Tenure 2.0: Financial exigency and tenure

In an effort to finally wrap up my quixotic attempt to understand what's going on with tenure around here, I attempt below to explain SIUC's current policy on financial exigency and tenure. (For my earlier efforts in pursuit of this Great White Whale, click here and here). Bona fide financial exigency is but one of the reasons that tenured faculty can be terminated; the others include just cause and program termination. I suspect that financial exigency is the most worrisome in the present climate, and so concentrate on it here.

Also missing here is analysis of the FA's proposed policy for handling financial exigency. Suffice it to say that that policy calls for still more rigorous adherence to the AAUP principles than any SIUC policy past or present. I would be very happy indeed were that proposal adopted. 

Let me also say that there is considerable daylight between my analysis here and that given by the FA in its own "Fact Sheet" on tenure. For some of the reasons why, see the "Simplifying and Charitable Assumptions" I list at the end of this post. My own analysis is considerably more charitable to the administration position, but still reaches rather troubling conclusions . . .

1. SIUC's current policy on financial exigency and tenure is a mess. Messy policies allow for varied interpretations and promote mutual suspicion. 
2. Current SIUC policy fails to meet three of the four procedural guidelines outlined by the AAUP.
3. In the event of a financial exigency, these failures would seriously undermine the status of tenure and the status of faculty at SIUC. 
4. Absent contractual protection, SIUC's policy on financial exigency could be further changed in order to provide the administration still more flexibility to fire tenured faculty. 

I. SIUC's medley of financial exigency policies

Determining SIUC's policy is far more complicated than it ought to be, as we are dealing with three different sets of policies, each of a different status, and none coordinated with any of the others. Unfortunately, the policy offering the most rigorous protection of tenure is the least binding of the three and has effectively been modified and trumped by the other two documents. 

1.  SIUC (campus specific) policies on the termination of tenured faculty (henceforth: original  policy) found on the current online set of policies. These policies offer the most rigorous defense of tenure of any of the relevant documents considered here (other than the AAUP guidelines themselves), but unfortunately are campus specific, obscurely posted on a nook of the website (I can find them only by looking to the index of the site), and alterable by the administration (Chancellor, perhaps with Presidential approval required) without even receiving BOT consideration. 

2. The SIU system-wide BOT policy on financial emergency (henceforth: BOT policy) This is the policy cited by the Chancellor when she defended her administration against the claim that it was undermining tenure (her email is included at the end of this post of mine). These policies for dealing with two sorts of financial emergency, a short term "financial necessity" and a longer term "financial exigency". These policies were once in the same document as the original SIUC termination policy (the 1996 Employees Handbook), but they were promoted to BOT policy status in 2003--whereas the more rigorous SIUC policy languishes in the online ghetto. These policies can be altered by the BOT, as we saw with the adoption of the unpaid administrative closures policy last year, but they have a higher status than campus specific policies. If these policies conflict with the SIUC termination policy, I will assume the BOT policy prevails.

3.  The imposed terms on "reduction in force" (henceforth: imposed terms). These terms have a somewhat dubious legal standing (as the FA argues their imposition was illegal), but I will here assume that they have the status the administration wants them to have, that of a contractual agreement. That is, I will do this analysis as if the FA had agreed to the imposed terms, making them a legitimate contract, as the administration would like them to be. The terms of a legitimate contract explicitly trump any other SIUC policies (imposed terms section 3.02). And a legitimate contract can only be changed by the agreement of both sides, the FA and BOT. As the Chancellor has noted, the imposed terms section on reduction in force contains the following sentence: "Nothing in this article shall be a contravention of University policy" (19.04 a.3). However, as we shall see, a number of items in the imposed terms clearly do replace prior university policy. The status of that sentence is therefore rather dubious to my mind. I will take it to mean that the imposed terms should be interpreted as in keeping with university policy whenever possible.

