Senate committee suggests expanding Stanford’s policies on legal representation of faculty and staff

University policies that explain the university’s indemnification and defense of faculty and staff in legal proceedings should be amended to allow, but not require, expanded coverage beyond what is mandated by California law.

The procedures involved in deciding how the policies are implemented by the Office of the General Counsel (OGC) also need to be expanded to make clear the role of the provost and better communicated to faculty and staff to provide more certainty about when the university will support them.

Those are among the recommendations of the Faculty Senate Ad Hoc Committee on Faculty Legal Representation, which has been studying the issue at the behest of the Faculty Senate Steering Committee.

Specifically, committee members recommend that the current policy be amended to read: “Stanford’s policy is to indemnify and defend its faculty and staff in compliance with California Labor Code §2802 or when indemnification and defense is appropriate in defense of academic freedom or other important values of the university.”

The change proposed by the committee encourages consideration of the wider context of values and academic freedom when OGC evaluates requests for representation. Law Professor Hank Greely said committee members also hope that greater faculty consultation will be sought in considering the policies.

The committee’s recommendations, which will carry over until the next Faculty Senate begins meeting in the fall, were outlined in a presentation to the senate Thursday by Greely, the Deane F. and Kate Edelman Johnson Professor of Law, and summarized in the group’s report.

Committee creation

The creation of the committee stemmed from a September 2020 letter signed by some 100 Medical School faculty members that was critical of Scott Atlas, the Robert Wesson Senior Fellow at the Hoover Institution and former adviser to President Donald Trump on the COVID-19 pandemic.

After Atlas threatened to sue, signatories led by former dean of the Medical School Phil Pizzo turned to the OGC for legal representation. The OGC declined, concluding, according to the report, “that the threatened suit was not a direct consequence of the faculty members’ discharge of their duties.”

Debra Zumwalt, vice president and general counsel, subsequently found the group pro bono legal representation, according to Greely. By that time, however, the letter writers had secured their own representation with assistance from Law School faculty. Greely said committee members believe that the university was wrong in denying representation to the faculty letter writers because the larger context of issues of academic freedom and the university’s values had not been considered.

“Our committee thought that the General Counsel’s Office, which did discuss it at least briefly with the president and provost, got the balance wrong not so much on a question of law, but on the question of the broader context,” Greely said. “We think the university has obligations to faculty in particular, but also other employees, that go beyond just the obligations given it by law. The university should take into account not just the legal questions, but also the broader questions of our mission.”

Unclear policies

In explaining the incident to the Faculty Senate in February, Senate Vice Chair Blakey Vermeule, the Albert Guerard Professor in Literature, said, “It became clear in the discussion of this incident that the guidelines for when the OGC will represent faculty members are not clearly spelled out anywhere. So, the Steering Committee’s goal in proposing this committee is to fix this.”

Committee members met with OGC staff and Pizzo and surveyed the practices of other colleges and universities both in and out of state. The committee reported that the university currently sees five to 10 cases per year where a faculty member is named as a defendant, most often in the case of medical malpractice.

Discussions with OGC staff suggest that faculty are most likely to receive legal representation from the university for:

• Teaching and clinical activities at Stanford
• Articles in journals, scholarly publications (including online)
• Conduct of research at Stanford
• Administrative duties
• Talks at professional conferences, symposia, panels

Representation is less likely to be offered for:

• Books, films for which one is paid by a third party
• Personal statements or actions
• Work done in personal consulting time
• Work done before arriving at Stanford
• Knowing violation of the law, e.g., sexual assault

Greely called the university’s current policy the “shortest and most elegant” among the university policies reviewed by the committee. Nevertheless, he said committee members believe it takes only a “minimalist approach” of stating legal obligation in relation to compliance with California Labor Code Section 2802, enacted in 1937.

Greely said legal issues involving higher education in general, including federal government actions involving researchers from China, have become more chilling and have created a threatening environment.

“We think the university needs to reassure faculty that in appropriate cases, the university will have our backs,” he said.

As part of their investigations, committee members also coincidentally discovered Social Media Guidelines that they believe should be eliminated or revised. They urged the university to “eliminate or substantially revise” language within the guidelines “that remove, in a blanket manner, all social media posted not expressly authorized by the University from the ambit of faculty ‘duties,’ ” concluding that such language is “both legally overbroad” and “inappropriate as a policy.”

Free lunch

In her report to the Faculty Senate, Provost Persis Drell said members of the faculty will be invited to share a free lunch at the Faculty Club on Wednesdays during fall quarter as one small step in rebuilding the university’s academic community post-pandemic. All faculty members will be welcome and will be seated randomly to encourage discussion of weighty university issues. Also planned are faculty gatherings in the Main Quad.

The provost also shared her reflections on the pandemic and the last 16 months. Among her conclusions is that the university might not have “the right balance” between centralization and decentralization. The provost reiterated her support for decentralization in support of creativity and research in faculty work but said that Stanford’s decentralized operational activities were a challenge to crisis management.

She also talked about the difficulty of making decisions quickly in an environment in which everyone expects to have a voice and in which customization of decisions is common. The provost also suggested that the university may have leaned too far toward compliance and risk reduction when forced to balance the university’s mission with challenging health regulations. She also lamented the loss of “opportunity for just serendipitous conversations” during the pandemic and the reliance on Zoom for interactions.

