Narrowing the Terms of Tenure

University of Arkansas professors want to stall a vote on system policy changes they say would upend the definition of tenure. Many fear the system is trying to focus on the vague concept of collegiality.

December 13, 2017
 
University of Arkansas

It’s hard to build faculty consensus on anything, but professors across Arkansas and colleagues elsewhere are speaking out against proposed changes to the University of Arkansas System’s personnel policies -- changes they say would make them tenured or working toward tenure in name only.

Of particular concern is proposed language that would make being a bad colleague a fireable offense.

The university system says it’s not trying to limit tenure but rather make its terms clearer. Many professors remain unconvinced.

“Tenure would be kind of like a hollow shell, or the appearance of tenure without the actual protections” under the proposal, said James Vander Putten, associate professor of higher education at the University of Arkansas at Little Rock and vice president of the state’s conference of the American Association of University Professors.

He added wryly, “The impetus here is nothing more than a wish list for university attorneys, to make it easier to get rid of troublemaker faculty members like me."

Troublemaker or not, Vander Putten is far from alone in opposing the system Board of Trustees’ plan. The Arkansas conference of the AAUP and the executive committees of the Faculty Senates at the Little Rock campus and the University of Arkansas at Fayetteville all have formally opposed the changes. The Faculty Senate at the University of Central Arkansas -- which is not even part of the university system and therefore not subject to board policy -- also has publicly condemned the proposal.

“If the University of Arkansas System Board of Trustees adopts the proposed changes, our colleagues in the University of Arkansas System will lose the rights of academic freedom, hampering their effectiveness in teaching, research and service, and face severe hardship in recruiting and retaining qualified faculty,” reads the Central Arkansas faculty resolution. “Such weakening of tenure in Arkansas’s flagship school will affect all Arkansas public universities.”

Currently, system policy says that professors may be terminated for cause -- such as incompetence, neglect of duty, intellectual dishonesty or moral turpitude -- after administrative due process. That’s in line with many if not most institutions’ personnel policies and widely followed standards suggested by the AAUP. But the University of Arkansas wants to introduce new, more specific grounds for cause, including showing “a pattern of disruptive conduct or unwillingness to work productively with colleagues.”

That sounds a lot like collegiality to professors, and therein lies the rub. AAUP has long rejected collegiality as a distinct criterion for faculty evaluation, on the grounds that it is a vague, subjective concept that has over time been levied against professors with unpopular ideas or controversial research agendas. AAUP doesn't deny that collegiality matters, but says that a meaningful lack of it will manifest in one or all three pillars of faculty work: research, teaching and service.

“Historically, ‘collegiality’ has not infrequently been associated with ensuring homogeneity and hence with practices that exclude persons on the basis of their difference from a perceived norm,” reads the association’s statement on Collegiality as a Criterion for Faculty Evaluation. “The invocation of ‘collegiality’ may also threaten academic freedom. In the heat of important decisions regarding promotion or tenure, as well as other matters involving such traditional areas of faculty responsibility as curriculum or academic hiring, collegiality may be confused with the expectation that a faculty member display ‘enthusiasm’ or ‘dedication,’ evince ‘a constructive attitude’ that will ‘foster harmony,’ or display an excessive deference to administrative or faculty decisions where these may require reasoned discussion. Such expectations are flatly contrary to elementary principles of academic freedom, which protect a faculty member’s right to dissent from the judgments of colleagues and administrators.”

Two of the most vocal opponents of the changes, Robert Steinbuch and Joshua Silverstein, professors of law at the Little Rock campus, shared their own concerns about the changes in a post for the James G. Martin Center for Academic Renewal’s blog. “The state of Arkansas is facing an existential threat to academic freedom,” they wrote, saying that a lack of collegiality would be “a stand-alone basis for termination” under the policy, placing such behavior “on the same plane as ‘threats or acts of violence.’”

In responding to faculty concerns, the Arkansas system has said that current board policies don't preclude dismissal for any of the proposed guidelines. “The intent of the revision is to add precision and specificity, thereby providing more explicit guidance to faculty and removing ambiguity as to the requirements of the policy,” reads an FAQ-style system document. “For example, there should be no ambiguity that engaging in racial discrimination or sexual harassment by a faculty member is cause for disciplinary action.”

Most importantly, the system says, “While the new definition was expanded to provide additional examples for which a faculty member can be disciplined or terminated, the new definition explicitly sets out the type of conduct for which Arkansas system faculty have always been subject to discipline or termination.” During the past five years, two tenured professors have been dismissed after trustees’ hearings for specific reasons, such as disregarding university and departmental policies, continued poor teaching, or frequent and excessive absences and unauthorized outside employment, according to the system.

