ACADEMIC DUE PROCESS

Joerg Tiede, Assembly of StateConferences/Committee A Liaison

1940 Statement of Principles on Academic Freedom and Tenure

“After the expiration of a probationary period, teachers or investigators should have permanent of continuous tenure, and their service should be terminated only for adequate cause, except in the case of retirement for age, or under extraordinary circumstances because of financial exigencies.”

A note on terminology

Probationary or non-tenure-track faculty can be non-reappointed or non-renewed. There are standards of notice for non-reappointment; after two or more years of service, twelve-months notice are required.

Tenured and untenured faculty members can be dismissed for cause. This requires a hearing before a faculty committee.

A note on terminology

Tenured and untenured faculty members can be terminated due to financial exigency, program discontinuance, and physical.

Termination for medical inability to perform duties was recently withdrawn due to ADA violations.

Mandatory retirement for age is not illegal.

Relevant Redbook Statements

Most important: Recommended Institutional Regulations on Academic Freedom and Tenure. It contains model language to include in faculty handbooks. Cited as RIR in the following:

1958 Statement on Procedural Standards in Faculty Dismissal Proceedings

Statement of Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments

Relevant Redbook Statements

Standards for Notice of Non-reappointment

On Institutional Problems Resulting from Financial Exigency: Some Operating Guidelines

Non-Reappointment: Standards of Notice

a. Not later than March 1 of the first academic year of service, if the appointment expires at the end of that year; or, if a one-year appointment terminates during an academic year, at least three months in advance of its termination;

b. Not later than December 15 of the second academic year of service, if the appointment expires at the end of that year; or, if an initial two-year appointment terminates during an academic year, at least six months in advance of its termination;

Non-Reappointment: Standards of Notice

c. At least twelve months before the expiration of an appointment after two or more years in the institution.

Non-Reappointment: Procedural Standards

Faculty who are not reappointed should have the right to request written reasons for their non-reappointment.

Faculty who allege that their non-reappointment was based significantly on considerations violating the faculty member’s academic freedom or on discrimination should have the right to make the case to the hearing committee that this was the basis of the decision. The burden of proof is on the faculty member to establish the case.

Non-Reappointment: Procedural Standards

Faculty who allege that their non-reappointment was based on inadequate consideration of the information provided should have a right to have their case reviewed by a review committee. If the review committee finds that inadequate consideration was given, the case should be returned for review to the tenure committee.

Dismissal for Cause

“Adequate cause for dismissal will be related, directly and substantially, to the fitness of faculty members in their professional capacities as teachers or researchers.” (RIR)

It should “be restricted to (a) demonstrated incompetence or dishonesty in teaching or research, (b) substantial and manifest neglect of duty, and © personal conduct which substantially impairs the individual’s fulfillment of his institutional responsibilities.” 1973 AAUP/AAC&U Commission on Academic Tenure in Higher Education

Dismissal for Cause

The essential elements of a dismissal proceeding, as set forth in AAUP documents, are: An adequate statement of charges,\ The opportunity for a pre-termination hearing

before an elected body of peers, The burden of proving the charges resting on

the administration, based on clear and convincing evidence in the record considered as a whole,

The right to present evidence and cross examine witnesses,

Dismissal for Cause

A decision based on the record of the hearing, and

The right to appeal to the governing board.

Suspensions

“Pending a final decision by the hearing committee, the faculty member will be suspended, or assigned to other duties in lieu of suspension, only if immediate harm to the faculty member or others is threatened by continuance. Before suspending a faculty member, pending an ultimate determination of the faculty member’s status through the institution’s hearing procedures, the administration will consult with the …

Suspensions

…Faculty Committee on Academic Freedom and Tenure [or whatever other title it may have] concerning the propriety, the length, and the other conditions of the suspension. A suspension that is intended to be final is a dismissal, and will be treated as such. Salary will continue during the period of the suspension.” (RIR)

Sanctions Other than Dismissal

Major sanctions short of dismissal (such as suspension) require the same procedural safeguards as dismissal for cause.

Minor sanctions (such as a letter of reprimand) can be imposed by the administration but can be appealed to the grievance committee.

Financial Exigency

Definition: “an imminent financial crisis that threatens the survival of the institution as a whole and that cannot be alleviated by less drastic means.” (RIR)

So, financial exigency of programs, departments, or schools within an institution are not accepted as bona fide by the AAUP. Neither are minor financial shortfalls.

Governance Implications

“At institutions experiencing major threats to their continued financial support, the faculty should be informed as early and specifically as possible of significant impending financial difficulties.” (The Role of the Faculty in Budgetary and Salary Matters)

“[T]here should be a faculty body that participates in the decision that a condition of financial exigency exists or is imminent, and that all feasible alternatives to termination of appointments have been pursued.” (RIR)

Governance Implications

Given a decision to reduce the overall academic program, it should then become the primary responsibility of the faculty to determine where within the program reductions should be made. (On Institutional Problems Resulting from Financial Exigency)

The term “primary responsibility” is defined in the 1966 Statement on Government of Colleges and Universities to mean that in such matters…

Governance Implications

…”the power of review or final decision lodged in the governing board or delegated by it to the president should be exercised adversely only in exceptional circumstances, and for reasons communicated to the faculty.”

Program Discontinuance

“The decision to discontinue formally a program or department of instruction will be based essentially upon education considerations, as determined primarily by the faculty as a whole or an appropriate committee thereof.” (RIR)

“’Educational considerations’ do not include cyclical or temporary variations in enrollment. They must reflect long-range judgments that the educational mission of the institution as a whole will be enhanced by the discontinuance.” (RIR)

Terminations

“[T]he institution will make every effort to place the faculty member concerned in another suitable position. If placement in another position would be facilitated by a reasonable period of training, financial and other support for such training will be proffered.” (RIR)

“In all cases of termination of appointment because of financial exigency, the place of the faculty member concerned will not be filled by a replacement within a period of three years, unless the released faculty member has been offered reinstatement and a reasonable time in which to accept or decline it.” (RIR)

Conclusion

Tenure, and thus academic freedom, is only as secure at an institution as the provisions in the faculty handbook that protects it.

The AAUP has established definitions and procedural standards to secure tenure – many of them jointly with other educational organizations, such as AAC&U.

Thank you!