Wednesday, April 27, 2011

Cheng: Terms don't undermine tenure

Just as today's tornado warning expired, the Chancellor sent out an important email to faculty in which she "wish(es)to reassure you that the rights and protections of tenure as defined by the SIU Board of Trustees Policy (See SIU Board Policies, 2.C.e.2.b) have not changed". Perhaps hearing the contrary in the Chronicle of Higher Education precipitated her email. On her reading of the imposed terms, their only function is to:
stipulate the minimum amount of notice the University can provide to the Faculty Association and any affected faculty prior to a reduction in force and provide the structure for reductions in force in the event such a reduction in force becomes necessary (something we all hope will never come to pass)
Fuller analysis of the this will have to wait till later. After the break, my own quick first take, links to the relevant documents, and the full text of the Chancellor's email (in case you aren't on her faculty email list).

I hope we can take the Chancellor at her word, or rather that the two sides can arrange for clearer contractual language that will make it clear that the Board's previous policy on tenure remains intact--and will remain intact for the length of the contract period. While the Board policy does not provide the amount of protection the FA proposal would grant (in Board policy Faculty have only "input", not an equal role, in determining financial exigency), the board policy certainly represents a far better state of affairs that the language of the imposed terms themselves would produce.

But was the FA's interpretation of the imposed terms a hysterical overreaction? No.  And are we out of the woods yet?  No.
  1. The words in the imposed terms that the Chancellor calls to our attention ("Nothing in this article shall be a contravention of University policy") are buried a subsection (19.04a) of the imposed policy, where they could easily be taken for boilerplate (which indeed may have been all they were meant to be in the first place). 
  2. The sentence preceding the words on Board Policy reads as follows: "Until the effective date of the reduction in force, the University shall provide access to the University Placement Service for assistance in locating other employment outside the University." The most natural reading of the words the Chancellor quotes would thus be some application to this (minor) provision.
  3. The words on Board policy did not appear in the original board proposal regarding reduction in force. Their inclusion in the latest Board proposal is thus a step forward, but if they were meant as a major concession it is decidedly odd that they were tucked away in such an obscure corner of the imposed terms.
  4. The contract normally trumps Board policy (see Article 3 of the 2006-2010 contract). Hence were the contractual language to allow the Board more power than the Board's own policy does, the contract would win.
  5. The Board may of course change its own policies. Given the precedent of the massive change to allow for "unpaid administrative closures", and the Board's first proposal that lacked any reference to Board policy, it is essential that the status of tenure be given contractual form.
I don't want to completely downplay the possible good news here. Perhaps the imposed terms were never meant to be as draconian as we feared, in which case, however, I think it is fair to blame the administration for presenting confusing contractual language in the terms imposed after they declared bargaining at an impasse, leaving no time for discussion at the bargaining table to clarify the language. Or perhaps the backlash against the terms has led the Chancellor to reinterpret them to give them a less draconian meaning.

In any event, this controversy shows the need for clear contractual language specifying the protections provided by tenure.


The board's initial "Reduction in Force Proposal" of December.

The "Reduction in Force" language in the imposed terms.

SIU Board of Trustees Policies

The FA's reduction in force proposal

The 2006-2010 Contract

The Chancellor's email of April 27

Dear Colleagues,

Despite recent allegations to the contrary, I wish to reassure you that the rights and protections of tenure as defined by the SIU Board of Trustees Policy (See SIU Board Policies, 2.C.e.2.b) have not changed.

Recently, numerous reports and concerns have been raised related to the potential elimination of tenure based on the reduction in force language of the terms and conditions that currently apply to the Faculty Association. Nothing in the language in the reduction in force article erodes tenure protections for faculty members. Nor does it eliminate bargaining requirements with the Faculty Association. In fact, for tenured faculty, a determination of financial exigency or the discontinuance of a program would be required prior to any layoff.

Please note that the terms of the reduction in force article state that the article is not a „contravention of University policy.‰ For purposes of financially motivated reductions, University policy indicates that tenured faculty are terminated only in the event of a financial exigency (again, see SIU Board Policies, 2.C.e.2.b). Safeguards are in place for tenured faculty through that policy. The Policy also details the rights of constituencies in providing input into a determination of financial exigency by the Board. (See Board Policies, 2.C.f.1). As such, the faculty would have input into any Board decision on this matter.

