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 <<...OLE_Obj...>>  From the issue dated January 10, 2003  	

 <<...OLE_Obj...>> 	Tears in the Fabric of Tenure Public universities in
2 states curtail the time-honored institution  By ROBIN WILSON and SHARON
WALSH  Through good times and bad, professors have been able to count on the
job protection and academic freedom that come with tenure. But faculty
members at public universities in two states are beginning to wonder whether
the cloak that has shielded them is beginning to tear.  In recent months,
the University of South Florida has made it much easier to fire tenured
professors, and the Texas A&M University System has limited the kinds of job
benefits guaranteed to tenured faculty members.  Both sets of changes were
adopted to give university administrators more control over tenured
professors and to keep the institutions out of court -- and out of the
public eye -- when they fire or discipline a faculty member.  The changes at
South Florida were approved in the midst of statewide uncertainty over the
governance of higher education. The new rules, approved by the institution's
Board of Trustees in November, create a new definition of "misconduct,"
which is any behavior South Florida deems "detrimental to the best interests
of the university."  At Texas A&M, the university's Board of Regents
declared last month that tenure guarantees faculty members their salaries,
but none of the other duties or benefits typically associated with the job
-- including laboratory space, an office, and the ability to teach graduate
students. The university wants to avoid lawsuits from professors who have
been stripped of such standing.  While no one asserts that the strictures
mark a national trend, some experts on tenure and academic freedom say the
developments are worrisome. Robert M. O'Neil, a law professor at the
University of Virginia and director of the Thomas Jefferson Center for the
Protection of Free Expression there, calls the changes "cause for grave
concern." He says universities should simply deal with problematic faculty
members individually, rather than establish rules that erode the value of
tenure for all.  The new policies, he says, "share an implicit premise at
the board level that tenure and academic freedom are somehow privileges
rather than integral components of faculty status."  A System in Turmoil  To
say that the governance of Florida's higher-education system is in flux
would be an understatement. Because of a ballot measure approved by voters
in November, a new statewide Board of Governors that will oversee individual
university boards is slated to take over this month. And the contract
between the state universities and the United Faculty of Florida, the union
that represents faculty members, is set to expire this week.  In this time
of turmoil, some boards of trustees established new rules because, officials
said, policies were needed to cover basic functions, such as paying
employees, during the interim period, and in some cases the changes were
innocuous. At the University of Central Florida, for example, the rules were
simply changed to replace "Board of Education" with "Board of Governors."
But some faculty members at South Florida say the changes there go beyond
the cosmetic, and they worry that their board eventually may make the rules
permanent. In that case, they fear, it could be open season on tenured
faculty members.  The new rules there have roiled an already enervated
faculty. The university has been at the center of a firestorm as it seeks to
get rid of a tenured professor of computer science, Sami Al-Arian, who it
contends is linked to terrorist groups, an allegation he has denied. (See
article, </weekly/v49/i18/18a01101.htm> Page A11.)  Now, some professors
have concluded that the new rules are the board's attempt to weaken the
protections of tenure. If the rules had been in place last year, they say,
the university could simply have fired Mr. Al-Arian under a new definition
of "misconduct" that is so broad it could apply to virtually anything
administrators want it to.  "Al-Arian has convinced the board that the
university would be a better place if they had the same right to fire
someone that Wal-Mart does," says Roy Weatherford, a professor of philosophy
and president of the university's chapter of the United Faculty of Florida.
In a state where one public university -- Florida Gulf Coast -- already has
no tenure at all, Mr. Weatherford is convinced that the new rules indicate
state officials' desire to phase out tenure altogether. (A university
spokesman says that the new rules will have no bearing on Mr. Al-Arian and
that his case had nothing to do with their adoption.)  The list of 14
actions that could prompt dismissal for any university employee, even a
tenured professor, includes insubordination, improper conduct, and what many
consider the most worrisome reason: "Any other properly substantiated cause
or action that is detrimental to the best interests of the university, its
students, or its employees."  Mr. O'Neil of Virginia says the rules as
written are "potentially dangerous" to tenure. Stephen H. Balch, president
of the National Association of Scholars, goes even further. "If anything
that discomforts the university can allow the university to take away a
faculty member's tenure, then in fact tenure doesn't exist," he says.  But
officials at South Florida contend that the faculty is better served now
than it was by a contract that had offered no definition of misconduct at
all. "Arguably, the university used to have unbridled discretion in what it
defines as misconduct," says R.B. Friedlander, interim general counsel at
South Florida. "If the university were going to act in an irresponsible way,
it could have done so. ... We're not going to act precipitously toward our
faculty."  Ms. Friedlander says that the definition of misconduct was taken
from rules that since 1987 have governed the staff of the College of
Medicine and other faculty members who are not in the collective-bargaining
unit. In that time, she says, "we haven't fired one faculty member that I
know of."  But most faculty members at the university feel much less secure
with that definition of misconduct. "We are absolutely not better off," says
Fraser Ottanelli, a professor of history. "The faculty contends that this is
so broad and so vaguely written as to make tenure meaningless."  Ms.
