Steven Dutch, Natural and Applied Sciences, Universityof Wisconsin - Green Bay
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As of now (June, 2005) there are two cases pending in Wisconsin regarding firing of tenured professors. They provide an interesting contrast. (By way of background, a single Board of Regents oversees the entire University of Wisconsin System, and by law, faculty recommendations on personnel and administrative matters are advisory to the chancellor of the campus, not binding.)
A professor with a string of accusations involving sexual misconduct, irregularities in use of funds, and unprofessional and confrontational conduct against colleagues was the target of tenure revocation. The faculty committee that heard the case recommended counseling and transfer to a different department, but recommended against revocation. The chancellor of the university pursued revocation anyway and the Board of Regents concurred. The case is now under litigation over due process issues. We will revisit the particulars below.
A professor hired to teach in a weekend program refused to teach an assigned course. The chancellor pushed for revocation of tenure, and the faculty committee that heard the case recommended, instead, that the professor be reduced in rank and given a substantial salary cut. The case is headed to the Board of Regents.
The two cases differ dramatically. In Case 2, the professor had some legitimate grievances (changes in workload) but responded with insubordination. The faculty recognized a serious problem and recommended a serious penalty. My feeling is the Board of Regents will probably recognize that there was a good faith effort by the faculty to maintain discipline and will accept these sanctions as sufficient. Either that, or the professor will resign (as later happened).
In Case 1, the record shows a long history of shabby conduct, for which a faculty committee recommended a slap on the wrist. The Chancellor and Board of Regents disagreed. This case raises tough questions about protection of tenure, but it equally raises the question of the rights of an institution to remove an unsatisfactory employee when faculty either stonewall or refuse to assume their responsibilities.
Tenure is a guarantee of employment as long as certain conditions are met. Lots of professions provide some version of it, but usually the term conjures up images of professors. Generally speaking, academic tenure can only be revoked for serious cause. The weakest element of tenure protection (actually, no protection at all) is that tenured faculty can be dismissed for economic reasons, like budget crises or abolition of programs.
Tenure comes after a probationary period usually of six years, although it can be granted sooner, and some major research universities have longer periods. Denial of tenure is relatively uncommon because the six year probationary period gives both the academic and the institution ample warning of problems, and people don't go into academia unless they enjoy that sort of work. Denial of tenure is most common at high-end institutions where there are usually very strong requirements for publishing and grant procurement. Hiring faculty is expensive and time-consuming and most institutions try hard (at least mine does) to avoid setting applicants up for failure. You expect an airline pilot to be able to fly a plane and you expect someone who gets through academic probation to be a competent professional.
Revocation of tenure is quite uncommon. The restrictions are strict, and faculty understandably fight erosion of tenure vigorously. Also, the courts have held that tenure of any kind, where a job can only be taken away for specified causes, constitutes a property interest, and strict due process safeguards apply. Revocation of tenure is extremely expensive for the institution but virtually fatal for the individual's career, and many people facing certain loss of tenure resign instead.
Tenure is necessary for protection of academic freedom, which, contrary to widespread misconception, does not exist for the gratification of the faculty member. As originally defined in the Middle Ages, it referred to the right of the student to hear and discuss controversial ideas. Faculty, of course, have to have the right to teach such ideas if the students are to hear them. College professors make a lot of people angry; they say humans evolved from lower life forms, that there is a limited amount of oil in the ground, that the earth is overpopulated, that you can't have services without taxes, and that certain beliefs are just plain wrong. Also, faculty take on bean-counters and bureaucrats within academia itself and criticize penny-pinching legislators.Free speech and open debate are so deeply ingrained in our society that most people take that sort of thing in stride, still, tenure provides protection from the occasional thin-skinned administrator who wants personal vengeance on his critics.
Most institutions state that tenure can only be revoked for "cause" and with due process safeguards. A sampling of statements follows.
The Colorado School of Mines statement is the most explicit and detailed, but many other statements are very loosely worded. In fact, as I've researched a number of statutes on different topics, it amazes me that most laws are loosely worded. The real meaning of the law is not in its actual wording but in the case law that surrounds it, and that, unfortunately, is not easily accessible to laypersons.
