Thursday, September 8, 2011

Tenure 1.5

[Some of what follows will require correction following Jonathan Bean's calling my attention to an SIUC policy page I hadn't checked--details in the comment stream.]

This won't quite amount to my no doubt widely anticipated second posting on tenure (to follow up on the post I did on AAUP tenure policies), but I will emphasize some good points from yesterday's op-ed in the DE on tenure, while also clarifying something I think that op-ed left unclear.   Plus I'll make a newish point of my own: that the administration's actions on furloughs presage possible action on tenure.

Yesterday's op-ed, by Richard Fedder, a Carbondale attorney, squarely nails what I take to be the central point: that the imposed terms are an effort to undermine tenure. So the scenario he outlines, in which the administration decides to go after a given program (or professor), and claims financial justification for doing so, is all too possible.

Fedder also makes a very important point indeed about intentions and legality. The Chancellor has said that she has no intention of undermining tenure. But her bargaining team has, to the best of my knowledge, not budged one inch from the imposed terms that have led many on campus, myself included, to conclude that her terms, if not her intent, undermine tenure. And if you end up being that laid-off tenured professor, her attempts at reassurance won't help you pay the bills any more than tenure without a job will.

If the Chancellor meant what she said when emailing the faculty about tenure (there's a link to her email after the break), it ought to be relatively easy to design contractual language outlining the proper process to be followed in the event of a bona fide financial exigency. To the best of my knowledge, though, the administration bargaining team has shown no interest in doing so.

On the other hand some of what Fedder says about financial exigency doesn't quite ring true to me--and it is devilish details like this that have tied me up in knots and kept me from posting my own take on this issue sooner. More on that after the break. More also on how the "administrative closures" policy sets a precedent of sorts for lowering the bar on firing tenured faculty. I'll also provide links to the main documents on tenure in case you want to engage with the details yourself. It's great fun!

Financial exigency, properly defined (as a financial situation so bad it threatens the existence of the university, and cannot be resolved without terminating tenured faculty), and with a process established to ensure that faculty participate in the declaration of the exigency and that faculty have primary responsibility in determining which programs would be affected, and the procedures to determine which faculty in those programs would be terminated, is part of the AAUP procedures (and is indeed part of a FA proposal on "Reduction in Force" linked to below). Some of Fedder's language implies that this is not the case, i.e., that tenure ought to protect one against any financial crisis. It ought to protect one against most financial crises, but cannot protect one against all. But Fedder is certainly right that the current BOT policy fails to establish a rigorous procedure either for defining "financial exigency" or for the process to follow a declaration of financial exigency.

Here's one reason this matters.  Last year Chancellor Cheng argued that the financial situation at SIUC demanded furlough days from all faculty and staff. SIUC already had a process in place to allow for furloughs.* It's the BOT "financial emergency" process I link to below. But the Chancellor didn't want to declare a financial emergency (something short of "financial exigency", mind you, but still scary).  That would have led potential students, and perhaps potential creditors, to question SIUC's financial stability.

So what did she do? She cooked up a new policy, the "Unpaid Administrative Closures" thing, which didn't require a declaration of a financial emergency. This way she got to have her cake and eat it, too: she could furlough employees without sounding the financial emergency alarm.

Why is this problematic? Because furloughing employees is supposed to be a serious matter. And laying off employees, especially tenured employees, is supposed to be a very serious matter indeed. In a financial crisis, laying off employees effectively means terminating them. Past BOT policy, and traditional tenure protection, therefore aims to strike a balance: to protect employees against unjustified action, the administration was required to declare a financial emergency in order to take drastic measures. This declaration (either of a short term "financial necessity" justifying furloughs or a long term "financial exigency" justifying layoffs, including of tenured faculty) required some consultation with campus groups and some sort of detailed report to the BOT. In cases of firing tenured faculty, that policy didn't meet the AAUP guidelines, but it was something. Furloughing or firing people came at a cost. It was therefore not something an administration would enter into lightly.

