Presentation to National Conference on Law and Higher Education
Stetson University College of Law
By Donna R. Euben, AAUP Staff Counsel, and Barbara Lee,
February 20-22, 2005
In business organizations, employee discipline is used for three purposes: to rehabilitate a potentially satisfactory employee, to deter similar misconduct by that employee or by other employees, and to protect the employer's ability to operate the business successfully. 1 Academic organizations may use discipline for these purposes when nonfaculty employees engage in misconduct, but the discipline of a faculty member appears to be rare. Regrettably, some faculty members occasionally engage in misconduct, and their peers and administrators may face the need to respond to conduct that negatively affects faculty, students, or staff.
In nonacademic organizations, particularly those whose employees are unionized, a system of "progressive discipline" has emerged that is standard practice in most of these organizations. The rationale for progressive discipline is that the organization's response to a first offense (unless it is a very serious one such as assault or theft) should be more moderate than the response to a second, third, or fourth offense, particularly if the employee repeats the same offense. Therefore, initial discipline for a moderately serious offense would typically be an oral reprimand or warning, the discipline for the second occurrence might be a written warning, the discipline for a third offense might be an unpaid suspension, and termination might follow a fourth offense.
Benefits to the organization of progressive discipline include a clear record of employer attempts to "rehabilitate" the employee by punishing each successive offense more severely, and giving the employee several chances to improve prior to imposing severe discipline or termination. The use of progressive discipline also enables the organization to show that it communicated to the employee and to co-workers that the misconduct violated organizational rules, and will be responded to firmly.
Limitations of progressive discipline include less organizational flexibility to respond to employee misconduct (although, for the sake of organizational consistency, most lawyers would see this "problem" as a benefit). The use of progressive discipline may also lengthen the time that a problematic employee is employed, as the organization proceeds through all of the steps of the discipline process.
Given the realities of tenure, and the elaborate processes required to terminate a tenured faculty member, institutions may wish to consider sanctions short of termination when faced with a faculty member who engages in misconduct. In addition, having sanctions that are less serious than termination may make faculty and administrators more willing to respond appropriately to problematic faculty behavior, whereas they might be hesitant to impose the ultimate sanction of tenure revocation for anything but the most serious misconduct.
Reasons for Faculty Discipline
Under what circumstances might an institution choose to discipline rather than to dismiss a faculty member? Although each situation would be fact-specific and thus difficult to generalize about, there may be situations where the institutional response will be something short of termination. For example, certain forms of academic misconduct may be serious enough to warrant termination, or the facts may suggest that a sanction short of termination, such as suspension or not being allowed to work with student research assistants for a period of years, is more appropriate. Behavioral problems, such as disruptive disputes with students, faculty, or staff might warrant discipline short of termination. On the other hand, sexual or racial harassment of students or staff, or criminal misconduct such as embezzlement or physical violence, might lead the institution to commence de-tenuring proceedings.
Although the institution probably cannot anticipate every form of faculty misconduct that may occur, developing a policy to deal with such issues as they arise will help the institution respond promptly, provide guidelines for appropriate investigation and determination of whether misconduct occurred, and decisions as to what sanction, if any, is appropriate. At most institutions, the faculty will want to be part of the policy development process as well as part of the review and sanctioning process.
Policies for Faculty Discipline
The notion of "progressive discipline" is not a term that one sees in many faculty handbooks. But see Trimble v. West Virginia Board of Directors, 549 S.E. 2d 294 (W. Va. 2001) (college "should not have fired [tenured professor] before resorting to other progressive disciplinary measures" under West Virginia constitution). Nevertheless, there are sanctions less severe than dismissal that may be appropriate in dealing with particular faculty matters that do not rise to just cause. The Commission on Academic Tenure observed in 1973 that it was
manifestly insufficient to have a disciplinary system which assumes that only those offenses which warrant dismissal should be considered seriously. Faculty members are from time to time guilty of offenses of lesser gravity. There should be a way of recognizing these and imposing appropriate sanctions. And it is equally insufficient to make do only with disciplinary procedures designed for capital offenses. Simpler procedures-though assuring due process in the particular context-are obviously required for offenses for which sanctions short of dismissal are contemplated.
