Higher Education Law Report

After what seemed like a small lull in NLRB activity impacting Higher Education, the National Labor Relations Board has once again signaled potentially significant alterations to the legal landscape. Just last week, the NLRB issued an “invitation” to file briefs in a case involving Pacific Lutheran University.  This specific case involves the interplay between organizing rights (in this instance for adjunct faculty) under Section 7 of the National Labor Relations Act and the Religious Clause of the First Amendment, which in 1979 the Supreme Court held in NLRB v. Catholic Bishop of Chicago precludes the NLRB from becoming entangled in religious issues (in that case the Court held that the NLRB could not require a union election among lay teachers at a Catholic school). This “invitation” asks interested parties to address the appropriate test that the Board should apply under Catholic Bishop and to identify factors it should consider in determining the appropriate standard for asserting jurisdiction. But the invitation goes much further than this question which is only of significance to religiously affiliated institutions.  The underlying Pacific Lutheran University case also includes a claim that the University’s adjunct faculty are managerial under NLRB v. Yeshiva University because, among other things, there are adjuncts who are voting members of the University’s Faculty Assembly, along with their tenured and tenure track faculty.  The invitation, therefore, also requests interested parties to identify those factors that the Board should consider most significant in making a managerial determination, as well as what evidence should be required to establish that faculty “effectively control” decisions.  In particular, the Board has solicited information on whether there have been “developments in models of decision making in private universities since the issuance of Yeshiva that are relevant to the factors the Board should consider in making a determination of faculty managerial status?” What is the significance of this invitation?  It likely signals some significant changes in the near future.  The fact is that unless the Board were inclined to consider some dramatic moves in these two areas, it would not have needed (or wanted) to solicit briefs on these issues.  Stay tuned - given the recent history of this Board, significant change is almost certainly on the horizon.

While not all colleges and universities meet the definition of a “federal contractor,” many do perform contract work for the federal government.  Those institutions will be facing a new minimum wage obligation in connection with any new contracts. On February 12, 2014, President Obama signed an Executive Order requiring that all new federal contracts and subcontracts contain a clause specifying that the minimum wage to be paid to workers under those federal contracts and subcontracts must be at least $10.10 per hour beginning January 1, 2015. The federal contracts and subcontracts covered by this Executive Order include procurement contracts for services or construction and contracts for concessions. This new $10.10 minimum wage will also apply to disabled employees who are currently working under a special certificate issued by the Secretary of Labor permitting payment of less than the minimum wage. Beginning January 1, 2016, and annually thereafter, the minimum wage for federal contractors will be increased by the Secretary of Labor based on the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers, and rounded to the nearest multiple of five cents. The Secretary of Labor is required to publish the new minimum wage at least 90 days before the new minimum wage is scheduled to take effect. For those institutions that might utilize tipped employees, the hourly cash wage that must be paid by a federal contractor will be at least $4.90 beginning on January 1, 2015. In each subsequent year, the federal contractor minimum wage for tipped employees will increase by 95 cents until it equals 70 percent of the federal contractor minimum wage in effect for non-tipped employees. If an employee’s tips, when added to the hourly wage, do not add up to the federal contractor minimum wage for non-tipped employees, the federal contractor will be required to supplement the employee’s hourly wage to make up the difference. The Secretary of Labor is expected to issue regulations by October 1, 2014, to implement the provisions of the Executive Order.