As flexible as the BOT financial policy on "financial emergencies" is, the Chancellor decided to ignore it and invent a new policy instead. The Chancellor's "unpaid administrative closures" policy allowed her to furlough employees without much downside--without any declaration of a financial emergency. The new reduction in force terms appear to be a parallel move, to allow for firing of tenured employees without a full-scale declaration of financial exigency. It is not paranoid to fear that this may happen here: other universities have taken similar steps. And it does not require assuming that the Chancellor is a monster, only that she may believe that the only way for SIUC to have the flexibility to meet financial challenges without alarming creditors and the public is to be able to fire tenured faculty without sounding the financial red alert (financial exigency). Some administrators have clearly come to believe that gutting tenure is not too high a price to pay in order to gain this flexibility. This isn't what the Chancellor said in her email to faculty, but the crucial test will come in the contract language her team is willing to agree to, not in an email.

So our administration already changed policy to make furloughs easier. It has now imposed terms to make layoffs, including layoffs of tenured faculty, easier. Faculty can either acquiesce in this degradation of our job security and tenure, or resist it. The only practical way to resist it is to support the FA.

Here are some of the key documents to consider when evaluating the current status of tenure at SIUC.

The AAUP on Tenure

The FA proposal on financial exigency & layoff

Administration imposed terms on "reduction in force"

BOT policy on financial emergency

FA "Fact Sheet" on tenure and layoffs  (An FA interpretation of where we stand under the imposed terms)

Cheng's email on tenure (buried at the end of a post of mine)

1996 Employees Handbook Financial Exigency policy (SIUC used to define this concept pretty rigorously; this policy is now superseded, I fear, by the current BOT policy--and the absence of any contract language to the contrary. This link will open a full-screen pdf document via the "scribd" website.)

NEW (2:30 on 9/8):

* The policy would have allowed for furloughs as far as the BOT was concerned, at any rate. The FA's position is that bargaining (real bargaining, not just "impact bargaining") would also be required.


  1. Hi Dave, Thanks for this very clarifying analysis. I found yesterday's DE Editorial confusing, because Fedder suggests that the main problem with the imposed terms is that it incorporates the language of financial exigency. I have been proceeding from exactly the opposite premise--that the problem is that the declaration of "financial exigency" (which has a distinct meaning from financial emergency) has been removed. Can you provide any enlightenment?

    I truly hope that more tenured and tenure-track faculty members take the time to read your post and the attached links. What the administration is attempting to do with tenure here marks a clear departure from the standards presented by the AAUP. If the Chancellor is being honest about her intentions, then there should be no reason that those intentions cannot be codified within the contract language. Until then, there is absolutely no way the FA can accept the imposed terms.

  2. Hi, Natasha. The phrase "financial exigency" doesn't appear in the imposed terms or the 2006-2010 contract. It does appear in the BOT policies I link to above, but amidst a rather confusing section on "financial emergency". Presumably that is what Fedder was referring to.

    The Chancellor's email on this topic (also linked to above) is actually fairly clear and could serve as the basis for progress, if we could make her interpretation the basis of a written policy (rather than relying on a much vaguer policy currently in writing).

  3. The Board policy on terminating tenured faculty _was_ quite clear: there were three reasons (including financial exigency) the admin. could invoke: exigency, elimination of program, or misconduct. See Financial exigency phrasing is NOT an attack on tenure; quite the contrary, it complies with AAUP standards and raises a high bar. Here is one reason why: this university borrows money and any declaration of "exigency" (which Dave states accurately as threatening the _existence_ of the university) would send interest rates soaring. At any rate, I found many universities with language like the link I inserted above. I was confused by Fedder's position that exigency trumps tenure and this isn't "normal." Well, the AAUP thinks it is a good policy (and a high bar!). ***It is the ABSENCE of "exigency" language that worries me (you are correct to be concerned, Natasha!). The imposed "Reductions in Force" has no language of exigency. It's carte blanche for the administration.

  4. See Section VI for the policies and procedures on terminating tenured faculty:

  5. Thanks to Jonathan. I didn't realize that crucial section VI was still part of SIUC policy. That section does provide much better protection vis a vis financial exigency (it is taken from the 1996 employee handbook). This is an important correction to some of what I've said above. This is the sort of detail I was trying to wait to get straight before shooting my mouth off. I'll blame sources on both sides for failing to point out to the current status of section VI (which backs up Cheng's argument far more than the policy she did cite).

  6. Following the purge of 100 faculty in 1973, the AAUP put SIUC on a blacklist. Before Cheng decides to follow the actions of Quinn,is it feasible to make a complaint to the AAUP BEFORE she begins to fire tenured faculty following a procedure that violates standard guidelines?

