Committee A on Academic Freedom and Tenure has continued to address a broad range of judicial and legislative business. Particularly noteworthy during the past year, much of Committee A’s work dealt with the academic rights of contingent faculty and graduate students. Two of the four impositions of censure, at Nicholls State University and at North Idaho College, and the one removal of censure, at the University of New Haven, involved contingent faculty. The report on North Idaho College illustrates the close connection between the development of policy and the processing of cases. Based on work by a joint subcommittee of Committee A and the Committee on Contingent Faculty and the Profession, in fall 2006 Committee A approved and the AAUP’s Council adopted Regulation 13 of the Association’s Recommended Institutional Regulations on Academic Freedom and Tenure. Entitled “Part-Time Faculty Appointments,” this new regulation significantly elaborated prior Association policy. The report on North Idaho College found that the administration had disregarded provisions of Regulation 13 requiring timely notice, a statement of reasons, and an opportunity for faculty review when a part-time faculty member is not reappointed.
As part of its legislative business, Committee A approved for publication and comment a major expansion of Regulation 14 of the Recommended Institutional Regulations, now entitled “Graduate Student Employees.” First discussed at Committee A’s fall 2008 meeting, this revised regulation was prepared by a joint subcommittee of Committee A and the Committee on Graduate and Professional Students. It focuses on graduate students in their capacity as employees of the university and provides both procedural and substantive protections for them in any adverse employment action.
Like the treatment of contingent faculty, the condition of academic freedom at church-related institutions was another subject addressed in more than one investigating committee report. Investigations at church-related institutions led to a recommendation of censure in one case and a decision not to recommend any action in the other case. Committee A recommended censure at Cedarville University based on the finding that the administration’s dismissal of a tenured professor in the Department of Biblical Education derived from charges that far exceeded the institution’s own stated religious grounds for limiting academic freedom. At Olivet Nazarene University, by contrast, the president, following publication of the report of the investigating committee, lifted the suspension of a faculty member from teaching a course in general biology imposed under pressure from unhappy church constituents, and he rescinded the related prohibition against the curricular use of the faculty member’s book on the compatibility of faith and evolution.
The recommendation to remove censure at the University of New Haven and the decision not to recommend any action at Olivet Nazarene University provide fresh evidence of the effectiveness of the work of Committee A in promoting AAUP standards on academic freedom and academic due process. Responding to deficiencies identified in reports by investigating committees, administrators rescinded personnel actions, provided settlements, and changed institutional policies.
Judicial Business
Imposition of Censure
At its June meeting, Committee A considered four cases that had been the subject of reports on investigations published in Academe since the 2008 annual meeting. The committee adopted the following statements concerning these cases. The Council concurred in the recommendations, and in each instance censure was voted by the 2009 annual meeting.
The report of the investigating committee concerns the action taken by the administration of Cedarville University to dismiss a professor in the Department of Biblical Education from his tenured faculty position with thirty days’ notice, without having first demonstrated cause for its action in an adjudicative hearing before faculty peers.
The affected faculty member, a second-generation alumnus of this church-related university, was a prominent member of a group of self-identified conservative or “traditionalist” faculty who had been concerned about the institution’s theological emphasis and direction, as evidenced in a new statement on biblical “truth and certainty” adopted by the administration and board to which all members of the faculty were required to adhere. The letter of dismissal questioned the faculty member’s collegiality, professionalism, and doctrinal orthodoxy, including his alleged failure to “maintain consistent, biblically appropriate, spiritual interest and effective Christian relationships in the University family.” The letter also stated that he had “made statements to students expressing [his] disagreement with established school policy and the judgment of the senior administration in spiritual matters, and when confronted . . . defended [his] absolute ‘right’ to do so”; and that he had “made statements and exhibited behavior that does not demonstrate Christian love and objectivity in the professional judgment of colleagues.” The administration declined to specify charges or provide evidence for its stated grounds. Another tenured colleague in the Bible department was dismissed from the faculty at the same time as the subject professor under virtually identical circumstances and for similar reasons. The administration would later characterize these actions as part of a process “to restore a healthy team spirit and to refocus our attention and energies on our mission.”