Since 1992, the Higher Education Act has required colleges and universities to determine applicants’ eligibility for federal aid programs only through use of the Free Application for Federal Student Aid (FAFSA).  On February 3, 2014, Rep. Elijah Cummings, the ranking Democrat on the House Committee on Oversight and Government Reform, sent a letter to Secretary of Education Arne Duncan in which he identified 111 colleges and universities he believes to be requiring applicants to complete forms other than the FAFSA to apply for federal aid. The information set forth in the letter was gleaned from a survey of institutional websites, many of which, the letter claims, reflect the use of forms other than the FAFSA (such as the College Board’s CSS Profile) to determine eligibility for federal IV aid, or, at a minimum, provide unclear guidance to applicants as to whether additional forms are required.  In reality, the majority of institutions are likely administering programs correctly, requiring applicants to complete only the FAFSA for federal aid purposes but using other data collection tools for institutional and other non-federal aid purposes (and encouraging submission of the additional information in order to maximize accessibility).  However, institutions’ descriptive materials may not clearly reflect these compliant practices. It is not clear what, if anything, the Education Department may do in response to Rep. Cummings’ letter.  Although it appears that Rep. Cummings is suggesting only an admonishment to institutions, colleges and universities should use this opportunity to ensure that their website disclosures and other descriptive materials made available to applicants clearly identify that only the FAFSA is required for federal aid purposes (and, of course, that they are administering the application process in a corresponding manner).

It is often said that retaliation claims are much harder to defend than the underlying discrimination claim.  This is at least in part because human nature is such that it is not a stretch to believe that someone falsely branded a discriminator will either look to retaliate against his/her accuser or will not pass up the opportunity to retaliate when circumstances present themselves.  Knowing this, clever would-be plaintiffs, believing that the writing is on the proverbial wall in terms of their own performance deficiencies, often try to lay the foundation for a retaliation claim by engaging in protected activity (complaining about discrimination) prior to their employer pulling the trigger on a termination.  The case law is replete with such efforts.   But what happens when the would-be plaintiff’s complaints go beyond allegations they were being discriminated against? Earlier this month, Judge Leonard Wexler of the Eastern District of New York, in Saliba v. Five Towns College, 2014 WL 92690 (E.D.N.Y. 2014),[1] held that the Plaintiff essentially complained her way out of a Title VII retaliation claim.  The Plaintiff was an Assistant Professor of English at Five Towns College.   She alleged she was terminated for complaining about:  sexual harassment committed by another faculty member against students; illegal drug use; campus security issues; and “rampant corruption” in the administration of the College. In granting the College’s motion to dismiss the complaint,  Judge Wexler held that to the extent Plaintiff’s Title VII retaliation claim was predicated on her complaints about students being harassed, as a matter of law, such complaints did not constitute “protected activity.”  Title VII does not cover complaints about “non-employees,” such as students, being subjected to discrimination.  Additionally, Judge Wexler held that because Plaintiff complained about so many different aspects of the College’s operations that had nothing to do with discrimination, her complaint failed as a matter of law.   Citing the most recent Supreme Court decision on point, Judge Wexler held that Plaintiff was require to show that her protected activity was a “but-for” cause of her termination, not just a motivating factor.   In this case, however, Plaintiffs complaints were not about an employee being the victim of discrimination, but were rather about matters completely outside the scope of the anti-discrimination laws. In light of Saliba, employers facing retaliation claims would be well-served to carefully examine the precise nature of the alleged protected activity and to scrutinize whether such activity was the “but-for” cause of the adverse employment action.

---

With students, faculty and other groups increasingly vocal about institutional responses to campus rape and sexual assault, President Obama has announced the creation of The White House Task Force on Protecting Students from Sexual Assault.  The group will include cabinet level leaders and US Attorney General Eric Holder. Under Title IX, colleges and universities are required to respond promptly to reports of campus rape and sexual assault.  An increasing number of students have filed federal claims of sex discrimination, alleging that their institution had not adequately responded in cases where they have been sexually assaulted.  At the same time, many college administrators have expressed frustration with the US Education Department’s Office for Civil Rights, finding that OCR does not fully understand the realities involved in addressing sexual assault on campuses, particularly when it comes to the student disciplinary process, and that there is confusion regarding exactly what OCR expects of them. The President has charged the Task Force with developing “best practices” for preventing and responding to rape and sexual assaults; to assure compliance with existing federal laws governing colleges; and to make available to the public individual college’s compliance with these laws.  The President also asked the Task Force to improve coordination among federal agencies dealing with this issue, and to increase the transparency of federal enforcement efforts. In announcing the Task Force, the President indicated that the Task Force will look for ways to work collaboratively with colleges to develop these recommendations, though the Task Force will not include any members of the higher education community. The Task Force’s recommendations are to be submitted to the President in 90 days, and a full report on implementing those recommendations is due in one year. Bond will be following closely the work of the Task Force, and will keep clients updated on developments.

