Bonni Stachowiak [00:00:00]:

Today on episode number 557 of the Teaching in Higher Ed podcast, navigating choppy waters, legal issues faculty need to know with Kent Kauffman.Production Credit: Produced by Innovate Learning, maximizing human potential.

Bonni Stachowiak [00:00:23]:

Welcome to this episode of Teaching in Higher Ed. I’m Bonni Stachowiak, and this is the space where we explore the art and science of being more effective at facilitating learning. We also share ways to improve our productivity approaches so we can have more peace in our lives and be even more present for our students. On today’s episode, I’m joined by Kent Kauffman. He’s an associate professor of business law and ethics and is the MBA program’s faculty liaison in the Dormer School of Business at Purdue University Fort Wayne. He teaches in the undergraduate and MBA programs. He’s the author of four books, including the recently released Navigating Choppy Waters, Legal Issues Faculty Need to Know. He has a BA from Temple University and a JD from the Penn State University Dickinson School of Law and holds an Indiana law license.

Bonni Stachowiak [00:01:32]:

Kent is a Purdue member of Indiana University’s selective scholarly teaching community, the faculty academy on excellence in teaching. He has won multiple teaching awards and has served in leadership capacities on his campus related to teaching enhancement. Kent Kauffman, welcome to Teaching in Higher Ed.

Kent Kauffman [00:01:56]:

Thank you for having me. I appreciate talking with you today.

Bonni Stachowiak [00:01:59]:

I have been looking forward to this conversation. Your book and your work and your areas of of expertise have been intriguing to me, but candidly, I, like so many others, don’t know enough and didn’t know enough, especially when I started in higher education about these topics. So I’m so glad that we get to have today’s conversation.

Kent Kauffman [00:02:21]:

Thank you. I I appreciate just talking about them. They they are something that, for me, came about, not just because I have a legal background, but just because of my experience as a part time and full time college professor and department chair. So it was sort of a something that I learned through trial and error and then became part of my legal research and disciplinary work as well.

Bonni Stachowiak [00:02:43]:

I want you speaking of you you’ve held a number of different roles and different capacities. I want you to take us back and tell us about your first experience with teaching, with grading students’ assignments, and tell us what happened and, thankfully, what didn’t happen.

Kent Kauffman [00:03:01]:

Sure. My first semester as a college instructor, I won’t even say professor, just a college instructor, was both disastrous and serendipitous in the same semester. I I graduated from law school and was to take a position with the federal government in another state. I’m from originally from Pennsylvania. And so while while waiting to start this position because it was put on hold due to a hiring freeze in the federal government after I got hired, so I couldn’t start it. So I started immediately trying to find work as a college instructor part time, and I got hired by a Christian college to teach criminal law. Then I also got hired to teach everything I could find at another college in the same city, Fort Wayne, where I I still work. And I was teaching political science.

Kent Kauffman [00:03:52]:

I was teaching English composition. I was teaching speech. Anything they would give to me, I I would teach. And at the in the criminal law class, which was most like my academic experience, I thought that would be the most enjoyable to teach. And, unfortunately, it was the most memorable of the classes I taught because the students just they didn’t like me for a variety of reasons. One of which was they asked me for a practice test before the first exam, and I’d never heard of such a thing. I didn’t know that anyone in college ever got practice tests. So I just abruptly said I don’t give practice tests.

Kent Kauffman [00:04:26]:

No. And what I didn’t know is they were used to that from a new professor in their school in a brand new program, and so they thought I was being mean. Here, I thought I was being, like, academically aligned with good goals in mind for what’s quality instruction. I perhaps maybe was who knows? But I may have been too difficult in the class. I might not have known what I was talking about. But after the first exam, which I thought went well, and I gave it anonymously, which is similar to a law school experience where the students didn’t even I didn’t know who they were. While grading their exams, they were given numbers. I matched the numbers later on with their names.

Kent Kauffman [00:05:06]:

And so it was purely anonymous. I was accused of grading them, like, personally unfairly. And I, I was shocked, dismayed, horrified because I didn’t know how I could have done it because I didn’t know who they were. But more importantly, I didn’t know why I had been accused of this. And so it was a really ugly situation. Thankfully, I was at this other college being mentored by a a woman who was in charge of the classes I was teaching, and she was at the same time I was going through this nightmare of a semester. She was leading me through what it meant to teach college classes. And so the speech class went well, and the composition class went just fine, and the American government class went just fine.