The faculty panel to which the professor appealed his dismissal found that he had not received any “written reprimands, warnings, or plans of correction” from the administration before he was handed his notice of dismissal, despite the administration’s assertion the previous summer that “every other option” short of termination had been “exhausted.” The evidence brought to bear during the hearing did not convince a majority of the members of the panel that the professor had engaged in the alleged misconduct with which the administration had charged him or that his alleged misbehavior was so serious or of such magnitude as to constitute grounds for dismissal. It concluded that the professor’s dismissal had been unwarranted, and it made an implicit, if not fully explicit, recommendation for reversal. Subsequent to the hearing the administration, on advice of counsel, confiscated all the evidence and the only record of the proceedings, contrary to the agreed-upon rules and procedures. The university’s president and trustees declined to follow the recommendation of the hearing panel and offered no reasons for doing so.
The investigating committee found that the university’s official procedures for contesting a dismissal for cause denied the professor academic due process by (a) not affording him a pretermination hearing, (b) misdirecting the burden of proof onto him, and (c) denying him access to the evidence and the witnesses against him. The committee concluded that in doing so the administration acted in disregard of procedural safeguards set forth in the 1940 Statement of Principles on Academic Freedom and Tenure and the complementary 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings. The committee further concluded that the administration’s confiscation of all the evidence and the record of the proceedings warranted condemnation for having changed a hearing of record into an exercise in futility, hampering the affected professor’s opportunity for appeal. The committee also concluded that the administration’s charges against the professor far exceeded the limitations on academic freedom on religious grounds to which Cedarville University subscribes, resulting in a dismissal that violated his exercise of academic freedom within his area of academic competence.
Committee A recommends to the Ninety-fifth Annual Meeting that Cedarville University be placed on the Association’s list of censured administrations.
The investigating committee’s report addresses the case of an instructor who earned bachelor’s and master’s degrees at Nicholls State University and began teaching there in 1995 as a full-time member of the Department of Mathematics. In May 2007, one day before the instructor completed her twelfth year on renewable term appointments, the department head told her that she would not be reappointed. She asked why, received a response from him that was demonstrably inaccurate,and then submitted a written request to the president, who replied that the university’s policies do not require providing reasons and that in practice they are not provided.
Attempting to find out why the instructor’s services were terminated, the investigating committee interviewed five administrative officers, many current and former members of the mathematics department, and the instructor herself. The committee found consistently favorable evaluations of her academic work and no hint of any personal misconduct. It concluded that the only plausible reason for releasing her was her having assigned failing grades to a large number of students in college algebra, a required course that constituted a significant proportion of her teaching. For several reasons, the traditionally substantial rate of failure in the basic college algebra course had become larger in the spring and fall of 2006, leading the administrators to bring pressure on the mathematics teachers to assign fewer failing grades. Some of the teachers acknowledged having lowered their standards, but the instructor in the investigated case resisted (“admirably so,” according to colleagues), and the termination of her services followed.
Although the Nicholls State University administration officially classified its action against the instructor as a nonreappointment, the investigating committee found that the action removing someone consistently evaluated as meritorious from the faculty after twelve years of full-time service occurred well beyond the generally accepted maximum probationary period and thus should be considered a dismissal for cause. Finding further that the administration declined to state any reason that would explain its action or afford her any opportunity for a hearing before a faculty body or before any other Nicholls person or group, the investigating committee concluded that the administration denied the instructor the safeguards of academic due process that accrue with continuous appointment as enunciated in the joint 1940 Statement of Principles on Academic Freedom and Tenure and derivative Association-supported standards.
The investigating committee was unable to obtain a coherent explanation of why the administration waited until the next-to-last day of the instructor’s existing appointment to notify her of her release. The instructor was entitled under the provisions of the 1940 Statement of Principles to a year of notice or severance salary. Faculty members in only their first year of service are entitled under AAUP-recommended standards to three months of notice. The investigating committee called the one day of notice at the end of twelve years of service “deplorably scant.” Nicholls administrative officers, commenting on a draft text of the committee’s report, confirmed that full-time non-tenure-track faculty members such as the dismissed instructor, no matter how long they have served, lack any entitlement not only to advance notice but also to reasons for nonretention and opportunity for appeal.