Following the lead of North Carolina last year, members of the Virginia legislature have  become the latest to propose legislation to provide students at public colleges and universities the right to attorney representation in on-campus disciplinary proceedings. With narrow exceptions generally arising only at public institutions (e.g., in circumstances where a student faces parallel criminal charges arising out of an incident giving rise to an on-campus proceeding), courts have almost uniformly held that students have no right to counsel during campus disciplinary proceedings.  Even in those circumstances where courts have mandated the presence of an attorney, the attorney has been restricted to providing advice to protect the interests of the student, rather than being permitted to perform a formal advocacy role in which he or she presents a defense on a student’s behalf. Like the 2013 North Carolina law after which it appears to have been modeled, the proposed Virginia legislation would change this equation drastically at public institutions. With limited exceptions for charges of academic dishonesty, any student who is accused of a violation punishable by a suspension of greater than 10 days or expulsion would have the right to be represented, at the student's expense, by a licensed attorney (or nonattorney advocate). If present, the attorney would be entitled to "fully participate" during the proceedings, presumably meaning that counsel would be entitled to present opening and closing arguments, cross-examine witnesses (either directly or through the hearing body), make objections, and generally function in a manner similar to defense counsel in a criminal court.  If this represents the start of a trend in higher education disciplinary law, it is a concerning one.  Colleges and universities do not design their disciplinary systems to function with all of the technicalities of a criminal process, and with good reasons. Campus disciplinary proceedings are designed to be educational in nature, and a core component of the learning experience is a student's ability to speak on his or her own behalf, to take responsibility for his or her behaviors, and to learn from them. Much of this will be lost in the event that students are permitted to have attorneys speak for them throughout the disciplinary process. Reasonable minds can, of course, differ as to whether the foregone educational benefit is outweighed by the need to protect accused students in the context of potentially career-altering additions to their records; however, attorney mandates have other, more significant and less debatable, adverse implications.  Ironically, proponents of these legislative efforts have characterized them as “leveling the playing field” between accused students and their institutions, but the presence of active defense counsel would almost certainly swing the balance in the opposite direction, making it both more difficult and more costly for colleges and universities to regulate conduct on their campuses.  Indeed, the presence of counsel for accused students may well lead an institution to retain counsel on behalf of the disciplinary panel and/or institutional representatives presenting charges, and to allow student complainants to retain private counsel, turning the entire process into a hypertechnical, confrontational and protracted legal proceeding. The potential costs to institutions, both financial and in terms of the functioning of their disciplinary processes, are not insignificant. It may be that the courts and regulatory authorities in jurisdictions adopting attorney mandates will bring some degree of reasonableness to the analysis; for example, it is possible to argue that the right for an attorney to “fully participate during any disciplinary procedure” means that attorneys can only participate to the extent that an institution’s process otherwise allows any advocate to function in the place of an accused student, and/or that institutions may have procedures that limit the role of counsel (e.g., by precluding cross-examination) provided that the procedural limitations are applied even-handedly.  However, this is far from clear, and appears to be contrary to the expectations of those who have sought to implement these reforms. Perhaps more troubling, a mandate to allow active attorney advocacy in on-campus proceedings raises the prospect of serious inequities in the disciplinary process.  For example, although the Virginia legislation (like the North Carolina legislation before it) permits the use of "non-attorney advocates," affluent students who are able to retain the highest quality (and correspondingly highest-priced) counsel may have a greater chance of successfully defending disciplinary proceedings and avoiding responsibility for their actions than will students from underprivileged backgrounds. Similarly, these requirements may have chilling effects on institutions’ ability to address allegations of sexual misconduct, where institutions are required to afford complainants rights equivalent to those granted to accused students. Although this may not translate into a requirement that institutions furnish counsel to complainants in such cases (as noted above, accused students are required to pay for their own counsel), many complainants may not have the financial wherewithal or inclination to retain counsel in such circumstances, so as to enable them to have their accounts presented as effectively as those of their alleged assailants or harassers.  They may also be understandably fearful of the prospect of being cross-examined by defense counsel (directly or, as is common, through the hearing body) in the manner that often proves traumatic in criminal processes. If this increases the reluctance to report sexual misconduct with which so many institutions already struggle, it will be a truly unfortunate byproduct of these legislative efforts to protect student rights. None of this is to say that accused students are not entitled to a process that is fundamentally fair when facing charges of misconduct; this has always been the law, and students sanctioned by institutions already have the right to seek judicial review of disciplinary determinations in most jurisdictions. Thus, colleges and universities are already accountable for their processes, and should of course take steps to ensure that their proceedings are conducted fairly and even-handedly. Moreover, if institutions are concerned that accused students need legal advice to protect their interests, they always have the option to design their procedures to permit (as many do) the presence of counsel to provide quiet advice to the accused.  However, “lawyering up” the entire process by requiring institutions to permit full and active advocacy by counsel would seem, on the whole, to be counterproductive.