Kent Kauffman [00:05:47]:

And so I continue to work for that college, which then led to just full time employment within a year after that. So if it hadn’t been for her help, I probably would have just bailed after the end of my first semester teaching criminal law because I had such high expectations about how great this was going to be, teaching a legal class as a recent law school graduate. And I didn’t quit because I needed the money for groceries. But had that been the only class that I had taught, I would have not done that again. But thanks to her gentle leading and mentorship, I continued to to do what I do now for a living.

Bonni Stachowiak [00:06:25]:

Oh, what a powerful story. And I know that there are people who listen to this podcast from all over the world. And even if we’re only talking to people from The United States today, our context can differ so much. You talked about working for a religiously affiliated college, and I imagine how many differences we could talk about between the place where you now work full time. So our context can really be quite different. But I’d love to have you tell us about what are some common legal issues that regardless of our context, we might wanna be thinking about as faculty members, and we’re gonna stay pretty broad for this part of the conversation. Just if you could go back to me when I first started teaching or to you when you first started teaching, what would be some of the pillars you’d want people to be aware of that this aspect of your work bumps into the law in all likelihood, in in some way shape, or I shouldn’t say bumps in, but could bump in to the law in in some way, shape, or form?

Kent Kauffman [00:07:27]:

Well, I do think there is a a universality to this approach even for those who aren’t working in an American institution. I think there’s a parallel for me, how I think about this, is from a medical standpoint. Right? There’s curative medicine and there’s palliative medicine. But for many of us, there’s preventative medicine, which is to say, what can I do in my health life to cut down the chance that I’ll need curative medicine, much less palliative medicine? And so whether I’m vacationing in America or somewhere else that has a beach, rather than seeking help for being bitten by a shark, I might ask myself, what are some good ways I can avoid being around sharks in the ocean when they’re swimming by at the same time? So we’re we’re unlikely to be bitten by a shark, unlikely to be struck by lightning, but our chances go up when we fail to engage in preventative medicine aspects of other areas of our lives. So I think that fits for what part or full time faculty do in a college or graduate setting. And so for me, at the more granular level to start is the decisions I make that are professional decisions, which are primarily grading and evaluating someone’s work. Can I this is my phrase? Right? Can I get in trouble, for that? Often, get in trouble might mean, right, will will I be relieved of my job? But it also can mean, will I be sued by a student for that? And as a lawyer, right, we’re we’re trained to think more about could it rain today, and what should we do if it’s gonna rain today legally? Then this is gonna be great. And so from a worst case scenario, it starts with what I’m doing that involves my professional discretion in the classroom or about the classroom.

Kent Kauffman [00:09:18]:

Is there legal risks for liability there? And, thankfully, the news is really good. And it’s really good because from a broad perspective, courts do not accept a lawsuit that we would commonly call educational malpractice. So whether you’re a a lawyer or a doctor or any other professional who gets liability insurance to deal with the risk of whatever qualifies as malpractice, faculty don’t have to worry about that because courts have for a long time said, we don’t wanna be in the business of evaluating what goes on in college classrooms. It’s not our place. It’s not fit. It’s not workable. And if you think about just America, there’s about 18,000,000 students in a course over a given year. And if if they all could file what seems to be an education malpractice case, that would take a legal system that’s already overworked and make it completely just unworkable at the extreme.

Kent Kauffman [00:10:14]:

So there’s no educational malpractice on a broad standpoint for both faculty and institutions who can’t be sued for malpractice as well. But individually, for faculty with what they do, grading, creating their courses, evaluating, then faculty are protected by a standard that’s called the arbitrary and capricious standard that courts everywhere generally accept, which is to say this. If a faculty member, including going back to my first semester, a part time faculty member who’s we’re overworking for underpay in so many situations. Right? Is a faculty member, whether they’re an endowed chair or a part time faculty member? If it can be thought that their decision, whether it’s a grade on an exam or a paper, is rational, then it passes the arbitrary and capricious test. That’s really one way to think about it. What isn’t, arbitrary? What isn’t capricious? It’s that which is rational. And so, I’ll this is a sad example, but there’s a case out of Pennsylvania where a graduate assistant teaching a counseling class in a graduate program gave a student a zero for participation grade. I don’t give participation grades.

Kent Kauffman [00:11:24]:

I’m not saying that they’re wrong, but they they’re fraught with difficulty. So she gave a student a zero in a participation grade towards her course grade. That resulted in her getting a low enough grade that she had to change her program. So she went from counseling to social work due to her GPA. She then sued the college and this graduate assistant teacher getting a PhD for liability, and she sued her for the money she said she would have made had she been able to become a counselor as opposed to what she is going to make in a social work program. And that was in the millions of dollars. So now you have a graduate assistant facing a liability lawsuit in the millions of dollars. Thankfully, the college stood behind her.