II. SIUC policies compared to the AAUP guidelines

I will now examine how each successive wave of policies stands up vis a vis the AAUP guidelines on financial exigency and tenure. In doing so I make a number of simplifying and charitable assumptions, which I spell out at the end of this ridiculously long post. 

Here are the AAUP principles. (See my earlier post for more on them.)

A.  Faculty should participate in declaring the existence of a financial exigency, and in determining that all alternatives other than termination of tenured faculty have been exhausted. 

B. Faculty should have the primary responsibility in choosing which academic programs will be affected by terminations.

C.  Faculty should have the primary responsibility in determining the criteria used to decide which faculty within these programs will be terminated. 

D. The university should make every effort to find alternative positions for faculty affected by the financial exigency. (I.e., if the faculty decide that SIUC can no longer afford a department of X but some of the faculty of department X could fulfill needed roles in department Y, the faculty should indeed be offered these alternative positions.) 

We now consider the successive SIUC policies to see how well they stack up.

The SIUC Policy on terminating tenured faculty stacks up well. Indeed, this policy often amounts to a paraphrase of the AAUP's suggested guidelines.  

A.  The policy says that a "regular faculty body designated by the Faculty Senate shall participate in the decision that a condition of financial exigency exists or is imminent and participate in the subsequent allocation and reallocation of funds." This seems to me to meet the AAUP's first procedural safeguard.

B. and C.  The policy similarly gives the Faculty Senate the power to delegate a regular faculty body to "exercise primary responsibility for recommending general guidelines for termination of tenured faculty and adjustment or termination of programs within these guidelines". While the process here seems to be somewhat different from that the AAUP envisions, faculty are given the "primary responsibility"--a phrase taken directly from AAUP guidelines.  

D. The university is said to have "an obligation to make a bona fide effort to provide opportunities for movement into other suitable positions within the university for all tenured faculty terminated because of financial exigency or discontinuance of programs". I particularly like the next sentence: "The right to expect such treatment exists by virtue of faculty tenure". 

The BOT policy on financial emergencies begins to erode these protections.  Again, this policy was once on an equal footing with the policy on tenure we just considered, but its promotion to BOT level (in 2003) means, I assume, that any conflict between it and the SIUC termination policy would be resolved in favor of the BOT policy.  

A. The BOT does call for consultation and involvement of "concerned campus constituencies" before it will declare a financial exigency, and outlines a fairly detailed process the administration would need to follow in order to secure such a declaration from the board. But faculty involvement could be rather less than that envisioned in the SIUC termination policy; the Chancellor could, I suspect, cite consultation with her Planning and Budget and Advisory Committee, a group she is fond of citing, which contains members from various campus constituencies. Faculty influence here would be diffuse. This falls short of the "regular faculty body designated by the Faculty Senate".  

B. and C.  Here two separate pieces of policy language are relevant:  

g. 4. In a financial exigency situation, if budget reductions mandated by the Board are to be made programmatically, the administration will involve an appropriate faculty or consitutency body in determining where within the overall academic or other program termination of appointments may occur.  

h. Any actions affecting an institution resulting from a declaration of fiscal emergency [which includes a declaration of financial exigency] shall recognize the personnel policies of that institution so far as they are not in conflict with the fiscal procedures approved to cope with the emergency.

The first statement requires a far lesser amount of faculty involvement than the "primary responsibility" called for by the AAUP and retained in the SIUC termination policy discussed above. But of course it does not rule out greater faculty involvement. The next bit calls for "recognition" of the relevant personnel policies--which would of course include the original SIUC termination policy--but only in so far as they do not conflict with the fiscal procedures adopted to deal with the crisis. It seems to me, then, that in a fiscal emergency the board could very well call for a streamlined procedure that merely "involved" faculty in determining where terminations occurred. Once again, something like the Chancellor's Planning and Budget and Advisory Committee would be all that is called for.

