Developments Relating to Association Censure

While administrative officers at nearly a dozen institutions on the Association's censure list have conveyed interest this past year in taking steps that would lead to censure removal, initial steps toward removal taken or planned at only one of them, Yeshiva University, have been sufficient to warrant publication at this time. Developments at another university, Louisiana State, have been sufficiently negative, unfortunately, also to warrant publication. Accounts of both cases appear below.

The administration of one of the institutions sanctioned for departing from AAUP-supported governance standards has reiterated an interest in removal of sanction this year, but publication at this time would be premature. Information about the current status of other institutions on the sanction and censure lists (printed respectively on pages 48 and 49 of this issue) is available from the Association’s Department of Academic Freedom, Tenure, and Governance.

Yeshiva University (New York), 1982

Censure resulted from an investigating committee’s findings that the university’s financial situation did not warrant terminating the appointments of three tenured professors and that the administration had declined to justify its actions before a faculty hearing body. The three cases were settled many years ago, but deficiencies in the official Yeshiva University policies governing faculty appointments remained uncorrected.

Nearly two decades went by before, with the arrival of a new provost, a project to revise the entire faculty handbook was launched. It proceeded at a snail’s pace, and it was not until December 2012 that the board of trustees adopted a revised faculty handbook that upheld AAUP-recommended standards in nearly all significant respects, but with an important exception: it was ambivalent on whether it required that the administration provide a rejected candidate for reappointment or tenure with a written explanation for the adverse decision. The provost who steered the revised document through to adoption insisted that an oral explanation upon the candidate’s request was sufficient, and a lawsuit by a faculty member denied tenure who was able to obtain only a few meaningless words by telephone from her dean did not sway the provost from his position.

A new Yeshiva University provost took office in July 2014. In early October, she asked the AAUP staff what was required in order to resolve the censure situation. The staff member handling the case explained the AAUP’s problem with the refusal to require a written statement of reasons and provided copies of correspondence about the issue with the former provost, together with copies of the applicable AAUP-recommended procedural standards. In an October 21 response, the provost expressed thanks to the staff for following up and said she would be back in touch when she was ready to proceed. A reminder sent in late November brought no response, but yet another reminder in February did bring about the reply that she was “deeply engaged in academic work with deans and faculty” and could not at the same time deal with the AAUP’s concerns.

In April, however, the provost found herself having to deal directly with the AAUP’s long-standing concerns with the Yeshiva policies and practices on providing reasons for nonreappointment and their review by a faculty body. As part of a budget-driven restructuring, the previously separate men’s and women’s college economics departments were merged into a single department. All tenured economics professors were retained, but two promising assistant professors in their third year were notified of nonreappointment. Widespread fear among the faculty that the administrators were placing the tenure system at Yeshiva in jeopardy led the provost to issue a “general e-mail to faculty.” She pledged her strong support to the continuance of the tenure system, assured the faculty that tenure would continue to be granted to recommended probationary faculty based on academic merit, and explained in four sentences the “very difficult decision,” driven by unique circumstances, to eliminate the two tenure-track lines.

Officers of the Yeshiva faculty council consulted with the AAUP staff about the content of a communication to the provost sent on April 29. The letter faulted her for not informing the two economists, as required under the Yeshiva and AAUP-recommended policies. The letter went on to assert that a far more serious violation was her refusal, despite the professors’ requests, to convene a Faculty Review Committee as called for in Yeshiva and AAUP-supported policies. It points out that her rationale is that none of the three grounds for appeal (inadequate consideration, academic freedom violation, and impermissible discrimination) apply in the two cases and accordingly a Faculty Review Committee is not needed. “The provost may argue her position before the Committee,” the faculty council emphasized, “but she may not substitute her own deliberations for those of the Committee.” The provost immediately accepted the recommendations in the faculty council’s letter and proceeded to convene the Faculty Review Committee.

The AAUP staff member telephoned the provost to commend her for her actions in these matters. Mutual interest was expressed in achieving censure removal by the 2015 annual meeting, and a review of the requisite steps was begun.

Committee A will have these satisfactory developments on the agenda of its meeting on May 29 and 30.