Kent Kauffman [00:12:10]:

And the the case went to the court, and the court said ultimately this. And there was a trial court that said it, but it did same effect if it had been an appellate court because the student appealed and nothing came of it. And the the judge said this, and the judge taught part time himself. He’s like, I probably wouldn’t do this if I were the instructor, but that’s not the legal standard. The legal standard is, did the instructor have a reason for why they did what they did? And if they did, which that person did, then there’s no liability here. So the good news is that faculty almost can’t be liable for those professional decisions unless a student could show that there was maliciousness or something that was a conflict of interest in the grading process, an evaluation process, or some sort of dark motive that rarely, but sometimes does occur in an educational setting.

Bonni Stachowiak [00:13:02]:

Alright. So one of the things you caution us about is we shouldn’t play lawyer, which is very disappointing to me, Kent, because I did read a lot of John Grisham in my younger years. So, you know, sometimes I like to play lawyer in my head, only in my imagination, though, but you’re gonna caution us. And, especially, you wanna caution us as it relates to our syllabi. What’s your guidance to us here?

Kent Kauffman [00:13:26]:

Well, I mean, reading John Grisham or Scott Turow is always a good thing to do. And, you know, when I watch a professional sports being played, particularly something that does involve someone a lot taller than me, and most athletes are a lot taller than me. But if I watch tennis, for instance, I have a sense that I could do what they’re doing. Like, why can’t I surf? They’re not super tall. I mean, some of them are actually quite tall. But back in the day like, John McEnroe isn’t much taller than me, if at all. Right? He may be shorter than me. Why can’t I do that? And it can be that way with being your own lawyer, where you can say, I think I can I think this makes sense? I’m okay to do this.

Kent Kauffman [00:14:02]:

It it makes sense, and that’s sort of how folklore works, where something makes sense on the surface. So why don’t we just pass it on to other people? And the the risk with playing lawyer in your class is not necessarily that you are going to be wrong, because that sounds arrogant for a lawyer to say to nonlawyers, you can’t do this because only we can do this, because it doesn’t take a super brain to be a lawyer. The risk is that if you’re wrong, you can’t then later claim, well, who would trust me? I’m not a lawyer. Right? And so you can’t fall back on I’m not a lawyer when you start to act like a lawyer. And I think sometimes that rears itself most formally in syllabi where whether it’s institutions, and there are some, or faculty, and there are some, and and published authors, and there are some who will state publicly that a syllabus is a contract, that presents a risk. And the risk is this. If I assert that something that isn’t legal is legal, I run the risk of having to pay the price for not keeping my end of the bargain when I gave reasonable belief to the other party that they should trust what I’m saying. And so there are lawsuits where students do sue their professors for breach of contract for what didn’t get followed in the syllabus or how the syllabus may have been changed throughout the semester.

Kent Kauffman [00:15:27]:

And they’re not just law students who sue. Of course, law students are gonna sue. That’s that’s almost, like, too perfect. That is a John Grisham first chapter. Right? Whereas law student sues a law professor, but students and undergraduates sue as well. And according to what I found in my research, no student has ever won a breach of contract lawsuit against a professor or an instructor over the syllabus because courts repeatedly state syllabi aren’t contracts. They’re just not. They look like they would be.

Kent Kauffman [00:15:57]:

And and one risk and and I would caution your audience about this. Try not to have your students sign the last document of a syllabus and turn it in as proof that they’re that somehow it’s binding because that really sort of gets to that closeness of, I’m telling you this is a contract. So the reason why syllabus is not a contract is because a contract is an exchange between both parties. And when you actually break it down as courts do, a student is not exchanging anything of value with me when I teach them in a class. In the same way, if I go into a fast food restaurant and I’m given the wrong item from the person behind the counter, I couldn’t sue them for breach of contract. And if I said, well, I gave them my money, and they gave me the food. Therefore, we made an implied contract over this meal. And the answer is no.

Kent Kauffman [00:16:46]:

You didn’t make a contract with the person behind the counter. And students aren’t making contracts with their professors because they are not exchanging anything of value. If they were, I would put in my syllabus damages it’s called liquidated damages, and I would make students pay me money if they were late for class. Right? If it were a contract, I would make them also pay me money if they skip class, and I would just build my retirement program off of the liquidated damages clauses that I put in my syllabi. So one way to think about what a contract is is to ask yourself this. Could could you sue somebody if they didn’t keep their word? If not, it’s really not a contract. Another way to think about it more formally is, have you exchanged something of value with that other party that the law recognizes as contract worthy? And it’s just not the case with syllabi. Students students who have sued are often find themselves in this predicament.

