Tuesday, October 4, 2011

The Chancellor's latest email on tenure

The Chancellor sent out two emails relevant to bargaining today. I here tackle only the second, that about tenure. While there is some news here, there is less than meets the eye. I know that many readers of this blog want this all to be over (trust me, I share this desire). Even in union stalwarts like yours truly, there's a little part that wants to believe that the SIUC administration never had any interest in gaining the sort of "flexibility" (a.k.a. power) for itself that can only be had by undermining tenure. We want to believe. We want this all to be over. It isn't. We are making small positive steps. That's good news. But we'll only continue moving in the right direction if we continue putting pressure on the administration--and pressure has been the only way we've made what progress we've made so far. First pressure, then progress. Progress doesn't remove the need for pressure, as the Chancellor says it should: progress is the result of pressure.

The pace of bargaining has picked up over the past few days, and the major topic of conversation has indeed been the procedure for laying off tenured faculty ("RIF", i.e., Reduction in Force--the next best thing to R.I.P.). My understanding is that both sides have made meaningful modifications to their prior positions. That is, after 460 days, bargaining seems to have broken out at the bargaining table. Is it any coincidence that the administration made the new proposal the Chancellor trumpets here two days after a strike authorization vote passed by 92% to 8%?

I have seen neither the administration’s full current proposal nor the current FA proposals (which are themselves in flux, as the FA attempts to provide the administration with multiple ways to meet the FA's interest in ensuring any declaration of financial exigency is on the level).  Randy Hughes is working on an official response, with input from the bargaining team: his response will be better informed on the details involved, including on how accurately Cheng has characterized the administration’s proposal of 9/30. My own first take on this after the break.

A. The administration team seems to be moving in the direction of clarifying and committing to more or less what I called the “charitable interpretation” of their position on financial exigency in my earlier posting on tenure. Their apparent agreement to commit to contractual language on financial exigency policy (even by incorporating BOT policy) is a meaningful step in the right direction.  

B. But BOT policy, as I have argued, is still (a) confused and (b) falls far short of AAUP guidelines.  The BOT policy does not allow for adequate faculty involvement in either declaring or implementing a state of financial exigency. Thus there is still a wide gulf between the two sides. [AAUP guidelines, by the way, are not the only way to approach this issue--but they are one external standard.]

C. This sort of public posturing ("KNOW THE FACTS"!) and public negotiation will likely be the rule rather than the exception until we get a contract. Expect the administration to trumpet anything remotely resembling a concession, and to spin the concession for all it’s worth. Their goal, naturally enough, is to reduce support for the FA and its strike threat, and to make the latest concession the last one.

D. Pressure due to the strike authorization vote has resulted in some amount of genuine give and take. First pressure, then give and take. The Chancellor’s email is an effort to diffuse the pressure. If the FA lets up the pressure, progress on this issue, such as it is, will stop.

E. Tenure is far from the only issue at stake. An agreement about tenure (a happy goal we are still far from reaching) would be a major step toward striking a sound collective bargaining agreement with the administration. But other major issues would remain, including issues that touch upon such central principles as academic freedom and collective bargaining rights. 

Below the Chancellor's "facts"--taken verbatim from her email--and some commentary.  

Fact 1:  Tenured faculty cannot be laid off unless the Board of Trustees declares a state of financial exigency or in the event of program elimination.  (SIU Board of Trustees 2 Policies C.1.e-i).  This Policy has been in place since 1984 with a revision adopted in 2003.

But BOT policy can be changed by the BOT at its sole discretion, as it did when it invented “unpaid administrative closure days.” So this fact is (or at least was, until “fact 2” appeared on Friday), only a fact for as long as the BOT agreed to it.

Fact 2:  The Administration provided a proposal to the Faculty Association bargaining team on Friday, September 30, 2011 which specifically states that tenured and tenure-track faculty may only be laid off as a result of financial exigency declared by the Board of Trustees. Further, this proposal indicates that any declaration of financial exigency will be in accordance with the Board of Trustees Policy as it existed on July 1, 2011.

Aha! So now, 450+ days into bargaining--and two days after a strike authorization vote--the administration is willing to show that “Fact 1” may indeed be a “fact” we can count on, because it’s in an enforceable contract. Again: first pressure, then progress (if slight).