Concerns Beyond Collegiality

Steinbuch and Silverstein nevertheless call the terms of tenure much more “narrow” under the proposal. They also criticize proposed policy language saying that professors may be disciplined or dismissed for “unsatisfactory performance,” another arguably vague standard. The draft policy says that an unsatisfactory performance evaluation must be reversed to satisfactory by the end of the following academic year to avoid risking dismissal, assuming the professor is “actively cooperating and engaged” in the process. Other timelines may be used if that’s not the case, it says.

The upshot of that change is “striking,” Steinbuch and Silverstein wrote, in that if a faculty member “resists a single negative review, appeals that decision internally, or objects to colleagues or administrators about that review, he can be fired for lack of ‘cooperation.’”

Steinbuch, Silverstein and their colleagues have a third major concern: that under the proposed policy, academic freedom would pertain to a professor’s scholarship and assigned teaching duties, but not necessarily service. Currently, the policy says that professors’ “mere expressions of opinion” are generally protected.

“This means, for example, that a professor could be fired merely for commenting publicly or internally about a school’s alleged financial improprieties or admission practices,” the law professors wrote, arguing that the faculty recruitment and freedoms would suffer under the policies. The changes would be most keenly felt by minorities, racial, religious and political, they said.

Steinbuch and Silverstein argue that board limitations on faculty rights are one of two main tools in an ongoing war on academic freedom, the other being the increased hiring of professors off the tenure track. Richard J. Peltz-Steele, a professor of law at the University of Massachusetts at Dartmouth, agreed in a separate post about the matter on his blog, saying that “what is happening at Arkansas, just one instance amid an alarming national trend, needs wider attention. Simply put, an attack on academic freedom anywhere is an attack on academic freedom everywhere.”

To that point, Arkansas’s board also is considering new policy language saying that professors teaching off the tenure track are “at will” employees subject to dismissal for “convenience,” within 30 days’ notice. Professors across campuses have objected to these proposed changes, as well. The Little Rock Faculty Senate executive committee memo to the system calls such a policy disruptive to instruction and in conflict with the university’s mission, for example.

Professors also have objected to the system’s proposal to eliminate an initial faculty subcommittee in potential dismissal cases involving tenured faculty members. New language would place the decision to proceed with termination in the hands of the university’s chief executive, based on the recommendation or the professor’s chair or dean. “Faculty see this as a significant reduction in the due process afforded the faculty member,” reads the Fayetteville Faculty Senate memo of opposition.

The Fayetteville memo also objects to draft language saying that “formal rules of court procedure need not be followed” in hearings before a faculty committee in dismissal cases. “Faculty are concerned that this is a reduction in the flexibility of the Hearing Committee to provide protections to the faculty member facing dismissal,” says the Fayetteville Faculty Senate executive committee.

The Foundation for Individual Rights in Education also has spoken out against Arkansas’s plan. Peter Bonilla, director of FIRE’s Individual Rights Defense program, wrote on the organization’s blog that he’s seen through his work how collegiality-related charges are “easily and frequently thrown in as a laundry-list item in faculty investigations, and often it is the only charge universities can make stick.” That’s because it’s “a difficult charge for faculty to fight -- just about any behavior could be subjectively cast as uncollegial, after all -- and therefore an easy charge with which to gain leverage,” he wrote. “If the Arkansas system’s policy were enacted, how would an ‘unwillingness to work productively with colleagues’ be defined? The policy provides no indication, so your guess is as good as mine.”

Beyond content, questions of process surround the board’s proposal. Faculty members have accused the body of being fly-by-night in its approach, releasing the proposed changes to faculty members just two weeks before a planned vote earlier this fall. The board eventually delayed the vote to late January due to faculty concerns, and it recently extended a faculty feedback period. Professors still have questions about the board’s attempts -- or lack thereof -- at transparency, however. Some at the Little Rock campus have even requested documentation on the issue, in the form of public records.

Just last week, the Academic Senate of the University of Arkansas for Medical Sciences started an online petition against the draft policy, recommending “in the strongest terms” that the board’s January vote be delayed. The current discussion should be tabled and a committee should be formed, representing professors across the university system, to allow for “proper consultation and discussion.” It’s gathered about 350 signatures so far.

Nate Hinkel, university system spokesperson, said that the process for revising the board policy is ongoing, and that Arkansas continues to welcome feedback from across the system.

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