Kent Kauffman [00:17:40]:

Faculty have the right to change their policies mid semester. Whether they should, that’s an efficacy question, but it’s not a legal question. And I’ll give you just one quick example if I could. A law professor in a contracts class, which is absolutely perfect, was sued by a student in a contract class for breach of contract over the fact that on the first day of class, the law professor orally said in class that even though his syllabus said pop quizzes on Fridays weren’t gonna count, he was going to give pop quizzes that did count. Somehow, this student didn’t hear that and didn’t show up on class when days when these pop quizzes were given. And so he found out after the fact why he got a d because he missed the pop quizzes. Well, the syllabus writ in writing said no pop quizzes count, but the law professor orally amended his syllabus, and it led to a very ugly fight and a lawsuit in which the law professor won. And the court ultimately said, we’re not gonna live in a world where faculty don’t have the right to change their mind in their syllabi? And and they added this, or must they get their students’ permission to change their syllabi? Now, again, from a best practices standpoint, the question is, should you change what you put in your syllabi? That might be to the detriment of your students? But from a legal standpoint, faculty are allowed to do that unless they assert the syllabus as a contract, then they run the risk of having to live up to what comes with those assertions.

Bonni Stachowiak [00:19:10]:

What I’m hearing you say and also not say, but imply is that it’s not a contract, but the more that we could, in good faith, have it be a clear document that communicates information and not needlessly change things on the fly that would negatively impact students. You know, that it would think of it as a great communication vehicle, not a contract, but that it being a great communication vehicle. I’m also hearing you say that while you may not win at the student who sues you may not win at court, do we really wanna be spending our time in court fighting, you know, lawsuits against us even if we’re likely to be victors and in all of those cases. Like, that’s not a great way to spend one’s time. At least I’m guessing. I haven’t spent a lot of time in courtrooms, but I’m guessing not the best way to spend our time.

Kent Kauffman [00:20:04]:

That is that is the more important point. You’re exactly right, which is not will I win this lawsuit, but what can I do to avoid the lawsuit? And because the fact that you might win it doesn’t change that the nightmare you’ll experience of having it to go through the legal system and face what comes with the lawsuit, particularly if it’s not dismissed right away or very early. It’s better to avoid that fight than to know you’ll win that fight. So you’re exactly right. And yesterday was the start of my semester. And in my business law class, someone came in late, and she looked a bit confused. And I said, are are you okay? Can I help you with something? She was hoping to be in a psychology class that she thought was across the hall from me, but she didn’t know where the class is being held. So I said, okay.

Kent Kauffman [00:20:47]:

Let’s figure this out. So I said in my class, talk amongst yourselves. Let’s help this person out. And so I said to her on her could you pull up your syllabus on and to my amazement, the class location was not on the syllabus. And so she thought she was in the right spot, but she she wasn’t. So we’ve solved it, and we found that room and interrupted and told the professor, there’s there’s actually three people that are waiting to get into your class right now even though it started already. This is the right location. And there’s no legal problem with leaving the location of your class off a syllabus.

Kent Kauffman [00:21:23]:

But the question is, is it possible to write syllabi in a way that you think of them as both proactive learning documents that are evidence of quality teaching, really, because there’s a scholarly research area with respect to syllabi and how they’re part of the learning process. But, also, if you think about it way the way a lawyer might think about writing a legal document, then you’re thinking out the what ifs again. Can a student find my class? Does my syllabus show that? Yes. The registration document might show that, but does my does my document show that? With respect to issues of of grading, do I wanna discuss grade rounding or not? I don’t discuss grade rounding in my syllabi, which allows me freely to just choose to do it. Now one could argue on the flip side that if I did discuss grade rounding, I’d be on more certain ground if someone complained that I didn’t round their grade where I rounded another. And so there are both ways to look at that. My view is to leave out of a syllabus the things that you have full discretion on so you don’t put into your offense your own discretion and to put into a syllabus those things that allow you to show your to your fact to your students that you care about clarity. You care about the the the perspective problems that might come up.