But we can’t very well evaluate this proposal unless we see it in full. I am told that the phrase “financial exigency” does indeed occur in the new proposal, but so do other vaguer phrases.

Fact 3:  The Board policy contains specific requirements that must be met prior to the Board considering a declaration of financial exigency.

True, but the devil is in the details.  Are those requirements robust enough to prevent a repetition of the 1973 episode? The Chancellor herself recognizes there may be some problems here by moving on to her next two "facts".  

Fact 4:  Current Board policy regarding financial exigency guarantees that faculty, through their official constituency body will be continuously involved in the DECISION of whether to recommend to the BOT that a declaration of financial exigency occur.

“Current Board policy” here appears to be misprint (if one takes it rather charitably) for “current SIUC policy which can only be found by a careful google search on the SIU website.”  SIUC policy is not BOT policy; it can be changed by Chancellor herself, without BOT approval.  Is this policy also to be incorporated into the contract? If so, that would be a step in the right direction, but problems remain. As I noted earlier, the old SIUC policy is contradicted by some things in the imposed terms, so such contradictions must be ironed out. 

The "official constituency body" is the Faculty Senate. There are some good reasons to doubt whether Faculty Senate is the right outfit for this job (ensuring faculty a role in declaring a financial exigency). This is presumably why the Chancellor didn’t say “Faculty Senate” in her email.  One problem with the Faculty Senate (an august body I am about to join--and for which I have considerable respect) is that many members are not members of the Faculty, as that term is used elsewhere in the contract (i.e., they are not all tenure track or tenured members of the FA bargaining unit). A number are on AP contracts, as chairs or even members of the central administration--individuals who serve at the pleasure of the administration and would presumably not be effected by financial exigency layoffs. Still others are NTT faculty, who could have different interests when it comes to a financial exigency.

Fact 5:  In the event that a financial exigency is declared, the BOT would still be required to bargain with the Faculty Association over any proposed reductions in force of tenure track or tenured Faculty.

Bargaining here, as I understand it, would be “impact bargaining”, i.e., the administration would have to notify the FA in advance, and the FA could make suggestions about how to implement the BOT decision, but the FA could not prevent layoffs.  Such impact bargaining provides no real protection.

The real bargaining about these matters is taking place now. I am sure I join most readers in hoping that such bargaining will continue, and will indeed accelerate, and that we will have an agreement on all outstanding issues sooner rather than later, and without a strike threat having to become a strike.


  1. Dave,

    Thanks for a thorough reply to my question (posted in the cartoon).

  2. Dave,

    Could you link to or quote the AAUP guidelines you refer to? Thanks.

  3. "The BOT policy does not allow for adequate faculty involvement in either declaring or implementing a state of financial exigency. Thus there is still a wide gulf between the two sides."

    Just get the layoff procedures in with the FE clause. I presume FA wants a bigger role than the Faculty Senate has today (or did in 1973)?

    At any rate, I'm not sure there is a "wide gulf" until - as you say - we see details. But if it contractualizes the Board policy, great. Shared determination is not as important as FA thinks it is and I expect they will give way on that point. At least I hope they do so because FE is a desperate measure by management.

    About the AAUP, I'd rather have the FA language (based on seniority) rather than on the subjective criteria used by the AAUP:

    "Judgments determining where within the overall academic program termination of appointments may occur involve considerations of educational policy, including affirmative action, as well as of faculty status, and should therefore be the primary responsibility of the faculty or of an appropriate faculty body.6:

    "The faculty or an appropriate faculty body should also exercise primary responsibility in determining the criteria for identifying the individuals whose appointments are to be terminated."

    Yeah, THAT will be real good for academic freedom when faculty in an orthodoxy throw out the heterodox among us (cough, cough). Don't forget that academic freedom is just as threatened from within as from without.

    And kudos to Cheng for releasing more information. More information from both sides is all the better. She beat FA to the punch, leaving some to wonder whether FA would have ever divulged the BOT movement....

  4. From FA Supposal:

    xx.5.02 When the program review(s) has (have) been completed in accordance with Article 9, if faculty lines from a basic academic unit have been identified for layoff, the following procedures shall apply.
    (a) The layoffs within a basic academic unit shall proceed in the order listed below:
    i. Temporary and part-time employees;
    ii. Full-time employees (non faculty or Faculty);
    iii. Non tenure-track faculty;
    iv. Untenured tenure-track Faculty;
    v. Tenured Faculty.
    No tenured Faculty member shall be laid off if there are un-tenured faculty members in the basic academic unit.