  7. Anonymous 2:31

    **Please** think this through a little more. The events of the early 70's sullied SIU's reputation for _many_ years (maybe justifiably so). They made it hard to recruit faculty and probably also impacted enrollment (at least as far as student quality is concerned). What you are proposing would undoubtedly have similar impacts today. And based on what? Your concern that the administration _could_ or _might_ do something that they have denied they are even considering. Essentially you would condemn us all for a crime that has not been committed!

    It could also end up as a self fulfilling prophesy. Impact our reputation = drive away students = lower enrollment = increased financial stress, = increased likelihood of conditions that might be used to justify terminations (whether TT faculty, NTT, or civil service does not matter at this point).

    Please, weigh this thought carefully before you act. This is a crime that has NOT been committed and to sully us all based on the fear that it might be seems unnecessary and even maybe a little self destructive.

  8. Maybe I paid too much attention during the Clinton administration's Monica Lewinsky, scandal, but I parse all of this differently from you.

    Section 11 of the imposed terms gives a timeline for the termination of tenure track faculty, including "for reasons other than unsatisfactory progress toward tenure." That timeline is longer than the timeline in Section 19 on layoffs and reductions in force. My conclusion is that a layoff and a termination are not the same thing. University policies regarding termination would be irrelevant.

    What's the difference?

    A partial layoff could reduce some faculty to 50% or 25% time or could reduce everyone's pay by reducing us all to 90% or 80% time. None of those possibilities involve termination.

    A "temporary" layoff could offer that the laid off faculty will be rehired when the university's financial situation turns around. If it takes more than two years for the situation to turn around, it would become the equivalent to termination, but that's the magic of Clintonesque linguistic turns.

  9. Section 11 also supersedes the 1996 employee handbook regarding the termination of FA-represented faculty, so the policy Jonathan Bean cited doesn't apply.

  10. The problem as I see it is that we have three inconsistent documents, the imposed terms (section 11), the BOT SIU policy, and the SIUC policy Jonathan Bean called our attention to. Each appears to have been drafted in isolation from the others. Whatever ends up in the contract will trump BOT and SIUC policies (unless is specifically incorporates them). While the administration may prefer the "flexibility" this confusing state of affairs allows them, I think we'd all be better off with rather more clarity, and a policy in keeping with the 1940 AAUP principles. If the Chancellor meant what she said, that shouldn't be a problem.

  11. Bottom line, folks: it ain't over until it's over. They are back to the bargaining table so "wait and see." I echo Dave Johnson's last point.

    I'd also like to know whether the "imposed terms" are actually in effect now that bargaining has resumed? An answer to that question would be very helpful to us all. Some presume that prior policies are still in effect (unrelated to money), others that the imposed terms trump everything else. Well?

  12. Here's another wrinkle about "what is in effect?" Article 11 states that the Board terms supersede the 1996 language I cited from the SIUC web site. HOWEVER, those terms were for a period that ended June 30, 2011 (see

    So, again, do they really supersede? Maybe, maybe not. I don't know. Would be nice to have an expert chime in.

  13. "Whatever ends up in the contract will trump BOT and SIUC policies."

    No. Not. True.

    Nothing will trump BOT policy. It's the baseline. Except a change in that policy.

  14. To Anonymous 11:51:

    "Nothing will trump BOT policy. It's the baseline. Except a change in that policy."

    You've hit the nail on the head. Right there. If the BOT can change the policy, what's to stop them from changing it in a way that erodes tenure protections? And if they have no intention of doing that, then they should have absolutely no problem incorporating language that protects tenure into the contract itself. If they don't want to explicitly protect tenure in a contract with the faculty, then we can only assume that they want the flexibility to revise policy as they see fit. And that's no protection at all.

    Contracts are binding; policies can be revised. That makes all the difference in the world when it comes to something like tenure protection.

  15. Probably not an expert, but I've been in on some conversations about.

    The document Jonathan gives the link to is Orwellian in its language--it's boldly labelled "AGREEMENT Between the BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY and the SIUC FACULTY ASSOCIATION, IEA/NEA".

    That title of course is, well, a lie. The FA agreed to nothing. But the legal status of these imposed terms is uncertain. On the administration's legal theory, the terms were legally imposed after bargaining reached an impasse. According to the union, the terms were illegally imposed, and therefore invalid, because the declaration of impasse was phony.