Since this issue will arise later, note that items 2-4 all involve patterns of misconduct, not just single incidents.
Although the American Association of University Professors has a lengthy document on academic freedom and tenure athttp://www.aaup.org/statements/Redbook/Rbrir.htm, and a long section on procedures to be followed in dismissal cases, the best it can do in defining reasons for dismissal is
(a) Adequate cause for a dismissal will be related, directly and substantially, to the fitness of faculty members in their professional capacities as teachers or researchers. Dismissal will not be used to restrain faculty members in their exercise of academic freedom or other rights of American citizens.
Actually, you probably don't want an overly explicit definition of grounds for dismissal. It would provide loopholes both for unscrupulous administrators seeking to fire people they want to get rid of, and for incompetent or unethical faculty to escape sanctions.
The most controversial issue of the current cases in Wisconsin is that the Regents have cited a precedent known as the "Safransky Standard" as the criterion for dismissing a tenured employee.
Paul Safransky was a houseparent at a group home for mildly retarded teenage boys. He was fired for inappropriate conduct and his case ended up before the Wisconsin Supreme Court (Safransky V. Personnel Board, 62 Wis. 2d 464, 474. 215 N.W. 2d 379(1974)). Misconduct quoted in the court's ruling included:
The Department’s first witness was Mary Tucker who served in a position similar to the appellant’s at Southern Colony. Miss Tucker testified that Safransky often discussed his homosexual life style with employees while in the presence of the residents. Miss Tucker testified that one such incident of conversation took place while seated in the dining room in the presence of seven or eight children.“Well, he told me that, well, that’s when he told me about his roommate was an impersonator and he turned tricks with, you know, with other men, and that he had to come over to the Department and get the key, and how he sets the wigs, and the one night the roommate come in and he was in bed and the roommate started...He got into bed and started plucking the hairs off his chest. And just how they dressed and dancing and different things."Similarly, Miss Tucker testified that the kids could understand such a conversation. She also testified that during that conversation Safransky commented in the presence of the residents that one of the residents - Charlie - had a swishy walk and that he would make a good “drag queen. ”
Mrs. Irene Saltys, an aid at Southern Colony, testified that on another occasion Mr. Safransky commented that one resident would make a lovely girl. She testified that the appellant often wore face makeup, including eye shadow, ....
[another employee, Mr. Testard, testified that Safransky] came over to him, squeezed Testard’s leg, smiled and winked and stated that he had a date that evening. This action disturbed the residents who were there and resulted in questions from the residents as to the reasons for Safransky’s actions. Testard also testified that other conversations took place in front of the children. This testimony was repeated by Patricia Dolan, a registered nurse at Southern Colony, who stated that Mr. Safransky discussed his homosexual activities in front of the patients and that one such conversation took place in front of a patient who, himself, had homosexual problems.
The-final witness called by the Department was Shirley Lamborn. Miss Lamborn testified that Safransky called her a lesbian on several occasions. One such occasion in particular was in the presence of several residents who, according to Miss Lamborn, were capable of understanding what a lesbian is, On other occasions and while in the presence of patients, Mr. Safransky would comment to the effect that it was a good thing she (Miss Lamborn) was a woman. Miss Lamborn stated rhat Safransky was going to dress up one of the patients as a woman because he looked like he would make a nice looking queen.
Nowadays, conduct like this would be considered the most blatant sexual harassment. Furthermore, since the misconduct involved mentally challenged patients, Safransky would probably be open to prosecution under the Americans With Disabilities Act. At the very least the institution could be held liable for not curbing his behavior.
Safransky argued repeatedly that he was being persecuted for his gay lifestyle, a charge that critics of the Safransky standard continue to parrot. However, the court ruled against the Personnel Board on the issue of lifestyle, saying.
The Board made a finding “that homosexual activity is contrary to the generally recognized and accepted standards of morality.” No evidence was submitted as to this finding. Therefore, the finding is not supported by the evidence.
Nevertheless the Court went on to rule:
We are satisfied that there is credible evidence to support all the findings of the Board with the exception of the finding as to the accepted standards of morality. As to the Board’s finding that homosexuality is contrary to the accepted standards of morality, we hold that whether homosexuality is immoral or not is irrelevant to the determination of “just cause."