  5. OK, I read the FA supposal demanding joint determination of financial exigency (FE) by a commission made up of 5 members appointed by FA, 5 by BOT and six votes required. That is AFTER four consecutive state audits and the "burden of proof" on BOT that a FE persists for TWO years.

    This all sounded so extreme that it would rule out FE in any case imaginable to normal human beings. Last time BOT did blink and said "no layoffs of tenured faculty" EVEN WITH FE. (Read: let the axe fall on other employees and there is that type of language in the FA supposal).

    ***QUESTION: I have searched faculty contracts at state universities and the sole authority always lies with the BOT to declare FE, with some advisory recommendations to be heard by the union. So, where is FA getting this language about FOUR audits, TWO years, and TEN members on a Commission to "prove" an exigency exists? And then they insist that if the vote is stalemated, there may not be a call for another FE for a 2 year period.

    Is that bargaining in good faith on THIS issue? If I were management, no way I would accede to this demand in this economic environment (2011 ain't 2006 and Poshard isn't looking for a honeymoon period on campus).

  6. Jonathan Bean is making an excellent argument--and one that I also raised on the "Why Strike" thread. The language the FA is apparently STILL insisting upon (per Randy Hughes's latest email) would fatally compromise the BOT's fiduciary responsibility; IOW, it would be completely insane for the Administrative bargaining team to agree to it.

    For more reasonable alternatives, see the procedure at Texas Tech: http://www.depts.ttu.edu/officialpublications/facultyHB/FinancialExigency.php

    I find the definition of exigency and the makeup of the Advisory Committee that makes the determination very interesting:

    "Financial exigency means that the financial position of the university as a whole, demonstrated by competent evidence, is such that the financial resources of the university, including all funding sources (specifically recognizing that all funds are not equally transferable for all uses), are insufficient to support existing academic programs to the extent that the university is unable to finance the full compensation of both all tenured faculty and all other faculty until the end of their appointment, including timely and proper notice. A legislative mandate reducing salaries across the board will not trigger declaration of financial exigency. Academic programs reduced or eliminated for academic reasons shall not be included within the scope of this definition. Reorganization shall not be included in this definition unless it results in the layoff of tenured faculty and is motivated by financial exigency. A financial exigency will last no longer than twelve months unless renewed by the same procedures outlined in this document.

    Financial Exigency Advisory Committee, hereinafter called FEAC, is a committee composed of the Provost, Senior Vice President for Administration and Finance, president of the Faculty Senate, a dean chosen by the Dean’s Council, and three tenured faculty members selected by the Faculty Senate. The Director of Personnel and the president of the Student Government Association shall be non-voting members. The chair will be selected from the above group by the President of the university prior to the first meeting."

    The page continues with a clear outline of the procedures. The procedures at Kansas State are also of interest, because I think they come the closest to matching the Administration's "wish list" while also incorporating substantial protections for faculty: http://www.k-state.edu/academicpersonnel/fhbook/fhxb.html

    Finally, be aware that at least one of our aspirational peers, LSU, has language that I believe is pretty close to what the Chancellor claims she wishes to accomplish, but is a great deal clearer than anything that is in any existing documents: http://www.lsusystem.edu/userfiles/file/bylaws/BYLAWS_Chapter%20V.pdf

    (I'm sticking with my pseudonym from the other thread for continuity here--sorry for any confusion the posting time from that thread causes!)

  7. One more aspect to consider in this discussion:
    FE affects Everyone on Campus, Every employee and every student. That's considerably over 20,000 people. The FA represents ~700 T/TT employees of which about 1/3rd are actual members.

    Why should the BOT enter into a contract that basically gives the FA the right to control a decision that will affect literally thousands of others that the FA does not represent and whose interests the FA has no obligation to protect?

  8. Your last point is a good one (Anonymous 2:53). Thanks for the links (though none are as demanding as the FA supposal).

    For all the talk of "solidarity," if you read the FA supposal, they insist that all other staff categories by cut first.

    To take a phrase from the history books, we are the "labor aristocrats" who claim to represent Labor but will stick it to the those who can be more easily replaced.

