Showing posts with label tenure. Show all posts
Showing posts with label tenure. Show all posts

Tuesday, October 29, 2019

Arkansas profs champion academic freedom as bipartisan cause

Most recently in June, I wrote about the faculty lawsuit against the University of Arkansas System to protect academic freedom, as the university tries to cut back on tenure protection for both past and future hires.  The case is tracked by Professor Josh Silverstein, at his blog, Jurisophia, where the most recent filing is a September reply brief in support of defendants' motion to dismiss.

I had lost track in my inbox of this short segment (click box below) from Fox News in June, below, in which Arkansas named plaintiffs, my friend and mentor Professor-Attorney Tom Sullivan among them, schooled anchors on how academic freedom and tenure should be a bipartisan cause.

The case is Palade, Borse, and Sullivan v. Board of Trustees of the University of Arkansas System, No. 4:19-cv00379-JM (E.D. Ark. complaint filed May 31, 2019).

I've freshly endured my own reminder at UMass Law of how readily academics turn on each other.  As I nurse the knife wound in my own back, I find myself re-sensitized to how American university administrators today exploit the ruthless faculty penchant for self-preservation to further the faculty's own fall and the rise of bureaucratic hegemony in its place.  Ultimately if indirectly, the most devastating impact of this dynamic is visited on the students who should be the beneficiaries of the educational mission.

Sunday, September 1, 2019

UMass Dartmouth appoints 6 to 'Chancellor Professor,' first awarded high academic rank since 2003

The University of Massachusetts Dartmouth has appointed six faculty to the rank of "Chancellor Professor," effective today.  I'm honored and humbled to be among them.  These are the university's first promotions to chancellor professor since 2003.  The number of persons who may hold the high rank is limited to ten percent of the faculty, campus-wide.  The provost's office reported, "All have demonstrated excellence in the art and practice of teaching, a record of scholarship that contributes to the advancement of knowledge, and have made outstanding contributions to the University or to their profession."  From UMass Dartmouth News, here is something of the accomplishments of my colleagues:

Electrical & Computer Engineering
Professor John R. Buck, who has received the prestigious Office of Naval Research Young Investigator award and the National Science Foundation CAREER award, is a Fellow of the Acoustical Society of America, a Fulbright Scholar and a Senior Member of IEEE. His scholarship focuses on underwater acoustics, signal processing, animal bioacoustics and engineering pedagogy. Professor Buck received fifteen research grants from federal agencies. Many of his graduates have continued their research at prestigious universities and national laboratories. Professor Buck’s classes incorporate active and collaborative learning, making the students’ learning the central focus of the classroom. He was UMass Dartmouth’s inaugural winner of the Manning Prize for Excellence in Teaching for outstanding development of curricular materials and innovative assessment of student learning. Professor Buck also received the IEEE Education Society’s Mac Van Valkenburg Award, and the Faculty Federation Leo M. Sullivan Teacher of the Year Award. Professor Buck founded and led several faculty mentoring programs in the Office of Faculty Development, as well as directly mentoring several junior faculty from across the campus.

Professor Qinguo Fan has made substantial leadership contributions to the College of Engineering overseeing the transformation of Textiles Department into its current form as Bioengineering. As Bioengineering chairperson, he led the development of the new undergraduate major in bioengineering, recruitment and mentoring of new faculty, major renovations to laboratories and formation of an industrial advisory board. Under his strong leadership, the BNG undergraduate program successfully completed its first ABET accreditation in Fall 2016, considered exceptional for a new program doing the ABET accreditation the first time. The Bioengineering department now offers, in addition to the Bioengineering major, a Bioengineering minor, the 4+1 BS/MS program and a Biomedical Engineering concentration. Several Bioengineering graduates have gone on to medical schools, research positions and work at medical device companies. Professor Fan’s research has primarily focused on structural color, blue light cured polymers, and conducting polymers during the last ten years. He is a co-inventor on one U.S. patent. Professor Fan is a member of the American Association of Textile Chemists and Colorists and the International Society for Pharmaceutical Engineering. Professional recognition includes receipt of the Highly Commended Award at the Literati Network Awards for Excellence for one of his research articles.

Professor Gottlieb has demonstrated a deep passion for incorporating research into undergraduate education. She has adopted an exploratory, discovery-based approach by using “computing for intuition” as a critical tool to learning, and has worked to engage her undergraduate students in research in computational mathematics. Her advisees have gone to have successful careers at universities and research laboratories. Professor Gottlieb is known internationally as an expert in strong-stability-preserving time discretizations and other schemes for hyperbolic equations. As PI or co-PI, she has been responsible for securing well in excess of $3.5M to support her research. In recognition of her expertise and impact on the field, Professor Gottlieb was recently elected a Fellow of the Society of Industrial and Applied Mathematics (SIAM). Professor Gottlieb’s most significant service has been her leadership of the Center for Scientific Computing and Visualization Research (CSCVR), which she helped form and served as director (2013-2017) and co-director (2017-present). In this capacity she has worked to support, facilitate, and promote the research activities of the scientific computing group and to mentor students and junior faculty of scientific computing in a supportive, broad, and deep interdisciplinary research environment.

