Nate Bork was sitting at a Grease Monkey last September, waiting on an oil change, when he found out that he was getting the ax. The caller on his cell was Bobby Pace, the chair of the social sciences department at the Community College of Aurora, who informed him that he was on speakerphone with Ted Snow, the dean of CCA’s School of Liberal Arts.
Bork had taught philosophy courses at the community college as an adjunct instructor since 2010 — usually one or two classes a semester. Four days before the call, Pace and a CCA “achievement coach” had visited Bork’s Introduction to Philosophy class to observe how he was implementing several changes in the way the course was supposed to be taught. The changes were part of a larger push by CCA administrators to increase student success rates in so-called gateway courses — classes that students needed to pass in order to complete a two-year degree and that were guaranteed to count as transfer credits when they moved on to a four-year college.
Bork thought the surprise inspection had gone well, given the circumstances. Among other changes, the Gateway to Success Initiative required him to dump 20 percent of the content of the survey course, incorporate more women and minority writers in the reading assignments, and limit student papers to no more than a total of six to eight pages for the entire semester. He was also expected to devote five class sessions to working with students on how to write those papers. Pace and the coach had shown up in only the third week of the semester and watched him break the class into small groups tasked with developing thesis statements for their papers, which would be due much later in the course.
But whatever notion Bork had that he was doing what was expected of him was quickly dispelled by the phone call. Snow and Pace informed him that his services were no longer required. He would be paid a complete semester’s salary for the course, $2,259, but he was being terminated immediately and should return all materials to the school as soon as possible.
No explanation was offered for the firing, and Bork figured the Grease Monkey waiting room wasn’t the place for a Socratic dialogue on the matter. He soon received a letter from CCA’s human-resources director stating that he was being discharged “due to a lack of effectiveness in implementing the philosophy curriculum redesign.” There was no mechanism for appealing the decision; as an adjunct, he had none of the protections of a tenured professor or any right to due process. But a few weeks later, he requested and received a copy of his personnel file, which included the observation notes prepared by Pace and the achievement coach after their class visit.
Both reviewers were critical of Bork’s performance — extremely harsh, given that the instructor had received generally positive student evaluations over the previous six years. Pace described Bork’s classroom as “hostile and chaotic,” the students as “woefully unprepared for the assignment,” confused and frustrated. “Many students repeatedly complained about a lack of instruction,” the chair reported. “Instead, it appears students were put into small groups and made to fend for themselves.”
Bork acknowledges that his students were frustrated that day, but he maintains that had less to do with his teaching skills than it did with the new mandated approach to the class — including requiring students to get started right away on a paper dealing with material they hadn’t even read yet.
“I was trying to do it the way they asked me to do it,” he says. “I was being a good boy. I was trying to teach them how to write a thesis statement after a week and a half of content.”
It’s unusual for even a blatantly inept instructor to be fired so early in the semester; such a move generally penalizes students, too, who have to adapt to a last-minute substitute. Bork suspects other factors were involved. Two days before the class that drew such scathing reviews, Bork had shared with Pace, Snow and several other CCA administrators a letter about the Gateway to Success Initiative that he planned to send to the Higher Learning Commission, the organization that accredits colleges in Colorado. The letter expressed his “deep concerns” that the campaign was lowering academic standards in order to boost student success rates.
“Simply put, this class is now much, much easier to get an A in or pass than it was previously,” he wrote. “It’s now so much easier that currently every single student on my roster has an A+.... To my recollection the last time I was involved in a course set to this difficulty level, either as a teacher or a student, was early high school.”
Echoing a phrase popularized by George W. Bush, Bork suggested that the program reflected “the soft bigotry of low expectations for these students,” who would struggle to compete in classrooms at other colleges because of the lack of rigor they’d experienced at CCA.
In the months since his termination, Bork has become something of a cause célèbre in higher-education circles. He’s given numerous interviews on the subject of academic standards and has been portrayed by conservative news outlets as a casualty of political correctness. The American Association of University Professors, a national advocacy group for faculty rights, launched an investigation of his dismissal and issued a report this spring concluding that Bork was retaliated against for objecting to the Gateway to Success curriculum; the AAUP also recently censured CCA, adding it to a list of 56 colleges that the organization has condemned for stifling academic freedom.