    There is also this little gem: if there is a FE and, let us say, enrollment plummets and there is no need to rehire faculty; still, SIUC may not hire others:

    xx.8 With the sole exception of critical needs within basic academic units, the university shall maintain a hiring freeze on all administrative, professional (AP), and bargaining unit positions until all laid off members of the Faculty have either been recalled . . . or severed [with paid-up retirement].

    Let's hope FA gets section 5.02 and declares victory. (I don't think 5.02 is absolutely necessary but it would be in line with many other contracts and, unlike the AAUP guidelines, it provides a transparent, formal procedure for layoffs. The AAUP calls for faculty body to have say in individual terminations....)

  9. FYI I am 2:53, I am NOT 2:35 (separate posters)

    The concern (one of them anyway) I have with FA Supposal: xx.5.02 is that it fails to consider either merit or programmatic needs. In some departments, multiple independent sub-disciplines are represented and the it is possible that at a given point one of those could be represented by a single tenure track individual, whereas another may be represented by two or more tenured faculty. Terminating/laying off the TT faculty while retaining the T faculty in this case would leave the department unable to teach one of its sub-disciplines and hence would undermine the ability of the department to meet the needs of its students.

    It is also possible that a hot-shot TT faculty who is a successful teacher producing publications/ generating grants/ and succeeding by other quantifiable criteria applicable to a particular discipline, would be terminated under this supposal to protect a tennured faculty member's position, even if that tenured faculty were demonstrably ineffectual in the classroom and had a sustained record of scholastic non-performance. Where is the logic or justice in that? Yes, these are hypotheticals, but so is the entire debate about FE conditions, so it is not unreasonable, IMO, to consider these cases. What is the FA reasoning and how does this supposal seek to position the university to recover from a FE condition (and hence stabilize the positions that are preserved during the FE)? Leaving the university unable to fulfill its mission will only ensure that further cuts are more probable and increases the likelihood of a completely unrecoverable failure.

  10. Socrates and Anonymous 2:35 make very sensible points; we ought to have a FE policy in line with those of other universities. What the FA seems to be proposing (again going off of Randy Hughes's email this morning) does not seem to be in line with what other universities do. If this is, indeed, the FA's stance in the bargaining room, rather than their posturing, I worry a great deal about the ability for an agreement to be worked out short of a strike, a strike which will get ugly and will further divide this campus for years to come.

    I write this as someone who voted yes last week. In joining the vast majority of my colleagues, I was registering a vote of disgust toward the administration for its imposed terms of employment last March (particularly the RIF language) as well as their seeming arrogance and heavy-handedness in the negotiations. I also hoped, as did many I am sure, that such a resounding vote of disapproval of the administration's handling of negotiations would send a loud and clear signal that they need to bargain in earnest. Otherwise, I would do the unthinkable, and join in a work stoppage.

    I would characterize my vote as a "yes, but" vote, though. I am in favor of striking if bargaining has genuinely broken down. I am not in favor of striking in favor of the FA's supposal or else, however. Surely some happy medium can be agreed upon? Or is there such a lack of trust toward administration that this is not even possible? That a policy similar to that of other universities, among whom are some of our aspirational peers, is too milquetoast and "concessionary" to the administration that it would be considered as tantamount to a "sell-out"?

    The other point I would make is for us not to ignore the concession of the BOT in being willing to insert FE language, including Board policy, directly into the contract. This is not to be entirely scoffed at; presumably, whatever is in the final contract takes precedence over Board policy, even if changed later. I am not a lawyer, of course, but that is how I understand legal contracts. Also, administrators generally do not like to put things in writing; here they are proposing to do this.

    I only speak for myself, but I do want my union leadership to know that my vote in favor of strike authorization last week was not unconditional. Bargaining in good faith has to be evident on both sides. After this morning's email, I worry that I may start having to spread my disgust a bit further around.

  11. Lots of folks have raised substantial concerns about the FA's supposals on financial exigency. But as bargaining over these issues is ongoing right now --there's been no agreement, but both sides are apparently making some meaningful changes in their positions-I'm not going to devote to the time to thoroughly respond to each here.

    One general point. We ought to expect the faculty association to enter bargaining over this issue, as others, with a most vigorous possible protection of faculty interests. Does that mean the FA would call for a strike if its proposals are not adopted in toto? Of course not. As we speak the FA is trying out different ways of meeting faculty interests on this issue (and the administration, as the Chancellor argues, is also modifying--er, "clarifying"--its position).