Estuarine & Ocean Sciences
Professor Howes played an integral role in the initial development of the marine science graduate program, an internationally recognized marine science and technology program. He has advised and funded graduate students who have gone on to pursue successful careers. Professor Howes has maintained a high level of scholarly productivity in his field, as well as produced numerous technical reports as part of the Massachusetts Estuaries Program (MEP) requirements. He has raised over $23M in extramural research funding through federal, state and municipal extramural grants and contracts. Professor Howes has also made significant contributions to his profession in the form of scientific advances, as well as practical applications that have had a major impact on coastal ecosystem health and water quality in the region.

Chemistry & Biochemistry
Professor Yuegang Zuo has a record of contributing to active learning and has sustained a record of graduating M.S. and Ph.D. students. He provides high quality mentorship resulting in graduate students winning external awards for their work. He has also worked with undergraduate students, who have won American Chemical Society awards. Professor Zuo has maintained a high level of scholarly publishing and is successful in attracting substantial extramural funding. He has contributed to the University and his profession serving on diverse departmental, college and university committees as well as the Faculty Senate. He has served his profession as a reviewer, editor, and meeting organizer and serves on the editorial board for seven journals and recently became the Editor-in-Chief of the Journal of Endocrinology Research.

Tuesday, June 4, 2019

Arkansas higher ed faculty sue to protect tenure, academic freedom

An assault on academic freedom in Arkansas has drawn a lawsuit by faculty.

In fall 2017, I republished concerns by my colleagues in the University of Arkansas System that proposed changes to board policy essentially would render academic tenure a nullity, allowing discipline and termination of faculty on a broad range of new and vague grounds.  Adopted in 2018, one new policy provision allows faculty firing for "a pattern of conduct that is detrimental to the productive and efficient operation of the instructional or work environment."  That's code for "we don't like you; play ball or else."  

Symptomatic of the contemporary corporatization of higher education, the new policy fails to recognize that faculty are actually the governors of universities, not at-will workers on the assembly line.  This is not just an Arkansas problem.  See generally Benjamin Ginsberg's "lacerating" (WSJ) 2013 book, The Fall of the Faculty, for documentation of this phenomenon and why it's so dangerous. For a stunning yet representative case study, see Jacob Howland on the University of Tulsa for the Manhattan Institute's City Journal (describing "
a perfect storm of trends currently tearing through the American academy: the confident ignorance of administrators, the infantilization of students, the policing of faculty, the replacement of thinking with ideological jargon, and the corporatization of education") (and podcast).

Now three tenured faculty have sued over the revised policy.  Professor Joshua M. Silverstein at the University of Arkansas Little Rock Law School explained in an email to Arkansas Little Rock faculty last week:

After the Board of Trustees adopted the revisions to Board Policy 405.1 at the Board’s March, 2018 meeting, I wrote an email summarizing what happened at the meeting and offering some thoughts regarding strategies that could be used to combat the changes.  In the latter section, I noted that litigation challenging the revisions was highly likely.  That litigation has commenced.  Yesterday, the law firm of Quattlebaum, Grooms & Tull filed a lawsuit on behalf of three of our colleagues – one each from UAMS [Medical School], UA-Little Rock, and UA-Monticello.  The lawsuit seeks to nullify the changes to 405.1 to the extent they apply to UA System faculty who were tenured or started in a tenure-track position prior to March 29, 2018, the date the amendments to 405.1 were adopted.  As I explained last year during the deliberations on 405.1, I believe that the lawsuit has a very good chance of succeeding....
[A] bill that was introduced in the Arkansas legislature this past session ... would have prohibited the application of Revised 405.1 to any faculty member with tenure or on the tenure track at the time the revisions were adopted.  Rob Steinbuch, a colleague of mine at the law school, and I were deeply involved with that bill and we both testified in favor of it.  Had the bill become law, it would have nullified the need for litigation.  Unfortunately, the bill died in committee.  Hence the filing of the lawsuit.

Note that this lawsuit itself won't stop the slow death of tenure and academic freedom going forward at the University of Arkansas.  New hires would still be entitled only to paper-thin tenure.  Meanwhile, nationwide, we still are grappling with the elimination of tenure-track positions altogether, in favor of cheap adjunct labor.  Nevertheless, I applaud my plaintiff-colleagues.  It's time faculty started pushing back, lest we irreversibly turn American universities into a mockery of the Bolognian conception—just in time for its 1,000-year anniversary in 2088.

Professor Silverstein is tracking the litigation at his blog, Jurisophia, where you can download the complaint.  The case is Palade, Borse, and Sullivan v. Board of Trustees of the University of Arkansas System, No. 4:19-cv00379-JM (E.D. Ark. filed May 31, 2019).  Here is June 1 coverage in The Arkansas Democrat-Gazette.  One of the named plaintiffs is a law professor, extraordinary practicing attorney, and treasured friend of mine, J. Thomas Sullivan at Arkansas Little Rock.