CCA officials have called the censure “unwarranted” but have declined to comment on Bork’s firing, calling it a personnel matter.
For Bork’s supporters, his firing is a startling object lesson on the plight of adjunct teachers — who teach the bulk of the classes at community colleges around the state, get paid roughly a third of what full-timers make for teaching the same course, rarely are offered enough hours to qualify for employee health benefits, and have no job security whatsoever. But the case is also a window into a much larger issue: the crusade at community colleges across the nation to revamp curriculum and teaching methods to boost grades and retention rates.
The redesign movement contends that new approaches, based on the latest research on what makes for effective teaching, are necessary to overcome the cultural barriers and skill deficits faced by many community college students — who tend to be from lower economic backgrounds and to have received less-than-stellar high school preparation. The entire argument is couched in high-flown declarations about inclusion, diversity and addressing long-festering inequities in educational opportunity. But some veteran educators have viewed this latest overhaul of curriculum with suspicion and alarm, fearing that it’s paring down content and depriving the very students it’s trying to help of critical components of a college education. One AAUP official characterizes the movement in Colorado as a top-down, numbers-oriented, “consumerist” approach, one that prizes enrollment and retention figures over quality instruction.
“They are more concerned with getting tuition than providing an education,” says Caprice Lawless, an adjunct instructor at Front Range Community College and vice president for community colleges of the AAUP’s Colorado chapter. “Teachers are walking out because they don’t have any say-so in this.”
For generations, community colleges have served as a bridge to higher education for students who, for various reasons, may not be prepared for or inclined to attend a conventional four-year school. Nearly half of all undergraduates in the United States attend community colleges, and many of them are immigrants, minorities, non-traditional or first-generation students.
In some cases, the students are primarily interested in the kind of niche vocational training that many community colleges offer — specialized programs in health care, auto repair or computer programming, for example.
Others are seeking a more affordable alternative to tuition at state universities, with the aim of transferring to a four-year institution to finish their junior and senior years. But for many of them, the dream of a college degree remains unfulfilled. According to Redesigning America’s Community Colleges: A Clearer Path to Student Success, the 2015 book that’s become the bible of the redesign movement, “most students who enter these colleges never finish: fewer than four of every ten complete any type of degree or certificate within six years.”
Founded in 1983, the Community College of Aurora is one of thirteen schools in the Colorado Community College System (CCCS) — and serves the most diverse population of any of them. Its annual enrollment of more than 10,000 students includes immigrants from more than sixty countries across five continents. Sixty percent are students of color.
Data from the 2015-16 school year indicates that close to 80 percent of CCA students receive a passing grade in most types of courses, though the figure for online courses is much lower. Yet only about 14 percent of its students go on to transfer to four-year colleges in the course of an academic year. One reason for the low transfer rate is that most students take much longer than two years to complete their studies at CCA. The vast majority attend part-time while also holding down jobs or raising families.
And it isn’t just the students who are overwhelmingly part-timers. Their teachers are, too. The dirty secret behind Colorado’s community college system is the degree to which the whole enterprise depends on the cheap labor provided by highly educated but grossly undercompensated adjuncts, who sometimes shuffle between two or three campuses in order to take on a full load of four courses a semester — all for the privilege of earning around $20,000 a year.
CCA has 57 full-time faculty members and 310 adjuncts. According to the AAUP’s Lawless, that sort of ratio is typical across Colorado’s entire community college system; 80 percent of the system’s instructors are adjuncts, and anyone who doesn’t care for the long hours or pitiful wages or the prospect of applying for food stamps can be readily replaced from a deep pool of eager applicants.
In 2015, a task force on adjunct pay recommended a 28 percent pay increase. Officials balked, saying the “current political environment” made such a hike unfeasible. Yet full-time community college faculty received a 20 percent raise, and administrative salaries have skyrocketed in recent years. Meanwhile, two equal-pay bills introduced on behalf of adjuncts in the state legislature failed after CCCS officials spent $132,000 on lobbyists to defeat them.
In a recent letter to colleagues announcing her retirement next year, CCCS president Nancy McCallin noted many of the accomplishments of her thirteen-year reign. Enrollment is up, and the system handed out nearly 20,000 degrees and certificates last year, up 40 percent from 2011. Increased revenues and a new, dedicated funding stream from gaming taxes helped to boost reserves while allowing the colleges to invest $392 million in capital construction in the past seven years.
