The Chronicle: 1/10/2003: 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, 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."

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