EMU-AAUP President Susan Moeller sent around an update about the strange case of the Board of Regents denying two faculty members tenure in June earlier today:
I would like to update you on the status of the tenure denial cases. The EMU-AAUP Executive Committee has decided, in consultation with our attorneys, to take one of the faculty tenure denial cases to arbitration.
The EMU administration has denied our Step III grievance. This denial indicates that the administration believes that the Board of Regents has the “unfettered” right to deny any faculty member tenure for any reason at any time. We obviously believe this is not the case and this is the issue we are bringing to binding arbitration.
We are not taking both cases to arbitration on the advice of our attorneys.
Obviously, this status update raises a lot of questions that we can’t answer and probably can’t even contemplate here because if concerns regarding privacy, process, etc. But beyond that, what exactly is the Board of Regents rights regarding approving faculty for tenure and promotion? And what is tenure, anyway?
Not too long ago, my wife and I had some friends over for dinner– fellow academic-types– and we chatted for a while about this particular situation. We all agreed that all we knew was based on various rumors we had heard, but we didn’t agree on what rights the BOR has (or not) in this situation, and we didn’t completely agree on what tenure is (or isn’t).
Does the BOR have the “unfettered” right to deny tenure? Well, the contract language I found just now that seems to talk about that says “Tenure shall be deemed granted upon the Board of Regents’ approval.” That’s kind of a weird phrase to me because it doesn’t say that the BOR can deny tenure; it says they can approve it, and, as odd as that might sound, the context of the contract sort of suggests that this is the BOR main function. Here’s a sentence that precedes that one:
The Provost and Vice President for Academic Affairs shall review the Full Evaluations for reappointment and tenure and on or before March 15, advise the applicant of the results of his/her review and forward his/her recommendations to the President for his/her approval of reappointments and recommendation to the Board of Regents for granting of tenure.
To me, this suggests that the intention of the BOR’s role here is to approve tenure after everyone else has signed off on it. I’m certainly not a lawyer, but does this mean that the BOR has the right to “veto” something? I dunno.
And again, what exactly is tenure? Some of the folks at our dinner party the other day said it is mainly about job security; I said it’s mainly about academic freedom both in terms of scholarship and teaching. Unsure, unable, and unwilling to talk about the particular cases at hand, we came up with a couple of ridiculous scenarios:
Suppose an assistant professor going up for tenure has gone through the process and it is about to be signed off/approved by the BOR but then is convicted and sentenced for running a crystal meth lab in his/her garage. Some at the table said that the right course should be for the BOR to deny tenure, but I thought the right course would be to go through the academic HR office and simply fire this person.
Someone pointed out that “just firing” a tenured professor is not easy, even for a serious crime, but that seemed a little dubious to me. After all, suppose a tenured and full professor was convicted of a serious crime like that: would that mean he or she couldn’t be fired? That they would take a leave without pay to go off the prison and still be able to come back after serving their time? I dunno about that either.
Anyway, all of this is to say that this is complicated and murky stuff. I for one continue to believe that tenure does not protect anyone from being fired for doing something bad, and, in the case of the folks who were denied tenure this spring, it sure seems like something’s amiss. But clear-cut this stuff ain’t.
At this summer’s AAUP Summer Institute, during the 2-day workshop on Contract Administration & Grievances, the exact question you raise came up: whether it’s possible to fire a tenured professor convicted of a crime.
FWIW, it was unanimous opinion of the presenters that your intuition is correct: Tenure doesn’t protect you from the consequences of criminality. The correct move would be to follow the usual HR procedures; the union’s role would be to ensure procedural fairness.
Jason is right, but the limits on tenure are even sharper than his comment suggests. A tenured professor can be fired not merely for criminal behavior, but also for a serious failure to fulfill professional obligations — which, in short, means, “don’t do your job, and you can be fired, Professor!”
Of course, how a professor’s job is defined is broader than, say, a sales’ clerk’s job, but clear cut areas would include say, a persistent failure to appear at one’s scheduled classes without prior notice and without properly documented reasons (hospitalization, etc) for not coming to class; or plagiarized scholarship. Neither of these types of failure to meet professional duties rises to the level of criminal behavior, but both can be and have been offenses for which tenure is terminated. A rigorous adherence to proper procedures in such cases, as extreme as they are, is vital: the accused must be allowed to confront the evidence against him/her. (At EMU in recent years, there has been considerable question about the ability of Management to follow fair procedures, which ultimately undermines the ability of Management to manage).
Tenure exists for, and was created in order to protect, academic freedom. It does so by creating a level of job security that is insulated from political pressures. Despite popular impressions, tenure is not a promise of lifetime employment. An appointment with tenure is always contingent upon the faculty member’s carrying out his or her professional duties in a responsible and ethical way. Obviously, terminating tenure is a serious and protracted and very rare step; it’s not to be undertaken lightly. But it has been done at EMU, with just cause, in recent years, at least once.
The involvement of a Board of Regents in actual decisions over tenure is poised with conflicts of interests, as the BOR has no procedures for evaluating evidence (or investigating allegations of misconduct). Furthermore, it is widely recognized in higher ed that Boards are necessarily both removed from academic life and more susceptible to political pressures: These are strengths in many ways for a governing board, but they are strengths that can become liabilities when a Board intrudes into complex processes about which it may lack full information.
The Board, in the view of many well informed EMUers, most of whom feel constrained in what they can say publicly, would have been wiser to delay any action on these two faculty members’ tenure case, if the Board thought that there were serious problems or questions on these two candidates. The board could then have had a full investigation done, by capable people thru a fair process. In other words, the Board took on the roles of judge and jury and enforcer, all without the accused having the chance to confront the evidence against them, and that taking on of too many powers and acting without any fair or open process deeply hurt EMU and the respect accorded the Board. Far wiser would have been a choice by the Board to act as an appeals court, sending the cases back for a thorough review. Part of that review should have been, and still needs to be, an investigation into how relevant EMU administrators handle allegations of serioius misconduct. Word around campus is that they are not fairly or evenly handled, depending on how powerful the accused person is. That’s the impression that long time EMU hands from all ranks and divisions have when they look at the problem. None of the various offices that have authority to investigate allegations of misconduct is regarded as having fair procedures or competent personnel for such tasks.
The impression is that cronyism rules, and the Board of Regents has not addressed that perception or the underlying reality.
These observations above are not shaped by any particular knowledge of the two current cases at hand. But they are shaped by my experience, circa 2004-06, as a Grievance Officer of the EMU-AAUP. During that time, I represented two faculty members who were wrongly denied a recommendation for tenure by the Provost, and we won a reversal of those unfair denials of tenure; the relevant standards in both cases showed that these colleagues had earned tenure. Evidence showed that various administrators had an ax to grind against these two, and that ax was used in violation of academic freedom, the contract, and common sense. These two faculty members’ cases were, as I understand the history, the only denial of tenure cases ever reversed at that level. Both colleagues remain today valuable, productive tenured members of the EMU faculty.
From what I know about the current case being taken to arbitration, I predict the colleague will win tenure. He earned it by the appropriate standards, was properly recommended for it, and allegations against him were treated by the BOR as determinative facts when they were mere rumors. Hence, the denial of tenure decision was a violation of academic freedom, and it’s potentially front page news in the nation’s higher education press. Here’s hoping that a quick and just resolution will be reached without all out war. Yet, when there’s an attack on the tenure process, it’s natural for all defenders of academic freedom to prepare for war; surprise attacks, like the action of the board in June, motivate people to fight. There are wiser, less oppositional and principled routes available, if leadership will taken them.