D.  The BOT policy is silent on any obligation to make an effort to find alternative positions for terminated employees. This could be taken either to require no such effort or to leave the previous tenure policy in effect. We needn't resolve this issue here as the imposed terms address this issue.

The imposed terms further undermine tenure protections. 

A.  The imposed terms say nothing about any faculty involvement in declaring a financial exigency, but baldly begin, "If the Board considers a need for a reduction in force for Faculty members", and then outline the procedures to follow. The FA has taken this to mean that the Board can, without further ado, simply declare that such a need exists. I will here more charitably assume that the Board would still be required to follow its prior policy, one which would involve consultation with various campus groups and require administrators to make a detailed case to the BOT.

B. and C.  Item 19.02 does outline a process for determining which Faculty would be laid off. This process must therefore replace (and contravene) earlier policy, despite the line that says that this imposed article does not contravene board policy. The process requires that a number of factors be considered in determining which Faculty will be laid off. While it does not quite say this explicitly, the context makes it clear that this consideration will be done by the Board. Certainly the Board is said to make the determination at which "level or organization" such layoffs are to occur. While the factors to be considered are reasonable enough, by eliminating any faculty role in "considering" these factors or determining at what level the layoffs will occur, the new imposed terms clearly alter the status quo ante, and remove faculty from any meaningful role in determining how to implement terminations justified by a BOT declaration of financial exigency.

D. The imposed terms do call for the Board to "review the possibility" of reassignment of an employee to a different unit, but do not require the university to "make every effort" to reassign employees. Here too (assuming the original policy which called for such an effort was still in force), the imposed terms change the status quo by removing any obligation for the university to make a bona fide effort to reassign tenured faculty, a right we once had "by virtue of tenure".

On my reading, then, current SIUC policy can be said to meet only one of these four AAUP standards for the proper procedure to follow in cases of financial exigency. Faculty would have some consultative role as the administration sought to convince the BOT that a state of financial exigency existed (A). But they would have no role to play in implementing the firings necessitated by the financial exigency (B and C), and benefit from no bona fide effort to find them alternative employment at the university (D).

III. Why this matters

The imposed terms undermine tenure mainly by removing faculty from the process of implementing cuts necessitated by a financial exigency. This robs faculty of their traditional role in guiding the academic mission of the university, and it makes it far too tempting for administrators to invoke financial exigency in order to gain the power to reshape the university as they wish. The AAUP's procedures not only safeguard academic freedom and the job security of tenured faculty, but provide a certain set of checks and balances. A declaration of financial exigency allows a university to fire faculty--but leaves the decisions about which faculty to fire in the hands of the faculty themselves. It thus does not make financial exigency, for those administrators willing to risk the PR hit of declaring it, a sort a ring of power that enables them to remake the university in their own image. 

"You deserve a picture for reading this far" (in the language of Mordor)  

Let us try to imagine how a financial exigency would play out under two scenarios, first if SIUC's original policy on termination of tenured faculty were still in full force, second if a financial exigency were to unfold under the imposed terms. 

A.  Original policy.  When the Chancellor argued that SIUC was facing a financial exigency, the Faculty Senate would delegate some "regular faculty body"--presumably an ad hoc committee--to give its view on whether the financial exigency was real. This committee's findings would not be binding, but would presumably carry some independent weight with the BOT. 

A. Imposed terms.  When the Chancellor argued SIUC faced a financial crisis, she would consult with her Planning and Budget and Advisory Committee, which contains some faculty members, among many others. To the best of my knowledge this group does not issue public recommendations. And the faculty members on the committee could obviously be outvoted by other campus constituencies. There would be no official faculty voice--even of an advisory nature--weighing in on the existence of a financial exigency, though of course the Faculty Senate or FA could weigh in on its own.  

Let us assume that the BOT did indeed declare a financial exigency.

B & C. Original policy.  The Faculty Senate would again be called upon, but now not merely in an advisory role, but to take the lead in setting guidelines to determine which faculty members, and which programs, would be cut. This sounds, frankly, rather difficult and ambitious. But consider the alternative. 

