Committee A on Academic Freedom and Tenure has had a particularly busy and productive year. Two developments merit special attention. First, the Special Committee on Hurricane Katrina and New Orleans Universities completed its comprehensive report, which generated great interest and four impositions of censure at the annual meeting. Second, a subcommittee drafted an important report, Freedom in the Classroom. After revision in light of a stimulating discussion during the most recent Committee A meeting, it appears in this issue of Academe with a request for comments.
The report of the Special Committee on Hurricane Katrina and New Orleans Universities was a huge undertaking, perhaps unique in the history of the AAUP. Established in response to the devastating impact of Hurricane Katrina on universities in New Orleans, the special committee addressed the reactions at particular institutions as well as broader issues raised by emergency conditions. The size of the special committee reflected the enormity of its task. Whereas most Committee A investigating committees have two or three members, eight members served on the special committee. Meeting for the first time in May 2006, the committee reviewed a vast amount of information. Its members visited New Orleans in mid-August 2006 in groups of two or three, accompanied by staff to Committee A, and held more than fifty interviews with faculty members from affected universities. Based on these interviews, information previously received, and correspondence with university administrators, the general secretary authorized investigations of five universities in New Orleans: Louisiana State University Health Sciences Center, the University of New Orleans, Southern University at New Orleans, Loyola University New Orleans, and Tulane University. Various members of the special committee served as the investigators at each institution. The full report of the special committee includes reports on the five universities investigated, with introductory and concluding sections that deal with general issues affecting all of them.
The impressive sixty-eight-page report of the special committee was published in the May–June 2007 issue of Academe, only a year after the committee’s first meeting. It is a remarkable achievement, not just a highlight of this academic year, but one of the most important documents ever produced by the AAUP. The members of the special committee deserve our special thanks and recognition: Robert M. O’Neil (law), chair, University of Virginia; Norma C. Cook (speech communication), University of Tennessee; Matthew W. Finkin (law), University of Illinois at Urbana-Champaign; Myron S. Henry (mathematics), University of Southern Mississippi; Hirschel Kasper (economics), Oberlin College; Lorenzo Morris (political science), Howard University; Lawrence S. Poston (English), University of Illinois at Chicago; Peter O. Steiner (economics and law), University of Michigan; Jordan E. Kurland, principal staff officer; and Nanette R. Crisologo, staff associate.
Several general observations of the special committee should be stressed. It recognized that Hurricane Katrina inflicted damage on the universities of New Orleans that constituted the most serious disruption of higher education in the history of the United States. It urged all universities in the country, including those that do not perceive themselves as “disaster prone,” to develop emergency plans and to review them periodically. In its overall conclusions, the special committee stressed that pre-Katrina policies on financial exigency at the affected institutions, if properly applied, would have averted much of the harmful impact on faculty described in its report. Unfortunately, significant departures from these policies by administrators produced widespread violations of academic due process, disregard of faculty governance, and unnecessarily severe disruptions and terminations of teaching careers. It is important to emphasize that the AAUP’s recommended institutional regulations provide that even tenured faculty can lose their positions under extraordinary circumstances because of a demonstrably bona fide financial exigency.
Following the recommendations of Committee A, in which the AAUP Council concurred, the annual meeting voted to place four of the five investigated institutions on the Association’s list of censured administrations. The fifth, the Louisiana State University Health Sciences Center, had taken steps to recall many faculty members previously placed on involuntary furloughs, had agreed to revert back to regulations on financial exigency that it had abrogated through a declaration of “force majeure,” and had indicated its willingness to work with the AAUP on improving these regulations. In light of these salutary developments, Committee A, with the concurrence of the Council, made no recommendation to the 2007 annual meeting regarding the Louisiana State University Health Sciences Center and promised to report back on it to the 2008 annual meeting.
The importance of the report of the Special Committee on Hurricane Katrina and New Orleans Universities did not prevent Committee A from continuing its work in developing policy. At its fall 2006 meeting, Committee A authorized the appointment of a subcommittee on academic freedom and teaching. By the spring 2007 Committee A meeting, the subcommittee had drafted an excellent report that rebuts various contemporary criticisms of classroom speech by professors. The draft report addressed the distinction between instruction and indoctrination, claims of lack of balance in the classroom, assertions of a hostile learning environment, and controversies about what kinds of comments or assignments are “irrelevant” to the subject matter of a course.
Members of Committee A were impressed by the quality of the draft, which provoked additional discussion and suggestions for revision. The report’s publication in this issue of Academe will, I am confident, spark vigorous discussion about the freedom of teachers in the classroom.
Judicial Business
Imposition of Censure
At its June meeting, Committee A considered seven investigating committee reports that had been published in Academe since July 2006. In six of those cases, the committee adopted the statements below recommending the imposition of censure. The Council concurred in the committee’s recommendations, and in the six cases the annual meeting voted to place the institutions on the Association’s list of censured administrations. As noted above, in the seventh case, the Louisiana State University Health Sciences Center, Committee A made no recommendation for action by the 2007 annual meeting and the Council concurred.
The investigating committee’s report concerns actions by a new president of Our Lady of Holy Cross College that involved a professor’s dismissal. The professor, as the elected head of the faculty senate, had been instrumental in convincing the previous administration and the governing board’s finance committee to adopt a revised salary schedule, to be implemented over a three-year period. The new president, who assumed office after the first year’s implementation of the salary schedule, indicated that he had problems continuing with it. Over the next several weeks the professor circulated arguments against the president’s position that were increasingly direct in substance and hostile in tone. The president ultimately summoned the professor to his office and told him that his services were being terminated, that he would be paid salary and benefits until the end of his annual contract, but that he was to leave the campus immediately and was not to return.
