Faculty members at Nevada’s eight colleges and universities are bristling at changes being proposed to the state’s code that they say will give administrators a freer hand in scuttling programs and in laying off faculty members -- even if they have tenure.
“This is a potentially destructive policy change that seemingly breaks tenure around any ill-defined fiscal crisis,” Bryan L. Spangelo, a professor of biochemistry at the University of Nevada at Las Vegas, wrote in an e-mail to his colleagues warning them about the possible changes. “Without a strong tenure model, the classic three-legged stool of academia is shattered. Academic freedom and shared governance will suffer.”
The source of the worry for faculty members -- which administrators say is grounded in an inaccurate interpretation -- is a draft of a revised code governing the work of the Nevada System of Higher Education. A task force, half of whose members are administrators and the other half faculty, has been considering revisions to the state’s code covering “financial exigency” and curricular review. It has not yet been proposed to the regents, and faculty senates are still preparing their responses.
Under the proposed amendments, a review of the curriculum can be triggered by “adverse economic conditions.” That review can result in “a unit, program or curriculum” being eliminated, reduced in size or reorganized. And if that happens, the suggested new rules say, “then the faculty tenured in that area may be laid off.”
One reason that the new language alarms faculty members is that, by making "adverse economic conditions" a formal reason to prompt reviews of academic programs, it effectively injects financial considerations into curricular decisions, which are traditionally the exclusive domain of faculty.
Another is that “adverse financial conditions” is seen as a much lower threshold to cross than the commonly accepted standard for when tenured faculty can be dismissed, “financial exigency.” Typically, financial exigency is understood to describe a state of fiscal affairs that has grown so dire that it threatens the survival of the institution because the financial resources of a university are not sufficient to support its existing academic programs or to fully pay its faculty.
Citing financial exigency in dismissing faculty members with tenure or long-term appointments should happen only as “a last resort, after every effort has been made to meet the need in other ways and to find for the teacher other employment in the institution,” according to a 1925 American Council on Education Conference Statement on Academic Freedom and Tenure , with which the American Association of University Professors joined. “Situations which make retrenchment of this sort necessary should preclude expansions of the staff at other points at the same time, except in extraordinary circumstances.”
Nonetheless, other institutions  have been appearing in recent years to define financial exigency down. In response, the AAUP announced last month that it had convened a special committee  to review association policies on financial exigency and program closure. Michael Bérubé, an English professor at Pennsylvania State University and chair of the new panel, said in an interview Thursday that the proposed code in Nevada offered further evidence that new and more rigorous guidelines need to be devised. “Our guidelines on exigency date from a time when entire colleges really could go under completely," he said via e-mail.
Nevada faculty also see the proposed new rules as a continuation of other recent efforts in the state that they say have made it easier to dismiss faculty, despite their tenured status. One such effort requires administrators to offer a “reasonably adequate” statement of the basis for a decision to lay off a faculty member and of how the decision was reached, said Eric B. Herzik, professor of political science and chair of the Faculty Senate at the University of Nevada at Reno. He added that a later legal opinion situated tenure within the context of academic departments and states that, if a department is eliminated or downsized, then tenure offers no protection.
"Tenure can seemingly be thrown by the wayside with any call for financial distress and the standard for claiming such distress and the elimination of tenure only needs to meet a standard of being 'reasonably adequate,' ” Herzik said in an e-mail. "We are simply on an unfortunate cutting edge of testing some rather vague meanings of a term most faculty thought was a rock-solid protection if they were successfully performing their job."
But such an interpretation is not accurate, nor does it reflect the intent behind the proposed changes, said Bart Patterson, the Nevada system’s vice chancellor for administration and legal affairs. “The last thing we want to do is upset the balance between faculty and administrators in the existing code,” said Patterson, who added that the questions raised by Inside Higher Ed marked the first time he was hearing about negative reactions to the proposed changes to the code. “It’s not intended to make it easier to terminate faculty in general and tenured faculty specifically.”
In fact, said Patterson, the intent was to clarify changes to the system’s code that were made two years ago -- during the worst of the fiscal crisis. Those changes led to a 6 percent cut in salary for faculty and staff -- not because their institutions had formally declared financial exigency, but because of reduced state appropriations for salaries.
The state itself is in dire financial straits -- or as UNLV President Neal Smatresk put it, “It's very clear our state is approaching a state of fiscal collapse " in terms of education. Proposed cuts in state aid over the next two years would reduce by 29 percent, or $162 million, the state appropriations to the university system. That would come on top of several recent years of tough budgets . In Nevada, such large cuts are felt acutely at individual colleges: on average, about 60 percent of a Nevada college or university’s revenue comes from state appropriations, said Vic Redding, senior fiscal and operations officer.
But the proposed changes are not intended as a response to the immediate cash crunch, said Patterson. “They actually don’t really relate to current economic conditions,” he said. “They’re an outgrowth of changes to the NSHE code that were made two years ago.”
In addition, said Patterson, the phrase “adverse financial conditions” was not meant to serve as a trigger for dismissing faculty. It was, he said, meant to allow system administrators to analyze the economics of a program, and for an institution to sort through how to reduce its budget and determine what programs should or should not remain. “That’s the concept it’s trying to catch,” he said.
But such reasoning doesn’t mollify many faculty members, who worry that the new code will open the door to administrators cherry-picking faculty members -- perhaps including older, outspoken (and highly paid) ones -- for layoffs because of blips in funding. And some faculty members contend that such changes would not be methodical, as Patterson said they were intended to be, but would instead lead to something capricious and random.
“The president can declare this at any time and lay off any faculty of any grade rank,” said Spangelo. “Essentially, there’s no tenure, in my view, in the state of Nevada system.”
The proposed rules do, however, include new provisions for faculty input. The faculty senate is supposed to be consulted, and the affected units or programs must be allowed to suggest alternatives before a decision is made. The rules also require administrators to set out in writing why specific faculty members are being chosen for layoffs, if not all of the faculty members in an affected unit are being let go.
Such a declaration was welcomed by some faculty, but, said Bérubé of Penn State and the AAUP panel, the provisions need to be meaningfully implemented -- and faculty truly consulted. “These days, the norm seems to be that ‘consultation’ with the faculty consists mainly of telling the faculty what will be done to them,” said Bérubé via e-mail. “Whereas we'd like to see the faculty involved at every stage of the process, beginning with the very determination of the financial condition of the institution.”
The perceived threat to tenure has some Nevada faculty members looking for the exits, said John W. Filler, a professor of special education at UNLV. He and others worry about the implications such changes might have -- not only on tenure, but on academic freedom and, as a result, on colleges’ ability to attract talent and conduct research.
“If this goes through, no good faculty member will ever consider coming to UNLV in the future,” said Susanna Priest, a professor at the School of Environmental and Public Affairs. “Sure, these are unusual times, but if they just change the state code whenever it becomes inconvenient, tenure here means nothing -- and never will again.”