A Violation of Shared Governance

Vermont Law School violated shared governance when it moved 14 of 19 total tenured professors to contingent appointments without faculty involvement or approval, according to a new investigative report from the American Association of University Professors.

The finding -- based on a site visit and interviews with affected faculty members and administrators -- means that AAUP members may vote to sanction the law school when they gather next month in Washington for their annual meeting.

In a lengthy response to AAUP's report, included therein, the law school says that it had to act quickly to close a $2 million budget gap, and that professors were in fact encouraged to involve themselves in the process.

Involuntary ‘Restructuring’

In May and early June of last year, the school’s dean and other administrators informed the 14 affected faculty members that their appointments would be terminated as of July 1, 2018. These professors were given a memo citing a projected $1.1 to $2.3 million budget deficit in the 2019 fiscal year and describing the administration’s decision-making process to “restructure” the law school faculty as a “series of difficult decisions taken only to avoid closing the school during FY19 and only after significant consultation with trustees, faculty and other stakeholders.”

The memo said that the school had decided that faculty salary reductions would not be enough to fix the financial crisis and that “the remaining savings would need to come from the involuntary restructuring of faculty positions.” It described how the administration developed “programmatic goals” and “instructional models” and then “measured the number of faculty needed under the models.”

After gaining approval to move forward with its plan from the school’s governing board and presenting the plan at an earlier faculty meeting, members of the administration then “met to select the faculty members who would remain to teach the envisioned curriculum,” the memo said.

At subsequent “performance review meetings” with the 14 faculty members, administrators presented them with some choices, according to the AAUP. Some were given a short list of “restructured faculty options” to avoid having their appointments terminated outright within weeks. These were mainly short-term appointments with reduced teaching and service responsibilities.

Relinquishing Tenure

Most significantly, all options required the faculty members to relinquish their tenured status. They would also be forced to give up their faculty voting rights, sign a general and age-discrimination release, and agree to nondisclosure and nondisparagement provisions, the report says. A few faculty members were offered termination of July 1, with health benefits, if they signed the papers.

In the end, 13 faculty members signed an agreement of some kind. One refused and was terminated.

The school offered an appeals process. But AAUP says it was rigged against faculty members, in that its charge was “not to make an independent determination of the merits of any case, but to determine whether the administration fairly considered, in accordance with the stated criteria, the relevant information regarding appellant’s circumstances as they relate to the decision to restructure based on the future programmatic needs” of the school. And the reviews considered only the professors’ 2017-18 performance.

Among the criteria used to evaluate the relative merit of the faculty members were “professionalism,” quality and quantity of scholarship, and “impact" on the school’s “national reputation.”

A ‘Draconian Approach’ vs. ‘Meaningful Consultation’

Later, in June, the faculty personnel committee met with President and Dean Thomas McHenry to try to find another way forward. In a memo to McHenry, the committee also questioned whether such a “draconian approach” to the tenured faculty was necessary to achieve financial stability and whether “the rationale of ‘financial exigency’ [was] being used to clean house of expensive tenured faculty members in order to be able to replace those removed with lower-cost new hires.” The memo included a proposed voluntary buyout model instead and criticized the fact that the new appeals committee was stacked with non-tenure-track professors.

Those recommendations were never acted on, according to AAUP’s report. It concludes that the institution’s “minimal compliance with a few AAUP standards” regarding shared governance doesn’t bring Vermont Law School into alignment with the norms of academic governance.

“Asking faculty members for suggestions does not constitute meaningful consultation when the faculty is not given any opportunity to review, analyze and assess the options, whether suggested by faculty members or not, and, ultimately, to affect decisions being made,” the report says. “Having access to data is not equivalent to being consulted about what those data mean and how they should be understood and addressed. A strong culture of academic freedom relating to classroom teaching and research is only one part of what constitutes academic freedom.”

Moreover, it says, “providing non-tenure-track faculty members some participatory rights does not necessarily translate to a strong culture of governance if faculty members with those rights are not afforded the opportunity to exercise them in ways that matter.”

Most troubling about what happened at Vermont Law School is “the significant erosion of trust” where there was once, by many accounts, a strong sense of community, and the “net effect on the institution.”

The school's administration “eliminated the tenure of three-quarters of the school’s tenured faculty members, making them essentially at-will employees; transferred the bulk of the teaching load to contingent faculty members; and radically reduced the size of the full-time core faculty,” AAUP’s investigating committee wrote. “Put inelegantly, [the institution] laid off a majority of its most expensive faculty members and then outsourced the work they did to a much cheaper contingent labor force, with no intention, it seems, of looking back.” Left “in the dust pile” of this type of “corporate restructuring are the primary goals of higher education: to serve the common good and advance the progress of society through teaching and research, which goals are the very reason for academic freedom, tenure and shared governance.”

‘That Was Their Choice‘

In a lengthy statement included in AAUP’s report, McHenry, the dean, wrote that any suggestion that the law school “engaged in reduction of its instructional budget, including restructuring faculty positions in the spring of 2018, without ongoing, extensive and continuous involvement of the faculty is inaccurate.”