    As a matter of fact, the imposed terms are the rules we live under until a new, legitimate contract is agreed to by both sides. That agreement will supersede the 2006-2010 contract, rendering the imposed terms moot (though of course some of their language could make its way into the new contract).

    The only way for the legality of the imposed terms to actually be adjudicated, I believe, is for the ULP to go forward for a couple of years. That would happen only if the two sides are still at loggerheads in two years--which won't be the case. One way or another, I'm fairly confident, strike or no strike, we'll have a contract by the end of the year. And that contract would almost certainly include an agreement to drop the ULP.

  16. it is so ironic that Anonymous 2:31 equates the 1973 purge with a threatened strike without looking at other similarities. The purge was the act of higher administration AGAINST faculty. A Strike will be a desperate last report on the part of those against an administration that has refused to engage in fair bargaining and has threatened tenure on this campus. It is so amazing to read these desperate posts from one of the "silent majority" who will not even admit that Cheng has caused this situation by playing power politics. Instead of engaging positively with the SIUC community, she has alienated the vast majority like an Oriental potentate, except for her supporters who she will dispose of in equal fashion once they have served her purpose.

  17. I find it hard to believe that some of you folks are basing your angst on something that happened almost 40 years ago.

  18. "If the BOT can change the policy, what's to stop them from changing it in a way that erodes tenure protections."

    That would be the power of a contract. My point is that you can't negotiate against the unknown. Any contract is gonna have to be based on current policy. If the policy changes, the contract is violated. No one can predict the future....and if you negotiate on the basis of what might, or might not happen, you are never gonna get anywhere. So use current policy as a guideline. The Board would have to understand that changing a policy would void the contract....repercussions would why would they willy nilly change policy? What possible reason would the university want to do away with tenure? Ending tenure would mean the end of the university as we know it. Why would they do that? Union rhetoric sometimes just doesn't make sense...and erodes credibility.

  19. Anonymous 4:23 PM:

    Part of your post doesn't make sense to me. I don't know where you get the idea that changing policy would void the contract. Moreover the Board of Trustees changed its policy regarding unpaid administrative closures on 9/16/10 specifically to allow the chancellor to furlough employees. Why shouldn't I believe that the Board would change other policies too?

    One part of your statement about the Board changing its policy makes sense. "...repercussions would follow..."

  20. Anonymous (11:51 AM):

    From the imposed terms,
    "Section 3.02. Precedence of Agreement. If there is any conflict between the written terms of this Agreement and the terms of any individual contract of employment or any written Board policies, rules and regulations that may be in effect from time to time, the written terms of the Agreement, for its duration, shall be controlling as to bargaining unit Faculty."

  21. Anonymous 4:14, It is not that we are basing our angst on what happened over 40 years ago but drawing a parallel between what the administration did then and how it is acting now. If Rita wants to end this stalemate, all she has to do is engage in fair collective bargaining and not impose contracts on faculty that virtually eliminate tenure. She is the one who has provoked this confrontation in the first place, not the unions.

  22. Dave wrote:

    "As a matter of fact, the imposed terms are the rules we live under until a new, legitimate contract is agreed to by both sides."

    But, again, is that TRUE if the "imposed terms" expired June 30th? Or do we revert to the status quo ante (i.e., we "lived under the 2006-2010 contract" provisions for things like promotion raises and the rest).

    I'm going to contact a labor lawyer friend in Chicago who might know. We seem to be going around in circles and this guy knows his stuff. Also good to ask Randy Hughes or Jim Clark.

  23. Here's my understanding--again, I'm no lawyer. Just as the previous expired contract remained valid after its expiration date, so too the imposed terms retain whatever validity they ever had after their expiration date. If contracts didn't go on like this we'd go back to the state of nature every time a contract expired, which would be unfortunate.

    Why is the question so pressing, Jonathan? Do you suspect that the administration has plans to quickly take advantage of the imposed terms, before new contracts can be agreed to? I have been assuming that new contracts will be agreed to--on good terms or bad ones--this semester. Certainly the FA leadership is pretty determined to get a contract this semester.

  24. Jonathan,

    Since we are covered by the same Illinois Education Labor Relations Act as public schools, the description of status quo from a management perspective may be helpful to you.


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