Committee A on Academic Freedom and Tenure had a busy year, taken up with cases and policy measures and with some extraordinary issues related to the September 11 attacks. At its November meeting, the committee drafted a statement, which the Council approved, on the dangers to academic freedom in times of crisis, published in the January-February issue of Academe. At that time, it seemed that many university administrators were acting with admirable restraint respecting faculty rights of academic freedom.1
In the winter, however, a troubling case in the aftermath of September 11 developed at the University of South Florida. Threats of violence against a professor who in extramural activities was alleged to have supported terrorist Palestinian actions had led to his being placed on paid leave of absence while the threats were investigated. In December the administration notified the professor of its intent to dismiss him on the basis of stated charges (which the professor denied). The administration neither proceeded with dismissal nor reinstated the professor to his campus activities, however, leading the Association to take the unusual step of undertaking an investigation before a final outcome had been reached. In the spring, following three days of meetings at the university with all interested parties, the investigating committee provided Committee A with an interim report. Committee A, in turn, approved an interim statement on the case, which it presented in June to the annual meeting. The statement conveyed the investigating committee's position that the December charges against the professor by no means warranted dismissal and that he should be returned to his campus responsibilities without further delay.
At Committee A's June meeting, we decided to form a joint task force with the Committee on Government Relations to address the subject of academic freedom and national security in the wake of September 11. In addition to the matters discussed below, we have worked with the AAUP's general secretary and staff on internal documents to clarify the handling of cases and the processing of reports. We continue to receive wise counsel from the Association's legal staff. We have also had helpful advice on the handling of litigation from Rodney A. Smolla (University of Richmond), who has been extremely generous with his time and experience.
Judicial Business
Imposition of Censure
Committee A at its June meeting considered three cases that had been the subject of reports published in Academe since the 2001 annual meeting. The committee adopted the statements printed below concerning these cases. In two of the cases—one at the University of Dubuque, the other at Tiffin University—censure was recommended, the Council concurred in those recommendations, and the annual meeting voted to impose censure. In the third case, which occurred at the University of Virginia, the committee made no recommendation to the annual meeting, saying that it will report back to the 2003 annual meeting about developments in the case. The 2002 annual meeting adopted a motion to concur in the committee's statement on the University of Virginia.
University of Dubuque
The investigating committee's report concerns the termination of the appointments of two tenured professors on grounds of what the administration and board of trustees stated to be a financial exigency. The 1940 Statement of Principles on Academic Freedom and Tenure allows for termination of tenured faculty appointments under extraordinary circumstances because of a demonstrably bona fide financial exigency. The investigating committee did not disagree that the university's financial condition in spring 1999, when notices of termination were issued to the professors, was precarious, but it concluded that the administration and board of trustees acted to release the two professors without having demonstrated that the university's financial condition necessitated the termination of tenured appointments. The investigating committee also concluded that the administration did not meet its obligation under principles of tenure to arrange suitable continuing assignments for the two professors, although such assignments appear to have been feasible.
The investigating committee found further that the faculty of the University of Dubuque had no opportunity to contribute to decisions on whether terminations of tenured appointments were warranted, where within the overall academic program terminations were to occur, which criteria would be employed in identifying faculty members to be released, and which particular appointments were to be terminated. The investigating committee concluded that the faculty was thus deprived of the role provided for it in the Association's Statement on Government of Colleges and Universities and the AAUP's Recommended Institutional Regulations on Academic Freedom and Tenure.
The report of the investigating committee goes on to deal with the administration's action to relieve the two professors of further teaching responsibilities before their appointments expired on stated grounds that the university no longer had need for their services. Observing that courses in the professors' respective academic fields continued to be taught, the investigating committee concluded that they were involuntarily suspended from any further teaching by unilateral administrative action, and that the administration thus effectively dismissed the professors without having afforded them safeguards of academic due process.
In spring 2000, faculty members at the University of Dubuque approved, and the board of trustees adopted, a revised faculty handbook. The investigating committee concluded that the provisions in the revised handbook concerning termination of appointments for financial or programmatic reasons, the role of the faculty in decisions to terminate appointments, the opportunity for a faculty hearing on contested issues, and constraints on academic freedom are severely deficient when measured against generally accepted academic standards.
Last month the University of Dubuque administration forwarded to the Association resolutions approved, respectively, by the university's faculty and its board of trustees. The faculty resolution stated that the "issues that engendered concern for the American Association of University Professors regarding the state of academic freedom, tenure, and due process at the University of Dubuque have been substantially resolved and structures and processes put into place that provide appropriate safeguards for the future." Responding to an Association request for specific information, faculty members described several developments over the past two years at the University of Dubuque, including "administrative changes [that] add expertise and strengthen the institution's responsiveness to its students, parent, alumni, and faculty constituencies"; efforts to "restore trust between faculty and administrators, especially by encouraging and respecting faculty input and expertise"; and steps to strengthen financial resources, academic programs, and departmental governance. In addition, the administration drew the Association's attention to provisions in the university's faculty handbook that incorporate verbatim AAUP policies on governance, professional ethics, plagiarism, and conflicts of interest in government-sponsored research.