As colleges and universities in New York know, new Regulations were recently adopted, effective December 31, 2013, amending the state’s Minimum Wage Orders, including the Minimum Wage Order commonly applicable to not-for-profit higher education institutions. These amendments reflect the statutory increase in New York’s minimum wage to $8.00 per hour, which is already in effect, as well as future scheduled raises in the state minimum wage to $8.75 per hour as of December 31, 2014, and to $9.00 per hour as of December 31, 2015. The relevant provisions of the above-referenced Minimum Wage Order apply to colleges and universities deemed to be “nonprofitmaking institutions.” This term includes:  “any corporation, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual.” While this Minimum Wage Order generally applies the new $8.00 per hour minimum rate, it also continues to provide that bona-fide students working “in or for” such “nonprofitmaking institutions,” e.g., not-for-profit colleges and universities, are exempt from the definition of “employee.”  In other words, these students are exempt from the increased state minimum wage. The term “student” is specifically defined in the applicable Minimum Wage Order as “an individual who is enrolled in and regularly attends during the daytime a course of instruction leading to a degree, certificate or diploma, offered at an institution of learning, or who is completing residence requirements for a degree.”  Further, under this definition, such an individual continues to be a “student” even when school is not in session, so long as she was a student during the preceding semester. However, higher education institutions should remember that the Fair Labor Standards Act (“FLSA”) does not contain a comparable exemption and, at the present time, federal law independently imposes a minimum wage of $7.25 per hour for non-exempt employees.   Thus, hourly student employees must still generally be paid at this federal minimum wage rate for all hours worked, and at time-and-a-half of their “regular rate” for all hours worked over 40 in a workweek. At the same time, not all student “work” at higher education institutions constitutes an employment relationship subject to the FLSA and its requirements, although this distinction is not always easy to make.  Additionally, certain full-time students may be paid sub-minimum wages under the FLSA, but higher education institutions must obtain prior approval from the federal Wage & Hour Division. The bottom line is that colleges and universities should carefully examine their minimum wage practices, and practices with students who provide services to ensure compliance with both state and federal law.

