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Focus Column
Administrative Law
By Daniel Lee Jacobson
In the recent case of Irvine Valley College
Academic Senate v. Board of Trustees of the South Orange
County Community College District, 129 Cal.App.4th
1482 (2005), the 4th District Court of Appeal decided
that the academic senates of the state's community
colleges have "a role equal to the district's in
developing and adopting faculty hiring policies."
Although this substantive conclusion is
interesting and important, in order to reach that
substantive conclusion the court had to decide a
standing issue; the decision on that standing issue
necessarily led the court to observations and
conclusions as to the legal character of the senates.
This article reveals that legal character through the
lens of the Irvine Valley College case.
Education Code Section 87360 says in relevant
part 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, and approved by the governing
board." The "agreed upon jointly" language was the
sticking point between the South Orange County Community
College District's Board of Trustees and the academic
senates at the two colleges that the district operates.
At a relatively early point in the trial-court
proceedings, the court ruled that the board had adopted
hiring policies that had not been "agreed upon jointly"
by the board and the senates. The trial court blocked
implementation of those hiring policies until the
senates were afforded "a real and meaningful opportunity
to participate" in the hiring policy adoption process.
The board and the senates then made what the
trial court found to be a good-faith attempt to agree on
revised hiring policies, but they remained at
loggerheads on some key points. The trial court ruled
that the Legislature did not intend to give academic
senates what the trial court called "a de facto veto or
[the] ability to frustrate reform."
The trial court decided that, so long as the
senates were given a "meaningful opportunity to
participate in the process," the statute was satisfied.
The senates appealed, claiming that the statute required
actual concurrence by the senates in the hiring policies
adopted.
The district's first line of defense was an
argument that called into question the existence of
community college academic senates as entities separate
from the districts that employ their members. The board
argued that, without a separate identity, the senates
lacked existence as a legal entity and thus lacked
standing to sue.
The court began its standing analysis by noting
that an essence of Code of Civil Procedure Section 369.5
is that "[a] body need not be formally organized to have
standing; unincorporated associations may sue and be
sued." The court observed that the Legislature has
recognized the existence of community college senates by
giving those senates specific responsibilities.
To prove its point, the court cited Education
Code Section 87359, which is another statute giving
local academic senates the right to "agree[] upon
jointly" hiring policies in a situation different from
that involved in Irvine Valley College, and Education
Code Section 87358.
The court's reference to Section 87358 may not
have been on the mark because, although that statute
requires that "[t]he board of governors shall
periodically designate a team of community college
faculty ... [and others] to review ... [the application
of certain district policies]," the statute never
explicitly says anything about academic senates as
entities.
The court cited Code of Regulations Title 5,
Section 53200 for the proposition that community college
academic senates "represent the faculty with respect to
academic and administrative matters." Section 53200 says
that a community college's academic senate's "primary
function, as the representative of the faculty, is to
make recommendations to the administration of a college
and to the governing board of a district with respect to
academic and professional matters."
The court also cited Code of Regulations Title
5, Section 53203(a), which requires the following: "The
governing board of a community college district shall
adopt policies for appropriate delegation of authority
and responsibility to its college and/or district
academic senate. Among other matters, said policies, at
a minimum, shall provide that the governing board or its
designees will consult collegially with the academic
senate when adopting policies and procedures on academic
and professional matters. This requirement to consult
collegially shall not limit other rights and
responsibilities of the academic senate which are
specifically provided in statute or other Board of
Governors regulations."
Code of Regulations Title 5, Sections 53200 and
53203, in turn, rely for authority to a great degree on
Education Code Sections 70901 and 70902. Section 7091
states at 70901(b)(1)(E) that the state Community
College Board of Governors must establish standards to
ensure "the right of academic senates to assume primary
responsibility for making recommendations in the areas
of curriculum and academic standards."
Section 70902(b)(7) uses the exact quoted
language but uses that language to impose on each local
district board of trustees the obligation to vest such
right in the local academic senate.
Note the last sentence of Code of Regulations
Title 5, Section 53203(a): "This requirement to consult
collegially shall not limit other rights and
responsibilities of the academic senate which are
specifically provided in statute or other Board of
Governors regulations." Although this sentence could
fairly be read to say that the "requirement to consult
collegially" was not meant to cramp an academic senate's
statutorily or otherwise bestow authority, the Irvine
Valley College court read the sentence as
recognition of the fact that, "[i]n addition to
consulting and advising, an academic senate may have
other 'rights and responsibilities ... which are
specifically provided in statute.'"
Although the court seemed to find the last
sentence of Code of Regulations Title 5, Section
53203(a) to be a power base or the recognition of a
power base that lends credibility to the idea that
community college academic senates are separate legal
entities, the court probably did not have to make such a
finding.
The Legislature has plenary power to do whatever
it wants to do, within constitutional constraints, which
certainly would include the grant of power to academic
senates. See Civil Code Section 22.2; Lowman v.
Stafford, 226 Cal.App.2d 31 (1964); People v.
Hickman, 204 Cal. 470 (1928).
If the court were to find, as the court
eventually did, that the language of the statute over
which the parties were arguing was embedded with the
right for the academic senates to bring suit, then the
statute itself would manifestly allow the senates'
standing. The court seemed to have viewed the last
sentence of Regulations Title 5, Section 53203(a) in the
way that it did to counter the board's argument, "that
the decision to consult with the Senates on hiring
policy is a matter requiring the District's agreement or
is otherwise beyond the scope of the Senates' legal
authority."
Perhaps the court was somewhat insecure in the
power of the words of the statute alone and wanted to
bolster those words with observations and conclusions
about the senates' separate legal existence. For
whatever reason, Irvine Valley College has given
an insight into the legal character of California
community colleges' academic senates.
What conclusions can be drawn from that insight
and from this author's independent research? Although
the Irvine Valley College court never explicitly
deemed the senates unincorporated associations, it
recognized them as such when it observed that Code of
Civil Procedure Section 369.5 allows that "[a] body need
not be formally organized to have standing;
unincorporated associations may sue and be sued."
This recognition and the other observations and
conclusions made by the court support the notion that
the community college academic senates are
unincorporated associations, which are explicitly
recognized by the Legislature and which have specific
tasks assigned to them by law.
Education Code Section 70902 mandates "the right
of academic senates to assume primary responsibility for
making recommendations in the areas of curriculum and
academic standards." In an interesting twist, Code of
Regulations Title 5, Section 53200, which gets much of
its authority from Section 70902, makes an academic
senate's internal "primary function" "to make
recommendations to the administration of a college and
to the governing board of a district with respect to
academic and professional matters."
Daniel Lee Jacobson of Jacobson & Associates is a
Southern California attorney and professor at Pacific
West College of Law.
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