The letter didn’t mention tuition increases (up 150 percent since 1996) or the hefty pay hikes awarded to McCallin and several college presidents. McCallin now earns $406,509 a year, far more than Governor John Hickenlooper or Colorado Supreme Court Chief Justice Nancy Rice. Nor did the letter acknowledge that the number of full-time professors in the system — always referred to as “faculty,” in order to distinguish them from lowly adjuncts — is actually declining while the educational bureaucracy is expanding. Out of more than 12,000 CCCS employees, only 9 percent are full-time faculty; more than half of the system’s employees aren’t teachers at all.
“It’s very Orwellian, what the community college system does with language,” Lawless says. “They talk about how they value faculty, but they’re doing away with faculty. There are fewer of them every year.”
Yet idealistic teachers still come knocking at the colleges’ doors, hoping to make a difference. Nate Bork was one of them.
Adopted at birth, Bork moved to Monument from Illinois at the age of five. His childhood was tumultuous, he says, marred by a rageful parent and “a lot of really aggressive stuff that happened in the household.” By the time he reached high school, he was seething with thoughts of suicide and occasionally cutting himself.
“I got to college as a really angry person, very set against the world,” he says. “But I had really great teachers. I saw the world wasn’t just what I was experiencing. It wasn’t just aggression and violence.”
As an undergrad at the University of Northern Colorado, Bork became captivated by philosophy and political science. Encountering the writings of Nietzsche, with his contempt for herd-like thinking and championing of personal responsibility, proved particularly eye-opening. In 2009, Bork went on to acquire a master’s in philosophy from Colorado State University, with the aim of becoming a teacher. “I didn’t know anything about adjuncts,” he says now. “I didn’t know what the labor market was like until I got into it. I just knew I wanted to re-create the experience that transformed me for other people.”
At the age of thirty, Bork started teaching philosophy at CCA, recognizing that the chances of getting a full-time appointment there were slim. He soon supplemented his income by taking on classes at Arapahoe Community College as well, commuting from one side of the metro area to the other to teach as many as five classes a semester. He had a special-needs daughter at home; fortunately, he also had a wife who’d transitioned from teaching to corporate insurance. “I’d be living in my car if I had to survive just on my pay as an adjunct,” he observes.
For Bork, the thrill of the job wasn’t the paycheck, but the students. They came from all over — military vets and self-proclaimed anarchists, immigrants and single parents, fresh-faced kids and older working stiffs seeking to better their lot. Whatever their backgrounds, philosophy offered a discipline of logic and reasoning for tackling life’s biggest questions.
Despite his hectic teaching schedule, Bork also became deeply involved in advocating for adjuncts. He started a chapter of the AAUP on the CCA campus and was elected as the adjunct representative to the faculty senate. He also spearheaded efforts to get adjuncts paid more promptly and to make CCA facilities more “teacher-friendly.” When he first arrived there, he says, the school had only one office available to adjuncts, leaving most of them to confer with students in hallways or prepare for class in whatever empty classroom they could find.
Bork found that the administrators at CCA were much more “hands on” than their counterparts at Arapahoe Community College, requiring that he use a certain textbook in the introductory philosophy class and utilize prescribed evaluation tools. But up until last year, he was allowed to tinker a bit with the syllabus and assign grades as he saw fit; his relationship with CCA president Betsy Oudenhoven and the deans was quite cordial, he insists.
“For the longest time, we got along really well,” he says. “There wasn’t friction until they announced this plan to redesign the curriculum against our will.”
In the spring of 2016, Bork learned that CCA was contemplating a major overhaul of certain entry-level English, history and philosophy classes, including Intro to Philosophy. Since they offered guaranteed transfer credits, the gateway courses tended to attract high enrollments — but also high failure rates. In the fall of 2015, only about 70 percent of the students had received a passing grade in the entry-level English composition classes; the numbers for all units taught of the introductory philosophy course were even lower.
The proposed solution, as expressed in the Gateway to Success Initiative, involved significant changes in course content and teaching methods. There would be less emphasis on content, more on critical-thinking skills; less writing, but more instructor involvement in the writing process, using a “scaffolding” approach that allows students to ease into composition while receiving guidance and assistance every step of the way. The old-school style of pedagogy that relied on lecturing to students — referred to derisively by some revisionists as the “sage on stage” model — would be de-emphasized in favor of small-group activities and student presentations. Instructors were also given a grading rubric that specified how student work was to be evaluated, with the aim of achieving 80 percent or higher passing rates across all demographic groups.