In addition to the University policy on financial exigency, if the financial condition of the University was such that reductions in force for any faculty, tenured or tenure-track, were considered, decisions related to that reduction in force would have to be bargained with the Faculty Association. The terms of Article 19 stipulate the minimum amount of notice the University can provide to the Faculty Association and any affected faculty prior to a reduction in force and provide the structure for reductions in force in the event such a reduction in force becomes necessary (something we all hope will never come to pass). Further, the prior collective bargaining agreement addressed the manner in which a tenured faculty member‚s position could be terminated due to the discontinuance of a program (see Section 9.06 of the Collective Bargaining Agreement). This Article was not modified in the imposed terms and conditions.

I think we would all agree that this year has been particularly difficult. I appreciate that tensions are high due to the unprecedented financial challenges of 2011 and the budget uncertainty of the upcoming fiscal year.

On Friday, May 6th, from 11:30 a.m. to 12:30 p.m., in the Student Center Auditorium, I will host a year-end town hall meeting to discuss important campus issues, including our fiscal situation and provide opportunities for attendees to express their concerns as well as offer possible solutions.

Despite the challenges we face, it is important to not lose sight of how much we have accomplished this academic year. Your dedication to the success of our students and our University gives me great confidence in the future we can create together.

Rita Cheng


  1. Where is the guarantee that the Board won't change its policy without consulting the faculty?

    In any case, the truth of the matter is that the whole situation does nothing to build loyalty to the institution. We will continue to lose our best faculty and potential students. We will be treated (deserving so) as a second-class institution. The fact that no one in upper administration seems to understand the reputational effects of this situation shows them to be shortsighted and tone deaf.

  2. So that's how we can get her to cease stonewalling and actually address an issue: put it in the Chronicle. OK, I'll remember that.

    Believe me, y'all, the new imposed language allows them to do whatever they want. It was created precisely to get around Article 9. There is no requirement in their Article 19 that requires them to make only reductions that have passed the test of Article 9. If you consult the FA's current proposed language, you will see what is required to incorporate Article 9 into a Reduction in Force. Basically the Chancellor is counting on people not to understand contract language and how it works.

  3. Look, I'm not saying that we should just breathe a sigh of relief and not worry ourselves about the imposed terms now that our beloved Chancellor has said she's a great fan of tenure--but that we should use the Chancellor's statement as a lever to make the new contract defend tenure as much as she says she wants to defend it. My guess is that the best way to do so isn't to say that she's lying, was lying, will always lie, or whatever, but to take her at her word in the sense of holding her to her word. Let's get clear contractual language that defends tenure. Showing we're willing to take yes for an answer may just be the best way to make the answer yes.

    And it doesn't mean backing down from the pressure that has dragged the Chancellor this far. The purpose of a strike threat is to make negotiations work, right? Her statement *could* open the way for progress in negotiations. It was obviously produced by the pressure we're putting on her. Whether or not her statement was meant as anything more than PR, we can make it more than PR if we get it into the contract along the lines of the FA proposal.

    I think it makes more sense, then, to seize this as an opportunity created by our resolve, rather than to write it off as an empty gesture. We'll see soon enough whether it's empty: if the Board isn't willing to reopen their Article 19 soon, then this email was empty.

  4. As one trained as a lawyer, I sense linguistic slight of hand on the part of the Chancellor. The Chancellor states: "For purposes of financially motivated reductions, University policy indicates that tenured faculty are terminated only in the event of a financial exigency (again, see SIU Board Policies, 2.C.e.2.b)."

    It appears that the Chancellor's hope here is to convey the impression that tenured faculty may be terminated only in the event of financial exigency. But that is simply not the purpose of Board Policy subsection 2.C.e.2.b.

    The Board Policies cited by Chancellor Cheng grant the Board power to declare financial emergencies. There are two levels of emergency. Board Policy subsections 2.C.e.2.a and 2.C.e.2.b define the two levels. The second subsection defines the greater level of emergency.