Faculty Tenure: Commission on Academic Tenure 256 (Keast, ed., 1973) ("Faculty Tenure") at 76. Accordingly, the commission recommended as follows:
[T]hat each institution develop and adopt an enumeration of sanctions short of dismissal that may be applied in cases of demonstrated irresponsibility or professional misconduct for which some penalty short of dismissal should be imposed. These sanctions and the due-process procedures for complaint, hearing, judgment, and appeal should be developed initially by joint faculty-administrative action.
Some institutions have clear policies that cover sanctions other than dismissal, such as those at Michigan State University, "Policy and Procedure for Implementing Disciplinary Action Where Dismissal Is Not Sought" ("Disciplinary action may include but is not limited to reprimand, suspension with or without pay, reassignment of duties, foregoing salary increase and/or benefit improvements, and mandatory counseling and/or monitoring of behavior and performance. Suspension without pay may not exceed six months."), http://www.hr.msu.edu/hrsite; University of New Mexcio, Appendices II and III (incorporating AAUP's procedural protections), http://www.unm.edu/~handbook/; Northwestern University (discussing suspensions and minor sanctions), http://www.northwestern.edu/provost/faculty/handbook.pdf.
Whether or not the institution has adopted AAUP policy statements regarding the faculty's role in reviewing misconduct charges and recommending sanctions, the institution should consider how the decision to discipline a faculty member will be made. What types of misconduct will be grounds for discipline? Who will be involved in making the determination that the misconduct occurred? Once that determination has been made, who will make the decision concerning what type of discipline to impose?
The AAUP's Statement on Professional Ethics provides a starting place for a faculty discussion of the grounds for disciplining a faculty member for misconduct. The Statement says:
Professors, guided by a deep conviction of the worth and dignity of the advancement of knowledge, recognize the special responsibilities placed upon them. Their primary responsibility to their subject is to seek and to state the truth as they see it. To this end professors devote their energies to developing and improving their scholarly competence. They accept the obligation to exercise critical self-discipline and judgment in using, extending, and transmitting knowledge. They practice intellectual honesty. Although professors may follow subsidiary interests, these interests must never seriously hamper or compromise their freedom of inquiry.
As teachers, professors encourage the free pursuit of learning in their students. They hold before them the best scholarly and ethical standards of their discipline. Professors demonstrate respect for students as individuals and adhere to their proper roles as intellectual guides and counselors. Professors make every reasonable effort to foster honest academic conduct and to ensure that their evaluations of students reflect each student's true merit. They respect the confidential nature of the relationship between professor and student. They avoid any exploitation, harassment, or discriminatory treatment of students. They acknowledge significant academic or scholarly assistance from them. They protect their academic freedom.
As colleagues, professors have obligations that derive from common membership in the community of scholars. Professors do not discriminate against or harass colleagues. They respect and defend the free inquiry of associates. In the exchange of criticism and ideas professors show due respect for the opinions of others. Professors acknowledge academic debt and strive to be objective in their professional judgment of colleagues. Professors accept their share of faculty responsibilities for the governance of their institution.
As members of an academic institution, professors seek above all to be effective teachers and scholars. Although professors observe the stated regulations of the institution, provided the regulations do not contravene academic freedom, they maintain their right to criticize and seek revision. Professors give due regard to their paramount responsibilities within their institution in determining the amount and character of work done outside it. When considering the interruption or termination of their service, professors recognize the effect of their decision upon the program of the institution and give due notice of their intentions.
As members of their community, professors have the rights and obligations of other citizens. Professors measure the urgency of these obligations in the light of their responsibilities to their subject, to their students, to their profession, and to their institution. When they speak or act as private persons, they avoid creating the impression of speaking or acting for their college or university. As citizens engaged in a profession that depends upon freedom for its health and integrity, professors have a particular obligation to promote conditions of free inquiry and to further public understanding of academic freedom.