Tuesday, April 30, 2019

Political correctness continues to threaten academic freedom. But if it's a martyr you want, don't look at me.

When my daughter was a high school senior, she and my wife visited Sarah Lawrence College in New York.  My wife and I are keen on liberal-arts education, so we might have pushed Sarah Lawrence a bit as an option—even while I might have dropped the offhand reference to flower power and love beads.  Founded in 1926, Sarah Lawrence is famous for its left-wing political activism.  It has McCarthyist accusations of communist loyalties to its historical credit.

Siegel Student Center at Sarah Lawrence College (CC BY 3.0 by SaidieLou)
In the end, our daughter did not care for Sarah Lawrence.  A testament to her maturity, I think, she found that the school's method of individualized courses of study and its loose, seminar-like classroom experiences, modeled on the British tutorial style, did not suit her learning style and needs at age 18.  We agreed, and she is now happy elsewhere.  That's not to deny that Sarah Lawrence is pedagogically innovative in a way that beautifully complements the needs of many young adults and fosters creative genius.  After all, one Sarah Lawrence alumnus turned into J.J. Abrams.

However, from what I heard at the New England Political Science Association annual meeting's lunch program on Saturday, April 27, the flower power and love beads that I teased about might in fact be in desperately short supply at the Sarah Lawrence College of today.  After joking about being uncomfortable, as a Sarah Lawrence professor, standing at a lectern on a podium, Samuel Abrams shared his experience and research into ideologically driven, doctrinaire oversight of faculty and classrooms at Sarah Lawrence and elsewhere.

You can read more about Abrams's experience in recent coverage at the National Review, in Inside Higher Ed, and in the Chronicle of Higher Education, and in his own words in The New York Times in October 2018.  Abrams is an AEI scholar, which I guess makes him a radical conservative relative to famously lefty Sarah Lawrence, though plenty of partisan right wingers I'm sure would beg to differ over the sufficiency of his conservative fervor.

"We have a problem in higher education," Abrams said to NEPSA in Portland, Maine.  We, academics, need to ensure that the university remains free of viewpoint discrimination and a forum hospitable to robust "dialog and discourse," he said.

It's not exactly news that the ivory tower in America has been captured by a dogmatic partisan ideology that is oddly blind to classical liberal values such as freedom of thought and speech.  But to see and hear Abrams telling of his experiences live was chilling.  He collects Quechua art, he said, because he appreciates it, but multiple deans challenged the display of works in his office as cultural misappropriation.  For his encouragement of viewpoint diversity in the classroom, he has been called "racist," "bigoted," "homophobic," and, ironically, "anti-Semitic," he said.  His young son has been threatened.  Now deans are asking to review his class content in advance.

This is not hateful rhetoric derived from right-wing demagoguery.  To be sure, there's plenty of that to go around.  But on this occasion, these are the words and tactics of the left, the purportedly hate speech-loathing, ideological font of the civil rights movement.  I have no patience for this rhetoric, wherever, whatever it comes from.

Especially those of us with tenure must resist this suppressive, oppressive group-think, from right or left, Abrams declared.

How?  For a good while now, tenure has been exposed as a largely symbolic and legally insignificant barrier to adverse job action.*  The tenure contract is only as good as the lawyer you can afford whilst unemployed.  Then where the rubber meets the road, courts defer to universities to construe "cause" for termination in the tenure contract, absent any clear constitutional backing for the notion of academic freedom.  My work with the faculty union at UMass Dartmouth has shown me beyond a shadow of a doubt (even pre-Janus) that the union lacks any real bargaining strength.  When push comes to shove, the vast majority of faculty are not really willing to make any personal sacrifice for better working conditions, much less to stand on principle.  And the university knows it.

Maybe I'm no better.  Knowing the score, knowing that academia already has ceded the battle for intellectual freedom, I discourage classroom dialog over hot-button issues. I admire Abrams.  But I have a daughter who's trying to pay her way through American higher ed.  Her economic security—and the paycheck that makes it possible—has got to be my top priority.

*For collateral misgivings about the scope of tenure protection, see also my writing in JC&UL in 2010, which I presented at an AAUP conference.  Stanley Fish's more recent ruminations in Versions of Academic Freedom (2014) also ponder the scope of academic freedom relative to the professor's job—though he doesn't cite me.  JS.

Monday, October 22, 2018

Does your dean work for you?

[This opinion is mine, reprinted from the Faculty Federation News: A Publication of the UMass Dartmouth Faculty Federation AFT-MA 1895, vol. XXIV, no. 5, Mar./Apr. 2018, p. 3.  A version geared to university students can be found at The Torch, the student newspaper of UMass Dartmouth, Oct. 21, 2018.]

