the Board of Governors’] regulations.” (More on this later.)
     On Sept. 25th, Mathur emailed the Saddleback Academic Senate, suggesting that he is under no obligation to consult the Academic Senates regarding modifications of the hiring policy. To support this odd view, he cited Black’s letter and its point about jurisdiction, but he ignored Black’s remark, in the same letter, that

     Faculty hiring procedures are covered by [the] Education Code..., which requires that “hiring criteria, policies, and procedures for new faculty members shall be developed and agreed upon jointly by representatives of the governing board, and the academic senate….” (Ralph Black)

     Late in 1993, the Board approved a “Full Time Academic Employees Hiring Policy” that makes clear that the hiring policy can be changed only upon mutual agreement between the district and the faculty senates. This, of course, is the crucial “further information” that Ralph Black needs and will soon receive.

* * *

     Budget development, of course, is plainly listed among the academic and professional matters of the district’s “shared governance” policy (2100.1). Hence, a failure to consult with the academic senate regarding budget development would be a violation of “shared governance”—one that clearly does fall under Black’s jurisdiction. Mr. Black will be interested to learn that, at IVC, the senate has been excluded from the budget development process for years.

* * *

Next: victory, then defeat

Wendy Gabriella of IVC

On April 8, 2003, the two Academic Senates sued the district (See below).
     Judge Clay Smith ruled that the district had indeed failed to include the faculty in the development of the faculty hiring policy, contrary to law. He thus ordered the district and senates to get together to develop a faculty hiring policy.

     But, in the end, the district’s representatives and the senates’ representatives did not see eye to eye on major issues, and so the district unilaterally pushed through the version of the policy that it liked, and it pronounced that policy the product of the committee. That policy was almost as appalling as the one that was neutralized by Smith.
     Surprisingly, despite the vociferous objections of the Academic Senates to the new policy, Judge Smith ruled that the policy was indeed the product of “mutual agreement.” 
     It was an absurd judgment.

The Appeal; then ultimate victory

     The faculty senates appealed the decision. In the meantime, district instructors held a vote of confidence/no confidence in Chancellor Mathur (in 2004), which resulted in 93.5% no confidence. It was clear that virtually no faculty were willing to be “led” by Mathur.
     In 2005, the appellate trio made its decision regarding the “hiring policy” case. It unanimously and strongly sided with faculty, and so the hiring policy was again voided. The board tried one or two last ditch efforts to have the court reconsider, but to no avail. The academic senates had won, and that was that.
     The senates' victory meant that the only valid policy was the one developed at the end of 1993 (it was mutually agreed upon). It was a good policy from the faculty’s perspective.
     The appellate justices urged the parties to work out their differences, and so, in the Fall of 2005, district representatives (namely, Mathur, the instigator of the original unilaterally imposed policy, and Lang, now the board president) and Academic Senate reps (namely, the two senate Presidents and the union president) mutually developed a policy that both sides could agree on. That work was completed by late October, 2005. This mutually agreed upon policy is a vast improvement.
     At the time of writing, it only remains for the board to approve the new policy, and there is every indication that they will do just that. If they fail to do so, then the decidedly faculty-friendly 1993/4 policy will apply. [END]

* * *

     I'll leave you with a (hopefully entertaining) Dissent post from April, 2003, in which I describe events surrounding the filing of the lawsuit in April of 2003:

Saddleback & Irvine Valley Academic Senates Sue the District

By Kurt Bozny [Roy Bauer]

April 8 [2003]: 

Santa Ana, 1:15 p.m.: Wendy [Gabriella, for the IVC Academic Senate] files the much anticipated “faculty hiring policy” lawsuit against the SOCCCD Board of Trustees and Chancellor RAGHU P. MATHUR. She’s well-prepared, and so she breezes through the paperwork. Soon, she’s out the door, headin’ south!

2:10: Wendy’s back at IVC. She and I decide to head down south together to serve Mathur with the writ and the attached documents—a big stack. It’s good to bring an observer, cuz some people get way squirrelly when you try to serve ‘em with a lawsuit, and Mathur’s definitely the type.

I briefly search for one of those neon green “legal observer” caps like they wear at the big protests in L.A., but I can’t find one. Dang!

Mission Viejo, 2:40: we’re up on the 3rd floor of the Library, closin’ in on Chancellor Mathur’s office. I catch a glimpse of Mathur exiting his office, movin’ towards Robina Husting’s desk. He hasn’t spotted us yet.

Wendy closes in, holdin’ the thick stack of legal papers in front of her. As it turns out, Mathur is holding a similar stack of papers in front of him. The two meet in the small space in front of Robina’s desk. Mathur just stands there. So Wendy places her stack on top of Mathur’s stack, sayin’, “You’re served.”

Mathur’s horrified. The indecorous fellow now jostles and squirms to avoid holding the papers, but it’s too late—he’s got ‘em! 