As the university begins the return to normal, the easy part, she suggested, will be reopening buildings, having students back in normal density in the residence halls and classrooms and bringing events back to campus. The university is expecting, she noted, the largest first-year class in recent memory.

“What will be more difficult is that many colleagues are carrying heavy baggage from the pandemic,” she said, including challenges to family life, delayed research pursuits, the loss of loved ones to the pandemic and illnesses with lingering symptoms suffered by colleagues themselves.

Drell suggested that members of the campus community will have to “give each other a large dose of grace” as the new normal settles in. She anticipates a “period of adjustment” and a resetting of boundaries between work and home. But she also noted exciting developments ahead, including the implementation of ResX and planning for the new school focused on sustainability and for the new department of African and African American Studies.

Addressing identity-based attacks

In his report, President Marc Tessier-Lavigne said he remains concerned about incidents of Islamophobia and antisemitism and met recently with campus leaders of the Jewish community and Muslim community.

“We strongly condemn any and all identity-based attacks, regardless of the communities from which they come or to whom they are directed,” he said. “And we stand with victims of such attacks.”

Regarding athletics, Tessier-Lavigne reported that the university does not have “any specific actions” in mind in reaction to a recent U.S. Supreme Court decision allowing student-athletes to receive payments and benefits related to education. Saying that the “the landscape of college sports is changing,” the president said Stanford is reviewing the Supreme Court’s decision with the Pac-12 conference and the NCAA to determine its impact.

The president called the 9-0 ruling “decisive and unusual.” It comes, he said, as many states have passed or are considering legislation that would allow athletes to earn money for the use of their names, images and likenesses. Similar legislation is under consideration in the U.S. Congress.

He said, “I do want to underscore that we are proud and supportive of our student athletes, and any decisions we make at Stanford will be in line with both our institutional values and our primary mission of research and teaching.”

Faculty Senate praise

During his report, the president also heaped praise on the Faculty Senate for its work during a challenging year and for the leadership of Faculty Chair Judy Goldstein, the Janet M. Peck Professor of International Communication, professor of political science and senior fellow at the Stanford Institute for Economic Policy Research.

Tessier-Lavigne called Goldstein’s leadership “robust” – praise that was reiterated by members of the Faculty Senate as they wrapped up their final meeting of the year.

Goldstein gave her own thanks to members of the Faculty Senate Steering Committee, who were tasked with more issues than are usually on the senate agenda, and to the staff members who support their work.

“This has been one of the more challenging years for the Faculty Senate and for university governance,” she said. “Seeing you on that small screen was a poor substitute for individual interactions, and truthfully, I am not going to miss conducting senate meetings from my bedroom.

“The bottom line is that we made it through, and the next year will be a new normal,” she said, adding that the “road was sometimes bumpy, but in the end, I think we did a pretty good job.”

Other action

In other action, the senate approved a proposal, made by the dean of research, to expand the university’s policies on reporting research misconduct to federal agencies to also cover non-federal research sponsors. Stanford’s policies define research misconduct as fabrication, falsification, or plagiarism in proposing, performing or reviewing research, or in reporting research results.

The senate also approved five recommendations made by the Committee on Graduate Studies to make permanent several temporary changes to the university’s graduate academic policies. The changes were made quickly in response to the COVID-19.

Changes were approved to:

• GAP 3.1.1 Registration, Enrollment and Academic Progress: Describes university requirements for registration and enrollment by graduate students during the academic year, minimum academic progress, changes in enrollment during the quarter, certification of enrollment and summer quarter enrollment. Quarterly registration deadlines were changed in the 2009-10 Academic Year. Updates reaffirm that education at Stanford remains primarily an in-person, residential experience for graduate and professional students as well as for undergraduate students. Changes also offer guidance to departments for remote learning and its implications.

• GAP 3.2.1 Residency Policy for Graduate Students: Establishes a required number of academic units for each graduate degree, assuring that students receiving those degrees have completed specified course work and other degree requirements and have immersed themselves in the intellectual life of Stanford University. Changes will delegate decision-making to faculty and staff in degree programs who have the expertise to determine whether prior academic work should be accepted for transfer. Requires final approval by the department and Registrar’s Office.

• GAP 4.6.1 Doctoral Degrees, Candidacy Policy: Admission to candidacy for the doctoral degree is a judgment by the faculty of the student’s department or school on the potential to successfully complete the requirements of the degree program. Students are expected to complete department qualifying procedures and apply for candidacy by the end of their second year in the Ph.D. program. Candidacy is valid for five years, subject to satisfactory academic progress. Changes reaffirm that doctoral students are expected to complete degree program qualifying procedures and apply for candidacy by the end of their second year in the program and affirms local decision-making for extensions of the pre-candidacy period.

• GAP 4.7.1 Doctoral Degrees, University Oral Examinations & Committees: Every Ph.D. student must pass a university oral examination, which can be one of three types, as determined by the department. Every university oral examination is chaired by an out-of-department chairperson. This policy outlines university requirements for committee membership and responsibilities, scheduling and procedures for the examination and reporting the results. Changes reaffirm that in-person oral exams and dissertation defenses are the norm as per university policy and allows for exceptions for remote participation.

• GAP 4.8.1 Doctoral Degrees, Dissertations & Dissertation Reading Committees: Completion of a satisfactory dissertation is a university requirement for conferral of a doctoral degree. The procedural change means the Registrar’s Office will be implementing a system for faculty to approve dissertations directly via Axess, which will further simplify the electronic approval process.