In gateway philosophy courses, a chunk of the white-male canon would be retired in favor of women and minority writers who, presumably, would be more appealing to CCA’s students. “According to research, African-American, Hispanic and female students may perceive academic philosophy as a ‘White man’s game,’ given the pervasiveness of White males in philosophy classrooms,” reads one handout on the changeover that Bork received. “This perception of ‘other’ can negatively impact student confidence, comfort ability, sense of efficacy, and academic performance.”
Bork says he was told that 30 percent of his reading list had to be female or minority authors — despite the dearth of prominent female or minority philosophers prior to the twentieth century. “Philosophy is a conversation,” he says. “Plato said this or that, and Aristotle responded. I can tell you the conversation my wife and daughter and I had last week. But if you want to include our neighbors, they weren’t part of that conversation. In Europe, where the philosophical tradition happened, only white males were allowed to participate.”
CCA administrators have said that the Gateway to Success program is the result of a process that involved considerable input from full-time faculty as well as adjuncts; it’s even been described as a “faculty-led” initiative. Bork and other adjuncts dispute this. What had been presented in the spring as an option, they say, had become by summer a mandate for the fall semester, handed down from on high.
“We were all summoned to this meeting and handed these documents,” Bork recalls. “The chair says, ‘Here are the changes we’re going to make. If you don’t like them, you don’t have to teach here.’”
One philosophy instructor, William Honsberger, decided to resign before the meeting was even over. Honsberger had taught philosophy at various colleges for more than 25 years; his outstanding pupils at CCA tended to be minority students, and he’d never heard any of them complain that the discipline was a “white man’s game.” By his calculations, the administration was demanding that he cut six lectures to make way for group activities and student presentations, and devote five more classes to scaffolding exercises; fully a third of the traditional class content would disappear, to be replaced by what?
“I know what a philosophy class looks like and what it doesn’t look like,” Honsberger says. “I had never seen a class this dumbed down. This was eighth-grade level.”
Honsberger had no doubt that more students would pass such a class. But what would they have learned? He’d been hired to teach philosophy, not basic composition, he told Bork and the other instructors. He wasn’t going to “cheat” the students with this watered-down curriculum.
For his part, Bork decided he would give it a try. Maybe the Gateway to Success advocates knew something he didn’t. But he had grave doubts that the revamped course would prove adequate to his students’ needs.
“If we make these classes too easy,” he says, “they’re going to get through the program, think they’re ready for junior-level work at a four-year university, and they’re going to be blown out of the water. If you make it too soft here, they’re not going to succeed later on.”
One of the principal aims of the redesign movement is to make college studies more engaging to an underserved population; engaged students, the reasoning goes, are more likely to succeed.
The terms of that engagement, as laid out in Redesigning America’s Community Colleges, involves much more than just revised reading lists or scaffolding exercises. It requires a paradigmatic shift from a “cafeteria-style, self-service model” of education, in which students are offered too many choices and fritter away their energies on useless electives, to a “guided pathways model,” in which a highly restrictive sequence of courses “allows little or no room for students to go off track”; from a teaching approach that emphasizes “knowledge transmission” (lecturing) to one focused on “learning facilitation” (more discussion and group activities); from a detached, sink-or-swim aloofness to becoming the collegiate equivalent of a helicopter mom, providing wraparound assessment, advising and tutoring services, as well as early and frequent “interventions” if it looks like a student might be failing a course.
Critics of the movement tend to regard this emphasis on engagement as overbearing hand-holding. Thomas Bailey, Shanna Smith Jaggars and Davis Jenkins — the authors of Redesigning America’s Community Colleges — insist that emerging research supports the idea that such measures can raise grades and retention rates without lowering standards. Whether effective or not, though, it’s undeniable that the new model heaps a great deal of responsibility for student success onto the shoulders of the front-line intervenors, the adjuncts.