Kent Kauffman [00:22:38]:

So for instance, maybe having a definition section is worthy your time. So if you have a lateness penalty, they know what it means to be late. Right? And they’re not guessing at what it means to be late. So it it there’s also another thing to do that to think about as if you’re an attorney, which is to have what lawyers call force majeure clause, which, unfortunately, is called an act of God cause in common parlance. I don’t know why we blame God for these bad things. But it’s saying, listen, when something’s outside my control, I’m contractually released if the document, the contract releases me because of things that are outside my control. And and faculty can help themselves by simply, it’s not saying I don’t take responsibility. It’s just alerting students in writing that this is the plan for the semester, but it’s subject to change if needed.

Kent Kauffman [00:23:29]:

Right? And then students aren’t blindsided, and they can have a right to maybe be offended or hurt and say, wait a minute. It’s week seven, and now now we’re changing the test date. Well, I had a vacation planned, and that’s not fair to me. And then you can say, well, my syllabus does discuss the fact that things may need to be changed for these possible reasons, and one of these reasons occurred, and therefore, I needed to make a change. So it it’s customer service as well in a way to think like a lawyer when drafting your syllabus.

Bonni Stachowiak [00:23:58]:

Alright. We have another huge topic and not a lot of time. So give us the big picture having to do with academic freedom. What is your guidance to us where we’re managing, navigating the tension between expanding the marketplace of ideas, yet also wanting to protect ourselves from a legal and also ethical standpoint?

Kent Kauffman [00:24:25]:

Few things are in the zeitgeist right now more culturally than academic freedom. A variety of states, including mine, have passed laws that many people think intrude on academic freedom. The question of what faculty may do in their teaching and how that’s affected by academic freedom are not only relevant, but they’re they’re actually legal questions. Some some questions are sort of quasi legal questions that faculty do, and some things are actually legal questions. That academic freedom is actually a legal question. And I guess I would start with this. Where do you teach? If you teach in a private institution, the notions of academic freedom do generally not come from the constitution. If you teach in a public institution as I do, then academic freedom might start with what do courts that have authority in your jurisdiction or the supreme court, what have they said about the rights faculty have in public institutions that are academic freedom like? If you work in a private institution, then the question is, are you protected by tradition? And there is a tradition of academic freedom that has respect historically that comes out of the European model of what faculty would be allowed to do.

Kent Kauffman [00:25:41]:

And so that’s the starting point. Is your source of academic freedom, is it constitutional if you work in a public institution? Is it traditional generally, or is it contractual? So if you work in a private institution, it starts with, are there statements affirming your right as a teacher to engage in what is generally accepted as academic freedom? And that includes part time faculty members as well. So I would start with, as a private faculty member, have you looked at your employee handbook or any statements that come from your provost or from your academic officers that affirm the right for faculty to have what we commonly associate with academic freedom. The next issue is, where are you exercising it? And so if you’re exercising academic freedom in the classroom with with respect to what you’re teaching or saying, the legal standard is known as the germaneness standard, g e r m a n e, germaneness standard. And it’s basically, as I think of it, a a horseshoes game you’re playing with your pedagogy. And that is the closer you’re getting to your topic, the more freedom you have to say what you want to say or what you believe is the the best thing to say. That includes controversial statements as well. So for instance, a question might come up.

Kent Kauffman [00:27:01]:

Can I talk about sex in the classroom? Well, I did yesterday in my class, but it was relevant to the topic of how courts interpret statutes. And in discussing a statute, as an example, Indiana’s rape statute, I also discussed whether sex by fraud could qualify as rape. Okay? That’s a discussion of sex. Right? But it related to the pedagogical topic I was discussing, and therefore, it fits within the horseshoes tossing game of the Germaneness standard. Students in public institutions have academic freedom too. And so faculty who teach in a public institution need to be aware that students have the right to express themselves as well. And the limit for students in a public university is what’s known as the substantial disruption of the learning environment so that a faculty member can restrict lawfully a student’s speech rights where the faculty believes that the students exercising speech rights in the class or even extramural outside of the class speech that substantially disrupts the learning environment or interferes with the pedagogical purpose of the class itself. So there is a give and take at a public institution.

Kent Kauffman [00:28:12]:

Students in a private institution have only the speech rights that might be granted to them by their institution. As it concerns controversial statements, faculty should bear in mind that the closer if you think about, like, reverse engineering something that has happened, if you go backwards in time and you say someone didn’t like what I said in class, what is the legal protection I might have? And from a reverse engineering standpoint, you should ask yourself, did what someone who didn’t like what I said, is it possible was connected to a pedagogical purpose or the topic at hand? And the closer you can connect your statements or your writings to that pedagogy or that academic disciplinary subject of which you’re responsible, then the more safe then the more safe you are with respect to what you said.