When I left law practice to teach, I knew little to nothing about faculty governance and academic freedom.  The dean who hired me, Rodney K. Smith—now professor and director of the Sports Law and Business Program at the O’Connor College of Law, Arizona State University—is a person of the utmost integrity from whom I learned a lot about leadership and the business of higher education.

When I was a green, 26-year-old instructor of law, I remember, I was joined at lunch by Dean Smith.  I couldn’t bring myself to call him “Rod,” even when everyone else did, and it still sounds odd to me, decades later.  Sometimes Dean Smith ate lunch with the crew of us who ate in the faculty lounge, a “king incognito” kind of thing, but, I think, totally genuine.

Dean Smith wanted to know how things were going in the new job.  We chatted a bit about classes, teaching, students.  He asked something about my interests in terms of developing new programs at the law school.  I said something about being willing to do whatever he needed me to, because “you’re the boss.”

“No, I’m not,” he retorted quickly.  And he waited for me to react in that MBTI-sensing-personality way that we Ns always find really aggravating.

That he was the boss seemed self-evident to me.  In my law firm, all partners were the boss, and they could scream and yell or hop up and down or throw papers around or pretty much do whatever they wanted, and we associates were supposed to act like that was totally normal and appropriate.  So this challenge to the natural order of things really made no sense to me.

You’re the boss,” he added, as if that cleared things up.  I was pretty sure that when I was hired, he had told me how much I would be paid.  If things in fact were the other way around, I had really sold myself short.

I work for you,” he said with the finality with which one tells a hard-headed child “because I said so.”

It took me a long time to wrap my mind around his meaning.  When I had evaluation meetings with Dean Smith his tack was always “what can I be doing for you?,” to make me better able to do my job—teaching, research, and service.  That was new for me.

As the First Amendment is part of my media law portfolio, and academic freedom is an aspect of the freedom of expression, I have, since that day at lunch with Rod Smith in January 1998, spent some part of my academic life studying the history, law, and policy of academic freedom and its partner principle, faculty governance.

I thought of this at the Faculty Federation meeting this week when President Cathy Curran said we, faculty, are “weird,” in describing the particular challenge of drafting HR policies that apply to faculty.

We are weird.  And it’s not something that’s well understood outside academia, nor often by administrators in academia.

We are weird in a way that is critical to institutional governance, to student learning, and moreover to our society—not just American society, but human society.  If the organization of human civilization is built upon a search for truth in a free market of ideas, and the university is “peculiarly the ‘marketplace of ideas,’” as Justice Brennan wrote, then the independence of faculty inquiry is essential to improvement of the human condition.  That notion underpinned the constituting principle of academic freedom in the original universitas in 13th-century Bologna.  And it’s only more true, more important, in the 21st-century information age.

Faculty governance of the academic enterprise is a corollary.  As former union President Susan Krumholz aptly recalled at the Federation meeting, the administration of a university works for the faculty.  Yes, the administration manages budget, payroll, and enrollment, all things that might constrain faculty freedom.  That’s the weird part.  But it must not be forgotten that those functions exist only to enable faculty, whose job it is to educate students.

Dean Smith was right, and the intervening years have only added to the urgency of his assertion.  In an environment of higher ed financial crisis, burgeoning staff-to-faculty ratios, and rampant bureaucratic overreach in the guises of assessment and accountability, we lose touch with the essential, classical design of the university at our own peril.

Deans, provosts, vice chancellors, and even chancellors and presidents:  They work for us.

Tuesday, May 1, 2018

Why do law profs lose their employment suits? Because most plaintiffs lose

An article about litigious law profs in the Albany Law Review by Nova Southeastern Law Professor Robert Jarvis is getting a lot of play in legal academic circles.  Jarvis did an astonishingly thorough and first-of-its-kind survey of cases in which law professors are plaintiffs suing over employment matters.  Here's how the ABA Journal (May 2018, at 15) summarized it:

Law professors often lose when they sue over employment matters such as not getting hired, tenure denials or pay disputes, according to an article by Robert Jarvis in the latest issue of the Albany Law Review. Jarvis, a professor at Nova Southeastern University’s Shepard Broad College of Law, wrote that three issues are at the root of these lawsuits: dissatisfaction with, and professional jealousy of, faculty colleagues; disagreements with, and distrust of, administrators; and feeling that others are receiving better, and undeserved, treatment. In what appears to be the first study of its kind, Jarvis also found that law professor suits are far more common in recent years.
Jarvis's work is quality, but commenters have read too much into his observations.  Eager to dine on the raw flesh of irony, stories such as Above the Law's have ripped lines from Jarvis, such as "many law professors are guilty of a shocking level of thin-skinnedness," to over-explain law profs' poor record in litigation.  First, Jarvis offered that as an observation, not an explanation.  Second, "many" does not mean even "most."  It's surely true of "many," but that hardly explains the litigation record.