The investigating committee found that the professor was afforded no opportunity for a hearing on his dismissal and banishment. Nor was he given a reason, written or oral, for these actions. Pressed by the investigating committee to explain why he took such drastic actions, the president replied that he could say only that it was “for the good of the college.”
The investigating committee concluded that the actions against the professor were taken in total disregard of the procedural requirements provided in the 1940 Statement of Principles on Academic Freedom and Tenure and the 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings. The committee in its conclusion also addressed the atmosphere for academic freedom at Our Lady of Holy Cross College. Assessing it as “fragile to begin with because all faculty members serve indefinitely on appointments for a single academic year renewable at the administration’s discretion with nonrenewal not subject to appeal,” the investigating committee concluded that the actions against the professor had produced a yet more precarious climate for academic freedom.
Committee A recommends to the Ninety-third Annual Meeting that Our Lady of Holy Cross College be placed on the Association’s list of censured administrations.
The report of the investigating committee concerns the actions taken by the administration of Bastyr University in the cases of three faculty members who, having served continuously for four, nine, and twelve years, received between two months and two days of notice of termination of their appointments and were banned from the campus.
The administration characterized its action against the first professor as placement on administrative leave and issuance of notice of nonreappointment. The administration refused to afford her opportunity for a hearing or appeal. The committee found that these actions constituted a suspension of the faculty member that amounted to a summary dismissal. The committee concluded that the administration thereby deprived the faculty member of academic due process as set forth in the 1940 Statement of Principles on Academic Freedom and Tenure and the 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings. Moreover, the committee found that the administration, to the extent that it dismissed the faculty member because of what it saw as her independence and lack of deference to administrators, violated her academic freedom.
In the case of the other two professors, the investigating committee found that the administration, although characterizing its actions as nonreappointments, effectively dismissed the two faculty members when it notified them two days before the expiration of their existing contracts that their appointments were not being renewed and that they were barred from campus. As in the previous case, the committee concluded that the administration denied the two professors the applicable protections of academic due process called for under the 1940 Statement of Principles and the 1958 Statement on Procedural Standards. The committee also concluded that, in dismissing the two professors because of their advocacy for faculty rights or because of disagreement with them about curricular issues, the administration violated their academic freedom as well.
Finally, the investigating committee found that the exclusive use of “at-will” faculty appointments, terminable at any time, and a lack of shared governance at Bastyr University, contribute to an unacceptable climate for academic freedom and due process.
Committee A recommends to the Ninety-third Annual Meeting that Bastyr University be placed on the Association’s list of censured administrations.
Southern University at New Orleans, a unit in Louisiana’s historically black Southern University System, suffered the most, among the five institutions investigated by the Association’s special committee, from the assault of Hurricane Katrina. All the campus buildings were inundated with ten feet of water and, nearly two years later now, remain unusable. SUNO reopened in January 2006 to a campus of trailers on nearby land with less than two-thirds of its pre-hurricane student body, with a reduced faculty and staff, and with a drastically changed curriculum that had been imposed upon the initiative of the statewide coordinating body for postsecondary education, the Louisiana Board of Regents.
Letters dated December 16, 2005, were sent to fifty-five professors, thirteen with tenure, notifying them of placement on furlough without pay, effective December 31. At approximately the same time, the SUNO administration announced sweeping changes in the institution’s academic programs that the system’s board of supervisors had approved on December 8. Nineteen degree programs in the arts and sciences were eliminated, and seven new programs were added, in areas such as medical records administration and human development and family services. The administration characterized the new arrangement as one with a “community-based emphasis” to make SUNO “relevant to the rebuilding of the city of New Orleans and its surrounding communities.” The special committee saw it as “a pervasive shift in the nature and mission of SUNO,” that, alarmingly, was enacted without any consultation with SUNO’s faculty.
Not only was the faculty afforded no role in restructuring the academic program; it was also denied any significant role in making decisions on faculty status. In moving to reduce the size of the faculty, the administration followed the course, set at the Louisiana State University Health Sciences Center, of superseding the existing institutional regulations on financial exigency with a “force-majeure” plan. Under the plan, any appeal of a contested placement on furlough could be taken only to the administrative officers who issued the notifications of furlough, thus denying the faculty members due process.
A few tenured professors filed appeals against the notifications, alleging among other claims that the administration had retained nontenured faculty or engaged new contingent faculty to teach what the professors were qualified to teach. SUNO’s chancellor rejected all of the appeals, providing no reason either for the initial decision or for his not reversing it.
The special committee concluded as follows. The furloughed SUNO professors were denied academic due process to which they were entitled both under SUNO’s own policies before adoption of the “force-majeure” plan and under the 1940 Statement of Principles of Academic Freedom and Tenure and derivative AAUP-supported standards. Actions by administrative agencies fundamentally affecting the academic programs of the university and the status of its faculty showed manifest disregard for the faculty’s proper role in academic governance as enunciated in the Statement on Government of Colleges and Universities.
In March of this year, the special committee’s staff was informed of interest by the SUNO administration in considering steps toward meeting the AAUP’s stated concerns. After informal discussion with an attorney for SUNO, the staff wrote on March 28 to identify major concerns: resolving the cases of three professors who sought the Association’s assistance; terminating the current “force-majeure” policy with restoration of Southern University’s previously applicable policies on financial exigency, with recall rights under the restored policies for professors remaining on furlough; and improving relations between the administration and the faculty senate (which, since the hurricane, the administration had been ignoring).