Bonni Stachowiak [00:29:04]:

Alright. This last area that we’re gonna be discussing has to do with intellectual property. And I’ve been chuckling to myself a little bit as Kent and I have been talking today because I feel like let me ask you a question that would be impossible to answer in just a few minutes. And so I’m I wanna mention that this last topic is a really meaty one. And for people who may have missed this episode before, I did have Tom Tobin on previously, and I’ll link to this in the show notes to talk about copyright issues, and and some of our discussion did get into intellectual property. So if you after what Kent has to share with us, you wanna learn even more about this, I’m gonna link to that Tom Tobin episode looking at copyright. He also has some resources on his website, including a comic book, I might add. If if you if you don’t want it in the normal written word and you want a graphical novel for

Kent Kauffman [00:29:57]:

your, copyright and intellectual property issues, have

Bonni Stachowiak [00:29:57]:

we got you covered? So all that being said, intellectual property issues, have we got you covered? So all that being said, share with us some guidance about some of the misunderstandings about who owns what when we create things when it comes to our teaching. It’s a pertinent question. It’s a

Kent Kauffman [00:30:15]:

It’s a pertinent question. It’s a pertinent question because with respect to the financial climate for so many colleges and universities across America, trying to save money might involve reusing online materials that instructors didn’t even realize are being used again in later sections. And often, faculty might feel, as does the American Association of University Professors, the AUP, faculty might feel that their work belongs to them and is something that the university should either get their permission to use or in some way pay them for the use of that. And so the starting point for copyright, leaving aside the patentable issues for faculty, the starting point for copyright is, one, have you created something that is worthy of copyright? Not to be unkind, but not everything is worthy of copyright. And so copyright starts with, is your idea in a tangible medium of expression? So I don’t own my ideas. I own the tangible expressed ideas that are a fixed medium of expression so that if I tell you about a great idea I have for a novel, you can write that novel. But if I write down my idea for a novel, now it’s in a fixed medium medium of expression. So the next point is, have you said something that is creatively original enough that is worthy of copyright? There’s a qualitative aspect of copyright beyond its quantitative feature of fixed medium of expression.

Kent Kauffman [00:31:39]:

So not everything a faculty member says or does is worthy of copyright protection because it might not be original enough. Within that parameter, then we ask, what are the things that faculty create? Well, they create non instructional documents as part of their job, administrative documents. I was part of a third year review committee for a tenure track faculty member who is formally reviewed at their third year, and I wrote the teaching section of their letter. Now I’d like to think I did a good job of that, but I don’t own that section or the letter itself. It is owned by the university. It’s an it’s a non instructional matter that is clearly university owned, not mine. Then we go to let’s take the next easiest one, perhaps scholarly or creative works. And the question is for those who have to publish for their positions or creates creative works as part of their academic disciplinary creativity.

Kent Kauffman [00:32:35]:

The question is, do they own those? Well, it’s almost a moot point if you have to transfer copyright to get your work published. Right? Because if I have to transfer my copyright to a book or an article, then I don’t even own it myself as well. So a university would have a hard time claiming copyright to something that I don’t even own the copyright to as well because it’s been transferred by contract. Then we go to instructional materials, and that’s perhaps the more controversial area. And that is, do my teaching materials belong to me, or do they belong to my employer? And that gets us to something that’s commonly known as the work made for hire doctrine. And generally speaking, creative works that we create as part of our employment, which are created in the scope of our employment, generally belong to our employer. And so the sad news is that if you would consider going back to the syllabus discussion, I I think of syllabi as the starter yeast of academia because they’re sort of patched together and passed down through prior semesters and then reimagined and things are added to and revised to them. If I think my syllabus is worthy of copyright, well, it it is created as the direct scope of my employment.

Kent Kauffman [00:33:49]:

I’m really in my employment scope when I’m creating a syllabus. It I would have a hard time arguing that it belongs to to me. And scope of employment law is really agency law, which is why if I write an academic paper, I’m on stronger grounds that it’s mine even before it’s published. Because even if I’m expected to publish as a tenure track or a tenured employee with expectations of continued publication, that work is disciplinary, and my employer is not really controlling me as I’m doing it. They might expect me to do it, but they’re not controlling my work. And courts often will find that creative or scholarly works, until there’s a transfer of copyright, tend to belong to the faculty member, but but teaching materials do not unless, in some jurisdictions, there’s something called the teacher exception to the work for hire doctrine. And some courts, not many, some courts accept the proposition that college faculty who create scholarly and instructional work still own them. The problem with that theory is that after the Copyright Act of 1976, many federal courts don’t accept that proposition.