Having found no plausible reason for the administration’s action to dismiss the instructor other than its displeasure with the large number of failing grades she gave to her college algebra students, a reason the administration has allowed to stand unrebutted, the investigating committee concluded that the administration thereby violated her academic freedom.
Committee A recommends to the Ninety-fifth Annual Meeting that Nicholls State University be placed on the Association’s list of censured administrations.
The published report, prepared by the Association’s staff, concerns the action taken by the administration of North Idaho College to deny any further course assignments to a highly regarded adjunct instructor of English after she had taught part time at the institution for thirteen consecutive semesters and courses she had taught remained available. The administration, which notified her of nonreappointment by e-mail on the last day of the fall semester, refused to explain why it had declined to reappoint her. It also rejected her request for faculty review of her claim that the administration had given inadequate consideration to her qualifications for reappointment and that it had discriminated against her because of conflicts that it had had with her husband, a tenured instructor and former director of the college’s writing center. The administration asserted that her complaint was not grievable under the terms of her particular appointment. Efforts by the AAUP staff to persuade the administration to recognize the instructor’s rights under the Association’s recommended standards proved unavailing.
The report found that the North Idaho College administration terminated the instructor’s services in disregard of the provisions on part-time faculty appointments set forth in Regulation 13 of the Association’s Recommended Institutional Regulations on Academic Freedom and Tenure. Under these provisions, the instructor was entitled to notice of nonreappointment at least a month before the end of her last semester of teaching, a statement of reasons for nonreappointment, and an opportunity for faculty review of the decision. The report found “no plausible academic basis for the decision not to reappoint her.” The report also found that the administration’s dispute with her husband may well have motivated the action against her. The report further found that “her vulnerability to the termination of her services at the administration’s pleasure . . . could well have had a negative impact on the academic freedom of other part-time faculty members holding similar appointments.”
Committee A recommends to the Ninety-fifth Annual Meeting that North Idaho College be placed on the Association’s list of censured administrations.
The report of the investigating committee deals with the dismissal of a tenured assistant professor toward the end of his twenty-eighth year on the faculty on grounds of his having violated faculty handbook proscriptions against “malicious gossip or public verbal abuse.”
Tension between the assistant professor and the current college president, who took office in 1997, became evident during the 2006–07 academic year. At a faculty meeting, the professor sharply questioned the president about a delay in issuing faculty contracts, whereupon the president summoned him for a private conference and then provided him with a letter forbidding him from asking questions at faculty meetings about matters not on the agenda. The professor responded in a letter dated April 30, 2007, with copies to the college’s trustees. The letter blamed the president for declining enrollments, a cash-flow crisis, low faculty and staff morale, and “extreme student discontent.” It advised the president “to step aside and let somebody else take over.”
An interview of the professor by a reporter for the local newspaper led to a prominent story in October 2007 that was critical of the administration. The minutes of the December faculty meeting included a paragraph from the president stating that the professor was no longer allowed to speak at meetings because he had “engaged in malicious slander” and “told wanton lies.” In January 2008, the administration fined the professor for missing class days. He alleged that the fine was in retaliation for his outspoken criticism, and this incident too became the subject of a newspaper story. On March 13, a letter from the academic vice president informed the professor that he was being suspended with pay and barred from the campus pending an investigation of reported violations of the faculty handbook provisions prohibiting “malicious gossip or public verbal abuse.” The academic vice president was to interview him on April 3 as part of the investigation, but the professor declined to participate when the vice president informed him that he could not tape the discussion or have a witness present. On April 11, 2008, a letter from the academic vice president notified him that his services at the college were terminated effective immediately and that he would be paid on May 1 for the remaining weeks of his 2007–08 appointment. Beyond the aborted interview with the academic vice president, he was afforded no opportunity for a hearing on his dismissal.
The investigating committee concluded that the administration’s dismissal of the professor on the stated grounds violated the academic freedom to which he was entitled under the 1940 Statement of Principles on Academic Freedom and Tenure. The committee concluded that the administration, in suspending and then dismissing the professor, disregarded basic requisites of academic due process as set forth in the 1940 Statement of Principles and the 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings. Further, the investigating committee concluded that the current policies and practices of the college administration “have created a climate that is inimical to the exercise of academic freedom.”