Inside Higher Ed recently reported a situation involving Western Michigan University (WMU).  According to published reports, WMU placed a suicidal student on involuntary medical leave.  The student appealed his dismissal and filed a complaint with the Office for Civil Rights (“OCR”).  The student was readmitted, but he later committed suicide in his apartment, where he was found by his roommate. At present, a debate is raging around this situation.  Some hail the fact that the student won the right to return to campus as a victory for emotionally distressed students.  Others see this as an example of the tragedy that may flow from OCR’s push to require colleges and universities to allow students to remain on campus after they are no longer well enough to be there.  Administrators are caught in the unenviable middle. The issue of what to do in response to suicidal students is anything but a clear one.  This was not always the case.  Over the course of several years, OCR had developed a fairly clear line of cases on this issue, and OCR generally supported involuntary withdrawals where students presented a direct threat to themselves or others.  OCR laid out various procedural “due process” steps and considerations to be met in these situations, which boiled down to notice of the intent to remove the student, an opportunity for the student to respond, and an individualized inquiry into the facts and circumstances of each case.  Most colleges and universities drafted policies incorporating those procedural steps and considerations. The present uncertainty exists as a result of a change to the regulations for Title II of the Americans with Disabilities Act (ADA).  In September 2010, the Department of Justice (DOJ) revised the Title II regulations, and, in particular, with respect to when a student was a “direct threat” such that the student was not otherwise qualified to remain enrolled.  The DOJ’s new direct threat definition is “a significant risk to the health or safety of others” (emphasis added).  That is, DOJ did not include an individual’s threat to self as part of the direct threat analysis.  The Title II regulations were announced in September 2010 and became effective in March 2011. Title II applies to public universities, not private universities.  Private universities are covered by Title III of the ADA, but OCR seems to be moving toward using the same direct threat analysis -- one that no longer considers a student’s threat to himself/herself -- for private universities as well.   OCR has not announced a formal renunciation of its earlier line of cases, and it has been assumed for some time that OCR will provide official guidance to clear up this confusion.  To date, that has not happened. The unfortunate reality is that administrators are in the position of having to “pick your lawsuit”.  A decision to involuntarily remove a suicidal student may result in a discrimination claim.  Of course, if a student commits suicide on campus, the institution runs the risk of wrongful death or negligence claims, not only from the student’s estate but from other students traumatized or even physically injured in the event.  Beyond the legal risks, there are bedeviling educational and ethical questions that go to the balance between the interests of the mentally ill student and the interests of the learning community as a whole. That elusive “right thing to do” depends on the unique circumstances of each situation.  With that said, the following are universally helpful factors to bear in mind.

(1)       Be certain to consider each situation on an individualized basis, taking into account the student’s behavior on campus, the opinions of campus mental health professionals, and the resources available short of an involuntary leave that may allow the student to remain safely enrolled.

(2)       If a leave of absence is in order, it is always best that the student leave voluntarily -- truly voluntarily (not threatened into a voluntary leave).  This is always the safer route, from a liability standpoint.

(3)       If the student is to be removed involuntarily, consider whether there are facts to be cited demonstrating the student’s threat to “others” as well as to “self”.  The student’s removal should be based on these larger community-type factors in addition to any expressed or anticipated harm to self.

(4)       Ensure that leave policies do not treat removals for psychological reasons more harshly than removals for other reasons.  If a readmission policy is more onerous for psychological leaves versus other leaves, OCR may find the policies discriminatory on this basis alone.  If an institution requires “proof” that a psychological condition has been addressed before readmitting a student, it should require some kind of similar “proof” from students who required leaves for other reasons -- whether general medical reasons, finances, family commitments, and so on -- that the circumstances that necessitated these non-psychological leaves have been dealt with as well.

(5)       Be sure the institution’s policies reflect its sense of the appropriate balance of the legal, educational and ethical concerns these situations present.  Once that balance is decided upon, the institution must follow its policies carefully and precisely with respect to each troubled student.  OCR is highly attentive to an institution’s compliance or lack thereof with its own published policies.