Friedlander acknowledges that the policy "is broad, there's no question
about that." But she notes that the institution will be "seeking faculty
input" when it crafts permanent rules in the coming months.  No Faculty Role
The lack of faculty input on what some have called "emergency" rules was a
primary source of outrage among professors. When the board adopted the
rules, in November, few faculty members were even aware of the proposed
policies. And there was no consultation with the Faculty Senate.  Although
the university complied with its legal duty to announce the board's agenda
beforehand -- it sent out notices to more than 80 groups and published the
agenda in a newspaper -- it failed to notify the faculty.  "There's a large
part of the faculty that's reacting to the fact that we weren't consulted,"
says Gregory Paveza, president of the Faculty Senate. "To me, that's the
bigger issue."  Ms. Friedlander notes that there was little time to consult
with anyone. However, Michael Reich, a spokesman for the university, says
that, on the day of the vote, when Mr. Paveza raised the issue, the board
agreed that the Faculty Senate should have been involved.  The lack of a
faculty role in the rule making has left some professors skeptical about
whether they will be listened to the next time around, and fearful that the
administration is gunning for tenure. "It's clear that they want to do away
with tenure and with any attempt at shared governance," says Mr. Ottanelli,
who was one of several professors appointed to consult with administrators
on permanent rules after complaining that they had no voice in the original
rules.  Mr. Reich says it's "absurd" to contend that the administration
wants to abolish tenure. "Rules or no rules," he says, "the university
supports tenure for faculty."  Mr. Paveza is willing to give administrators
the benefit of the doubt at this point. And he is also heartened by changes
in Florida law that make the Faculty Senate president a voting member of
each university's Board of Trustees. "That means that if I truly believe
it's a bad rule, my objections and my No vote will be on the record," he
says. "There are things that are changing."  What Does Tenure Include?
Texas A&M officials changed the definition of tenure last month because they
had grown weary of lawsuits filed by professors the institution had
disciplined or tried to fire. Several faculty members have sued Texas A&M
over the last few years, complaining that the university had failed to give
them due process when it removed certain duties or attributes of their jobs
that they said were guaranteed by tenure.  Dhiraj K. Pradhan, a former
computer scientist, was one of them. He held an endowed chair at the
institution's College Station campus until the administration suspended him
with pay in 1997, charging him with misusing university money. He sued the
following year, complaining that the university had violated his right to
due process when it took away his laboratory and his ability to teach
graduate students. He contended in his suit that he had a "property
interest" in those benefits that was protected by the U.S. Constitution.
The claim was based on a 1972 decision in which the U.S. Supreme Court
determined that tenure gives faculty members a "property interest" in their
jobs, meaning that the positions may not be taken away by the state without
due process. The question, though, is what aspects of a tenured job are
protected -- just the salary, or all of the duties and benefits as well?  In
Mr. Pradhan's case, the institution successfully argued that he did not have
a property interest in his laboratory and courses. But the case dragged on
until 2001, a year after Mr. Pradhan was fired.  Bob Wright, a spokesman for
the Texas A&M System, says that lawsuits like Mr. Pradhan's have been
nuisances that "take time, money, and energy." He notes that faculty members
who are unhappy about a university action still can file internal
complaints.  In the new definition of tenure, the A&M system's policy was
changed to say that "tenured faculty who remain in good standing" can expect
"those privileges customarily associated with tenure, including ... a
suitable office and workspace, serving as a principal investigator and
conducting research, teaching classes, [and] participating in faculty
governance." But the policy says that tenure "shall not be construed as
creating a property interest in any attributes of the faculty position
beyond the ... annual salary."  The lawyer who represented Mr. Pradhan,
Gaines West, says the change is dangerous, and some faculty members agree
with him. "Let's say the dean comes in and says they're moving me to an
office by myself 20 miles from the campus," says Charles Zucker, executive
director of the Texas Faculty Association, a union affiliated with the
National Education Association. Mr. Zucker says a faculty member will now be
deterred from going to court to complain.  Jonathan Knight, associate
secretary of the American Association of University Professors, says he has
"never come across something like" the A&M policy. "The university could say
to a person, 'Well, you're no longer going to teach, serve on any
committees, or have any responsibilities, but we'll continue to pay you.' A
person's reputation is in tatters, but they are unable to mount a defense."
Doesn't tenure ensure a right to more than just a paycheck? One expert
thinks so. "If that's all it was, you could strip me of so many things that
I'd end up with a job that didn't look at all like the one I expected," says
William A. Kaplin, a professor of law at Catholic University of America who
is working on a new edition of The Law of Higher Education (Jossey-Bass), a
1983 book he wrote with Barbara A. Lee, dean of the School of Management and
Labor Relations at Rutgers University at New Brunswick.  But Mr. Kaplin
acknowledges that deciding which benefits tenure guarantees is difficult.
"When you start trying to list up all of the things, then reasonable people
can differ," he says.  Cathy Ann Trower, a researcher at Harvard
University's Graduate School of Education, takes a different view. She says
universities must be able to alter the conditions of a faculty member's job.
"How else is an institution to effectively impact the productivity of
faculty members once they have tenure if you can't take anything away or
change anything?" she asks. "Imagine running a business like that. The
further the academy stretches that argument, the more ridiculous we look."
In coming up with the new definition of tenure, the university worked with
representatives from the Faculty Senates at all nine of the A&M system's
campuses, and those professors signed off on the language last summer.
Richard L. Carlson, a professor of geology and geophysics who led the
College Station senate last year, agrees with Ms. Trower that the university
"has to be able to protect itself and its students from faculty misconduct."
He also says the change offers more protection for most tenured faculty
members by spelling out what those in good standing enjoy.  But Mr. Carlson
acknowledges that professors "would rather not have seen this other language
in there" -- that faculty members are guaranteed nothing but their pay. "I'm
not saying this is good," he adds. "This was a compromise."  Just because
the system says professors have no right to anything but their salaries does
not mean that those who lose other benefits cannot try to persuade a judge
that the university was wrong. Mr. West, the lawyer, says he will still sue
on behalf of tenured professors.  It will just be much harder to win. "Our
federal judiciary is already looking for any reason to toss me out of
court," he says. "They think, 'It's the ivory tower. Let them do their ivory
tower thing over there.' The facts will now have to be even more egregious."
http://chronicle.com Section: The Faculty Volume 49, Issue 18, Page A8