Dismissals of tenured faculty members based upon the above-referenced Statement have been upheld by the courts (see, for example, San Filippo v. Bongiovani, 961 F.2d 1125 (3rd Cir. 1992) (upholding dismissal by Rutgers University of a tenured chemistry professor, relying in part on the university's adoption of AAUP's professional ethics statement to find the professor had "exploited, threatened and been abusive" to "visiting Chinese scholars brought to the University to work with him on research projects")). In addition to the issues enumerated in the Statement on Professional Ethics, an institution might wish to include more specific issues, such as harassment of students, faculty, and staff, plagiarism or other forms of academic misconduct, serious noncollegial behavior (assuming that it could be defined with enough specificity to avoid charges of vagueness), failure to meet service or other obligations, etc.
After developing the types of misconduct for which discipline may be imposed, the institution needs to address the process that will be used to determine whether the faculty member's conduct meets the definition of the misconduct with which he or she has been charged. Depending on the seriousness of the allegations, a chair or dean might create an ad-hoc faculty committee to review the allegations and to make findings of whether or not the misconduct occurred, and to recommend what type of sanction to impose. Or the issue might be referred to an institution-wide faculty committee for findings and recommended sanctions. Although many sanctions (discussed below) would not involve the type of deprivation that might trigger due process protections in public institutions (or contractual protections in either private or public institutions), the institution should consider developing a grievance process for faculty challenges to sanctions, or using the institution's existing grievance process for that purpose.
At a minimum, the institution should provide the following protections to an individual alleged to have engaged in misconduct that is subject to the institution's discipline policy:
Notice of the alleged misconduct
Opportunity to respond to the charges
Review by a faculty body of both the factual allegations and the proposed discipline
Progressive discipline, if appropriate to the seriousness of the misconduct
Opportunity for higher-level review of the factfinding and the proposed sanction
On unionized campuses, participation by an advocate for the faculty member in hearings or other meetings
Types of Faculty Discipline
In 1971, a special joint subcommittee of the AAUP considered the question of sanctions short of dismissal, and enumerated the following lesser sanctions:
(1) oral reprimand, (2) written reprimand, (3) a recorded reprimand, (4) restitution (for instance, payment for damage due to individuals or to the institution), (5) loss of prospective benefits for a stated period (for instance, suspension of "regular" or "merit" increase in salary or suspension of promotion eligibility), (6) a fine, (7) reduction in salary for a stated period, (8) suspension from service for a stated period, without other prejudice.
Faculty Tenure at 75-77.
The AAUP's Recommended Institutional Regulations on Academic Freedom and Tenure (RIR), Recommendation 7 distinguishes between "major" and "minor" sanctions, categorizing suspension as major and reprimand as minor. AAUP regulations 5 and 7 provide that major sanctions should not be imposed until after a hearing in which the same procedures apply as in a dismissal case, which include written notice of the charges, a hearing before a faculty committee in which the administration bears the burden of proof, right to counsel, cross-examination of adverse witnesses, a record of the hearing, and a written decision. Redbook at 27. Immediate suspension with pay, pending a hearing, is appropriate under AAUP policy if an individual poses a threat of immediate harm to him or herself or others. RIR 5(c)(1), Redbook at 25. Moreover, Regulation 5(c) of the Association's Recommended Institutional Regulations states that the administration, before suspending a faculty member, will consult with an appropriate faculty committee concerning the "propriety, the length, and other conditions of the suspension.
The AAUP further provides that an institution may impose a minor sanction after providing the individual notice, and that the individual professor has the right to seek review by a faculty committee if he or she feels that a sanction was unjustly imposed.
Judicial Review of Faculty Discipline
As noted above, like the legal claims of faculty threatened with dismissal, litigation arising from the imposition of sanctions flow from a number of legal sources, including the constitutional law for public institutions, contractual obligations at private and public sector institutions (faculty handbooks, letters of appointment, collective bargaining agreements), and regulations and statutes (internal and external).
