Tenure on the Line at Wayne State

July 23, 2012

The faculty union at Wayne State University says that proposals made by the administration last week would effectively eliminate tenure protections any time the university wanted to make budgetary shifts.

Under the proposal, "they can get rid of anyone. They admitted at the bargaining table that tenure confers no special status in terms of invoking the procedure for dismissal," said Charles Parrish, president of the faculty union, which is affiliated with the American Association of University Professors and the American Federation of Teachers.

Parrish said in an interview that negotiators were shocked that the proposal was made during contract negotiations, and were afraid that the faculty and academic staff members they represent might not appreciate that the university had actually proposed changing tenure protections. So the union sent the administration proposal (verbatim) to all of its members, and provided a copy to Inside Higher Ed. The proposal does in fact propose to eliminate the university's current tenure protections, which are fairly standard. Currently, tenured faculty members would only be dismissed for serious misconduct or if the university were in a dire financial crisis.

The administration's proposed new criteria for dismissing faculty members -- including those with tenure -- include traditional reasons, but also "the substantial curtailment or discontinuance of a program which removes any reasonable opportunity for using a faculty member's services" and "financially based reduction in force." The combination of these reasons, faculty leaders say, effectively eliminates the traditional protections of tenure, which don't allow colleges that are not facing financial disaster to disregard tenure status in eliminating positions.

The union has also distributed summaries of negotiations -- some of which have been posted online -- in which James Greene, the chief negotiator for the university, is quoted as answering a question about whether the proposal would eliminate tenure by saying "It would have that effect, yes."

Margaret Winters, associate provost for academic personnel at Wayne State and another member of the university's negotiating team, confirmed in an interview Sunday both the proposal and the quote, but she said that the former did not represent an attack on tenure and that the latter was taken out of context. "Our intent has never been to do away with tenure," said Winters. "I'm proud to be a faculty member with tenure."

At the same time, she said that the university needs "flexibility" if it is going to continue to "focus on students" in times of tight budgets. Wayne State, like other Michigan universities, has experienced repeated state budget cuts and also strong pressure to minimize tuition increases. Financial exigency is "a very high bar," she said. The idea that tenured faculty members (who are doing their jobs well) could be terminated only in cases of financial exigency is "a luxury of the past," she said.

At the same time, Winters said that whenever programs have been eliminated up until now, the administration has always worked hard to find appropriate spots for those whose jobs are eliminated. That philosophy wouldn't change, she said, even if the contract protection for tenured faculty members were to be eliminated.

The 'Financial Exigency' Standard

The idea that only "financial exigency" could justify layoffs of tenured faculty members (not for cause) comes from the AAUP, and has been widely respected until the economic downturn that started in the fall of 2008. The AAUP defines financial exigency as a state so dire that it "threatens the survival of the institution as a whole." In theory (and this has happened in the past) an institution's board would declare exigency. Then layoffs might include tenure faculty jobs that would be protected until exigency was declared.

In the current downturn, however, some institutions have moved to layoffs of tenured faculty members without declaring exigency while other institutions have moved to change layoff rules so that financial exigency need not be declared to eliminate tenured faculty jobs. The eight-campus University of Louisiana System did this last year, and this is essentially what Wayne State is trying to do now. Many public university leaders have said that it is hard to meet the "survival at risk" test of financial exigency because so many states seem willing to impose budget cuts that do terrible damage to institutional missions, while not actually putting them at risk of shutting down.

Many of the universities that have ignored the financial exigency standards are not unionized. A push to eliminate tenured faculty positions at a unionized campus illustrates the way provisions to protect tenured faculty members can make all the difference in who loses a job. An arbitrator blocked Florida State University in 2010 from eliminating the jobs of 21 tenured faculty members. The institution cited budget cuts but did not declare financial exigency and the Florida State union successfully argued that its contract prevented the layoffs of most of the tenured professors. (Notably, the arbitrator did not find fault with most of the layoffs at Florida State of non-tenured faculty members.)

