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The latest on the battle over tenure in the University of Wisconsin System

Brian Leiter

MOVING TO FRONT FROM YESTERDAY–MORE INFO FROM PROF. WHITE IN COMMENTS, PLUS OTHER COMMENTS/SUGGESTIONS–MORE DISCUSSION WELCOME

Philosopher Alan White (Wisconsin/Manitowoc) has been involve throughout in the process of revising the Regental rules on tenure after the assault on tenure by Governor Walker and his Republican allies in the legislature.  The current proposed polices can be viewed here.  Prof. White kindly gave permission to share his letter to colleagues about the current draft:

1.  The faculty tenure document.

This document is the Regents' policy replacement for the statement of tenure formerly ensconced in Wisconsin state statute 36.13.  You may recall that the Regents immediately adopted the verbatim language of 36.13 as interim policy after the state removed it.  Except for the inclusion of the next to last entry "Oversight, Roles and Responsibilities"–needed, I suppose, to authorize administrators to do their jobs in carrying out Regents' policy–this document largely just copies 36.13.  So in letter and spirit, I'd say this just codifies what the Regents did last year with the interim action.  While that's good news, it's in fact limited by newly adopted state statute 36.21, modified to specify that termination may be for conditions ("certain budget or program changes")  that do not qualify as financial emergency–and deletes "financial emergency" from the old statute as the standard for layoff or termination.  An entirely new law, 36.22, details procedures for "layoff or termination of [a] faculty member due to certain budget or program changes."  So, in fact state statute has abandoned the AAUP gold standard of financial exigency as sufficient reason to terminate tenured faculty.

2.  The Procedures Relating to Financial Emergency or Program Discontinuance Requiring Faculty Layoff and Termination

The title of this document has at least some good news:  Regents' policy reinstates financial emergency as a standard of terminating tenured faculty, but note–only *a* standard.  That's because of 36.21-22 of course.  It has a couple of added statements referring to procedural protections for laid-off faculty set out in 36.22 and deleted a couple of definitions from the previous draft, but it looks very much like the one you saw prior to our final meeting.  There are some added passages that *appear* to afford extra protection.  For example, notice on page 5 F. there is a statement added:  "It is recognized that the chancellor should make a recommendation adverse to the faculty recommendation with respect to discontinuance of an academic program only for compelling reasons which should be stated in writing and in detail."  But please note this language is not a *requirement* but "recognized" as optimally the case.  "Should"s are not "Must"s.  At the very least we need to fight for language changes like that.

My suggestion if that if you are going to comment on this document, please read 36.21-22 as well.  I provided those in an earlier email.

3.  The Periodic Post-Tenure Review document

Despite my own protests–joined by Madison reps–this document is largely unchanged from the draft we had at the final meeting.  On page 3 point 12 following, we argued strenuously for including an extra step prior to what is described in 12. b., which essentially allows only an administrative reconsideration in the case of a negative review.  We argued for a second faculty review in the case of a negative review, just to ensure that the negative review was justified.  It's not included here.  I think we need to press for that.  In addition, I and other committee members argued that the time frame to asses remediation in the case of a negative review(12. c. ii)–18 months–was too brief to be realistic for some cases, and that it should be expanded.  The time frame is unchanged.  And of course page 4 16. is unchanged as well.  The only option for a faculty member terminated by this process is independent of UW grievance processes–filing a civil suit.

As goes Wisconsin–one of the country's best public university systems–so may the nation go.  This deserves everyone's attention, as well as everyone's thanks to Prof. White for his work on this.  Comments are open for further information, comments, links, etc.

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13 responses to “The latest on the battle over tenure in the University of Wisconsin System”

  1. Chris Surprenant

    We've faced similar issues here in Louisiana, although in our case the issue often has been the elimination of programs under questionable circumstances as a way around the limited protections for tenured faculty. It seems to me that the best we can hope for is a guarantee that positions won't be eliminated except in the case of real financial exigency, and exigency occurs only when the financial conditions are such that the university will be unable to fulfill its mission if it continues to operate in its current capacity without significant and dramatic changes.

    Here's my question to folks more knowledgable in the law than I am (Prof. Leiter, perhaps): How can a university declare exigency to eliminate programs and tenured faculty, while, at the same time, continuing to fund other programs that are non-essential to the stated educational mission of the university? Here, I'm thinking of things like athletics, non-academic or quasi academic units (e.g., an Office of Diversity Services), etc. Does anyone know if any terminated tenured faculty have filed lawsuits on grounds similar to this, and, if so, what the outcome of those suits were?

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  2. Marie Monaco

    So what is to be done? Here at NYU we have been fighting attacks on tenure for the last 8 years, both through faculty governance and a lawsuit. This battle cannot be won on a university by university basis – national coordination will be required, and I don't see that happening yet. We also need to figure out a way to convince the public that tenure is worth saving.

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  3. Justin Kalef

    Marie, very good point about the need to fight this on a national level. This is one of many major threats we need to get serious and organized about.