I’m thinkin’: “Does he actually suppose that the lawsuit won’t happen if he avoids holdin’ this stuff?”

Finally, in a desperate attempt to avoid being served, Raghu shoves the legal papers forward and they fall to the floor. Fwap!

Legally speaking, such fwappage is irrelevant; he’d been served and, once again, he’d attained the title “Respondent Mathur.” Besides, leaving the lawsuit on his secretary’s desk counts, too, so Wendy now picks up the papers and places ‘em there. 

Meanwhile, I size up the Chancellor’s unseemly conduct. “How rude,” I proclaim. We exit.

Respondent Mathur struggles to think of a comeback, but Attorney Wendy (and her cap-less Boswell) are already out the door. 

Finally, he’s got one. He shouts: 

“How rude are YOU!”

Cedric Sampson

* * *

April [9]: The next day, the district issues a peevish press release. It says:

SOCCCD Chancellor Raghu P. Mathur…commented on a lawsuit filed by the IVC and Saddleback College Academic Senates that disputes a new SOCCCD faculty hiring policy, stating, “The district is following the guidelines established under Title 5 that defines the ‘Delegation of Authority to the Academic Senates.’ There are 11 areas within the scope of academic and professional matters for which the academic senates have primary responsibility.

“The State Chancellor’s office has confirmed our view,” Mathur said, “that our hiring policies do not fall within the primary responsibility of the faculty….”

This is classic Mathur. The State Chancellor’s office does indeed hold that hiring policies are not among the 10 + 1 areas in which faculty are assigned primary responsibility by Title 5, a state regulation. 

The problem is that the lawsuit does not mention Title 5 and it does not allege that Title 5 has been violated. Rather, it alleges that the new policies, and the manner in which they were developed and approved, violate an Ed Code statute (EC87360) and utterly defeat the intentions of legislators. 

Ed Code statutes, of course, are more than regulations; they’re laws. They count bigtime.

In other words, with regard to the issue of faculty “hiring” policies, we don’t need no stinkin’ Title 5.

Respondent Mathur is ignoring—or failing to understand—that, in reality, the State Chancellor’s office takes the following view:

Education Code section 87360 requires governing board and academic senate representatives to agree on hiring criteria, policies and procedures to be adopted by the board. (Letter from California Community College Chancellor’s Office, Ralph Black, General Counsel, January 29, 2002). 

In the District’s press release, Board President Don “So sue me!” Wagner offers his own spin, expressing “disappointment” that the senates have decided to force the district to “spend money on attorneys, rather than students.”

* * *

On the 10th, the Register reports that

In an unprecedented move, the faculty senates of both Saddleback and Irvine Valley colleges have voted to sue their district chancellor and trustees over a new hiring policy that gives more power to college administrators at the expense of traditional academic hiring committees.

The lawsuit … asks a judge to set aside the new hiring policy because it was not approved by each college’s Academic Senate. 

When the new rules were approved by a 4-3 vote by the …trustees in January, faculty representatives unsuccessfully pleaded with the board for more time to discuss them.

The state’s Education Code requires that hiring criteria and policies for new faculty members must be developed “and agreed upon jointly” by board members and the Academic Senate….

…Typically, new college instructors are selected by hiring committees made up of faculty members who are experts in the field and the head of the department. Their selection is usually ratified by the college president, the district’s board of trustees or both.

According to Wendy Gabriella, an IVC instructor and attorney who filed the lawsuit, faculty members were particularly unhappy with new rules that allow the district’s human resources director to change the scores awarded by committee members if she deems them too far off the norm and to unilaterally change interview questions.

Professors were also displeased with a new ethics and confidentiality section of the hiring policy that allows the human resources director to investigate and punish any member of a hiring committee who is accused of violating confidentiality.

“The policy allows the human resources department to accuse hiring committee members of bias, change their scores and discipline them without any due process or opportunity for appeal,” [said the] Irvine Valley Academic Senate President….

* * *

Greg Bishopp, IVC

Also on the 10th, the President of the IVC Academic Senate, Greg Bishopp, sends a memo to IVC faculty. (The Saddleback Senate Prez later spams it to Saddleback faculty.) It says:

The Academic Senates of IVC and Saddleback College have filed suit in California Superior Court to block the implementation of a faculty hiring policy, which they believe to violate … the California Education Code. While the trustees and the administration of the SOCCCD maintain that their new policy, and the process used to develop this policy, does not violate the law, the Academic Senates claim that they do. In violation of the law, the Senates maintain, district administration has failed to allow faculty involvement in developing the procedures for hiring new faculty members. As a result, the adopted policy is fraught with violations of law, policy, and accepted practice.

Prez Bishopp also notes that the senates have “exhausted all internal means of appeal” and that, in January, Wagner “invited the Senates to sue the district to resolve the legality of the Board of Trustees’ alteration of board policy.” 