1. Warning or Reprimand.
In Hall v. Board of Trustees of State Institutions of Higher Learning, 712 So.2d 312 (Miss. S.Ct. 1998), the University of Mississippi issued a written reprimand to a nontenured professor of medicine who in responding to a student's question about interpreting mammograms, touched the student's breasts. The Mississippi Supreme Court ruled that the written reprimand did not violate the professor's due process rights, but required that the document be maintained in a separate file. Butts v. Shepherd College, 569 S.E.2d 456 (W. Va. 2002) (ruling that professor's refusal to obey supervisor's order to release student grades to supervisor was not grounds for reprimand); Powell v. Ross, 2004 U.S. Dist. LEXIS 3601 (W.D. Wis., Feb. 27, 2004) (rejecting professor's defamation claim arising in part from recommendation of administrator that chancellor issue "a strong letter of reprimand" and place it in professor's personnel file). See also AAUP, "Academic Freedom and Tenure: Tulane University," AAUP Bulletin 424, 430 (1970) (acknowledging faculty committee's recommendation as proper for reprimand as opposed to dismissal for professor's interference with on-campus ROTC drill).
2. Public Censure.
See, e.g, Newman v. Burgin, 930 F.2d 955 (1st Cir. 1991) (upholding the public censure of a faculty member for plagiarism by the University of Massachusetts, Boston administration after an investigation and hearing by a faculty committee). But see Booher v. Northern Kentucky University, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky., July 22, 1998) (holding that departmental censure of faculty member in response to his comments to the media about a controversial university art exhibit provided a basis for professor's First Amendment retaliation claim, and noting that the censure could affect the professor's "ability to engage in the department's system of governance; [to] participat[e] in departmental decision-making; and [to select] . . . his teaching assignments"); Meister v. Regents of the University of California, 78 Cal.Rptr.2d 913 (Cal. App. 6 Dist. 1998) (finding by arbitrator that professor's reputation had been injured by circulation of letter of censure, which was recommended by campus committee, for the professor's unauthorized circulation of a confidential planning document).
3. Departmental Reassignment.
On occasion an institution decides to transfer a faculty member from one academic department to another where significant problems exist in the former department, and the faculty member has claimed that the transfer amounts to a sanction that should not have been affected without due process. Huang v. Board of Governors of University of North Carolina, 902 F.2d 1134 (4th Cir. 1990) (upholding transfer of tenured professor from one department to another, and finding no property interest in a particular position); Maples v. Martin, 858 F.2d 1546 (11th Cir. 1988) (Auburn University's professors' property interests not violated when engineering professors were transferred from mechanical engineering to other engineering departments with no reduction in salary or rank). But see Hulen v. Yates, 322 F.3d 1229 (10th Cir. 2003) (ruling that professor "had a property interest in his departmental assignment based upon the terms and conditions of his appointment" and therefore basic due process attached to his transfer from one academic department to another).
4. Actions on Salary for Disciplinary Reasons.
One-time denial of a salary increase. Depending on the facts and circumstances, AAUP might view a one-time denial of a salary increase to be a minor sanction. See, e.g., Harrington v. Harris, 118 F.3d 359 (5th Cir. 1997), cert. denied, 522 US. 1016 (1997) (dean's denial of pay increases to white law professors did not constitute adverse employment action); Wirsing v. Board of Regents of University of Colorado, 739 F. Supp. 551 (D. Colo. 1990), aff'd, 945 F.2d 412 (10th Cir. 1991) (table), cert. denied, 503 U.S. 906 (1992) (university did not violate tenured professor's rights by denying her a merit increase when she refused to distribute standardized teacher evaluation forms to her class on academic freedom grounds). But see Power v. Summer, 226 F.3d 815 (7th Cir. 2000) (ruling that administration violated the First Amendment rights of three professors by awarding them merit increases of only $400 instead of $1,000 because they were outspoken on issues of faculty salaries). For a discussion of the Vincennes University case, see Donna R. Euben, "Judicial Forays into Merit Pay," 89 Academe 70 (Jul.-Aug. 2003).
Long-term salary increase denial.