B & C. Imposed terms. The administration would "consider" various factors, then assign cuts to the programs and faculty members it deemed most dispensable. Faculty would have no role to play here, and the administration would be suspected of protecting favorites and punishing outspoken faculty members. (Compare the curious distribution of threatened NTT layoffs.) Certainly administrators would have the ability to remake campus according to their own ideas of what programs were required to make SIUC the sort of university they think it needs to be. Those ideas might well differ from faculty ideas about the sort of university SIUC should be.

D. Original policy.  The university would be obligated to attempt to find homes in other units for faculty members whose programs were cut. If my own program is deemed dispensable, but I have expertise that would be of service to an understaffed program elsewhere on campus, the university would be obligated to keep me on.  

D. Imposed terms.  The university would consider such reassignment, but would be under no obligation to make a bona fide effort to place me (e.g.) in another program.  

Which process would leave SIUC with a better chance of surviving a fiscal crisis with its academic character intact? Which would leave fewer bitter feelings? Which would allow us to attract future faculty hoping to make careers here? Which would you prefer? 

Appendix: Simplifying and charitable assumptions. 

In a vain effort to keep this analysis to a manageable scope, I have made a number of assumptions above.  

1. Tenure has at least some legal protection afforded by the courts. I have not attempted to research these protections in any detail, but I assume that for the most part such general protections will be trumped by the more specific policies I outline above. Certainly contractual language would likely trump the common law understanding of tenure, I believe. I mention this in part because one thing the FA bargaining team is fully aware of is the danger of agreeing to lousy contractual language on tenure: if we cannot get decent tenure protection in the contract, we might be better off relying on the courts. But analysis of the relevant legal cases is far beyond my capability. I will therefore not say anything more about these legal protections here. 

2. I assume above the maximum amount of continuity between the three SIUC policies I analyze.  That is, whenever it seems rational to do so, I assume that the policies work in synch, and in particular that the protections offered by the SIUC policy on termination of tenured faculty (the best protections of any considered above, outside the AAUP guidelines) remain intact unless they are trumped by either BOT policies or the imposed terms. 

3. I will here charitably assume that only a long term state "financial exigency" would justify firing of tenured faculty, although the BOT financial emergency policy also discusses a shorter term state of "financial necessity" and does not explicitly say that only exigency would justify such firings. The policy does however come close to implying as much. Given the traditional understanding of financial exigency (which is very clear in the original SIUC termination policy), I will assume that termination of tenured faculty requires a bona fide declaration of financial exigency. But as I noted in an earlier post, the administration's decision to invent a new administrative procedure, "unpaid administrative closures", as a way of furloughing employees without declaring a financial emergency does raise legitimate concerns about its willingness to creatively fire faculty just as it has creatively furloughed them. 

4. I here do not here consider the possibility that campus administrators could circumvent the financial exigency clause, which protects tenured faculty against termination, by merely laying off tenured faculty, or partially laying off tenured faculty, on some lesser justification. Full time lay-offs, in a time of financial crisis, would amount to firings; and involuntary part-time employment is not consistent with the traditional understanding of tenure. I will assume that any reduction of a tenured faculty member to lower than 100% status requires a full-blown declaration of a financial exigency (or one of the other traditional grounds for termination of the tenured).  

5. The imposed terms recognize that the FA has some right to bargain over any reduction in force (layoff) of tenured faculty, but this bargaining would amount to "impact bargaining"--i.e., the FA could attempt to mitigate the effects of layoffs, but could not prevent them.

I've at last completed my magnum opus on tenure, I hope, and thus am ready to go up for tenure as a blogger. Maybe, given the detailed analysis I felt compelled to engage in here, I should have gone to law school after all. Maybe, come to think of it, I will still get the chance to do so, as an unemployed tenured professor of classics . . .