Committee A recommends to the Ninety-fifth Annual Meeting that Stillman College be placed on the Association’s list of censured administration.
No Recommendation Regarding Censure
With respect to a fifth case that had been the subject of a recently published report, Committee A approved the following statement not recommending any action by the 2009 annual meeting, and the Council concurred in the statement.
The report of the investigating committee concerns the actions taken by the administration of Olivet Nazarene University in the case of a faculty member who was removed from his teaching duties for a course in general biology and whose book on faith and evolution was banned from use in campus courses.
In a letter to the faculty member, his department chair, and his college dean announcing these actions, the university’s president stated that he was implementing them in order “to reduce the current controversy surrounding these issues,” referring to pressures on the administration from religiously conservative constituents to terminate the faculty member’s appointment for what they considered to be professional activities opposed to Church of the Nazarene teachings. The investigating committee found that the suspension and the prohibition on the curricular use of the faculty member’s book on the compatibility of faith and evolution violated fundamental provisions on the academic freedom of faculty members set forth in the 1940 Statement of Principles on Academic Freedom and Tenure. The committee further found that the suspension of the faculty member from teaching a course he had routinely taught for sixteen years—an action that was taken over the objections of his departmental chair and colleagues and, subsequently, of a faculty grievance committee—constituted a severe sanction against him, taken in contravention of the due process protections called for in Regulation 7a of the Association’s Recommended Institutional Regulations on Academic Freedom and Tenure.
Since the publication of the committee’s report this past February, the president has rescinded his directives against the faculty member and his book, thereby implementing the recommendations of a faculty committee that had considered the case and resolving the Association’s primary concerns. The faculty member has expressed his satisfaction with this resolution to his case.
Gratified by this salutary development, Committee A makes no recommendation to the Ninety-fifth Annual Meeting in regard to Olivet Nazarene University.
Conditional Removal of Censure
In respect to Tulane University, Committee A approved the following statement recommending that it be delegated authority to effect removal from the censure list once the administration has provided a suitable response regarding the use of such censure removal in any litigation. The Council concurred in the recommendation, and the annual meeting voted accordingly.
As described in the report of five institutions investigated by the Association’s Special Committee on Hurricane Katrina and New Orleans Universities, the hurricane’s substantial flooding did not prevent Tulane University’s uptown campus from reopening within four months, in January 2006. The medical school and university hospital, however, which were located downtown, were flooded much more extensively and could not fully reopen until the following autumn.
Tulane’s governing board on December 8, 2005, declared a state of financial exigency. Notifications of release were issued the next day to approximately two hundred faculty members, the majority of whom held clinical appointments in the medical school. Among the two hundred were fifty-eight with tenure, thirty-four of them in the medical school and the remaining twenty-four in two uptown schools: eighteen in engineering and six in business.
The Association’s investigation found that the vice president for health sciences made the medical school decisions on termination, often without having informed the affected professor’s department chair and without having taken tenure into consideration. Only one of the affected medical school professors pursued his case to a grievance, with the school’s grievance committee deciding that evaluation of the criteria for termination was beyond its scope. A second grievance, emanating from the engineering school, eventually also failed. The members of the largest department being discontinued, mechanical engineering, filed a complaint with the senate’s Committee on Faculty Tenure, Freedom, and Responsibility asserting that the department was financially self-sustaining. The senate’s committee, essentially agreeing, found that the discontinuance could not be justified on financial grounds. The matter then went to the governing board, which held its own hearing and concurred in the administration’s position.
The AAUP investigators concluded that the Tulane administration acted in disregard of the 1940 Statement of Principles on Academic Freedom and Tenure and derivative AAUP-recommended standards by declining to provide reasons for terminating particular programs and faculty appointments and, in releasing professors, by making no distinction, except for amount of notice, between tenured and nontenured faculty members. Censure was imposed by the 2007 annual meeting.