See, e.g., Vaughn v. Sibley, 709 So.2d 482 (Ala. Civ. App. 1997) (finding that University of Alabama at Birmingham violated the rights of an associate professor of mathematics by denying him any salary increase from 1982 through at least 1994 [and maybe 1997, the date of the court decision], because the administration either had to follow its salary policy and pay the professor the minimum salary, or it had to file an exception to exclude him from the established salary range).
See, e.g., Williams v. Texas Tech University Health Sciences Center, 6 F.3d 290 (5th Cir. 1993), cert. denied, 510 U.S. 1194 (1994) (tenured professor sued, claiming that he should have been provided a hearing before the medical school reduced his compensation from $68,000 to $46,500 because he failed to generate as much grant money as had been expected; court ruled that the professor's interest in a specific salary level did not outweigh the administration's interest in making budget any decisions for educational programs, and that the professor had received six months' notice and the opportunity to seek additional funding.) For a discussion of efforts to reduce salaries in medical schools, see Donna R. Euben, "Doctors in Court? Salary Reduction Litigation", 85 Academe 87 (Nov.-Dec. 1999). State law may permit salary reduction. As previously noted, state law governing the salaries of public employees may provide particular protections. For example, a New Jersey statute provides that no tenured professor in a public college may be "subject to reduction of salary, except for inefficiency, incapacity, conduct unbecoming a teacher or other just cause." N.J.S.A. 18A:6-18.
5. Fines or Restitution.
An administration might seek reimbursement, restitution or a fine from a faculty member. Please note that such fines may raise issues under the Fair Labor Standards Act.
There are a variety of suspensions, including paid suspensions, unpaid suspensions, and immediate (paid and unpaid) suspensions.
See, e.g., Edwards v. California University of Pennsylvania, 156 F.3d 488 (3rd Cir. 1998), cert. denied, 525 U.S. 1143 (1999) (while tenured professor was being investigated for the use of inappropriate language in the classroom, he was suspended with pay; court found that suspension did not violate his constitutional rights).
For the AAUP, a suspension pending a faculty hearing should be with pay. If an administration instead of moving to dismiss a faculty member, intends to suspend with or without pay, that action should be preceded by a hearing with the same procedural protections as afforded in a dismissal case. See, e.g., Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir.), cert. denied, 534 U.S. 951 (2001) (Macomb Community College professor initially put on leave without pay while sexual harassment investigation pending; he was later put on indefinite leave with pay); Silva v. University of New Hampshire, 888 F. Supp. 293 (D.N.H. 1994) (involving professor who was suspended without pay for one year for violating institution's sexual harassment policy; the trial court ruled that professor was entitled to preliminary injunction on his First Amendment and due process claims).
AAUP's RIR 5 provides that an institution may suspend a professor when immediate harm to the individual or others is threatened pending an ultimate determination of the individual's status. RIR 5 further provides that, before suspending a faculty member, the administration should consult with a faculty committee concerning the propriety, length, and other conditions of the suspension. The threat of physical harm can certainly warrant suspension, but so can harm to the educational process (e.g., a faculty member who refuses to evaluate the work of most of her students). Such suspensions should be with pay, and they can remain in effect during an investigation and disciplinary proceedings. In Gilbert v. East Strousberg University, 520 U.S. 924 (1997), the U.S. Supreme Court ruled that due process rights were not violated when an administration suspended a tenured public employee without pay and failed to provide a pre-suspension hearing. The Court's reasoning was based, in part, that drug-related felony charges were pending against the police officer. As commentators have noted, the Gilbert decision is not generally applicable to the due process protections afforded suspended faculty members, "[u]nless a college could demonstrate that it needed to remove a tenured faculty member quickly because he or she was a potential threat to the health or safety of others, or because the faculty member had committed some act that rendered him or her unfit to continue teaching pending a disciplinary hearing." The Law of Higher Education 179-80 (Supp. 2000).