    I hope the APA will make the coordination of this effort a major priority. If that's not in the cards, I suggest we find or start an organization specifically to address these threats and then get behind it.

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  4. Marie Monaco

    The AAUP is the logical organization to orchestrate such a mobilization. Unfortunately here at NYU we have not had great success in enticing people to join. It has proven difficult to motivate faculty toward any concerted action. The administration has been quite successful in bribing/intimidating faculty to remain passive.

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  5. V. Alan White

    I thank Prof. Leiter for this forum for this very important issue. Tenure is actively under attack in many parts of the country, and certainly so here in Wisconsin–tenure for public school teachers was abolished as part of Act 10, and a leader of the conservative legislature has been quoted: "I don't believe in tenure, period." He did not confine his remarks to K-12–he meant "period". That attitude is why statutory tenure for UW System in law–36.13–no longer exists. His ilk truly believes "tenure" is a t-triple-bar for "job for life". UW has had post-tenure review since 1992–a fact conveniently ignored but now politically re-invigorated under one of these three documents. What is lost in all this is the very heart of tenure–protection of academic freedom.

    So here's the Wisconsin big picture. The state removed financial emergency as the sole standard for firing tenured faculty in law, and introduced statutory language that permitted firing them for programmatic changes arising from budgetary and educational considerations. The Regents reintroduced financial emergency as a standard of Regents' policy, but also moved perceptibly to empower administrators in processes that might lead to termination of tenured faculty. Are there due process protections for tenured faculty in these documents? Sure. Are they as strong as they used to be in Wisconsin? No. The cold comfort is that, as the annotations in the program-modification document indicate, many other states have already moved to language that dilutes tenure. The bitter pill is that we have traditionally been a progressive state with very forward-looking values about higher education. Now it seems we are closer to becoming the University of Wississippi. Okay, realistically UW Madison will still be better off de facto because they have the financial wherewithal to resist significant program changes that would result in firing tenured faculty. But this will probably chip away at the other 25 campuses. Which is probably part of the overall strategy anyway.

    Some in UW think we have gotten the best deal out of these draft documents that we can, given the political realities (I see this from forwarded remarks in social media that colleagues sent me). That is, however, Chamberlain-think: right from the legislative actions onward tenure has been subjected to changes under these "reforms" (I truly detest that dog-whistle term) to becoming what I called in the Tenure Task Force meetings "tenure-lite"–and I fear it will affect even Madison's ability to recruit and retain the best faculty.

    I'm near retirement–so this isn't about me. It's about the future of higher education and the role of tenure as the intellectual armor of academic freedom in the United States.

    Reply
  6. UW asst prof (not philosophy)

    Thanks to Alan White for his analysis, which reflects what I see here in Madison. I want to emphasize something he points out, which is that the biggest fear isn't that the tenure changes will make it likely that individual professors will be fired for research or teaching decisions. Rather, the firing for "program changes" is the big concern, for two reasons. One is that we are already seeing program consolidation and absorption, with faculty moving to related departments (thereby gaining some administrative cost-savings). That's a problem insofar as some smaller programs may not be able to maintain their intellectual community and unique research identities in bigger departments (will they get funding for their graduate students if they don't form a big enough voting block, e.g.?) But with the new language, it would be easier to make those changes and fire faculty for even greater cost savings.

    The second reason is that what counts as a program is unclear (and who gets to decide what is a program and when they get "changed" is unclear), and administrators (e.g., if a political crony becomes chancellor) may be able to cut sub-units with particular research profiles. That's an even bigger issue at the non-Madison campuses, but it's live one here and whether we have "the financial wherewithal to resist significant program changes that would result in firing tenured faculty" as Alan puts it is an open question.

    Lastly, Alan's "fear ["tenure-lite"] will affect even Madison's ability to recruit and retain the best faculty." What recruitment? We've got a two-year hiring freeze and tuition freeze. And it sure hasn't hurt anyone politically. Hence, the joke is that we won't have junior colleagues ever again.

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  7. Jason Aleksander

    Thanks, Alan and Brian for sharing this information.

    Alan, you mention that there has been a post-tenure review system at UW since 1992. You've also offered three specific criticisms of the proposed policies that make utter sense to me. I am curious, however, about two things. First, how are the current policies regarded by faculty at UW? Presumably they are not generally understood to be a threat to tenure (or am I mistaken about that)? Second, would the new policy require significant revisions to the current processes and policies already in place at UW Madison? That is, what elements of the proposal would be likely to result in significantly different processes? Do the current policies at UW Madison (or to the best of your knowledge, at other system schools) have remediation steps that are significantly different than the ones that this policy would require?

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  8. V. Alan White

    @ 6–thanks so much for your comments. Let me reflect on practical things a bit from my own perspective.