In other words, Safransky's conduct was so outrageous that this particular issue was irrelevant. The court also cited rulings outside Wisconsin. Those, of course, are not binding in Wisconsin but serve to show the court was following generally accepted understandings of the law. One case from Maryland was particularly well phrased:
The instruction of children carries with it special responsibilities, whether a teacher be heterosexual or homosexual. The conduct of private life necessarily reflects on the life in public. There exists then not only a right of privacy, so strongly urged by the plaintiff, but also a duty of privacy. It is conceded that it would be improper for any teacher to discuss his sex life in the school environment.. (Acanfora v. Montgomery County Board of Education (D.Md.1973))
It's often said that "hard cases make bad law." Difficult cases may require convoluted reasoning to sort out and the ruling may then be misapplied to more general cases. It can also be that easy cases make bad law. Safransky's conduct was so outrageous, and firing him such a slam dunk, that it could be described in very loose terms that might then be misapplied to cases where there was no serious misconduct. The most quoted line from the Safransky ruling is:
It is also their finding that the conduct of Safransky complained of had a substantial adverse effect in the performance of his job duties. . . .
"Substantial adverse impact" is pretty vague. It could include living far enough out of town that the employee is often late to work when it snows. A lot of the concern over the Safransky standard is that it seems so vague. And it would be cause for concern if that was all it said.
However, Safransky is in fact based on an earlier case,Gudlin vs. the Civil Commission (1965; State ex rel Gudlin V. Civil Service Comm. (1965), 27 Wis. 2d 77, 87, 133 N.W. 2d 799). The oft-quoted line from Safransky actually comes from Gudlin:
One appropriate question is whether some deficiency has been demonstrated which can reasonably be said to have a tendency to impair his performance of the duties of his position or the efficiency of the group with which he works. ... It must, however, also be true that conduct of a municipal employee, with tenure, in violation of important standards of good order can be so substantial, oft repeated, flagrant, or serious that his retention in service will undermine public confidence in the municipal service.
To hear some people tell it, the rules are so loosey-goosey that tenured employees can be fired on mere whim. For example, one commentator writes:
The novel Safranky standard for "just cause" in dismissing a tenured faculty member actually originated in the case of Gudlin vs. the Civil Comission (1965) and was reaffirmed in Safransky. Gudlin was a municipal employee of West Allis who bartended in his off-hours, fathered an illegitimate child (also in his off-hours), and quarreled with police at the tavern where he worked. After pleading guilty to two disorderly conduct charges and paying $60 in fines, he was fired for his off-duty activities. The implications of the Gudlin case are even more frightening than Safransky, for they imply that faculty could be fired merely for committing offenses no more serious than obtaining traffic tickets. Below is the Gudlin case, with the just cause standard highlighted in bold-type: http://www.uwm.edu/~renlex/gudlin.htm
[The link above can also be followed to the pertinent documents in Case 2.] Although this writer claims "faculty could be fired merely for committing offenses no more serious than obtaining traffic tickets," the actual Gudlin ruling refers to offenses that are "substantial, oft repeated, flagrant, or serious." Furthermore, in Safransky, the court held:
In determining whether “cause” for termination exists, courts have universally found that persons assume distinguishing obligations upon the assumption of specific governmental employment. Conduct that may not be deleterious to the performance of a specific governmental position - i.e. a Department of Agriculture employee - may be extremely deleterious to the performance of another governmental occupation - i.e. teacher or houseparent in a mental ward. Thus it is necessary for this court to determine the specific requirements of the individual governmental position.
For example, loudly proclaiming creationism wouldn't have any bearing at all on the fitness of a policeman, janitor or nurse (unless it became disruptive or intrusive to others); it wouldn't even affect the fitness of a business or math professor (unless she began proselytizing in class) but it would reveal a biology or geology professor to be professionally incompetent. Even then, it would be very hard to revoke tenure unless the person taught flagrantly incorrect material in class or abandoned his scholarship completely in favor of creationist publication. Even then, I suspect most institutions would feel it's better to protect an occasional crank rather than endanger the academic freedom of responsible scholars.