Louisiana State University, Baton Rouge, 2012

The censure imposed by the annual meeting was based on actions taken by the administration in two cases that differed regarding the administrations involved and in the matters under dispute but that were alike in testing core issues of academic freedom. The first case involved a non-tenured associate professor of engineering who was denied retention after seventeen years of full-time service without the administration’s having demonstrated cause for its action in a faculty hearing. His work in coastal erosion and flood-related issues had brought him prominence and favorable evaluations. Hurricane Katrina’s August 2005 onslaught placed him in a national spotlight that the LSU authorities were at first glad to share. Their support ended, however, after he discovered that a main cause of the New Orleans flooding was the structural failure of the levees overseen by the US Army Corps of Engineers. The LSU administrators, anticipating cooperation and funding from the corps in coastal restoration projects, resisted having been linked in the media with the professor’s findings. They restrained his public activities, kept LSU at a distance from those activities, and subsequently denied him further appointment. The AAUP investigating committee concluded that the administration not only denied the engineering professor requisite academic due process but also violated his academic freedom by terminating his services largely because of his dissent over the levees and the consequent flooding, by restricting the nature of his research, and by penalizing him for having exercised his rights as a citizen to speak out extramurally.

The second case on which the censure was based involved a tenured full professor of biological sciences with repeated commendations for teaching excellence, who in spring 2010 agreed to “pitch in” by teaching, for the first time in fifteen years, a section of an introductory course. Her midterm grades were largely D and F, leading the college dean, without consulting her, to remove her immediately from teaching the course. She asked the dean to hear her explanation for the grades and to reconsider his decision to suspend her. He replied that he was willing to talk with her but that the decision stood. The LSU faculty grievance committee found unanimously in her favor, whereupon the dean apologized to the professor, not for having failed to consult with her before he acted but only for having failed to tell her that he was removing her. The AAUP investigating committee concluded that the administration violated her rights to assign grades and, in peremptorily removing her from an ongoing course, violated her academic freedom to teach.

The engineering professor initiated litigation and in late 2012, after extensive discovery proceedings, reached a financial settlement with the university. The biology professor received an apology that could have been stronger, but the administrators who had a role in her case had by 2013 all moved on and in May 2014 the LSU Honors College published an article accompanied by a press release that praised her for her teaching leadership. The two major cases that had led to censure thus were settled for all practical purposes.

The year following the imposition of AAUP censure was a stormy one for the higher levels of LSU governance. It witnessed the departures of both the president of the system and the chancellor of its flagship Baton Rouge institution. An interregnum ended in spring 2013 with the appointment of Dr. F. King Alexander to the combined positions of system president and Baton Rouge chancellor. In March 2014, he informed the Association of his interest in achieving removal of the censure, and he delegated his vice provost for academic programs to work with the AAUP’s staff in accomplishing what needed to be done. The vice provost provided the staff and Committee A with requested documents and data. Among welcome developments was a 2013 policy statement on student grading that deals with fairness in assigning grades and with the respective rights of involved students, instructors, and administrators. Also welcome were a revised document on tenure-track faculty appointments that emphasizes the crucial role of a strong tenured faculty and a document which requires that for hearing bodies in dismissal proceedings all the members be selected from lists provided by the local AAUP chapter and the senate executive committee. A document on full-time faculty members designated as ineligible for tenure was seen by Committee A, and acknowledged by the vice provost, as incomplete, in that it was silent regarding the affordance of academic due process in cases of involuntary appointment termination of faculty members who have served beyond the probationary period. A lengthy statement on the LSU censure was formulated by Committee A in consultation with the vice provost (who had come to Washington to visit with its drafters) and was presented to the 2014 annual meeting. The Committee A statement, with its recommendation approved by the delegates, reads as follows:

The good news reported in this statement is tempered by one important area of uncertainty that leaves Committee A hesitant about recommending the censure’s removal today. A major concern over the past few years for the AAUP nationally, and particularly at large research universities such as LSU in the context of a removal of censure, is the status and the number of full-time faculty members who serve, beyond any reasonable period of apprenticeship, on term appointments renewable at the administration’s discretion. They thus lack the safeguards of academic due process that accrue with the indefinite tenure for which they are not officially eligible.

Late in April the AAUP staff received from the provost’s office the previously noted Policy Statement 36-NT, the parallel statement to PS 36-T for tenure-track and tenured faculty, that governs full-time appointments at specified ranks outside the tenure system. The faculty senate had called for the issuance of PS 36-NT so that procedures for hiring, evaluating, and retaining faculty on contingent appointments are spelled out as clearly as they are for tenure-track faculty, with the result that the procedures in the two documents are much the same until the transition from probation to tenure occurs in PS 36-T. As to the numbers of full-time contingent faculty, figures supplied by the administration indicate that, among those holding one of the three professorial ranks, there were 86 such faculty during 2009–10 when PS 36-T and PS 36-NT were issued, and there have been 93 during 2013–14, both numbers subject to some increase when faculty members holding a nonprofessorial rank such as instructor are included. Certainly the similarity in the numbers over five years indicates that there has been no rush at LSU to fill vacancies with contingent appointments. On the contrary, the vice provost reports that, pending funding in the state fiscal budget, the university plans to fill twenty-five new tenure-track and tenured positions in selective needed specialties.