    It is the Board actions taken which define the level of emergency. What defines the greater level of emergency in subsection 2.C.e.2.b. are "long-term programmatic reductions and termination of tenured faculty."

    It appears the Chancellor would have us believe that the level of emergency begets what Board actions may be taken. In fact, it is the Board actions taken that beget the level of emergency.

    If Board Policy subsection 2.C.e.2.b were intended to state what the Chancellor appears to have us believe it states, then the Chancellor's statement would state "may be" where instead she writes "are." I'll rewrite the Chancellor's statement and reveal the slight of hand:

    For purposes of financially motivated reductions, University policy indicates that tenured faculty [strike out "are"; insert "may be"] terminated only in the event of a financial exigency (again, see SIU Board Policies, 2.C.e.2.b).

  5. Good point, former lawyer. Cheng must think that we are all stupid (which is not surprising concerning the intelligence and credentials of our President!) The recent imposed contract totally nullifies any former definitions concerning financial exigency. Cheng is either a pathological liar or somebody who does not understand how to run a university. Either way, she should not be here and would be better off going back to Wisconsin where Governor Walker will eagerly embrace her. Pressure should also be put on Poshard to resign.

  6. To say that the articles do not contravene university policy is disingenuous. The most recent contract between the FA and the BOT had a clause that disallowed layoffs of tenured or tenure track faculty for strictly financial reasons. I would assume that contracts are part of university policy. Thus the imposed clause on financial exigency does contravene policy.

    Also, I worked for the government long enough to realize that phrases of employees having input on a decision can have all sorts of meanings and cannot be trusted on face value alone.

  7. To even come close to a sigh of relief, I'd want to see a Message from the Chancellor that says, “It is regrettable that a simple misunderstanding by the Faculty Association leadership of what was written in Article 19 has caused so much strife and uncertainty on campus. Article 19 has been rewritten to clarify that the intent was never to undermine tenure. I have provided this new language to the leadership of the Faculty Association for consideration. Out of concern that other misunderstandings of the Board’s terms and of the Faculty Association’s demands may have led to the impasse, I am formally inviting the Faculty Association to reopen bargaining on the entire contract.”

    Anything less than returning to bargaining is all talk and no action.

  8. I find the comment by "paranoid" eminently reasonable. When someone who chose the nom de plume "paranoid" is talking reason, you know things are getting interesting . . .

  9. Policy? I have a policy to do laundry on the weekends, but I don't always follow it.

  10. Dave, just for that, I'll also include my paranoid thoughts. :)

    Even if you believe the Chancellor's reassurance, the Board of Trustees policy deals with termination, but Article 19 deals with, "If the Board decides it is necessary to fully or partially lay off Faculty members..." The Board policy which, according to the chancellor, protects tenured faculty from termination is not much comfort when you've been not terminated but reduced to 25% or 10% or 2% or 1% time.

    A little less paranoid is my thought that a partial layoff could mean reducing everyone to 90% or 75% time.

  11. One always ought to read contractual language in something like a paranoid frame of mind. That's why legalistic language is so cumbersome. I am completely on board, as I closed my initial post, with insisting on "the need for clear contractual language specifying the protections provided by tenure".

    Where there's disagreement (on blog and off) about how to deal with the Chancellor, it's about whether to say, when she appears to say the right thing, "Great: let's put that in the contract, then" or "You're a liar and we've got no interest in further negotiations with SIUC until you've joined the SIUC honor roll of canned Chancellors".

    I will hasten to add that some of the Chancellor's subsequent statements haven't helped someone in my position (someone arguing that we hold her to her word), particularly her rather bizarre claim that the terms that outline a procedure for furloughs after this year and permanent layoff policy were only meant to get us through the end of June.

    Finally, I'm sure I'll win applause by quoting that great friend to labor, Ronald Reagan: "Trust but Verify". Which of course doesn't you mean you should believe everything the other side says and hope your verification means are adequate: it means you should negotiate verifiable, enforceable terms, rather than refusing to negotiate (as many hard-core conservatives refused to negotiate with the Soviet Union, I think--though I've yet to do my wikipedia research on this phrase). That's my point. The beauty of a contract is that you can sign one even if you don't trust the other side. If you trusted them, you might not need a contract in the first place.


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