Jarvis himself observed, "law professors generally do a poor job assessing their chances, for they lose much more often than they win."  That's just wrong--a non sequitur.  Any plaintiff in a civil action could be said to have assessed the situation poorly, simply because defendants usually win civil actions.  Yet plaintiffs keep suing.  So there must be other reasons to sue.  One reason to sue is that a plaintiff might hope to win a settlement, because a defendant wishes to avoid a public row or litigation transaction costs.  Another reason to sue is that a plaintiff has nothing to lose.  A lawsuit in a hopeless situation might yet stake out a public defense of integrity and leave a record to protect future employment prospects.

Importantly, whether a plaintiff wins in litigation or seeks to accomplish these ancillary aims says nothing definitive as to whether plaintiff was actually wronged.  Plenty of plaintiffs are wronged and lose.  Evidence controlled by defendants often cannot be marshaled sufficiently to make the plaintiff's case to the requisite standard.  Courts broadly defer to universities in the construction of tenure contracts, even though the universities draft them and they're not negotiable.  And all kinds of legal standards, such as sovereign immunity, and sometimes tort reforms, such as anti-SLAPP laws, protect defendants prophylactically. 

So why do law professors lose their cases?  Because all plaintiffs usually lose, for all sorts of reasons, some legitimate, some not.  In academics, universities dominate the employment bargain in a supply-rich market, so law professors, like anyone else, start from a disadvantage.  And law professors might be expected to turn up as plaintiffs more often than the average employee because the law professor correctly calculates that she or he has a better-than-average chance of beating the odds.

Full disclosure, my own once upon a case is mentioned, fairly and correctly, in a footnote in Jarvis's article, on the subject of reputational injury.  When I sued, I was most definitely accused of being thin-skinned--by people who had no idea what it was like to see one's career and livelihood pouring down the drain, and family suffering by association, upon defamatory falsehoods that spread like wildfire.  I could have not sued.  One colleague advised me to just wait five years and let the false allegations fade from memory.  Even if they would have faded, a dubious proposition, waiting would have meant career stasis for at least five years, maybe forever.

And had I not sued, despite the odds, and had the lawsuit as leverage, I never would have received the public letter of exoneration that I did.  My current employer asked to see that letter before I started a new job.  I don't know whether I count as a loss in Jarvis's statistics.  My lawsuit didn't win any money, and I dismissed it with prejudice.  But I don't think I lost.

Anyway, why law profs lose their cases is not what worries me the most about Jarvis's findings.  I'm far more concerned about his observation that lawsuits in legal academics are on the uptick.  This I believe to be the result of worsening employment conditions and the frustration of law faculty--me included--whom, in the troubled legal education market, universities increasingly expect to be vocational trainers and obedient serfs, rather than erudite educators and champions of intellectual freedom.  In examining the unusual incidence of law professor-employee plaintiffs, Jarvis is seeing just the tip of a nasty iceberg.

Saturday, February 24, 2018

Janus-faced about 'Janus': Supreme Court hears major First Amendment labor case, and 'it's complicated'

The U.S. Supreme Court hears oral argument in Janus v. AFSCME (SCOTUSblog) on Monday, February 26.  The problem in a nutshell is the extent to which a public employee can be compelled to associate with a union consistently with the First Amendment freedoms of expression and association.

The Court already held, some years ago, that a public employee cannot be compelled to pay the portion of union dues that supports political activity.  But mandatory payments to support the union in collective bargaining have been upheld upon the logic that employees otherwise would be able to opt out and benefit from union collective bargaining as free-riders, and, ultimately, the union would be decertified for lack of members.  So it’s got to be all in with the union, or no union for anyone.

This is an agonizing problem for a libertarian.  One wishes to protect the right to organize but is loath to compel anyone to do so.  Honoring the latter priority undermines the former.

When I changed jobs in 2011 from the University of Arkansas system to the University of Massachusetts system, I moved from a non-union shop to a union shop.  My first years at UMass, I opted out of the political dues and paid only to be a member of the bargaining unit—“agency,” it’s called.  And I resented having to pay for that. 

Certainly Arkansas was not a bed-of-roses workplace experience.  I had my challenges there and had to spend a good chunk of my personal savings on legal fees.  Now faculty there are fighting to preserve tenure.  I can see where a union might help.

Nevertheless, moving to UMass, I resented being compelled to join the union.  My experience with unions had been that they too often protect people in the workplace who don’t pull their weight, and they prevent people in the workplace who pull more than their weight from being rewarded accordingly.

I have more experience with unions now.  And I was right.  They often protect people who don’t pull their weight, and unionization prevents people who pull more than their weight from being rewarded accordingly.

At the same time, I’ve come to understand that plenty of fault for unions working, or not working, can be laid at the feet of employers, too.  It’s complicated.

I declined to become a union member at first at UMass and sought instead to leverage my own hard work for superior reward.  That didn’t work.  At best, I got into the highest echelons of the contractual raise pool.  We’re talking about a distinction of maybe a percentage point.  I could have gotten that with much less work.  I’ve hardly been able to negotiate my own terms of employment.