Kent Kauffman [00:35:05]:

And so that we get back to the starting point, which is that, generally speaking, instructional materials that are even created creatively are owned by the employer. One thing that employers do that can be confusing is they might say in a handbook or a policy on intellectual property that faculty retain their copyright in their instructional materials, but transfer to their employer a license to use the materials. And that may seem like six of one, half a dozen of the other kind of a math equation. But what that’s attempting to do is to say to faculty, we’re not gonna say we own your work, but we’re gonna say we have a license in your work. And the catch to a license is it if it’s nonexclusive, it doesn’t need a signature. And so a policy can, unless a faculty were to sue over it, and I I don’t know if that’s a if that’s a hill I would wanna risk dying on. But a faculty might say that’s that’s not the correct way for you to use my work to claim you have a license in it. But it’s a common thing that colleges might do, and and I accept that as a as a consequence of working for Purdue that they claim a nonexclusive, noncompensated, perpetual those three aspects.

Kent Kauffman [00:36:31]:

It’s nonexclusive, which means someone else could have it, and I could monetize my own work. It’s perpetual, which means Purdue always owns it no long regardless if I leave employment at Purdue and it’s non compensated, that they can do with my instructional materials what they want to do with them.

Bonni Stachowiak [00:36:47]:

Oh, that is all so helpful to me. Alright. So this is the time when we get to share our recommendations. I have two, and then I’ll pass it over to Kent for whatever he would like to recommend. My two are this. Not surprisingly, especially for those of you who live in The United States, I would suggest Kent’s book, which is called Navigating Choppy Waters, Legal Issues Faculty Need to Know. Kent, this is one of those books that I wish I would have had on my bookshelf from the very beginning, not because I have been at great risk for any sort of legal trouble, but I really what you said early on resonated with me in the ways in which we could be preventative. I liked that analogy that you gave us to our own health care, and I think it would have been a helpful tool for me, especially because one thing that I think so many of us need to keep in mind is that as wonderful as human resources departments are and as wonderful as any attorneys that you may interact with at your university who do that for their employment, their entire jobs are to protect the employer, not to protect you.

Bonni Stachowiak [00:37:52]:

So I could imagine people really benefiting from having this as a resource because this is a guide for faculty, and it’s kind of a nice a nice a nice thing that I think would have been helpful to me and I imagine could be helpful to so many. And the the other thing I can just picture it being there for a long time, there’s a lot there. It can cover a lot of ground as you already know. And so just to have the, oh, I’m getting to this season in my career where now I have a question about this. It’s really easy to reference. The chapters have lots of stories and examples, but they also have really good recaps if you just wanted to get the brass tacks of what do I need to be thinking about in this area. It’s a very enjoyable read. If you enjoyed this conversation with Kent as I have, I’m really enjoying talking to him both on the air and off.

Bonni Stachowiak [00:38:39]:

You’re going to love this book. So that’s my first one. My second recommendation and I do these interviews out of order, so I didn’t bother to go look when I recommended season one of this show. Sometimes I will recommend specific seasons so I can squeeze out the value and be able to recommend something more than once. And, also, sometimes seasons are uneven, and some are good, and some are bad. I would now like to recommend season two of a television show called Slow Horses. And Slow Horses is on the Apple TV plus network, and it is based on a series of books. Usually, I like to read books first and then watch the movie or the TV show, and hardly ever did they hold up.

Bonni Stachowiak [00:39:22]:

In this case, I have not read the novels that it’s based on, but I’m kind of intrigued. So if anybody listening is familiar with those novels and you wanna tell me if you think I’d like them or not, I’d love to hear from you. But, yes, Slow Horses season two, it is a mystery spy sort of thing. Slow Horses is in reference to Slough House. This is a British drama, and Slough House is the part of the British MI five organization of people who have been sort of rejected or otherwise ostracized from the normal spy agency, and they kinda go there in a form of purgatory if they’re being punished for something they did while being a regular part of the MI five agency. And the acting is amazing. I love the complicated characters. My my, family, we just wrapped up watching a a more recent Star Wars television series.