7. "Demotion" in Rank"
The AAUP generally views reductions in faculty rank, such as from associate to assistant professor, as an inappropriate sanction, except in situations where the promotion is obtained by fraud or dishonesty. Compare Kirschenbaum v. Northwestern University, 728 N.E.2d 752 (Ill. App. Ct. 1999) (finding that administration did not breach medical professor's tenure contract when it changed his status from "full-time" to "contributed service") with Klinge v. Ithaca College, 167 Misc. 2d 458 (N.Y. Sup. Ct. 1995), aff'd as modified by 652 N.Y.S.2d 377 (N.Y. App. Div. 1997) (ruling that factual issue for jury existed regarding whether tenure breached for professor who was found guilty of plagiarizing when he was demoted from full to associate professor, his salary reduced, and his academic duties restricted).
8. Modified Teaching Assignments.
Some institutions modify teaching assignments as a form of discipline. See, e.g., McCellan v. Board of Regents of the State University, 921 S.W.2d 684 (Tenn. 1996) (barring professor for three years from teaching the only section of a required course after he made inappropriate sexual comments to female students about EKGs). But see Levenstein v. Salafasky, 164 F.3d 389 (7th Cir. 1998) (noting that professor was "effectively deprived of a property interest in a job" by university decision to forbid professor from seeing patients and an assignment of reviewing old medical files). Please note that "shadow sections"—courses taught by other instructors to compensate for perceived problems in the teaching of the original professor—may violate a public university professor's constitutionally protected interests. See, e.g., Levin v. Harleston, 770 F. Supp. 895 (S.D.N.Y. 1991), aff'd in relevant part, 966 F.2d 85 (2d Cir. 1992).
9. Class Monitoring.
If periodic monitoring is deemed necessary discipline, primary responsibility should be in the hands of faculty.
10. Mandatory Counseling.
Some administrations have required that faculty undergo counseling. Generally such discipline implicates a number of legal concerns, including free expression, academic freedom, and privacy. See e.g., Bauer v. Sampson, 261 F.3d 775 (9th Cir. 2001) (community college violated rights of outspoken professor by requiring him to meet with anger management counselor); Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996), cert. denied, 520 U.S. 1140 (1997) (English professor who used vivid sexual imagery in class ordered to attend sexual harassment seminar); Silva v. University of New Hampshire, 999 F. Supp. 293 (D.N.H. 1994) (English professor who was found guilty of sexual harassment was suspended from teaching for one year and required to obtain a "counseling evaluation" and, if prescribed, attend counseling); Powell v. Ross, 2004 U.S. Dist. LEXIS 3601 (W.D. Wis., Feb. 27, 2004) (rejecting professor's defamation claim arising in part from recommendation that professor attend sexual harassment training to identify his "problem areas"). See generally Jonathan Knight, "The Misuse of Mandatory Counseling," The Chronicle of Higher Education (Nov. 17, 1995) ("No single punishment is appropriate for all sexual-harassment cases, but it is the faculty member's misconduct, not his ideas, that should be punished . . . ").
Discipline as a Pre-termination Step
The institution may also consider using discipline short of termination when dealing with a faculty member with a long history of insubordination, neglect of teaching, research, or service obligations, or inappropriate behavior with staff or students, as a way of establishing a record of the individual's misconduct and the institution's response in the event that a later decision is made to terminate a tenured faculty member. Although each faculty termination case is sui generis, and faculty use a variety of legal theories to challenge the revocation of tenure, a claim that is difficult for an institution to defend is the claim of lack of notice of the infraction. Institutions that have tolerated the misconduct of a faculty member for years may find it difficult to persuade a reviewing court that the individual's due process rights were protected if misconduct that was tolerated for years suddenly becomes grounds for termination. Progressive discipline, and prompt attention to misconduct that interferes with the institution's ability to function effectively, may have the happy outcome of "rehabilitating" a problematic faculty member, or it may lay the ground work for eventual termination. In either case, intervention before the misconduct escalates into a serious problem for the institution is a wise course of action.
1. Roger I. Abrams and Dennis R. Nolan, "Toward a Theory of 'Just Cause' in Employee Discipline Cases," 1985 Duke Law Journal 594, 611-12 (1985). Back to text.