To the contrary, like many an employer, the university seems to have a love-hate relationship with the union.  Even while administrators seethe with loathing for their union adversaries, management is unwilling to dance with any other and jealously guards the bargaining table against rivals.  That’s the dirty little secret of public-sector union shops: management and labor are on the same side when it comes to making sure that no one else gets to play the game.  A truly free market, with full information and a healthy balance of labor supply and demand: if such a thing existed, it would be bad news for both sides.  Meanwhile the individual worker gets left on the sidelines.

So unable to make any headway for myself, and upon later experience and observation, I decided to throw in my lot with the labor movement.  Before union membership, my agency dues were $580 for the year in 2016.  That was deducted from my check, even though I was excluded from the bargaining table and stuck with whatever contract concessions someone else decided for me.  Now as a full member of the union, based on my last paycheck, my dues are about $1,285 per year.  So about two-thirds of my union dues go to political activity that I don’t necessarily agree with.

That’s my catch-22.  Membership is the only way to get a seat at the table, and having a seat at the table is the only way to work against abusive employment practices.  The labor market being what it is, there is abuse.  And there are good people in my union who are working hard to fight it.

I’ve been a student of the First Amendment for a long time, and I don’t know what should happen in Janus, whether from a detached scholarly perspective, or for my own best interests.  It rubs me the wrong way being compelled to participate in organized labor and forego my individual economic liberty.  To have my voice heard, I have to let my pocket be picked by political causes I disagree with.

At the same time, the unions are right:  The Janus challenge is about union busting and worker exploitation, not civil liberties and not economic liberty.  In academics, union busting is sure to hasten the end of tenure and the annihilation of academic freedom.  That hardly seems a result that honors the First Amendment.

I admit: I’m Janus-faced about Janus.  But on Monday, I'll be wearing my AFT T-shirt.
[UPDATE, Apr. 10, 2021.  Regrettably, my faith in the union was not enough.  The bargain of surrendering my beliefs became untenable.  See, e.g., this post in 2020.]

Tuesday, October 24, 2017

Policy proposal threatens academic freedom at University of Arkansas

Watchdogs in my former home state of Arkansas have alerted me to a major proposed change to University of Arkansas Board of Trustees tenure policy that threatens faculty academic freedom and tenure.  I wrote on this subject and presented at an AAUP conference some time ago; see "Penumbral Academic Freedom" at SSRN.  I happen to have just started serving here at UMass Dartmouth on a campus-wide committee studying policy related to faculty privileges and responsibilities.  I plan in time to write more about my experience here at UMD.  Meanwhile, though, what is happening at Arkansas, just one instance amid an alarming national trend, needs wider attention.  Simply put, an attack on academic freedom anywhere is an attack on academic freedom everywhere.

As is widely known both in and outside the academy, this is not a happy time for freedom of expression on the university campus.  (See this New York Times op-ed from yesterday, by University of Oregon President Michael Schill.)  Professor Catherine Ross at GW Law wrote an excellent piece recently for 66:4 Journal of Legal Education on "Assaultive Words and Constitutional Norms," explaining the clash between First Amendment freedom of speech and lately abundant and popular efforts to regulate speech that is normatively objectionable, such as hate speech.  The problem extends to our complicated American relationship with whistleblowers: compare the Obama Administration's "war on whistleblowers" (Guardian) with the later pardoning of Chelsea Manning.

In the academic sphere, the problem has played out in attack on faculty and faculty privileges, such as tenure, that are designed to preserve the university as "the quintessential marketplace of ideas."  The corporatization of the university and the infantilization of faculty have been documented and described, for example by Johns Hopkins Professor Benjamin Ginsberg in his 2013 book, The Fall of the Faculty (Amazon).

My colleague Professor Joshua Silverstein at the University of Arkansas Little Rock Law School wrote an excellent missive to his faculty on the proposed changes to Arkansas board policy.  He explained how the policy changes conflict with established AAUP norms.  Especially problematic is a provision that would allow termination of faculty for "unwillingness to work productively with colleagues."  As Professor Silverstein aptly observes, this is administrator-speak for what the AAUP long ago described and condemned as a "collegiality" requirement.

That provision would allow the termination of a faculty member who ignores instruction to teach the politically correct or anti-intellectual version of a subject in the classroom; who refuses to give passing grades for failing performance, when campus bean counters fear losing the student's tuition dollars; or who objects to the elimination of disciplines such as philosophy and foreign language as the university looks to budget according to revenue potential rather than academic mission.  In the corporatized university, there is no room for faculty governance and less for freedom of thought.  Faculty are expected to toe the line and make the widgets.  That's a frightening vision of the university, especially when one contemplates the impact on young adults of modeling automatous obedience in a purported democracy.