While the Florida State dispute differs in some ways from the Wayne State dispute (in both cases more is in play than layoff provisions), the Wayne State administration's proposal -- in a contract there -- would not block layoffs like those proposed at Florida State. The current language likely would block such layoffs.

The university has also proposed other changes in tenure, including regular reviews that would be similar to what is called "post-tenure review" at other institutions. (Winters, the associate provost, said the administration was not using that phrase due to the emotions it elicits.) Much of the anger from faculty members comes from the lowering of the bar for laying off tenured faculty members who are doing well, but in programs that the university doesn't want to keep. Union leaders say that they believe Wayne State -- if faculty members approved the proposal -- would be the first research university where protections against the layoffs of tenured faculty members were negotiated away. And union leaders said that they are determined not to do that.

'Frontal Attack on Tenure'

Michael McIntyre, a professor of law at Wayne State who is in the Academic Senate and who formerly was a chief negotiator for the faculty union, prepared an analysis of the administration's proposal, which he called "a frontal attack on tenure."

In his analysis, he noted that "the administration already has the power to fire faculty and academic staff in the face of an economic emergency. What it apparently wants is the authority to fire people if it chooses to spend money to advance some agenda that it considers more important than retaining faculty and academic staff, even if these people are performing their jobs at least adequately and perhaps very well or even brilliantly."

McIntyre went on to say that making it easy for administrators to eliminate departments and tenured faculty positions at will is an idea that challenges the values of higher education. "In fact, the administration’s attack on tenure is an attack on the idea of a university, as that idea has been developed and nurtured over hundreds of years. The attack represents an attempt to convert the university from an institution in which the teachers and researchers are central to a university based on a corporate model where administrators run all aspects of the institution and the faculty are mere employees," he wrote. "This proposal will be viewed by the outside world as an assault on the traditional idea of a university, and the response from the academic community within and without the university will be commensurate with the gravity of that assault."

Tenure protections are strong, he wrote, but the university grants tenure only to those who go through multiple rounds of evaluations. "It might be noted, for example, that a tenured faculty member ... proved his or her worth as a scholar by going through a rigorous tenure process, getting a two-thirds vote of a series of sequential committees, culminating in the grant of tenure by the President and the Board of Governors."

If the administration's proposal is adopted, or even if word spreads that the administration wants this concept of tenure, McIntyre predicted, the most prominent faculty members would look for positions elsewhere, and top scholars would hesitate to take positions at the university. McIntyre wrote: "The administration, plain and simple, has made a proposal that would spell the end of the university's pretensions as a major research institution. The proposal itself will do significant harm to the university once its terms are well publicized. The academic community does not look kindly on universities that tear at the edges of the basic guarantee of tenure. A frontal attack on tenure, if successful, is a death sentence for any serious research university."

'The Good of the Students'

Winters, the associate provost, said that the concerns being raised by faculty members were part of the negotiating process, and that the degree of concern might be overstated. "The tone at the [bargaining] table is nowhere as shrill as the tone you get from reading the pieces sent out by the AAUP-AFT."

The university's proposals about faculty members (tenured or not) are based on the idea that "we want the good of the students" and "the students are not served by anything but uniformly high level of performance." In an era when "we are interested in accountability, we believe that tenure does not mean that you never get to be evaluated." And similarly, she said, that doesn't mean tenure creates "immunity" if programs need to be eliminated. These principles, she said, "all feed together for the quality of Wayne State."

Winters stressed that she thought the quality of education at Wayne State was very high, and that the quality of the faculty was very high. But she said that the reality is that with regard to sources of funds for Wayne State, "there is not happy light at the end of the tunnel," so reviews of programs need to continue if the university is going to offer the best range of options to students.

"This is about the ability to change things in response to the times," she said. "I'll give an example from a mythical department where they may have nine different degree programs, and one has been under-enrolled for a long time, and it has two faculty members," she said. "We want to be able to close a program, and find another place for them. But if necessary we want to close down a program that is no longer viable."

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