The March 28 AAUP letter led to a meeting at SUNO on May 8 in which representatives of the chancellor’s office, officers of the faculty senate, and SUNO’s attorney participated. Both a senate leader and the attorney afterward described the discussion between administrative and faculty officers as consistently candid and constructive, with the professor characterizing it as, in effect, a response to the AAUP’s concern regarding needed improvement in academic governance. The participants reviewed what by then had been reduced to seven remaining cases of furloughed tenured professors, with particular attention to the three cases identified by the AAUP staff. The administrators and the attorney indicated that the “force-majeure” policy would be withdrawn after the resolutions of the seven “force-majeure” furloughs had been pursued further.
A letter from the SUNO chancellor dated May 29 referred to establishment of a process to consider recall of the remaining furloughed professors and thereby end the “force-majeure” policy, and he expressed hope that the process could be completed “before the end of this calendar year.”
The special committee’s staff replied immediately to the chancellor, requesting a statement, prior to Committee A’s meeting on June 1, identifying the procedures that would be followed if there should be a new need to release tenured faculty before the lifting of “force majeure.” The staff said it assumed (as had been stated regarding the end of “force majeure” at the Louisiana State University Health Sciences Center) that SUNO would be reverting back to Southern University’s financial-exigency policies.
Later that day, the staff telephoned the chancellor to be sure that he had received the request and to stress its importance. The chancellor stated that he had the request but that he himself could do nothing more and that the matter was in the hands of the attorney. A brief letter from a partner in the attorney’s law firm arrived shortly thereafter. On the question of whether Southern University policies on financial exigency would apply in the event of any new release of tenured faculty, she wrote that neither the “chancellor of one university within the Southern University System nor ourselves as counsel for the Board of Supervisors of the Southern University System can make such a statement.”
Committee A cannot countenance the possibility of the “force-majeure” procedures, as applied at SUNO in December 2005, being applied again. Committee A recommends to the Ninety-third Annual Meeting that Southern University at New Orleans be placed on the Association’s list of censured administrations.
The University of New Orleans is a component of the Louisiana State University System. The damage inflicted on its lakefront campus buildings by Hurricane Katrina was heavy but not nearly as severe as adjacent areas where students, faculty, and staff had lived, which were rendered largely uninhabitable. UNO managed to operate some classes during the fall 2005 term, the only New Orleans university to have done so, through online courses and the use of facilities outside the city, and it was the only public university in the city to have paid all full-time faculty members throughout that period.
Reopening its main campus in January 2006, however, UNO enrolled only 11,600 students rather than the 16,000 who would have normally enrolled for the spring, and the prognosis for funding for the 2006–07 academic year was poorer than had been expected. The administration formulated a restructuring plan, calling for specific cuts in programs and resulting savings through cuts in faculty and staff. A draft text dated February 26 that gained wide circulation was sufficiently explicit regarding amounts and sources of moneys to be saved to reveal to many professors that they were destined for layoff. An accompanying document explained that putting the plan into effect required, first, declaration by the Louisiana State University Board of Supervisors of a state of financial exigency at UNO and, second, board approval of recommended changes in UNO’s academic programs.
The criteria and procedures for implementing the cuts envisioned in the restructuring plan prompted the AAUP staff to convey the Association’s concerns in a letter sent to UNO’s chancellor on March 31, 2006. A criterion for retaining faculty members was to be “meritorious performance of which tenure may be an indicator,” thereby basing the release of a professor on a perception of relative merit and treating tenure as only one of a number of factors to be considered. The administration was not required to state the reasons for selecting particular persons for release, and a review procedure did not allow for a hearing before a faculty committee. The procedure provided instead for a meeting with the three administrative officers who were involved in the decision to release the professor (two faculty members were subsequently added), and the burden fell on the notified professor to convince the administrators that their decision was erroneous. The board approved a financial exigency declaration on April 21, acted on the restructuring plan on May 3, and on or about May 16, 2006, the administration sent notifications of placement on furlough to selected professors, the large majority of them tenured, who served in programs that were being eliminated or modified.
As to the total number who were notified, an initial estimate attributed to the administration in late February was that the 560 full-time pre-Katrina faculty positions would be reduced by eighty-three. In April, the chancellor was quoted as saying that seventy-eight faculty positions would have to be cut, but that thus far twenty-nine professors had left voluntarily. An unexpectedly large number of resignations and retirements occurred over the ensuing weeks, resulting in advertisements for new faculty appointments in several instances. The mid-May notifications were widely reported as numbering from thirty-five to forty, but several of the recipients had already arranged to resign or retire. At the beginning of June, the provost reported the number of involuntary furloughs as sixteen, but he called even this number “flexible” because more resignations or retirements might still occur.
At least ten of the notified professors submitted appeals, and they were heard by panels of three administrators and two faculty members during the month of June. In letters of July 7, the chancellor informed each of the professors that he was accepting a recommendation from the panel that the decision to place the professor on furlough be sustained. The letters provided a brief statement of the panel’s reasons in each case. They stated that possible transfer to an alternative position had been considered, but that a suitable position could not be found. Finally, they referred to the opportunity to request review of the decision by the president of the Louisiana State University System.