The law school’s administration “cannot be faulted because some faculty failed to engage in governance -- that was their choice -- as best evidenced by the fact that only one tenured faculty chose to serve” on the dean’s advisory committee, he said.

When a condition of financial exigency was identified, and it became clear that the “survival of the school was at stake, the administration explored, together with the faculty, all realistic alternatives to involuntary reductions in faculty positions, while at the same time preserving its premier environmental program,” McHenry wrote.

AAUP’s report doesn’t identify a “single alternative” to balancing the instructional budget presented to the administration by the faculty or suggest one of its own, he said. And to the extent that the report notes lack of involvement by “some portion of the tenured faculty,” McHenry added, “the report fails to highlight the administration’s continued solicitation of input from the faculty, and the extent to which some faculty were not willing or did not choose to participate.”

As for “what really happened,” McHenry wrote that the financial challenges of a private independent law school with a small endowment “caught up” with the institution in late 2017. Enrollment and discount rates did not meet projections, strategic initiatives didn’t generate adequate anticipated revenue, and the school could no longer sustain the deficit spending it had incurred annually for the past six years, he said.

Despite “significant success in increasing enrollment, starting new programs, including nationally recognized online courses, and renegotiating debt service,” he continued, “the school’s reserves were significantly depleted and another year of deficit spending at that level could have forced the school’s closure.” Most challenging was the projected deficit of more than $2 million annually.

‘Immediate Action Was Necessary’

Immediate action was necessary, McHenry said. So over the course of seven months, through last summer, college leaders, including several faculty members, “met, conferred, discussed and reviewed numerous options to address the financial challenges and ensure the survival of the school. All suggestions were solicited, and no option was left unexamined.” The school explored partnerships with other institutions and looked into state funding options, for example, without success.

The institution’s governing board passed a resolution in February requiring a balanced budget and the maintenance of educational quality, McHenry wrote, and as the school “had already reduced expenses in all other areas, the instructional budget would have to be reduced.”

At the time, Vermont Law School was carrying a faculty “more than twice as large as the faculty at many similarly sized law schools,” he said. The administration approached the faculty, both collectively and individually, about voluntary restructuring. Very few faculty were willing to participate voluntarily in salary reductions or position changes to allow the school to close the budget gap, despite the obvious conclusion that the failure of a voluntary approach ensured that involuntary action would have to be taken.

McHenry added, “It was abundantly clear that if viable alternatives were not identified, involuntary reductions to the instructional budget would have to be made.” Having “exhausted all other options, the school took action in the form of a programmatic restructuring that has resulted in a close-to-balanced budget” in 2019 and a projected balanced budget the next fiscal year.

The law school acknowledges that the process “was, although necessary, a deeply painful experience the school hopes never to repeat,” he said.

Clashing Narratives

AAUP’s report implicitly questions the idea that Vermont Law School was in true financial exigency and notes that it never declared that status publicly. The committee was “troubled” to learn, for example, that the school continued to invest in its strategic plan, increased spending on technology and marketing and administration, and authorized salary increases for professors at the lower end of the pay scale in 2018.

The administration “was certainly successful in communicating the narrative of the school’s dire financial straits,” however, the report says. “And it proceeded to assume the existence of such a condition as the basis for ‘programmatic and faculty restructuring.’”

To a person, the committee wrote, faculty members interviewed “registered the seriousness of the situation and expressed their deep concern for the school’s future.” And, contradicting McHenry’s assertion that the report includes no alternatives to faculty contingency, the committee wrote that deep faculty salary cuts had emerged as the most viable way forward by last spring.

Another idea mentioned in the report was faculty buyouts. Other faculty ideas were ignored or dismissed by the administration, the report says.

Nevertheless, in a faculty meeting last April, the school began pushing programmatic and faculty restructuring ideas, faculty members told the committee. The programmatic criteria presented related to the institution’ mission and other goals. But the faculty criteria reflected teaching, research and service criteria already used in the promotion and tenure process.

By most faculty accounts, however, no one mentioned the idea of involuntary restructuring until last May. That’s when the dean reportedly informed the governing board of the administration’s plan to reduce the number of faculty positions and received approval to proceed.

According to the report, “Neither the faculty meeting nor the [committee] formally responsible for reviewing faculty appointments and reappointments were involved in the review process that identified the faculty members whose positions would be restructured.” The report also notes the negative implications for academic freedom in an environment where shared governance is lacking and tenure has been gutted.

Most of the time when the AAUP investigates institutions, it’s for alleged violations of professors’ academic freedom. Findings of violations of academic freedom often lead the organization's members to censure colleges and universities at its annual meeting.

Findings of violations of shared governance are more rare for the AAUP, but they typically lead members to vote to sanction an institution. The last campuses sanctioned for violating shared governance were Union County College and the University of Iowa, in 2016. Iowa has been removed from the list of six sanctioned institutions for working to resolve its alleged violation.

Anita Levy, senior program officer for AAUP, said what sets Vermont Law School apart from other cases involving the loss of tenured faculty appointments is that “almost the entire” tenured faculty was “contingentized as a result of its having played no meaningful role in analyzing, assessing or, most important, approving a restructuring plan.”