There will no doubt be further legal developments and continued academic debate around these very difficult situations.  In the meantime, administrators should work closely with legal counsel to navigate the best path forward for their particular institution.

The turn of the calendar to a new year provides an opportunity for New York colleges and universities to perform an early assessment of their compliance with Article 129-A of the New York State Education Law in anticipation of the need to furnish evidence of compliance to the New York State Education Department (NYSED) during the summer of 2014. By way of background, Article 129-A requires public and private colleges and universities in New York State to maintain institutional policies on a variety of subjects, including campus security and the maintenance of public order on campus; sexual assault, domestic violence and stalking prevention; campus crime reporting and statistics; investigation of violent felony offenses; bias related crime prevention; the marketing of credit cards on campus; and disclosure of fire safety standards in institutionally-owned or operated housing facilities. On or before July 1 of each year, institutions are required to certify to NYSED their compliance with the requirements of Article 129-A (i.e., that they have policies meeting the statutory requirements). However, in 2004 institutions were required, and every ten years thereafter are required, to submit actual copies of their policies as evidence of compliance.  Thus, New York institutions will be required to submit their policies to NYSED on or before July 1, 2014. In anticipation of this requirement, institutions may wish to perform a self-audit to confirm that the requisite policies are in place, and are suitable for filing.  Of course, institutions should be monitoring compliance in these areas on a continuous basis, but they may want to review the content of policies in greater detail (as opposed to confirming their mere existence) in anticipation of the public filing, so as not to be caught needing to make eleventh hour amendments to policies (or to adopt new policies) over the summer, when boards or others whose approval may be required are not readily available.

In the past three years, there has been considerable activity on the Title IX/Sexual Assault legal front.  We have all read about the increase in claims  brought by victims against their institutions through the complaint procedures of the U.S. Department of Education’s Office for Civil Rights.  There have been well publicized resolution agreements reached between OCR and institutions.  And there has been the April 2011 “Dear Colleague” letter issued by OCR that has been the subject of much debate. But institutions are also starting to see an increase in push back from students accused of sexual assault.  A recent Bloomberg report highlights a number of legal complaints filed by male students against their institutions as a result of disciplinary action taken against them arising out of sexual assault claims. Institutions should not ignore these latest challenges.   At a minimum, they should review their existing investigation and hearing procedures not only to ensure that they provide appropriate protections for those accused, but to also make sure that they provide “equal” process for both the victim and the accused.  OCR has made it clear that the process needs to be the basically the same for both parties.  For example, if the victim has the right to have an advisor present throughout the proceeding, the accused must be afforded that same right; if the victim has the right to appeal a hearing decision, the accused must be afforded that same right. In addition, it is critical that institutions “execute” in accordance with their own policies and procedures.  While institutions have a fair degree of leeway with respect to what goes into their policies, the surest way to create a legal issue is to then not follow those policies.  Do not put something in your policy that you are not prepared to live with, and once you put it in your policy you need to make sure you follow it. Whether now, at the end of the calendar year, or in the Spring, at the end of the academic year, at least annually an institution should conduct a thorough review and audit of the past year’s sexual harassment/assault cases.  Determine what was done correctly and what could have been done better.  Based on those experiences, consider modifications to your policies and procedures, and/or to your implementation of them, to best position your institution, and the outcomes reached in your internal proceedings, against future legal attack.