Seven of the professors did pursue their appeals to the system level. The system president sent almost identical letters to each of them on September 20, notifying them that he had found no basis for reversing the chancellor’s decision. He pointed out that their furloughs would expire on July 1, 2007, if no further action was taken, and that any move to terminate a tenured professor’s appointment would have to adhere to stated procedures for termination, with final action requiring approval by the system’s board of supervisors.
The special committee concluded that the administration of the University of New Orleans denied the furloughed professors safeguards of academic due process as provided in Regulation 4c (“Financial Exigency”) of the Recommended Institutional Regulations on Academic Freedom and Tenure, and that it paid scant heed to the protections of tenure as called for in the 1940 Statement of Principles on Academic Freedom and Tenure and the Recommended Institutional Regulations. The special committee concluded further that tenure at the university is likely to remain insecure so long as current procedures for the release of faculty are in place. Finally, the special committee concluded that the administration had not shown a need for continuing the furlough of any of the professors whom it had placed in that condition.
This past spring the special committee through its staff reiterated its hope that the administration would seek an acceptable resolution of the cases of professors who remained on furlough. The staff, however, was informed by furloughed professors of reports that the chancellor was going to notify all of them prior to the expiration of the furloughs that their appointments were being terminated, with no further proceedings indicated. The staff obtained assurances from the Louisiana State University System’s general counsel that appropriate proceedings for termination needed to be followed and that action by the system’s board of supervisors was required before termination of tenure could become effective. These assurances were conveyed by the staff to the professors, but in May each of them received notification of termination with the stated right to contest the decision through procedures identical to what was provided in the previous May’s notifications of placement on furlough. These procedures were confined to an appeal through an administration-dominated panel to the chancellor followed by application to the system office for a review of the decision which would be “at the sole discretion of the president.”
Committee A recommends to the Ninety-third Annual Meeting that the University of New Orleans be placed on the Association’s list of censured administrations.
Loyola University New Orleans suffered less damage from Hurricane Katrina than did the city’s other universities investigated by the Association’s special committee. Faculty and staff were paid during the fall 2005 term when the university was closed, and more than 90 percent of the students returned when it reopened in January 2006. On April 10, 2006, the administration put forth a plan, previously in development, called “Pathways,” for changes in the university’s operations and programs to make them ostensibly more effective in a post-Katrina New Orleans. Included in the plan was the suspension or discontinuance of numerous academic programs on grounds of educational considerations, with the resulting termination of the appointments of eleven tenured professors and six probationary professors who had already been reappointed for the 2006–07 academic year.
The Loyola procedures governing termination because of program discontinuance comport fully with AAUP-recommended standards: proposed actions are to be evaluated by the Standing Council on Academic Planning, an elected faculty body, under criteria established by the university senate. Before the administration issues notifications of termination, every effort is to be made to relocate affected professors in another suitable position; if another position is unavailable, severance salary is to be provided in accordance with the length of the individual’s past and potential service. Opportunity for a hearing of record before the faculty-elected University Rank and Tenure Committee is to be afforded, with the Standing Council on Academic Planning’s determination on discontinuing the program to be considered presumptively valid, but with the burden of proof on other issues to rest with the administration.
By contrast, the Pathways plan, made available to the Loyola community on April 10, was formulated by the provost and two assistant provosts without the university senate’s having established criteria and without any evaluation by the standing council. Both faculty bodies sharply criticized the substance of the plan and the process the administration had followed. The university senate and the faculty of Loyola’s largest college, humanities and natural sciences, voted “no confidence” in the provost’s office by overwhelming majorities, with the college faculty urging the board of trustees to allow further study of the plan by withholding action on it until November. The board, however, complying with the president’s recommendation, adopted the Pathways plan on May 19, 2006. Another faculty “no-confidence” vote, this time directed also against the president, followed in September.
In June, letters of termination on grounds of program discontinuance were sent to the seventeen professors. They were told that they would receive severance salary for one year but would have no teaching or other academic responsibilities, that they were to vacate their offices within two weeks, and that they would no longer have computer, library, or parking privileges. Some of these professors pointed out, to no avail, that they had already been assigned courses which would be offered the next term and that new instructors would need to be engaged to teach these and other courses that the tenured professors were qualified to teach.
Most of the seventeen professors filed for a hearing before the University Rank and Tenure Committee. Hearings on the cases of five of the tenured professors were held by late January 2007, and the hearing body sent its findings and recommendations to the university president and the subject professors on March 8. Six additional hearings were held during the course of the spring, and the hearing body reported on these cases in May. In all of these cases, the hearing body found unanimously that the administration had failed to follow the required procedures, failed to relocate the professor in an available suitable position, and, in the cases of those with tenure, failed to provide adequate severance salary. In the cases of all of the tenured professors, the hearing body recommended reinstatement. As of the first of June, the president of Loyola University had not responded to the March or the May findings and recommendations by the University Rank and Tenure Committee.
The special committee concluded as follows: that the Loyola University New Orleans administration, in terminating the seventeen appointments, acted in gross disregard of the university’s applicable policies and of the AAUP-recommended standards which the policies track; that the administration, in rescinding teaching assignments that had been made for some of the seventeen and in barring all of them from campus access and facilities, effectively dismissed them summarily, thereby violating the 1940 Statement of Principles on Academic Freedom and Tenure and the university’s own tenure policies; and that the administration, in ignoring prerogatives and actions of duly constituted faculty bodies and being unresponsive to successive faculty votes of no confidence, acted at odds with principles of shared governance as set forth in the Statement on Government of Colleges and Universities.