Professor Silverstein has given me permission to excerpt his missive, below.  His redline-and-comment version of the board policy I have parked here.  I note that Silverstein had to create the redline version himself; only a clean revision was distributed.  The redline version, he warns, might have mistakes that are artifacts of conversion from PDF.  The clean revision proposal is here.  The current rule can be found here.  Silverstein disclaims that he only received the proposal last weekend, so his review is not comprehensive.  Also, these comments pertain only to changes to the board policy on tenure.  Other proposed changes would affect employment periods and distinguished professorships.

The academy must stand together to repel attacks on tenure.  And we in the legal academy have an especial responsibility to heed the call.



Last week, the faculty senate received proposed changes to the UA System rules regarding tenure (Board of Trustees Policy 405.1), employment periods (Policy 405.4), and university and distinguished professorships (Policy 470.1).   This email concerns the proposed changes to policy 405.1.  As the subject of my email indicates, I believe that the proposed changes are a grave threat to tenure and academic freedom within the entire UA System.  Most importantly, the revisions dramatically expand the grounds justifying termination for cause.  They do so by (1) effectively establishing collegiality as a basis for termination, and (2) permitting dismissal after a single unsatisfactory rating in an annual review.  In addition, the revisions critically weaken the procedural protections available at university committee hearings regarding terminations.  If these changes are adopted, the damage to the University of Arkansas will be wide-ranging and likely permanent.  It is thus imperative that we speak out about the threat.

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1.  The University may not retroactively alter tenure rights.

In my opinion, the proposed changes to 405.1 cannot retroactively alter the rights granted under existing tenure contracts.  Well-established principles of contract law and constitutional law firmly support this conclusion.  Thus, the changes to 405.1, if adopted, will only apply to faculty not yet tenured.  However, I have not conducted exhaustive legal research on this point.  In addition, while nothing in the proposal suggests that the university believes it can—or intends to—apply the changes retroactively, an express admission on these points is the only way we can be sure of the thinking of the Board of Trustees and the rest of the central administration.

Even if the changes are applied solely in a prospective manner, that only modestly reduces the damage that the new rules will cause.  For example, all new hires will be subject to the revised standards.  That is a serious problem.  The changes will make it more difficult to hire the best entry-level and lateral faculty.  And those who are hired will possess weakened tenure protections and more limited academic freedom, both of which will result in numerous harms to teaching, research, and service within the UA system.

2.  The proposal dramatically expands the scope of what constitutes “cause” for purposes of terminating faculty

a.  Introduction.

Let me start by highlighting the critical textual changes to the definition of “cause.”  The current definition is set forth in section I of Policy 405.1 (which is on page 2 of the policy):

“Cause” is defined as conduct which demonstrates that the faculty member lacks the ability or willingness to perform his or her duties or to fulfill his or her responsibilities to the University; examples of such conduct include (but are not limited to) incompetence, neglect of duty, intellectual dishonesty, and moral turpitude.

Compare that to the revised definition, set out in section I of the proposal on pages 1-2 (and on pages 1-2 of my redline):

Cause - Cause is defined as conduct that demonstrates the faculty member lacks the willingness or ability to perform duties or responsibilities to the University. A faculty member may be disciplined, or dismissed, for cause on grounds including but not limited to unsatisfactory performance or (1) professional dishonesty or plagiarism; (2) discrimination, including harassment or retaliation, prohibited by law or university policy; (3) unethical conduct related to fitness to engage in teaching, research, service/outreach and/or administration, or otherwise related to the faculty member’s employment or public employment; (4) misuse of appointment or authority to exploit others; (5) theft or intentional misuse of property; (6) incompetence, job abandonment, pattern of disruptive conduct or unwillingness to work productively with colleagues, or refusal to perform reasonable duties; (7) threats or acts of violence or retaliatory conduct; or (8) violation of University policy, or state or federal law, substantially related to performance of faculty responsibilities or fitness to serve the University

I have highlighted two pieces of the revised definition.  First, I highlighted the addition of “unsatisfactory performance” near the beginning of the definition.  Second, I highlighted certain language in item 6.  Section 2.b. of this email addresses item 6.  Section 2.c. of this email addresses the insertion of “unsatisfactory performance.”  There is additional language in the proposal relating to the two pieces of the definition that I highlighted.  That language is discussed in the sections below corresponding to the highlighted language.

b.  Establishing collegiality as a basis for termination dramatically reduces tenure protections and academic freedom.

The language I highlighted in item 6 is very dangerous.  “Pattern of disruptive conduct” is a deeply subjective standard.  “Unwillingness to work productively with colleagues” is worse.  These standards create a serious potential for abuse.  It takes little imagination to see how the standards could be employed to stifle academic freedom by dismissing or otherwise punishing tenured faculty on the pretextual grounds that they are “disruptive” and/or “uncollegial.”  Note that including a collegiality requirement in tenure standards violates AAUP principles.  This change would thus move the UA System out of compliance with the AAUP.  See On Collegiality as a Criterion for Faculty Evaluation at page 1 (and throughout)), available here.