The old-school solution for students who enroll in community colleges but lack entry-level math, writing or language skills was to require them to take a sequence of remedial courses. But five years ago, Colorado embarked on a system-wide retooling of remedial (now known as “developmental education”) courses, based on concerns that the requirements were too protracted, stigmatizing and onerous, leading to a dismal completion rate. Under the new policy, students can’t be placed in more than one semester of stand-alone remediation courses; typically, the courses are greatly streamlined and are taken concurrently with college-level gateway courses.
CCA has attempted to make some remedial courses more palatable by pairing them with what the redesign movement calls “student success courses” — classes that are supposed to help students sharpen basic skills, improve communication and develop good study habits. One such pairing of a remedial composition class and a student success class resulted in a sharp increase in passing grades among Hispanic students. (Another pilot program involving a remedial math class saw passing grades among African-American students rise from 20 to 66 percent.) At the same time, the total number of remedial classes offered has gone down dramatically. In 2012, CCA had 5,457 students in remedial classes, more than half its total enrollment; in this past academic year, the number had dropped to 2,085 students.
Like his colleague Honsberger, Bork believed that he was being asked to convert the gateway philosophy course into a remedial writing class — albeit one limited to only eight pages of assigned writing. Despite his misgivings, he went ahead and made the required changes to his syllabus, submitting it four times before it met administrative approval. One objection concerned a statement in his syllabus that students were expected to behave like “mature, responsible adults.”
“They said that was condescending, demeaning and demoralizing to students,” Bork recalls. “It was just a simple policy: Don’t go off on people. But I had to strike that language.”
Both social sciences chair Pace and the achievement coach, Ray Keith, faulted Bork for the confusion they observed in his class during their visit. But much of that confusion may have been unavoidable, given the official “student success plan” for the course that Bork was following, which required students to submit a thesis statement for their lone class paper by the third week of the semester. “I wasn’t actually ever given any training,” Bork says of the scaffolding assignment. “I was just told that by the end of the day, everyone should have a thesis statement.”
In subsequent discussion with the AAUP investigators, Pace maintained that Bork’s performance had been so miserable that it merited immediate dismissal, rather than giving him another chance and additional training. He added that one of Bork’s students had approached him during the visit, and that his impression was that she “sought him out in order to express dissatisfaction with Mr. Bork’s teaching.” But Pace’s notes from the observation session make it clear that the student was complaining about the thesis-statement exercise and the “new way” the course was being taught, not the instructor — something the student, who asked that her name not be published, confirmed to Westword.
“I never said anything about what Nate was doing,” the student says. “He was very accommodating and very helpful. I was annoyed with the curriculum. To me, it was a total waste of time. I know how to write a paper. I told Mr. Ray I didn’t need my philosophy professor to teach me English. He said, ‘This is what the students want. They’re having difficulty writing their papers.’”
She adds that the class spiraled downhill under Bork’s replacement. A 4.0 student, she stopped reading the textbook and still got an A for the course — but didn’t receive the feedback or challenges she was hoping for. “What they did didn’t help me or a lot of the other students,” she says. “There are wonderful teachers there, but I felt like the school didn’t take my education seriously. I left CCA with a sour taste in my mouth.”
The AAUP investigators concluded that CCA’s supposed rationale for firing Bork — that he was an ineffective teacher, despite his years of positive evaluations and the fact that he was employed at another community college, too — “strains credulity.” Given that the firing came on the heels of Bork alerting the administration that he was contacting their accreditation agency about the Gateway to Success program, the team was inclined to believe that “Bork’s dismissal was based on considerations that violated his academic freedom.”
The group’s report took no position on the merits of the Gateway to Success Initiative. Nor did the Higher Learning Commission, which brushed aside Bork’s objections to the redesign, seeing nothing there that would jeopardize the school’s accreditation. Bork also filed a complaint with the Colorado Department of Higher Education, but after a brief review, the CDHE decided that the gateway courses met state standards.
Whether the program is making a positive difference for CCA students is another question. Through a spokesperson, CCA officials declined requests for interviews to discuss Gateway to Success. Data supplied by the school indicates mixed results for the first year of the redesign across entry-level history, philosophy and English courses; in some classes, the percentage of students passing went up significantly, but in others it plummeted even more dramatically. School officials say they will need more data before they can gauge if the program is doing what it’s supposed to do.
Philosophers tend to view reality as a construct; how we presume to know something is just as important as what we think we know. In his notebooks, Nietzsche went so far as to suggest that facts don’t exist, only interpretations.