Committee A acknowledges these developments. Nonetheless, the university's official policies on academic freedom and tenure that are roundly criticized in the report of the investigating committee remain unchanged in the current faculty handbook; indeed, they are in some respects less protective of faculty rights than the handbook that was in force when the two professors were dismissed. These policies include a provision that assigns to the president the unilateral authority to appoint the hearing officer in cases "involving dismissal or termination pursuant to reduction in force." The policies also provide that faculty contracts shall have the following statement: "Employee agrees that he/she shall not knowingly release, or authorize or cause the release of any disparaging, denigrating, or otherwise critical statements by the Employee to any public media source concerning the educational programs or services offered by the University." In addition, the cases of the two dismissed professors have yet to be addressed.
Committee A recommends to the Eighty-eighth Annual Meeting that the University of Dubuque be placed on the Association's list of censured administrations.
Tiffin University (Ohio)
The report of the investigating committee concerns the action taken by the administration of Tiffin University to dismiss a professor in his twelfth year of full-time service without having provided a written statement of the charges against him and without having demonstrated cause for its action in a hearing of record before a faculty body. The committee concluded that the administration thereby acted in violation of the procedural safeguards called for in the 1940 Statement of Principles on Academic Freedom and Tenure. The committee further concluded that the administration also violated the 1940 Statement by having acted against the professor because of its displeasure with conduct that should have been protected under principles of academic freedom. The committee found that the absence of a system of academic tenure at Tiffin University inhibits the faculty's exercise of academic freedom. The committee also found Tiffin University's official policies and the administration's practices to have been seriously deficient in meeting the standards for faculty participation in institutional governance enunciated in the Statement on Government of Colleges and Universities.
Subsequent to the publication of the investigating committee's report, a new president was selected to take office at Tiffin University on July 1, 2002. In communications with the AAUP's staff, he has stated his commitment to academic freedom and his intention, once he becomes president, to work toward a resolution of the Association's concerns. He hasstated, however, that until he actually assumes office he cannot be more explicit.
Committee A is encouraged by the president-designate's statements. Nonetheless, in view of the concerns addressed in the report, particularly the absence of a tenure system, and with no steps having been taken thus far to resolve them, Committee A recommends to the Eighty-eighth Annual Meeting that Tiffin University be placed on the Association's list of censured administrations.
University of Virginia
The report of the investigating committee discusses the sanctions—including removal from teaching responsibilities and the freezing of a scheduled salary increase—that the University of Virginia administration imposed on a tenured professor in 1998 and its subsequent dismissal of him on February 8, 1999. The administration charged the professor with misusing grant monies under his control or failing to exercise appropriate control of those funds.
The university's stated policies in 1998-99 were silent with respect to the imposition of sanctions short of dismissal. The policies were also silent concerning a professor's rights, before dismissal, to a hearing on the charges before a faculty body. The administration stated that because the charges against the professor dealt with financial irregularities, rather than academic performance, the requirements of due process in this case were satisfied with a postdismissal hearing as provided under the university's faculty grievance procedure. The procedure stated that the burden of proof rested with the complaining party, which amounted to the professor's having to prove why he should not have been dismissed.
The investigating committee found that the administration should have given the professor advance notification of each pending action in 1998 and afforded him the opportunity to formulate a response, but that it failed to do so. With respect to the dismissal, the investigating committee rejected the administration's position, supported by a faculty grievance committee, that a post-termination faculty hearing sufficed in this case. The investigating committee found that the administration of the University of Virginia dismissed the professor, terminating payment of salary as of that same day, without having first afforded him basic protections of academic due process as called for in the 1940 Statement of Principles on Academic Freedom and Tenure, the 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings, and the Association's Recommended Institutional Regulations on Academic Freedom and Tenure.
In November 1999, nine months after he was dismissed, the professor acknowledged in a Virginia court the unauthorized use of a university credit card in his custody linked to a federal grant, and he was thereby required to repay the university $7,000. In fall 2001, when the report of the investigating committee already was in press, the Association learned that the United States Department of Energy had proposed to debar the professor from the award of federal grants, but subsequently decided not to proceed with debarment proceedings. Committee A, however, does not view these developments as mitigating the basic departures from requisite academic due process discussed in the investigating committee's report.