The importance of the changes in item (6) is highlighted by the fact that the “work productively” collegiality standard is repeated in the section of 405.1 that concerns academic freedom.  The proposal amends section IV.A.14.c, on page 10 by inserting the following language: “Faculty are expected to work productively with colleagues in carrying out the mission of the University.”  By adding this to the academic freedom section, it is clear that the drafters intend the language to circumscribe the scope of academic freedom everywhere within the University of Arkansas.

c.  The proposal permits termination after a single unsatisfactory rating in an annual review; this also dramatically reduces tenure protection and academic freedom.

Under the current standard, termination for performance issues may result only from “incompetence,” “neglect of duty,” or the like.  Under the proposed standard, a mere finding of “unsatisfactory performance” in a single annual review is sufficient grounds to warrant termination.  That is a profound change.

To elaborate, the proposal inserts new standards regarding annual reviews in section V.A.9.  Here is the pertinent language:

Any campus procedures regarding post-tenure review shall not allow greater than one academic year, with active cooperation from the faculty member, for an overall unsatisfactory performance rating to be substantially remedied prior to a recommendation of dismissal on the basis of unsatisfactory performance. In other words, if a faculty member’s overall performance is evaluated as unsatisfactory for an academic year, any improvement plans or other remedial measures are expected to result in a satisfactory evaluation by the end of the following academic year; if not, the faculty member may be issued a notice of dismissal on twelve months’ notice as provided for in this policy. Again, such period of time for remediation assumes the active cooperation and engagement of the faculty member; otherwise, a shortened timeframe may be utilized.

On the surface, this provision appears to provide that termination is only permissible after two unsatisfactory ratings.  In the first yellow block, the provision states that “any improvement plans or other remedial measures are expected to result in a satisfactory evaluation by the end of the following academic year; if not, the faculty member may be issued a notice of dismissal . . .”  (Emphasis added.)  That suggests that two unsatisfactory ratings are required.  But now consider the last sentence of the language I quoted, also highlighted in yellow: “Again, such period of time for remediation assumes the active cooperation and engagement of the faculty member; otherwise, a shortened timeframe may be utilized.”  (Emphasis added.)  This means that if the university, in its subjective judgment, determines that a person is not being sufficiently “cooperative” or “engaged” in the remediation plan, termination is possible well before the end of the first academic year after the unsatisfactory rating.  In short, a single unsatisfactory rating, combined with a judgment of insufficient “cooperation” or “engagement,” can result in termination. 

That is a dramatic change from the existing rule.  To repeat, the current standard requires “incompetence,” “neglect of duty,” or something comparable.  Those words denote performance that is considerably worse than suggested by a mere finding of “unsatisfactory.”  Indeed, “incompetence” and “neglect of duty” are much worse than multiple findings of unsatisfactory performance.

This change also violates AAUP standards.  For example, in a report regarding Greenville College in Illinois, the AAUP said this:

As the writers of the 1958 Statement on Procedural Standards had assumed, most institutions have indeed developed their own standards of what constitutes adequate cause for dismissal.  They most commonly tend to be “incompetence,” “professional misconduct,” “gross neglect,” and the like.  In comparison, Greenville’s standard of “unsatisfactory service” not only is nebulous and subjective, but also sets too low a bar for adequate protection of tenure and academic freedom . . . .

Report, Academic Freedom and Tenure: Greenville College (Illinois) at page 86, available here.

Likewise, the AAUP’s formal statement on post-tenure review explains that the appropriate standard for “cause” is “incompetence, malfeasance, or failure to perform . . . duties.”  Post-tenure Review: An AAUP Response at page 230, available here.  The report proceeds to explain that if “the standard of dismissal is shifted from ‘incompetence’ to ‘unsatisfactory performance,’ . . . then tenured faculty must recurrently ‘satisfy’ administrative officers rather than the basic standards of their profession,” which fatally undermines academic freedom.  See id.

As these AAUP documents make clear, the proposed change of the cause standard from “incompetence” and “neglect of duty” to mere “unsatisfactory” performance is fundamentally inconsistent with core principles of academic freedom.  And that would be true even if the proposal required multiple findings of unsatisfactory performance.  As I explained, however, a single finding of unsatisfactory performance can justify termination under the proposal (when combined with a finding that the faculty member is not sufficiently cooperative or engaged in remediation of the unsatisfactory performance).

3.  The proposal critically weakens procedural protections.

Section IV.C. of 405.1 concerns the procedures for dismissing a tenured or tenure-track faculty member.  Part of the termination process is a hearing before an impartial committee.  The proposal revises section IV.C.5., on page 14, to strip away the committee’s ability to grant procedural protections equivalent to those afforded in a court of law.  See comment j7 on page 12 of the redline, which explains this point in more detail.

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Note that the redline contains a few other substantive comments.

As I said, this proposal is a striking attack on academic freedom and tenure.  It is thus imperative that we make our voices heard.

Joshua M. Silverstein
Professor of Law
University of Arkansas at Little Rock
William H. Bowen School of Law
1201 McMath Ave.
Little Rock, AR 72202-5142