That Wagner is quite a guy! 

Bishopp closes by noting that the record 

shows who has been responsible for wasting the district’s money in the past. Board President Don Wagner has stated that, “our district will again prevail on this misguided litigation.” However, in the seven legal actions brought by members of the faculty against the Board of Trustees, the courts have sided with the faculty and against the Board every single time, demonstrating that the Board, by violating the law, has been responsible for the suits, not the litigiousness of the plaintiffs. If the Board of Trustees does not wish to spend money on litigation, it should avoid breaking the law.

* * *

The district’s faculty hiring policies are available online at the district website. 

Those who wish to read the ed code statute should go to EC87360

To read a review of the statute and its relation to the historic AB1725 legislation, one might start by reading the local senates “handbook” on the State Academic Senate’s website:

Local Senates Handbook

See you in court! —KB

* * *

Well, in the end, after an early setback, the Senates fully prevailed.

* * *

     Note: for what it's worth, as a member of the senate (and sometimes senate leadership), I was always a strong advocate for pursuit of a legal remedy. It took a long time to get enough faculty on board with that, and even when we finally took the plunge, many worried that the litigious route was dangerous. Even some gray eminences dragged their feet. It wasn't easy keeping this show on the road for as long as it took to prevail.
     Without a doubt, Senator, anthropologist, and lawyer, Wendy Gabriella, more than anyone, was responsible for the suit and its success. Accordingly, she became something of a legendary figure in the California community college scene. See "Wendy G's Big Night" - June 2007  —RB

Epilogue: ad hominem

May 19, 1997
Meeting of the SOCCCD Board of Trustees
IVC President Kate Clark reports a faculty vote of "no confidence" in the board of trustees

[IVC Academic Senate President Kate Clark's statement during the public comments portion of the meeting—and her subsequent brief exchange with Trustee Williams]

President Clark: "It is not a pleasant circumstance that brings me to this podium this evening—to report that the entire Irvine Valley College faculty has, by a vote of 63 to 24, declared "no confidence" in this Board of Trustees because of quote "repeated actions taken which indicate its unwillingness to participate in the spirit and intent of shared governance" end quote. Contrary to claims made by [union president] Ms. Miller-White, for those of you with political understanding, this represents a disapproval rating of 72.5 percent of the faculty. The referendum was introduced from the floor of the Representative Council and had language crafted by all members present. It was submitted by a vote of 18 to 2 to 2 to a vote of our entire faculty in an open and fair election monitored by our elections committee. The Academic Senate—and, at IVC, that is the entire faculty—has spoken and when the Academic Senate speaks it is prudent for this district to listen. A vote of no confidence is understood to be a most grave action not undertaken lightly. The last vote of no confidence taken by IVC faculty was registered against former President Ed Hart in the early 1980s. It is to be considered by all an overwhelming signal to the college, to the district, and to the community we serve that severe problems persist and cry for remedy. The Academic Senate is the duly constituted voice of the faculty, recognized as such by law, by Title V, by your own board policies. As the IVC Academic [Senate] President, I am the individual designed to speak on behalf of the faculty as a whole. I carry to the various meetings I attend the visions, the concerns, as expressed by the majority of the faculty through open, democratic processes. I have always attempted to be scrupulous, when I speak, to distinguish when I represent Senate actions, when I speak the sentiments of the faculty as a whole, and when I carry the voice of concern raised by some but not discussed as a whole. If I must be a cautious speaker, then I ask you as board members to be cautious listeners and to distinguish between decisions reached and delivered by the authentic voice of the faculty--the Academic Senates--and the whispered rumors or innuendoes of those who approach you outside the process. They do not speak for faculty as a whole. They cannot, and their appeals or their petitions must be weighed accordingly. The Academic Senate by law is more than just an advisor body. Your failure to understand that principle and our partnership reflects the very depth of your lack of understanding about AB 1725. We have brought our entreaties before this body as requests for meetings and orientations. We have been stifled in our attempts to bring such requests before you as a docket item. Our requests to you for legal remedies have also gone unanswered, and we tire of asking. The plebiscite just taken at our college is no longer request; it is a public demand that you work with us to rectify the ills that plague this district and to restore both the obligations and responsibilities delegated to us by law and your own adopted board policies 2100.1."

Trustee Williams: "The Brown Act allows a brief interaction with a public speaker: President Clark, did you state to any employee of this district that, if you didn't get those things that you wanted, that you would shut down IVC?"

Clark: "Never."

Williams: "OK, thank you."

[Later in the meeting, trustees Lorch and Frogue repeat this absurd charge against Kate. Evidently, the story that Kate had said that she “would shut down IVC” was reported to trustees by Raghu Mathur. Judging by the unreliability of similar charges offered by Mathur over the years, I think Kate’s reputation is safe. P.s.: Kate later became President of the state academic senate (ASCCC).]

SEE: What became of the original Board Majority?