On the Internet, where fact and perception canoodle indiscriminately, you can find at least two competing narratives about CCA’s Gateway to Success program, each contradicting the other. The first is presented in a YouTube video produced by the college’s communications office, a three-minute series of testimonials by faculty members, achievement coach Keith and Dean Snow concerning the program’s rigor, its incorporation of “best practices” and encouraging early results.
The contrary view can be found in a nine-minute YouTube opus, The Crimes of Professor Nathanial Bork, posted by a former student of Bork’s. Using clips from classic films such as Metropolis, Things to Come and Greed, the piece portrays Bork as a crusader against an oppressive, money-grubbing educational system that is “setting people up to fail.”
You can check out more glowing testimonials on CCA’s website, which proudly proclaims the school’s current slogan, “Potential Realized.” Another website, another interpretation: On BestColleges.com, CCA was recently ranked fourteenth out of fifteen Colorado community colleges, based on graduation rates, tuition and other factors.
Several former CCA employees contacted by Westword described the work environment there as toxic and afflicted by high turnover. Four of the six philosophy instructors left in the last year, two — Bork and Honsberger — over the curriculum redesign, two for personal reasons. “They really rely on the system they’ve created, where they keep replacing one [instructor] with the next,” says Tyson Ailshie, who taught music at CCA for eighteen months before resigning last winter. “You become expendable.”
A professional jazz bassist and composer who also teaches music theory at Regis University, Ailshie says he was treated like “a third-rate teacher” at CCA: “They had horrendous leadership. There was never a stable chair. They had to bring someone in who didn’t know anything about music to be the chair at times. And the standards are incredibly low. The students didn’t have the proper reading and writing skills and were totally unprepared.”
Ailshie says he was summoned to an advisor’s office for a meeting with a student who’d failed his course. When he declined to reconsider the grade, “they basically allowed her to verbally abuse me,” he recalls. “It was very embarrassing and totally unprofessional. They’re just churning them out, and they’re not ready.”
Adjuncts aren’t the only ones complaining. One administrator who left CCA this spring describes a situation in which clashing agendas over inclusiveness, allocation of resources and the curriculum redesign has led to a tense atmosphere and several departures among CCA’s leadership. “This isn’t just about what happened to Nate,” says the administrator, who asked to remain anonymous. “The issue is much bigger. Anybody worth their salt can’t stay there.”
State senator John Kefalas, a Democrat from Fort Collins, has been seeking ways to improve the lot of adjuncts at community colleges. His efforts to wring a pay raise out of the legislature in 2014 and 2015 met with “a fair amount of pushback from the community college system,” he says, but he’s hopeful that Bork’s experience will bring some attention to the need to provide due-process protections for part-time instructors.
“If we want to keep the quality of education strong, we need to support the teachers — and recognize that they’re faculty, not some ‘secondhand instructor’ label,” says Kefalas, who teaches as an adjunct faculty member at CSU. “Why can’t they refer to these folks as faculty? They won’t even do that. My sense is they feel it might be the camel’s nose under the tent, one more step toward greater recognition.”
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Since his firing, Bork has gone back to school himself. He’s now pursuing a doctorate in political science at CSU while teaching an online course at Arapahoe Community College. He continues to be active in AAUP and plans to push for a bill on the due-process issue in the next legislative session.
“Obviously, I’ve made a lot of noise,” he says. “Maybe we can’t do anything about these gateway programs, but maybe we can keep someone from being fired for saying they don’t think this is a good idea.”
According to the authors of Redesigning America’s Community Colleges, it’s critical to involve adjuncts in the planning of gateway programs; after all, they teach most of the classes. What’s the point of yammering about engagement and inclusiveness if you can’t engage and include 80 percent of your teaching force? Yet at many colleges, the writers note, adjuncts are “explicitly disrespected or simply ignored.” They’re not recognized as faculty, they’re excluded from departmental meetings, they receive little mentoring or training, and they don’t even have a place to store files or meet with students outside of class. Small wonder, then, that they have little buy-in when it comes to wave after wave of curriculum overhauls, demanded by well-salaried veeps in plush offices far from the classrooms.
“If colleges want to improve teaching and learning, they cannot afford to exclude adjuncts from the process,” the authors warn. It’s a simple lesson. But sometimes even professional educators blow off their homework, asserting their right to fail.