Committee A recommends to the Ninety-third Annual Meeting that Loyola University New Orleans be placed on the Association’s list of censured administrations.
The damage inflicted by the flooding in New Orleans after Hurricane Katrina was substantial at Tulane University’s uptown campus, where most of the institution’s colleges and schools are located, but not nearly of the magnitude endured by the downtown medical school and university hospital. The uptown campus was able to reopen, together with most other New Orleans universities, in January 2006, while the reopening of the medical school was not completed until last fall.
On December 8, 2005, the university’s governing board declared a state of financial exigency. The President’s Faculty Advisory Committee, a body elected by the university senate for consultation on urgent matters, had concurred in the president’s assessment that financial exigency existed, based on the information made available to the committee at that time. The next day, notifications of release were sent to some two hundred members of the faculty, more than half of whom were clinical faculty in the medical school. Among those being released were fifty-eight tenured professors: thirty-four in the School of Medicine (thirty clinical and four in basic sciences); six in the School of Business; and eighteen in the School of Engineering. Tenured medical faculty received twelve months of severance salary, and nontenured from three to twelve months. The business and the engineering professors could continue to serve until the expiration, as late as June 2007, of their current contracts. In the days following the notifications, some ninety additional professors submitted notice of resignation or retirement.
The reasons for the terminations in the engineering school became evident with the issuance that same December of the administration’s “Plan for Renewal,” a document stating that it was designed to take the university beyond survival and recovery, serving as a beginning point for long-range restructuring. The plan received a mixed reaction from the advisory committee, which questioned the president’s insistence on its immediate implementation instead of allowing first for broader faculty consultation. The focus of the plan was on development of an outstanding undergraduate program, with a less comprehensive offering of graduate, professional, and research programs. The faculty was to be reorganized into separate schools of liberal arts and of science and engineering, with the accredited programs and departments in the existing engineering school being reduced from nine to two. Numerous PhD programs in the humanities, the natural and social sciences, and various professional areas were to be suspended indefinitely. The Association’s special committee, serving as its investigating body, found worrisome an allegation raised by critics of the Plan for Renewal and rejected by its proponents: that the plan was an “opportunistic” effort to use the Katrina-created crisis to implement pre-Katrina administration proposals on academic matters that the faculty had resisted and would have continued to resist under normal conditions of shared governance.
With respect to the terminations in the School of Medicine, the report of the Association’s investigating committee found that the decisions on whom to release were made essentially by the vice president for the health sciences with scant regard for tenure and often without the knowledge of, let alone consultation with, the notified professor’s department chair. Only one case of termination is known to have been pursued to a hearing, which was held by the school’s grievance committee and reviewed by the Senate Committee on Faculty Tenure, Freedom and Responsibility (FTFR Committee). The administration declined to appear at the hearing, thus affording no opportunity for cross-examination. The medical school committee found that a state of financial exigency did indeed exist, that the AAUP’s applicable recommended standards were not binding on the administration, and that evaluating the criteria for terminating programs or faculty positions was beyond the committee’s scope. The FTFR Committee accepted these findings.
As regards the School of Business terminations, retirements and relocation elsewhere left only one case of a tenured professor’s appointment being terminated involuntarily, and that case has remained unresolved.
Regarding the School of Engineering, the faculty of the Department of Mechanical Engineering, the largest of those notified of discontinuance, took its case to the FTFR Committee. The faculty argued, among other points, that the department was financially self-sustaining and that the quality of its academic performance made it nationally competitive. The administration, as it did in the medical school case, refused to have anyone present at the hearing, and it submitted a written statement that commented on Tulane’s financial situation in general terms without explaining why it selected the Department of Mechanical Engineering for closure. The FTFR Committee found that the department contributed substantially to Tulane’s financial health and thus its discontinuance had to be for reasons other than its financial performance. The committee also found that the administration had failed to meet an obligation in the faculty handbook to make affirmative efforts to place affected tenured professors in other suitable positions. The committee recommended that the department be retained as a unit in the new School of Science and Engineering pending the results of an evaluation of its academic performance.
The case of the Department of Mechanical Engineering was then brought to the governing board, which scheduled a hearing at which representatives from both sides could present their respective arguments and offer brief rebuttal. A fortnight after the hearing, the board chair wrote to inform the administration and the department that the governing board concurred in the administration’s position on all counts.
The special committee as the Association’s investigative body concluded that the Tulane University administration acted at variance with the 1940 Statement of Principles on Academic Freedom and Tenure and derivative AAUP-supported standards in the following ways: it declined to provide reasons for selecting particular programs and faculty appointments for termination, thus depriving individual professors of the ability to assess the validity of applying the declaration of financial exigency to their particular case; it declined to seek to relocate affected tenured professors in other suitable positions; and in terminating two hundred or more faculty appointments on grounds of financial exigency it made no meaningful distinction, except for affordance of notice or severance salary, between tenured and nontenured members of the faculty.
Tulane University’s president declined to meet with the Association’s special committee before seeing its report. When he received a draft text, he provided detailed comments that included his view that, although the report conflated objective investigation with advocacy for dissenting faculty, it actually found relatively few differences over policies and practices. The special committee staff subsequently spoke with the president to explore whether identified differences might be resolved or ameliorated before Committee A and then the annual meeting convened in June. With respect to policies, the president referred to revisions recommended by a committee of the university senate, among them a strong presumption for retaining tenured over nontenured faculty in selecting who must be released, for consideration once Tulane was no longer in a state of financial exigency. Although the senate committee’s report had questioned the continued existence of a condition of financial exigency, the president stated that it was still premature to set a specific date for ending it. With respect to differences over practices as reflected in the handling of specific cases, the president, although reminded that the AAUP had over the years contributed in its mediative role to the amicable resolution of several disputes at Tulane, stated that the administration will not discuss personnel matters with anyone outside the university.