    In my institution we have had frozen tuition for three out of the last four biennial budgets, plus no net increases of budgets or salary, and through Act 10 a reduction of net take-home pay about 7% per year to pay half our pensions–despite having all along one of the only two fully-funded state pension systems in the country. (The politics of resentment were used to move voters to support this–those damn privileged state workers who pay nothing for their pensions!–conveniently forgetting to mention our average salaries were significantly behind peer institutions whether 2- 4- or graduate-level. Of course now in take-home we are much farther behind.) My 13-campus UW institution this year underwent "regionalization" of administration–the elimination of the equivalent of about 83 full-time employees. Now before you say "yoo-hoo! Downsized administration!"–the people eliminated were not in Madison Central with 6-figure salaries–they were campus Deans who interact with the community, student service directors who manage campus students' needs, and local recruiters who get the students in the doors. Will we survive? Remains to be seen. But I know one thing for sure–when Madison shows "cash reserves" even after a budget cut, the legislative "anger" spreads to all of UW System–and institutions with little cash reserves–like mine–educating around 14,000 students a semester–have to cut into the bone and start digging out marrow. So now that bone and marrow now may well include tenured faculty for budgetary and educational considerations that include "market forces and societal needs" as the one document says. I've sent any number of students to Madison as philosophy majors–and many have succeeded in building careers off our joint efforts (hell, a former student did my divorce many years ago). I just wish Madison would realize that no matter how bad they have it, important sister UW institutions doing excellent work are really suffering from neglect, and probably politically malignant and intentional neglect. Madison, you're my Obi-Wan to my very desperate Leia.

    Sorry to run on, but I fiercely believe in the UW Colleges and their mission, and this tenure battle is just another front in a long line of withering attacks that now hits even the flagship. The excellence of my Colleges colleagues demands my commitment; I demand the commitment of my more distant colleagues to our collective interest in tenure and academic freedom.

    @7 Jason (if I may)–

    These are excellent questions, and frankly many answers may not be sorted out until the Regents' policy is final and the legal consequences are determined, though my fear is that may be after the barn door is slammed shut. (One specific aside: this draft post-tenure review policy is much more procedurally stringent than the one it replaces.) What I'll do is this. I'll provide urls to relevant state law prior to last year's legislative action and to present law. I think you can draw some conclusions by comparing them yourself (yes it does take work).

    Here's how 36.13 used to be, and you can scroll down to see the old 36.21 (there was no .22 of course):

    https://docs.legis.wisconsin.gov/1995/statutes/statutes/36/13

    and here's what the law looks like now:

    http://docs.legis.wisconsin.gov/statutes/statutes/36/21

    where you can scroll down for the new .22 and scroll up and see that 36.13 is gone.

    One legal issue for me is this. How much does a Regents' policy bind institutions in UW in terms of their own policies? Could we or Madison, for example, add in an additional faculty review? I know we cannot contradict state law, but I wonder how much wiggle room Regent System policies would allow (if any)? UW legal has been silent on this so far.

    Again, thanks to Prof. Leiter for this important thread.

    Reply
  9. Marie Monaco

    Will the new UW tenure policies be retroactive, i.e. will they apply to all tenured faculty or only to those tenured after the policy takes effect? If the former, is there any possibility of contesting it in court?

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  10. V. Alan White

    Marie (if I may)–

    They will cover all UW faculty. Since most (all now?) states relegate tenure policies to educational institutions rather than statutory law, and now Wisconsin will follow suit, I assume any contests of policy must play out in individual lawsuits about termination rather than some class-action against that policy. That's my best guess. But my tenure (granted '87) is subject to Regents' policy as is a new hire on the TT.

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  11. Marie Monaco

    Alan- So the guarantees of tenure by law have no contractual basis? Change the law and change tenure? Here at NYU our tenure guarantees come from our Faculty Handbook, which the faculty have always thought comprised a contract (those of us tenured in the last century have no other contract). However, in a recent lawsuit brought by myself and another faculty member, the judge ruled that the Handbook was not a contract and that NYU had no obligation to follow it. We are now appealing that ruling with the support of the AAUP, but I wonder if tenure is doomed and if we should be exploring other alternatives.

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  12. UW asst prof (not philosophy)

    Alan: I hope I didn't come across as dismissive of the depth of the problem at UW system campuses, or in any way implying that we have it anywhere nearly as bad at Madison. We don't. In fact, most of us here recognize that the legislature's ire is largely about UW-Madison (and to a lesser extent UWM), but other system campuses bear the brunt of the attacks.

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  13. V. Alan White

    @12–thanks. No, I think most Madison faculty with any tenure (so to speak) understand things here in Wisconsin, and you clearly do. I ranted a bit more for the benefit of people elsewhere to see what's going on.

    Marie–thanks for the update and for the courage to stand up for tenure. We have always operated on the basis of annual contacts (every year announcements for the beginning of fall semester mention the beginning date of the contract period) but oddly I have not seen or signed one in many years. One reason could be the lack of raises, but I actually don't know how we can be under contract without actually seeing one! I'm out of my legal comfort zone here and perhaps someone else coould weigh in on how tenure works contractually.

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