Reacting to the critique in the investigating committee’s report of several Tulane policies and procedures, the university senate charged an ad hoc committee with examining them and proposing modifications. The university president did not object to the undertaking but did indicate reluctance to ask the Tulane board to change the official provisions on financial exigency before the existing state of financial exigency had been brought to closure. The senate’s committee proceeded to formulate a document of “interim” revisions, which the full senate approved at a meeting in October 2007. The revisions provide for an enhanced faculty role at the various decisionmaking stages in the financial exigency policy. They emphasize the need to protect tenure and in particular to proceed from nontenured to tenured faculty in determining the order of layoff. On the matter of relocation to another position, they specify that released tenured faculty members would have a preference over outside candidates. More needs to be said about relocation, however, and Committee A proposes to the senate that it give this provision of the revised policy further attention.
The governing board acted two months later to bring the university’s state of financial exigency to an end. In fall 2008, it formally adopted the revised policy, and its provisions were incorporated into the faculty handbook.
Issues of redress still required attention. Tulane’s president, who until then had declined to engage in substantive discussion with the Association about its investigation and censure, stated at a February 2009 meeting of the university senate that he would be receptive to a call from the AAUP to discuss what needed doing in order to have the censure removed. The AAUP staff proceeded to talk with him about a professor from the discontinued mechanical engineering department who had consulted with the Association from time to time about the lack of a satisfactory remedy for terminating his tenured appointment. The staff, having no evidence that the professor had been treated any differently from the others in mechanical engineering, proposed that the professor be offered a relatively modest sum as a gesture of redress. The president agreed to do so, and the professor, who initiated litigation, countered with a statement that he would consider accepting a very much larger sum. The professor has apparently not rejected a smaller sum, and the president has stated that he supports continuing discussion through the attorneys of a potential settlement. Committee A’s good offices will remain available for assisting the parties in reaching a satisfactory resolution.
The AAUP staff learned in March that the only professor in a discontinued program in the School of Business who had not promptly relocated elsewhere or accepted a buyout was joining the engineering professor in wanting the AAUP censure to continue. After her tenured appointment was terminated in June 2007, she filed complaints successively with Tulane’s Office of Institutional Equity, alleging discrimination, and with the business school’s faculty grievance committee, alleging procedural and substantive flaws in the action to release her. Both bodies rejected her appeals. Beginning in late spring 2008, she talked with successive chairs of the Committee on Faculty Tenure, Freedom, and Responsibility about a review by that body of the rejection of her two appeals. This March she wrote to ask that the review be undertaken, and the committee agreed to proceed. At her request, the AAUP staff talked with the Tulane president to inform him that she had consulted with the staff and to convey the AAUP’s expectation that the administration would cooperate with the reviewing committee. The committee agreed to requests from her, which the AAUP staff supported, that it hold a hearing at which she could have counsel and could be present during the testimony of her adversaries. The hearing was held on May 5, and on May 14 the committee issued its decision, finding no grounds for recommending any further action at Tulane University on her complaints but calling on the senior administration to take steps to improve the climate in the business school for female faculty and for faculty participation in governance.
On March 3, the Tulane AAUP chapter voted to endorse removal of the censure, stating it was unaware of any problem at the university that warrants its continuance. At an April 7 meeting of the university senate, with the large majority of its forty-two elected faculty members participating, the senators voted without dissent to request censure removal. The possibility of censure removal at Tulane had been discussed on April 4 at the spring 2009 meeting of the Louisiana AAUP conference, with both the former engineering professor and the former business professor in attendance. The conference executive committee subsequently wrote in support of censure removal, stating that “all reasonable efforts” had been made to resolve the cases of the two professors to the executive committee’s satisfaction.
Committee A commends the faculty of Tulane University, the Tulane University AAUP chapter, and the Louisiana AAUP conference for engaging actively with the Tulane administration on the improvement of the university’s regulations. The committee notes the receptivity of the Tulane University administration to the Association’s concerns. Committee A is pleased that in substantial respects the regulations of Tulane University involved in the events giving rise to the imposition of censure have been brought into compliance with Association-supported standards.
A decision of Committee A to recommend removal of Tulane University from the censure list will be made with the expectation of the administration’s taking positive steps as proposed by the faculty review committee in May 2009 with regard to exploring and enhancing the environment in the business school for female faculty and for faculty participation in governance.
Committee A stands ready to provide advice and assistance in these matters.