The University of Virginia administration just recently provided the Association with a revised grievance procedure and a new Procedure for Disciplinary Suspension or Termination of Academic Faculty, formulated this spring after the publication of the investigating committee's report. Each document has been approved by the university's Faculty Senate and accepted by the administration as official policy. Committee A is pleased to note that the reference to the complainant's having the burden of proof in a case of dismissal has been deleted from the grievance procedure, and that the procedures call for the review of charges, whatever they may be, by a faculty committee before a dismissal is effected. Committee A has, however, identified problems with the new disciplinary procedure when measured against applicable Association-recommended standards. These include concerns relating to the burden of proof in the new dismissal procedure, suspension of a faculty member pending the outcome of a dismissal proceeding, and the right of an accused faculty member to confront and cross-examine witnesses in the course of the hearing. The case of the dismissed professor also requires attention. The committee hopes that these matters can be resolved without undue difficulty, but there simply has not been time and opportunity to initiate discussion of them with the appropriate administrative and faculty officers prior to the annual meeting.
Mindful of the changes in the university's policies to date, but also aware that other significant issues still need to be addressed, Committee A believes that the best course for the prompt achievement of the desired results is to defer Association action until such discussions can be held. Committee A thus withholds any recommendation regarding this case to the 2002 annual meeting, but will report again on the University of Virginia to the annual meeting in 2003.
Refusal to Remove Censure
The committee considered and rejected a request from the Pontifical Catholic University of Puerto Rico (.pdf) to remove censure in a case in which the Puerto Rico supreme court had found in favor of the university. The committee determined that the issues that led to censure had not been addressed and that censure would remain despite the court's ruling.
Legislative Business
At its meeting in November 2001, the committee had a spirited discussion of the draft "Statement on Academic Professionals." A working group of Committee A members and members of the Committee on Academic Professionals revised the draft, which was then published for comment in the March-April 2002 issue of Academe. At their meeting in June, members of Committee A commented further on the statement. A final draft is being prepared by the Committee on Academic Professionals.
Also at its November meeting, Committee A agreed to continue discussion with the Committee on Government of Colleges and Universities of the issues involved in mergers and acquisitions that affect academic institutions. The committee was particularly attentive to the deleterious effects on faculty that can accompany major institutional reorganizations, some of which have been evident in recent cases we have considered. In light of complaints received by staff from faculty at nonaccredited institutions, the committee reaffirmed its longstanding position, set forth in its "Association Procedures in Academic Freedom and Tenure Cases," which authorizes the staff to deal only with "complaints from faculty members at duly accredited colleges and universities."
The question of the relations between academic journals and host institutions on matters of institutional support, editorial independence, and personnel appointments was thought to be better handled by organizations such as the American Association of University Presses.
Finally, at its June meeting, the committee encouraged the general secretary to proceed with planning for joint undertakings with the Canadian Association of University Teachers that might include observers attending Committee A meetings.
Tribute to Evelyn Miller
In the final moments of its June meeting, Committee A acknowledged with a standing ovation the tireless, generous, intelligent, and dedicated service of Evelyn Miller. It was hard to find a way to tell Evelyn, who is retiring after forty-one years of service to the Association, how much we appreciated her work on our behalf and for the cause of academic freedom. A resolution of appreciation (published in the July-August issue of Academe) was adopted by the annual meeting, where once again the assembled body rose to applaud this remarkable woman.
In Conclusion
At a time of crisis, such as we experienced after September 11, it was heartening to work with colleagues whose sense of history and of principle is so clear and acute. The members of our staff have been remarkably attentive to the implications for academic freedom of such governmental measures as the USA Patriot Act, and they have watched carefully for its reverberations on college and university campuses. Members of the committee, too, have been unwavering in their commitment to protect academic freedom. Such clear-sightedness is rare, and for that reason all the more precious, at moments of national emergency. Committee A, and the AAUP more broadly, seemed an oasis of sanity and reason in a confusing time. For this we ought to be not only grateful, but also proud.
JOAN WALLACH SCOTT (History), Institute for Advanced Study, chair
1. As this issue of Academe was going to press, the University of South Florida administration still had neither dismissed the professor nor reinstated him to his academic responsibilities. On August 21 the administration announced that it was bringing suit against the professor in an attempt to obtain a judicial ruling that dismissing him would not violate his constitutional rights to academic freedom. The AAUP's general secretary called the action an evasion of academic due process, stating that, "'presuing' faculty members as part of an effort to dismiss them is an extremely rare tactic, with ominous portents for academic freedom." Back to text.
Cases Settled Through Staff Mediation
The work of Committee A's staff in bringing cases to a sound resolution is illustrated in the four 2001-02 accounts that follow. Some twenty such cases were closed during this past academic year after having been resolved through mediation by the staff.