The status of graduate assistants under the National Labor Relations Act (“Act”) -- are they employees eligible to organize or students without employee status under the Labor Law -- has garnered considerable attention in recent years.  New York University (“NYU”) graduate assistants will, for the second time in recent years, be represented by a union and negotiate their terms and conditions of employment due to a neutrally supervised vote held under an agreement between NYU and the United Auto Workers (“UAW”).   Under that agreement, graduate, research, and teaching assistants at NYU have voted overwhelmingly (620 to 10) in favor of union representation by the UAW.  The election occurred after the UAW and NYU reached agreement in November under which NYU agreed to remain neutral, refrain from participating in the election, and bargain in good faith for a contract if a majority voted in favor of representation.  Under the same agreement, the UAW agreed to withdraw pending petitions for election before the National Labor Relations Board (“NLRB”). A unit of graduate assistants at NYU had previously voted in favor of representation in 2002 and the UAW had bargained a contract with NYU.  During that first contract, the NLRB decided the Brown University case, 342 NLRB 42 (2004), holding that certain graduate assistants were primarily students, not employees and therefore were not legally entitled to organize under the Act.  NYU withdrew recognition of the Union in response to the Brown decision.  In 2010, the UAW filed several petitions seeking to represent graduate assistants and providing a vehicle for the NLRB to revisit the Brown ruling.  The NLRB sought briefing from the parties and interested organizations concerning the employee status of graduate assistants.  Many felt that Brown was likely to be overturned by the NLRB appointed by the Obama administration. The agreement between NYU and the UAW resulted in the withdrawal of the NLRB proceeding.  The NLRB has issued an unpublished decision indicating that it is granting the Union’s request to withdraw and now considers the review of the Brown decision to be “moot.” Thus, NYU will enter into bargaining with the UAW for its graduate students.  The broader issue of whether graduate students are employees from the NLRB’s perspective will have to wait for a new test case before the Board.  In the interim, Brown remains governing law.

Institutions often make a “deal” with an individual faculty member that is memorialized in something less formal than a lawyer-drafted contract, and there is always that lingering question as to whether it will be “enforceable” if and when the time comes.  A recent decision involving Northwestern University is good news for institutions in this regard. Here, a faculty member had requested from the Dean a year’s leave so that he could visit at another institution.  The Dean indicated that she would provide that leave, along with a second leave to take place three academic years into the future (with the faculty member teaching in the intervening years) provided the faculty member would then retire at the end of that second leave.  Ultimately a “deal” was struck and the Dean followed up with a letter to the faculty member that provided “…I will accept your resignation from the …faculty effective with your retirement on August 31, 2012….”  The letter went on to explain his leave and teaching responsibilities. In 2011, the faculty member was reminded that the next year would be his last and then he would be retired.  He balked, indicating that he did not want to retire and insisting that he had never agreed to retire.  He filed an EEOC charge and upon receiving his right to sue letter, commenced an action in U.S. District Court in Chicago.  The District Court ruled against him and he appealed to the U.S. Court of Appeals for the Seventh Circuit, which also found for the University. First, the faculty member argued that the University discriminated against him by offering retirement packages to older employees but not younger ones.  After recognizing that employers would have little reason to offer retirement/early retirement packages to new workers, the Seventh Circuit confirmed that the Age Discrimination in Employment Act (ADEA) simply “does not forbid offers that favor older workers over their younger colleagues.” Next the faculty member argued that he construed his arrangement with the University as giving him an option to retire after the 2011-2012 year, but it was never his intent that he had to retire.  The Court had no trouble describing the arrangement reflected in the letter from the Dean a “contract.”  Nor did it have any trouble interpreting this agreement as committing the faculty member to retire no later than the end of the 2011-2012 year.  The faculty member’s non-sensical “understanding” – that it remained his option – would have had the University giving him two years worth of paid leave in exchange for only the possibility that he might retire after the 2011-2012 year (which of course was a possibility anyway).  As the Court observed:  “People pay to acquire options; they do not get options (and two years’ pay) handed to them for nothing.”  Thus the Court rejected the faculty member’s interpretation as unreasonable.  In a welcomed explanation of judicial reasoning, the Court observed: “judges understand written agreements to mean what reasonable people understand them to mean.” When so much happens between an institution and its faculty through less formal arrangements, often reflected in simple letters, it is good to know that Courts will recognize them and, along the way, provide a common sense interpretation.