In addition, a Committee A recommendation to remove censure will be made without prejudice to any litigation by faculty members stemming from layoffs in the aftermath of Hurricane Katrina. Committee A has requested the agreement of the administration, in any litigation, not to rely upon the removal of censure by the AAUP or to refer to any redress gesture discussed in the course of that decision. Discussion with the administration of its response to the request is still in process, however.
Committee A does not believe the censure should be removed before a suitable response has been obtained from the administration regarding the use of censure removal in any litigation. The committee hopes that the matter will be resolved fairly promptly. It recommends to the Ninety-fifth Annual Meeting that the committee be delegated the authority to remove Tulane University from the Association’s list of censured administrations once the committee has determined that a suitable response has been provided.
Removal of Censure
Committee A adopted the following statement recommending action to remove the University of New Haven from the list of censured administrations. The Council concurred in the recommendation, and the Ninety-fifth Annual Meeting voted to remove censure.
The report of the investigating committee concerned action by a new dean of arts and sciences to terminate the services of a lecturer in the English department in her eighth yearly full-time non-tenure-track appointment after six years as a part-time instructor in the department. The dean acted against her at a time when her department chair and tenured colleagues evaluated her performance very favorably and recommended her promotion. The dean had dealt with a student complaint against the lecturer, learned of information in the dean’s office about previous complaints, and concluded that she had shown a pattern of unnecessarily hostile behavior toward student complainants.
Possessing the authority under university policies to deny a non-tenure-track lecturer further appointment, the dean moved to release the lecturer from the faculty once her existing term of appointment expired. A faculty hearing body upheld, on all counts, grievances filed by the lecturer. The hearing body recommended her retention on a multiyear term of appointment, but the university president rejected its findings and recommendation.
The Association’s investigating committee, addressing the issue of the dean’s substituting his judgment for that of the lecturer and her faculty colleagues on her assessment of student academic performance, concluded that the dean’s doing so was at odds with the principles of faculty authority in this area as set forth in Committee A’s statement The Assignment of Course Grades and Student Appeals. The investigating committee observed that the lecturer was entitled under the 1940 Statement of Principles on Academic Freedom and Tenure, because of the length of her service, to tenure’s protections against involuntary termination. Finding that she was not afforded those protections, the investigating committee concluded that the University of New Haven administration in dismissing her acted in disregard of the 1940 Statement of Principles and the complementary 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings. The Association’s 2008 annual meeting imposed censure.
The lecturer, who had initiated litigation, informed the Association this past November of a satisfactory settlement of her case. The Association’s staff then invited the University of New Haven president, with the issue of redress resolved, to consider changes in university practices and policies that could lead to removing the censure. Following discussion of potential changes with the university provost, the staff provided two specific proposals. The first called for guidelines, to be formulated jointly by the dean of arts and sciences and the chair of the English department, on the respective roles of the dean’s office and the department in responding to student complaints. The result has been a set of procedures, approved by the dean and the department chair in May, that should preclude any future controversy of the kind that occurred in the case on which the censure was based. The second proposal from the staff called for revised policy that would provide full-time non-tenure-track faculty members after seven years of service with the protections against involuntary nonretention that accrue with faculty tenure. The result has been a new policy document, approved in May by the administration and the key faculty committee, that provides senior non-tenure-track faculty members notified of nonretention with opportunity for an adjudicative hearing of record before an elected faculty body.
The elected chairs of the three major faculty committees at the university have indicated their support of censure removal, as have the two University of New Haven AAUP members who have represented their fellow members at meetings of the Connecticut AAUP conference. The president and the executive director of the conference have also endorsed removing the censure.
Committee A recommends to the Ninety-fifth Annual Meeting that the University of New Haven be removed from the Association’s list of censured administrations.
Legislative Business
At its 2008 fall meeting, Committee A discussed final revisions to the subcommittee report Freedom in the Classroom, which had been published in the September–October 2007 issue of Academe with an invitation for comment. The subcommittee agreed to additional changes based on comments received, and Committee A voted to approve the report as amended.