    6:59: Of course tenure gives tenured faculty greater job security than all other faculty, tenure track and non-tenure track; and it will presumably also give them greater job security than almost any other employee of a university.* Other careers and callings don't include a tenure system, with its pluses (job security) and cons (stagnant job market). So, yes, in the case of financial exigency tenured faculty should be among the last to go; and they would go after NTT and tenure-track faculty--even if some objective observer would conclude that others are more valuable by some measure. That part of what the tenure system means. If you reject that way of viewing tenure, you're rejecting the tenure system.

    2:53. A declaration of financial exigency isn't required to fire anyone else on campus, save for tenured faculty. Of course a desperate financial condition would effect all of us, but this special declaration is necessary only to fire tenured faculty. So it seems to me altogether fitting for tenured faculty to have some special say in declaring such a status.

    *In my department, as it happens, the average career of a NTT is longer than that of a TT, as NTT aren't terminated due to negative tenure decisions. Let's not forget that the system results in the termination of faculty as well as in protection of their job security. In fact, in times other than those of financial exigency, the tenure system may do more to terminate faculty (though negative tenure decisions) than to protect faculty jobs.

  12. Sorry Dave, I am not buying that argument. The definition of a financial exigency is a fiscal situation that "threatens the existence of the institution as a whole". Such a dire eventuality is very unlikely, but not impossible. It could be precipitated slowly, for example by deep erosion of enrollments, but in those situations we would likely have time to take steps (such as closing departments or other dire measures) that hopefully would avert the threat to the entire institution. IMO it is more likely that such a situation would occur suddenly as a result of unanticipated external forces such as draconian budget cuts or some other unanticipated malady. The FA position is not reasonable in that it does not allow an adequate response in that situation.

    If we were faced with such a situation, then it is inevitable that positions across all job classifications will be lost (i.e. people are going to lose their jobs). The impact of that will be felt throughout the university, the community and the entire region. For that reason, if for no other, if an exigency situation existed then the entire focus should be on stabilizing the situation, not on protecting the jobs of any specific group of employees, including those with tenure.

    The goal should be to implement steps that result in an institution that is (1) functional and (2) fiscally stable. If either of these are not achieved, the situation will only deteriorate. If necessary classes cannot be taught by qualified instructors then students will leave. No students = no university, so retaining the best possible instructors in a range of disciplines *strategically chosen* to ensure that essential classes can be effectively taught is essential. Basing such (horrendous) choices only on seniority or tenure status without regard to the needs of the mission to be accomplished is, IMO, foolish. Allowing, or forcing that situation to occur is not protecting jobs, it is threatening them.

    Fiscal exigency is not a likely situation, and it is probable that if forces were driving us towards that situation over time we would first go through steps like closing departments, shuttering buildings etc., to try to avoid a campus wide crisis. But in the unlikely event that such a crisis where to occur, for a relatively small group to try to contractualize their own job security seems to me to be counter-productive. Face it - If we were to get into that situation we cannot save all, so the best option would be to save what we can save, focusing on what we cannot do without, and preserving the strongest possible foundation on which to rebuild. Basing such (agonizing) choices only on job titles or seniority rather than the needs of the contracted (i.e. smaller) university would result in a lopsided dysfunctional organization that is likely to further collapse - which will help no one, not even those that remain.

  13. I agree with Socrates Finger with regard to his argument against seniority-based layoffs. HOWEVER, my comments were in the context of the FA's more subjective "leave-it-up-to-us" joint determination language and also the subjective post hoc termination language of the AAUP.

    Given what the FA is demanding - and the even worse AAUP language - I would prefer something mechanical. Indeed, the BOT's own language is seniority-based so that's where we are likely to land at any rate. And it gets to the fuss about TENURE that the FA has people scared about. (Obviously, 5.02 protects tenured against those without and isn't the whole strike threat about TENURE?).

    Hey, I didn't make this playground but that's where we stand right now.


I will review and post comments as quickly as I can. Comments that are substantive and not vicious will be posted promptly, including critical ones. "Substantive" here means that your comment needs to be more than a simple expression of approval or disapproval. "Vicious" refers to personal attacks, vile rhetoric, and anything else I end up deeming too nasty to post.