Committee A recommends to the Ninety-third Annual Meeting that Tulane University be placed on the Association’s list of censured administrations.
No Recommendation Regarding Censure
Six schools comprise the Louisiana State University Health Sciences Center, the School of Medicine by far the largest. Hurricane Katrina’s damage to the institution’s facilities, finances, and sheer ability to perform was immense, yet it managed within weeks to resume some of its functions by using other locations. All faculty continued to receive salary and benefits while the university was closed and when it reopened partially in September, October, and into November 2005. That situation was to change abruptly, however, with the approval on November 18 by the LSU Board of Supervisors of a “force-majeure” exigency plan that superseded existing Louisiana State University regulations.
The plan provided the LSUHSC chancellor with authority to determine how many and what kinds of positions were currently needed and thereby to decide which professors would be placed on “furlough” status, defined as “temporary leave without pay” that could “lead to eventual termination.” As of December 1, fifty-one full-time (and thirty-four part-time) faculty members were placed on furlough and removed from the payroll, and another ten full-time (and two part-time) faculty were furloughed subsequently. Notifications of placement on furlough reached affected professors only a few days before and, in some cases, only on or after the December 1 date when they ceased being paid. The procedure provided them with only five working days to request review of the decision by the vice chancellor and the appropriate dean, who would then submit a recommendation to the chancellor on whether to sustain or reverse the decision. If the chancellor sustained the decision, the notified professors would then have three working days to apply for a review by the system president.
The Association’s special committee took issue with the assertion in the newly adopted “force-majeure” plan that the replaced financial-exigency procedures were “predicated upon ordinary circumstances.” Its report pointed out that financial exigency was already defined as a critical and pressing need for the university to “reorder its monetary expenditures in such a way as to remedy and relieve the state of urgency.” Although the LSUHSC financial-exigency procedures had significant shortcomings in protecting faculty rights when measured against applicable AAUP-recommended procedures, the special committee judged those provisions for faculty participation in the process far superior to what was set forth in the “force-majeure” plan. The committee reported that the latter document essentially excluded the faculty from consultation about the nature and extent of the financial difficulty, allowed decisions on whom to furlough to be made without deference to seniority and tenure, inappropriately introduced subjective considerations of relative merit in the furlough decisions, failed to acknowledge a presumptive right of potentially furloughed faculty to transfer to other suitable positions, and failed to acknowledge rights of recall as positions become available.
The special committee’s investigation resulted in the conclusions that follow. The Louisiana State University Health Sciences Center administration discarded existing financial-exigency procedures without adequately explaining why it found them inadequate, thereby setting aside standards conforming more closely with those in the 1940 Statement of Principles on Academic Freedom and Tenure and derivative AAUP-supported policies and procedures. The administration proceeded to place numerous professors on unpaid furlough with virtually no notice, acting at odds with AAUP-recommended standards and the institution’s own previous standards by unilaterally deciding whom to furlough, while paying little, if any, deference to tenure rights and rights to relocation in another suitable position. Finally, in those cases where the furloughs were likely to be permanent, the administration has effectively terminated those appointments without having respected tenure rights and afforded academic due process.
While faulting the LSUHSC administration for its actions under the “force-majeure” plan, the special committee also reported some encouraging developments during the 2006–07 academic year as the institution showed increasing signs of recovery from the trauma of Hurricane Katrina. It was announced at the final board of supervisors meeting for 2006 that no more furloughs under the “force-majeure” plan would be imposed. The administration notified the special committee of reductions, as of early January 2007, in the number of furloughed faculty: nine professors had been reinstated to active faculty service and a tenth brought back to a nonfaculty position; discussions on reinstating seven to ten additional professors are proceeding or planned; others who were furloughed have retired or resigned. In sum, the total number of professors on involuntary furlough, sixty-one a year earlier, had been reduced to twenty-two, six of whom had tenure.
The weeks since the special committee’s report went to publication have brought word of additional encouraging developments at LSUHSC. Of the six furloughed professors with tenure, three (one of whom declined an offer of recall) have retired, one has resigned (after declining recall), and two (one of whom has also declined recall) remain on furlough. The January total of sixteen full-time furloughed nontenured faculty has been reduced to twelve, with five of them having declined a recall offer, a sixth on a fellowship elsewhere, a seventh about to retire, and an eighth and ninth who will be recalled upon an expected restoration of funding in their clinical area. Thus, there remain only four cases of involuntary furloughs (involving three nontenured professors and one with tenure) for which a resolution is not yet in sight.
The administration has confirmed that it has no intention of taking any further actions under the “force-majeure” plan. The plan will remain officially in place until notices of termination, issued to four nontenured professors furloughed under the plan who rejected recall, have run their course. At that point, the applicable policies at LSUHSC will revert back to the system’s regulations on financial exigency. The administration has stated that it will give consideration to specific proposals for modifications in these regulations, which would be presented to the system’s board of supervisors for adoption.
The administration has also expressed interest in working with the faculty leadership on governance matters during the coming year and beyond.