At the same meeting, the committee discussed a draft version of the statement On Conditions of Employment at Overseas Campuses, a joint product of the AAUP and the Canadian Association of University Teachers (CAUT). The statement urges U.S. and Canadian colleges and universities engaging in overseas initiatives to adopt appropriate standards on academic freedom, institutional autonomy, collegial governance, nondiscrimination, employment security, and the treatment of nonacademic employees. In April, after Committee A and CAUT’s executive committee approved its publication for comment, both associations posted it on their Web sites. (It was published in the July–August 2009 issue of Academe.)
In keeping with its wish to maintain a dialogue with the Committee on Contingent Faculty and the Profession about issues related to the exponential growth in the number of contingent faculty appointments, Committee A received updates from that committee at both its fall and spring meetings. At the latter, it discussed a draft report produced by a joint subcommittee of the Committee on Contingent Faculty and the Profession and the Committee on Community Colleges regarding the conversion from contingent to tenure-track positions.
During the June meeting, Committee A discussed a draft report from the Subcommittee on Implications of Garcetti v. Ceballos for Academic Freedom and Shared Governance, about which more will be said in this report’s conclusion. After suggesting some revisions, Committee A approved the report for publication in the November–December 2009 issue of Academe.
As noted in the introduction to this report, Committee A at its spring meeting approved a proposed revision of Regulation 14 (on academic employment of graduate students) of the Recommended Institutional Regulations on Academic Freedom and Tenure for publication, with an invitation for comment. It appears on the Association’s Web site and, adjacent to this report, in the current issue of Academe.
Two new policy initiatives were added to the committee’s agenda at the spring meeting. A subcommittee of Committee A will study the range of issues surrounding peer review of professors whose writings have resulted in intense political controversy. An ad hoc committee with Committee A participation will prepare a report on the academic freedom implications that arise when departments and other faculty bodies impose pedagogical restrictions on individual faculty members teaching in multisection courses.
In Conclusion
Two matters discussed in this report merit additional comments. To my knowledge, On Conditions of Employment at Overseas Campuses is the first joint statement of Committee A and an organization of professors in another country. It seems entirely appropriate that this first joint statement deals with international education and that our first partner is CAUT. For many years, James Turk, the executive director of CAUT, has been a welcome guest at Committee A meetings. Jim has enriched our discussions with his many insights and has often provided invaluable comparative perspectives on the subjects we have addressed. Going beyond his previous contributions to Committee A, Jim took the leading role in revising the initial draft of this statement in light of our discussion at the fall 2008 Committee A meeting and in achieving the consensus that led to its approval and joint publication by the AAUP and CAUT.
The report of the Subcommittee on Implications of Garcetti v. Ceballos for Academic Freedom and Shared Governance is an extremely important document, especially for faculty who teach at public institutions. The Supreme Court’s 2006 decision in Garcetti v. Ceballos—and especially its subsequent interpretation by the lower courts—poses the greatest threat to the First Amendment protection of faculty speech since the McCarthy era of the 1950s. Established at the fall 2008 Committee A meeting, the subcommittee quickly produced an outstanding and thorough report that addresses the core meaning of academic freedom, reviews the history of judicial interpretations of academic freedom and speech by public employees, and emphasizes the importance of securing protection for faculty speech through institutional documents such as faculty handbooks and collective bargaining agreements. This institutional protection is particularly critical at a time when Garcetti v. Ceballos and its aftermath cast substantial doubt on the extent of continued constitutional safeguards for faculty speech on academic matters under the First Amendment. It is crucial that faculty at public as well as private institutions do everything possible to make sure that their institutions protect academic freedom and free speech—a task that the proposed language at the end of the report should facilitate.
DAVID M. RABBAN (Law),
University of Texas at Austin, Chair
Cases Settled through Staff Mediation
The three accounts that follow serve to illustrate the nature and the effectiveness of the mediative work of Committee A’s staff in successfully resolving cases during the 2008–09 academic year.
A tenured professor, since 1992 the holder of an endowed eminent scholar’s chair in toxicology at a regional state university in the Gulf South, suffered a stroke in March that left him with paralysis on one side but with no speech or cognitive impairment. After two months, during which he was on medical leave, his physicians testified that he was fit to return to his academic responsibilities. He resumed laboratory work that summer and fall, and he returned to the classroom in the spring, teaching a course without incident.