Bonni Stachowiak [00:40:19]:

I wouldn’t recommend it. I can’t even tell you the name of it right now, but I can tell you what I didn’t like about it is you knew exactly who the good guys were and the bad guys were, and I just think life isn’t really like that. And I don’t need anything else reinforcing my, human tendency to think in dualistic ways. And so Slow Horses is the opposite of that. It’s a just very good look at complicated human beings, and I love it. I love it. Love it. Love it.

Bonni Stachowiak [00:40:45]:

And I wrapped it up on a recent trip. One of the things I love about it is it completely takes me away from where I am in that moment just sitting in airports waiting or in airplanes waiting to take off, and it completely just wraps my imagination up. And I’m completely riveted and can’t wait until the next episode, so I’ll be beginning season three soon. The nice thing is there are as of today in, 2025, there are four seasons. So I even have, I suspect, some good stuff to come. So, Kent, I’m gonna pass it over to you for whatever you’d like to recommend.

Kent Kauffman [00:41:19]:

Well, thank you. First, thank you for the recommendation of my book. I that’s very generous, and I I appreciate it very, very much. And secondly, a hearty amen to your slow horses because that was on my recommendation list. So Oh my god. Gonna you you you did a better job than I could have to discuss it. So I will just say that I second that motion, and I think it’s a fantastic show. And I’m enjoying starting season three.

Kent Kauffman [00:41:44]:

So it’s it’s wonderful, and it’s well scripted, and the characters are great. And it just is it makes you want to know what the what the characters are going to say next because the dialogue is brutal often, but it’s written so naturally and just makes you wanna pay attention to what people are saying as part of the the spy aspect of the show. So I agree with that wholeheartedly. I love that show.

Bonni Stachowiak [00:42:09]:

Such a coincidence. Yep. That’s great.

Kent Kauffman [00:42:12]:

I I if I can recommend few more other things just real quickly. Yeah. My when my son came home from college for the Christmas break, semester break, we my wife and he and I all watched the second season of Shrinking, which is also on Apple TV plus, and that is a show that we thoroughly enjoy. There are times where I cringe at what people say to each other. And often in every show, I’m tearing up somewhere because the heartfelt emotion and the rawness of it, is just really something to behold. So I recommend shrinking and absolutely all creatures great and small, which just started on PBS very recently, so season five of all creatures. And for those of you who like podcasts, the inside Trader Joe’s podcast is awesome. So if you’re a Trader Joe’s shopper like I am, they have a cool podcast.

Kent Kauffman [00:42:59]:

It’s not very long. It covers everything from why some of their food items are so popular to what’s upcoming in the season. It includes just matters related to employment. They had a topic once where they talked about how their employee training helped save employees’ marriage because communication was improved. So I’m gonna recommend the inside Trader Joe’s podcast.

Bonni Stachowiak [00:43:22]:

Wow. I have all creatures great and small on my someday watch list, so that’s gonna I’m gonna move that up based on the fact that I love slow horses and shrinking. So it’s one of those, like, you you’ve added your credibility as a recommender. And we just had a Trader Joe’s open up near us, and I got a $20 gift card around the holidays. So, I mean, it’s just waiting waiting to be spent. Yes.

Kent Kauffman [00:43:48]:

Well, before there was one near where we not far from where we live, we would just simply vacation wherever there was a Trader Joe’s. So we could go to a Trader Joe’s on vacation.

Bonni Stachowiak [00:43:56]:

Big fans. That’s amazing. So this is just the podcast made for you. That’s so great. Well, Kent, what a delight to be connected with you. I’m so grateful for our paths crossing now and look forward to, in the future, them doing so again. Thank you so much for your time for this wonderful resource for faculty in navigating choppy waters, and thanks for today’s conversation.

Kent Kauffman [00:44:19]:

Thank you so much for having me. I I really do appreciate the time.

Bonni Stachowiak [00:44:24]:

Thanks once again to Kent Kauffman for joining me on today’s episode. Today’s episode was recorded by me, Bonni Stachowiak. It was edited by the ever talented Andrew Kroeger. Podcast production support was provided by the amazing Sierra Priest. If you’ve been listening for a while and haven’t yet signed up for the weekly update from Teaching in Higher Ed, now is your moment. Head over to teachinginhighered.com/subscribe. You’ll receive the most recent episodes show notes as well as some other resources that don’t show up on the regular show notes. Thank you so much for listening, and I’ll see you next time on Teaching in Higher Ed.

Teaching in Higher Ed transcripts are created using a combination of an automated transcription service and human beings. This text likely will not represent the precise, word-for-word conversation that was had. The accuracy of the transcripts will vary. The authoritative record of the Teaching in Higher Ed podcasts is contained in the audio file.