Finally, recall the provisions of the University of Wisconsin code, that
A faculty member is entitled to enjoy and exercise all the rights and privileges of a United States citizen, and the rights and privileges of academic freedom as they are generally understood in the academic community. This policy shall be observed in determining whether or not just cause for dismissal exists. The burden of proof of the existence of just cause for a dismissal is on the administration.
Dismissal of tenured faculty for cause is a weighty matter, and faculty are well advised to watch all such proceedings carefully, but when people claim that the Safransky Standard is tantamount to being able to fire faculty for the slightest whim, it just isn't so. I suspect what really offends many faculty is the use of a standard originally formulated for other professions.
According to the Board of Regents Finding of Facts: (http://www.uwm.edu/~renlex/bor.htm)
A female .... student accused Professor X of inappropriate conduct during a school-related trip to New York City in March 1995. He admitted sharing a hotel room with the student, and admitted that he had consumed so much alcohol that he experienced a "black out" and could not recall whether or not he had, as she alleged, masturbated in front of her.
Read that a few times. I helped lead two student trips abroad and found that students have an astonishing capacity for getting into mishaps - without warning. Drinking so much that you black out while traveling with a student, and while you are responsible for that student's safety, is in itself, cause for dismissal, let alone getting so plastered that you can't recall if you engaged in sexual misconduct. The professor was not dismissed then because his department chair had no previous records of misconduct and interceded for him. This particular allegation has never been disputed even by the professor himself.
The rest of the story is mostly a tangled one of personal attacks on other faculty and staff. After a secretary married another professor, the dismissed professor allegedly falsely accused her of nepotism, and harassed her by making unfounded complaints about her job performance. He also allegedly made false accusations to the administration, the Attorney General, and the media.
The faculty Committee on Terminations described the professor's conduct as "simply unacceptable" and that because of it "an important department has been reduced to a level of dysfunctionality that amounts to a significant loss to the institution." They further noted "The University administration has not adequately dealt with this situation. Something serious obviously needs to be done..." Nevertheless, they refused to recommend that "he be disciplined in any significant way."
The Chancellor, in forwarding his own appeal to the Board of Regents, described this Committee's findings as "arbitrary and untenable" and "an effort to force compromise without regard to the evidence." He further noted that the Committee erred in considering each accusation separately and in isolation, whereas just cause for dismissal frequently involves a pattern of misconduct. Past offenses, even those that were dealt with at the time, can be considered in establishing a pattern just like a repeat criminal offender's past convictions can be considered. The case is now in the courts on a variety of procedural issues. To be quite blunt, the Board of Regents botched some elements of the proceedings and are now entangled in trying to defend themselves. They attempted to argue that dismissal was simply an administrative proceeding and were roundly slapped down in court. The issue isn't whether the professor got due process (he did) but which specific statutory due-process requirements apply and whether the case can be salvaged or has to go back to square one.
Overshadowing the procedural issues is the plain fact that this professor was irresponsible, unprofessional, and deserved to be fired. When due process is used to protect the guilty, it doesn't thereby protect the innocent; instead, it undermines faith in due process itself. Faculty looking for a case to use in defense of tenure should look elsewhere; defending this case will only reinforce the notion that tenure protects everyone no matter how serious the misconduct.
Extremely bothersome is the persistent pattern of misrepresentation of this case and the law by would-be protectors of tenure. Although the most-quoted line of the Safransky Standard is pretty loosely worded, it isn't much more so than many of the statements of just cause by universities or the AAUP standard. Other statements in Safransky, Gudlin, and University of Wisconsin Code make it clear that academic freedom protections apply, and that offenses must be flagrant or ongoing to constitute just cause. One aspect of Safransky that bothers professors is being lumped in with other state employees, but the Safransky ruling makes it clear that the duties of the particular job determine whether or not an action constitutes cause for dismissal. Scholars won't exactly reaffirm public faith in their abilities by distorting the facts.
What recourse does a university have if faculty responsible for disciplining their colleagues either refuse to exercise their responsibilities or make flawed decisions? Labor unions suffered serious erosion of public approval when they became seen as mindless protectors of the incompetent and sociopathic. If faculty don't address the painful issue of defining cause for tenure revocation themselves, others will do it for them.
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Created 28 June, 2005, Last Update 20 January, 2020
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