In the following summer and fall, however, the professor experienced hostility from administrative officers who previously had been helpful and cooperative. His department moved to a new building, but he with his laboratory, alone among the senior professors, was not included in the move, and he found it increasingly difficult to procure laboratory supplies and equipment, student records, and graduate student assistance. At the end of the summer, after he had begun teaching a fall course that he had designed and had regularly taught as the first of several team teachers, he requested a meeting with his dean to discuss his complaints. At the meeting, to his surprise, were not only the dean but also the provost, the associate dean, and the department head. They accused him of no longer being capable of doing laboratory work of requisite quality. Moreover, regarding his course that was then in process, they accused him of inefficient teaching. The provost said something that the professor took to mean that after he finished the current assignment he would not again be assigned any teaching. He appeared at the classroom to teach the scheduled next session of the current course and was met there by the department head, who told him the administrators had decided that he should not finish the current assignment. The professor asked, but received no explanation, why he had not been spared the humiliation of showing up and being sent away.
Convinced that the administrative officers were harassing him with the aim of getting him to retire, the professor turned to the Association for assistance. The Committee A staff placed its focus first on the removal from teaching. The staff emphasized in a letter to the university president the provisions, not only in AAUP-supported standards but also in the policies of the university’s governing board, requiring demonstration of cause before a faculty hearing body in order to dismiss a tenured professor from further teaching. The letter noted there was no indication that such a hearing was even contemplated in the instant case, that the professor had apparently been suspended from completing his current assignment but that a suspension pending a hearing’s outcome is justified “only if immediate harm to the faculty member or others is threatened,” and that a suspension “not followed by either reinstatement or the opportunity for a hearing is in effect a summary dismissal in violation of academic due process.” The staff urged corrective action.
The provost, responding for the administration, declined to engage in substantive discussion of the professor’s case. A second staff letter, however, reiterating the Association’s concerns, was followed by corrective action with respect to removal from teaching. For the next semester the professor was assigned the course in advanced toxicology for graduate students and an undergraduate course in toxicology for majors in the field. Peer evaluation of his teaching that semester proved to be quite favorable, and presumably he will continue to have opportunity to teach. The staff has encouraged similar progress in achieving resolutions, respectful of the professor’s tenure rights, of remaining unresolved complaints regarding support for his research.
An assistant professor at a regional East Coast public university was notified six months before the end of her third year of service that she would not be reappointed. The Committee A staff informed the institution’s administration of the Association’s concern that the notice was late, not only under the AAUP’s Standards for Notice of Nonreappointment (which call for faculty members beyond the second year of full-time service to receive twelve months of notice) but also under the university’s own stated policy (which is identical for those at the rank of assistant professor or higher). The university’s general counsel wrote in response that the institution’s policy on notice applied only to appointments that are probationary for tenure, that the faculty member held a non-tenure-track appointment during her first year, and that the six months of notice afforded her was therefore appropriate for an assistant professor in her second year as a probationer. In subsequent discussion, however, the general counsel acknowledged that the stated policy on notice said nothing about its not being applicable to full-time renewable term appointments that were not probationary for tenure.
Further correspondence and discussion resulted in a mutually acceptable resolution. The faculty member was retained for an additional six months, with a light teaching schedule to allow her time to focus on relocation.
An instructor at a private fine arts institute on the West Coast, completing her eleventh year of teaching on renewable term appointments, was notified that the interdisciplinary program in which she taught was being discontinued and thus her appointment for a twelfth year would be terminal. Both the instructor and her program appear to have been held in very high regard among the faculty as a whole. Faculty protests against the administration’s decisions in the matter led the institute president to state that he was willing to consider retaining the instructor on half-time appointments on a semester-by-semester basis for a maximum of an additional three years. The instructor and her supporters rejected this proposal as inadequate and turned to the Association for assistance.
The Committee A staff, writing to the president on the matter, questioned whether the instructor’s program was being discontinued or merely realigned. The staff asserted that under the 1940 Statement of Principles the instructor had served well beyond the maximum permissible probationary period and thus should be afforded the protections that accrue with tenure in any move to terminate her services. The staff urged the president to endeavor to see whether a more equitable accommodation with the instructor could be reached. The president presumably did so. The instructor subsequently informed the staff that her differences with the institute administration had been resolved in a satisfactory manner.