The LSU administration has not quarreled with Committee A’s position that the number of faculty members on full-time contingent appointments can and should be substantially reduced, yet this is the kind of task that cannot be responsibly accomplished by the stroke of a pen. In order to recommend censure removal today, Committee A would need to predict, based on its knowledge of the discussions that have been held on the matter, that within a few weeks after the start of the new academic year, actions that significantly reduce contingent faculty appointments will be in process. Lacking evidence upon which to base that prediction, Committee A is reluctant to recommend LSU’s removal from the censure list at this moment. With all of the positive steps toward removal that the LSU administration has taken, however, the committee is equally reluctant to have the action held over until the annual meeting in 2015. It accordingly recommends that this annual meeting delegate to Committee A authority for removing the censure once it can attest that actions are in process which will ensure the protections of academic due process for full-time faculty members holding contingent appointments. If the committee cannot so attest by the time of its fall meeting in November, the issue of censure removal will be held over for consideration by the annual meeting in 2015.

In August, the staff wrote to the vice provost, with an eye toward resolving the matter of academic due process prior to Committee A’s November meeting and the end of its delegated authority to remove the censure. The staff proposed reaching a mutual understanding promptly on the specific “protections of academic due process” to be provided and to agree on a schedule for transmitting a text to Committee A.

On October 10, the vice provost sent what was called the LSU response to the AAUP censure recommendations. With respect to full-time faculty ineligible for tenure, a revised text called for a norm of three-year, rather than one-year, renewable appointments and for a new academic rank of “senior instructor,” with the dean rather than the chair making the final decision against reappointment. Not included in the response, however, was anything with respect to academic due process. Replying on October 13, the staff urged further consideration of the AAUP’s proposal, “that after six years of service reappointment can be denied only for adequate cause, to be demonstrated by the administration in a hearing of record before a body of faculty peers.”

The vice provost’s reply included “an analysis of LSU’s policies . . . as compared to the thirteen higher education institutions that serve as our peer institutions.

The analysis reveals that our current policies are consistent with those from our peer institutions. . . . LSU has made significant improvements in its policies and procedures over the past two years. These enhancements ensure protections of academic due process for all university faculty.”

Upon the conclusion of Committee A’s fall meeting, the AAUP’s staff informed President Alexander by letter of November 3 that the committee regretfully was not able to attest to actions in process “which will ensure the protection of academic due process for full-time faculty members holding contingent appointments” and that “the matter of censure removal thus will be held over until Committee A reports to the next annual meeting in June 2015.”

Regarding the additional information “indicating that due process afforded at LSU is not significantly different from what its peers afford,” the letter goes on,

you should know that, in discussion at our meeting, committee members emphasized a major difference. Only LSU among the group was on the AAUP censure list, in large part because its administration denied retention to an associate professor after seventeen years of service in an academic position outside the tenure system. The decision was made unilaterally by the contingent faculty member’s dean, which was permissible under existing LSU policy. While the faculty member’s case was resolved through an out-of-court settlement, the ability to remove a senior faculty member from service as was done in this case is still permissible. The report of the AAUP investigation, approved by Committee A, concluded that the action was in disregard of the 1940 Statement of Principles, and committee members clearly expect adoption of provisions affording academic due process in such cases as a requisite for censure removal.

The Committee A members think it best not to issue a public statement explaining why it did not remove the censure. Rather than “go public” with our differences, the members would welcome pursuit of informal discussion in the weeks ahead on due process in cases of involuntary termination.

The above letter brought no response, nor did a November 20 staff letter specifying steps that could be explored. A December 16 staff letter informed the administration, in the absence of interest in further exploration, that a report on the censure’s current status would be one of the accounts of “Developments Relating to Association Censure” in this issue of Academe. This letter elicited a reply dated January 27, 2015, from President Alexander reiterating the administration’s previous position, saying that “at this time, LSU does not plan to pursue any further action regarding removal of censure,” and thanking the AAUP for “its time and interest in working with LSU.” The staff responded by expressing hope that the president would soon change his mind and inviting him to “get back to us once you see fit to resume discussion.”

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