In light of these salutary developments and with further developments in process, Committee A makes no recommendation to the Ninety-third Annual Meeting regarding the Louisiana State University Health Sciences Center. The committee and its staff plan to keep in close contact with the institution’s administrative officers and faculty leadership in the year ahead, and the committee will report back on LSUHSC to the Ninety-fourth Annual Meeting in 2008.
Removal of Censure
Committee A adopted the following two statements recommending action with regard to institutions on the censure list. The Council concurred in both recommendations. The Ninety-third Annual Meeting voted in both cases to remove censure.
The 2002 annual meeting voted to place Tiffin University on the censure list following the report of an investigating committee concerning action taken by the administration to dismiss a professor in his twelfth year of full-time service without having provided a 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 disregard of academic due process as called for in the 1940 Statement of Principles on Academic Freedom and Tenure. The committee further concluded that the administration 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 inhibited the faculty’s exercise of academic freedom. The committee also found the university’s official policies and the administration’s practices deficient in meeting the standards for faculty participation in institutional governance enunciated in the Statement on Government of Colleges and Universities.
Several years ago the dismissed professor reached a settlement with the university, and the institution, by then under a new president, adopted AAUP-recommended policies on academic freedom and new policies on academic governance. Deficiencies in the university’s policies and procedures in cases of dismissal remained to be addressed. The procedures also failed to provide explicit protections that accrue with indefinite tenure following a probationary period.
Correspondence between the university president and the Association’s staff bore fruit this past year, when the president agreed to changes in the institution’s regulations to bring them into essential conformity with AAUP-supported standards of academic due process. The regulations of Tiffin University now provide for an appropriate hearing in a dismissal case and also for a hearing of record before an elected faculty body if the administration seeks to deny a faculty member reappointment after seven years of full-time service. Two AAUP representatives, one of them the current president of the Association’s Ohio conference, visited the Tiffin campus this spring to assess current conditions at the university. They met with more than a dozen faculty and administrative officers and reported that virtually all of the faculty members with whom they met “seem to find their academic life at Tiffin to be quite satisfying and felt that their rights are not being abridged by the administration.” The day following their visit, the Tiffin faculty, at its regular monthly meeting, with forty-six out of sixty-one members present, voted unanimously to approve a resolution supporting the university’s removal from the censure list.
Committee A recommends to the Ninety-third Annual Meeting that Tiffin University be removed from the Association’s list of censured administrations.
The administration of New Mexico Highlands University was placed on the censure list last year by the Ninety-second Annual Meeting. The report of the investigating committee concerned actions the administration had taken in the cases of two faculty members, both of them unsuccessful candidates for tenure.
In the case of the first faculty member, the committee’s report found that less than a month after the administration had notified him of the rejection of his tenure candidacy, he was dismissed from the faculty and banished from the campus effective immediately, apparently because of statements he had made in the press and to his colleagues that were sharply and personally critical of actions taken by members of the administration. His dismissal was effected without a hearing, and payment of his salary ceased with the termination of his services. The investigating committee found that, to the extent that the administration acted to dismiss him because of displeasure with his public criticism of its policies and actions, it violated his academic freedom. The committee concluded that these actions violated the 1940 Statement of Principles on Academic Freedom and Tenure.
With regard to the second professor, the investigating committee concluded that the administration acted in disregard of the Association’s Statement on Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments by not providing him with a statement of reasons for its decision to deny him tenure and by setting aside without substantive comment the judgments of two faculty appeals committees. These faculty committees found that inadequate consideration had been given to his qualifications and that numerous procedural irregularities had occurred in the evaluation of his tenure candidacy. The investigating committee also concluded that the administration disregarded the principles of shared governance articulated in the Statement on Government of Colleges and Universities.
A month after the censure was imposed, the president of New Mexico Highlands University resigned. A few months later the university reached a settlement with the first professor, reinstating him to the faculty and granting him tenure. In March, a settlement was reached in the case of the second faculty member. A new president who had taken office in January pledged to address outstanding issues relating to the censure, including revisions in official institutional policies relating to academic freedom, tenure, and due process to bring them into closer conformity with Association-supported standards. He has worked with the Highlands faculty leadership and in consultation with the Association’s staff to effect the requisite changes. These include provision for appealing an adverse reappointment decision on grounds of impermissible discrimination, and the establishment of appropriate hearing procedures in the case of a nontenured faculty member who is dismissed within the term of an appointment. These changes were approved by the university’s board of regents in mid-May.
The visit to the Highlands campus of an AAUP representative, formerly the chapter president at the University of New Mexico, took place this spring. He reported having “found no substantial evidence that the pattern of attitudes and practices described in the 2006 investigative report persists at New Mexico Highlands University today,” and he recommended the removal of censure.
Committee A recommends to the Ninety-third Annual Meeting that New Mexico Highlands University be removed from the Association’s list of censured administrations.
Conclusion
My first year as chair of Committee A has reinforced my convictions about the importance and the effectiveness of its work. Moving statements made on the floor of the annual meeting by professors from universities in New Orleans repeatedly thanked the AAUP as the only national organization that became intensely involved in the plight of faculty members affected by Hurricane Katrina and its aftermath. Developments that led the annual meeting to remove two universities from the list of censured institutions provided fresh evidence that censure by the AAUP can be a powerful inducement to institutional reform. At one institution, the president resigned under reported pressure from trustees concerned about the problems identified in the investigation conducted by the AAUP’s ad hoc committee that led to the censure. At both institutions, administrators appointed subsequent to the imposition of censure made the removal of censure a high priority. They worked closely with the staff of Committee A to reach settlements with faculty members and to bring institutional regulations into closer conformity with AAUP standards. I am hopeful that administrators at the institutions recently placed on the censure list will work with the staff of Committee A and take actions that will enable the removal of censure.