An assistant professor's candidacy for promotion and tenure at an independent college in the East was rejected by the president. Although the college policies, like the AAUP's recommended standards, call for providing reasons for the decision upon request, the president initially would say only that he did not believe a positive decision would be good for the college. The faculty member turned for assistance to the Association's staff, which urged the president to provide a meaningful explanation for having decided against her candidacy, especially because the high quality of her teaching and scholarship seemed to be recognized uniformly.
The president eventually relented. He informed her that his reasons related to her use on specific occasions of language which he, and he assumed others too, had found offensive. As to promotion in rank, he told her he had come to appreciate that it should be based on academic performance, that she deserved the promotion because of her teaching and scholarship, and that he was thus recommending it to the trustees effective immediately. As to tenure, he told her he was withdrawing his rejection and inviting her to reapply at a later date, when he would expect to approve her candidacy assuming no further instances of the kind that had troubled him.
At a professional school in a public urban university, relationships between a veteran tenured professor and a relatively new dean had for some time been less than tranquil. Matters came to a head when the dean assigned the professor a clinical course in the undergraduate program of a kind that the professor had not taught for over twenty-five years. The professor claimed that the assignment was retaliatory, while the dean insisted that it was mandated by staffing needs. The professor argued that new clinical techniques left her incompetent to undertake the assignment without extensive retraining, which she did not believe should be forced on her. The dean insisted on the retraining, and the professor balked, pending further negotiations on what it would involve, at agreeing to deadlines set by the dean for its commencement. The dean thereupon charged the professor with insubordination and persuaded the central administration to initiate dismissal proceedings.
In a prehearing conference, counsel for the professor pointed out that "insubordination" is not included in the university's regulations as a stated cause for dismissal. The administration responded by providing the professor with revised notification of dismissal, this time charging her with "gross professional misconduct."
The professor consulted with the Association's staff, which advised the administration that a fair number of disputes over course assignments are brought to its attention each year but that it was hard pressed to recall a single previous case in which the administration took the extreme action of seeking dismissal from tenure. Moreover, the staff expressed concern that the administration, by now levying the grave charge of "gross professional misconduct," added a new and ominous dimension to its accusation against the professor.
Even though by then a compromise of sorts on retraining had been worked out and the professor's acceptance of the new assignment was no longer in doubt, an adjudicative proceeding on dismissal went forward. An Association representative, present as an observer, reported that it was thorough and fair. The faculty hearing body reached a unanimous and emphatic finding that the administration had failed to demonstrate cause for dismissal, and it recommended retention of the professor in her tenured position.
The Association's staff promptly urged the university president, absent truly compelling reasons for doing otherwise, to accept the faculty body's finding and recommendation. The president did so, informing the professor that the matter was being brought to closure with the charge against her withdrawn.
A first-year faculty member at a regional public university in the South informed the Association that notice of nonreappointment was issued to him on April 1. The Association's staff communicated with the university administration about the AAUP-recommended deadline of March 1 for notice in the first year. The university president explained that the faculty member had submitted a letter of resignation in late February, that a month later he expressed doubt about his wish to leave, and that the notice dated April 1 was accordingly issued to him. Acknowledging that the university's official policies did not provide firm deadlines for notice of nonreappointment, the president stated to the staff that the recommended March 1 date for the first year was being submitted by him to the governing board for adoption.
A small church-related college in a suburb of a midwestern city was suffering from financial exigency that was becoming increasingly severe and from an administration that, according to both the governing board and the faculty, was becoming increasingly dysfunctional. The chair of the governing board, stepping in as interim chief administrative officer, met with the Association's staff to consult about appropriate severance arrangements for faculty in the event of a decision to close the college. Independently, faculty leaders consulted with the staff about the college's potential closure. An alternative to closing arose, however, when a university in the nearby city revealed its interest in an affiliation through which the university would acquire a suburban campus with the college's continuing in operation there.
The Association's staff played an advisory role in the negotiations that followed, working not only with administrative and faculty officers at the college but also, through the university's AAUP chapter president, with that institution's representative in the discussions. The staff's advice was heeded on issues such as the process for determining which college departments would be combined with, and which kept separate from, their university counterparts.
Key to the university's going forward with the affiliation was assurance that the arrangement would command the support of the college faculty. The Association's staff asserted that a requisite for strong faculty support would be a statement from the university that it would respect existing college tenure commitments. The proposed statement was issued, and an agreement on affiliation was adopted by the respective governing boards and endorsed by the respective faculties. The continuance of all tenured members of the college faculty was confirmed, and all faculty members on renewable term appointments were reappointed for the following academic year.