Committee A has also worked effectively with other organizations in advancing its policy recommendations. At a meeting in September 2006 funded by the Open Society Institute, members of Committee A, other AAUP leaders, and members of the AAUP staff discussed with representatives of many other higher education organizations the policy statement Academic Freedom and Outside Speakers, which Committee A had approved for publication the previous year. Organizations represented at that meeting, often by university presidents and other administrators, included the Association of American Colleges and Universities, the American Association of State Colleges and Universities, the Association of Catholic Colleges and Universities, the American Council on Education, the Association of Governing Boards of Universities and Colleges, the Council of Independent Colleges, the National Association of Independent Colleges and Universities, and the National Association of State Universities and Land-Grant Colleges. The participants at that meeting agreed to distribute a list of consensus points, which included the major recommendations in the AAUP policy statement. Most importantly, that consensus included the point that
invitations issued by authorized student and faculty groups ought not to be cancelled or materially modified because college or university officials do not agree with the views of an invited speaker, or because college or university officials fear that such invitations might compromise the political neutrality of their institutions. At stake in such invitations is the academic freedom of students and faculty to hear, and not the official approval of the college or university. Colleges and universities may, and sometimes should explicitly, affirm that sponsorship of a speaker or forum does not constitute official endorsement of the views expressed.
Committee A voted in July 2007 to approve Academic Freedom and Outside Speakers as official policy.
I close by thanking my colleagues on Committee A and the Committee A staff both for their hard work and for their stimulating company. A wonderful combination of experienced and recently appointed members and consultants, from a wide range of disciplines and institutions, work with a highly professional and dedicated staff to defend and promote academic freedom, the core value of the AAUP.
David M. Rabban, (Law)
University of Texas, chair
Cases Settled through Staff Mediation
The four brief accounts that follow serve to illustrate the nature and the effectiveness of the mediative efforts of Committee A’s staff in successfully resolving cases. More than a dozen such cases were closed during the 2006–07 academic year after achievement of a resolution through the staff’s mediation.
A tenured professor at a public university in the Midwest, who had a long-standing dispute with the head of his department, complained to the Association that he had been deprived of the opportunity to teach courses in his specialty and of appropriate increases in his salary without any professional shortcomings on his part having been stated and demonstrated. The staff wrote to the administration and then met with the responsible administrative officer in an effort to effect a mutually acceptable resolution. At the end of that academic year, the professor was restored in significant part to his previous course work, and part of his complaint regarding salary was also resolved. Moreover, he was informed that he could expect full restoration of his former course work after another year, when a new department head, who had already been consulted on the matter, would take office.
A faculty member at a small private university in the West served for a year on a visiting appointment and was retained on a regular probationary appointment for the next academic year and again for the year after, when, on December 15, he was issued notice of nonreapointment. The administration, while expressing its intention to adhere to the Association’s Standards for Notice of Nonreappointment, asserted that the faculty member’s initial year on a visiting basis need not be counted and that the December 15 notice was therefore timely. The faculty member, stating that his duties during the initial year were no different from those during the next two years, asserted that he should be regarded as in his third year of service and therefore entitled to twelve months of notice. After the faculty member sought assistance from the Association’s staff on the matter, the staff wrote to the administration to recommend that, assuming no significant difference between the faculty member’s duties during the first year and his subsequent duties, the notice be rescinded. The administration concurred. It withdrew the notice and reappointed the faculty member for the following academic year.
A faculty member at a community college in the East assigned a failing grade to a student after the student, despite repeated warnings, did not do the assigned work in the classroom. The student complained to an administrative officer that she should have received a passing grade because, although she did not do the classroom work, she had some related field experience. The administrator, without discussing the matter with the faculty member or anyone else in the faculty member’s department, ordered the faculty member to change the grade to “satisfactory.” The faculty member did so under protest and also protested to the Association. The AAUP’s staff wrote to the college’s chief administrative officer, emphasizing that the academic profession considers the assignment of student grades to be a faculty responsibility, with administrative officers proscribed from ordering grade changes that do not carry faculty approval. The administration’s initial response did not address this issue. The staff wrote again. The administration then notified the staff that it accepts, as the official position of the college, the statement that the grading of students is the “primary and sole responsibility of faculty.”
A professor at a large public university in the South asked the Association for assistance after having been notified by the administration that she would not receive tenure and her appointment for the following year would be terminal. She had been recommended favorably for tenure by the overwhelming majority of her tenured colleagues, who commended her for the excellence of her professional performance. A new department head, however, who had quarreled with her over administrative matters, strongly opposed her candidacy on grounds of poor “collegiality,” and his position was supported by the dean.
A member of the Association’s staff wrote to the university’s chief administrative officer that the allegation by the new department head of deficient “collegiality” not only seemed quite unfair on the basis of the available facts—with no complaints about her collegiality having come forth from her colleagues who had known her and her work since she first came to the university—but also suggested that opposition to her candidacy was based significantly on her having legitimately exercised her academic freedom on matters of professional concern.
Within a week after receipt of the staff member’s letter, the administration notified the professor that she was being granted tenure. “It has been a great consolation to me to have the backing of the AAUP,” the professor wrote to the staff, “and I only hope to be of service some day through the AAUP to those faculty members in a situation similar to mine.