From the Editor
Big Brother Says: You have Mail!, by Patricia
Brodsky
Presentation to UMKC Faculty Senate, by Robert
Popper
UMKC Computer Policy in Context, by David Brodsky
Faculty Raise Questions about New Promotion and
Tenure Regulations, by Pat Brodsky
Thoughts on the New P&T Processes, by Charles
Wurrey
Tenure, Grievances, and Faculty Governance: First
Order of Business--Culture Change!, by Alfred Esser
The Purpose of Tenure, by David A. West
The Collected Rules of the University of Missouri
System: Fable or Fiction?, by George R. O'Connor
Failure of the Grievance Process at UMR, by Clifton
Merrow
Calvin without Hobbes on Oak Street, by Marino
Martinez-Carrion
What's the Matter with the University of Missouri?,
by David Ormerod
IFC Election Invalidated, Sent to Committee
News of the Chapter
Restructuring Questioned, by Patricia Brodsky
Copyright Notice
Dues Information
Back Issues
Challenges to faculty governance
and academic freedom in recent months have been impressive, even by
UMKC standards. We had planned for this issue of the
Faculty
Advocate to focus exclusively on the topic of grievances, but other
matters have intruded. We also report here on the egregious
assault on privacy and
freedom of speech via the University computer use policy, as well as
the
attempted intrusion into areas of faculty competencies and rights by
the
"Roles and Rewards Task Force" (see
Brodsky
,
Wurrey below). We will have further
coverage of both these matters in
future issues.
Grievance is one of the areas in
which the AAUP traditionally takes an interest. It is a vital
tool of the faculty for achieving due process when other means do not
succeed, and as such protects academic freedom and the exercise of
faculty governance. A grievance by definition is surrounded by
strong opinions and intense emotions. In this issue we present a
series of articles focusing on the shortcomings of the grievance
process in the UM system. Present and former faculty members
address specific grievance cases at three UM campuses, two of them, at
UMR and MU, still pending. One contributor was involved in the
negotiation of tenure regulations and faculty grievance procedures with
the Curators. Another discusses the arbitrary application of
university regulations. Chapter vice president Alfred Esser
discusses recent changes in the grievance procedures on the campus at
UM-Columbia--changes which will ultimately affect UMKC and the
likelihood of a smooth, fair grievance process on this campus.
Our contributors agree that due
process is not regularly followed by the University in its dealings
with
faculty, staff, and students. A particularly troublesome problem
is
footdragging by the university with predictably--and, in the opinion of
our contributors--intentionally disastrous results for the
grievants.
When he arrived at UM in 2003, President Floyd inherited a large
backlog
of complex grievance cases dating back to 1999. At the January
31,
2003 IFC meeting, according the IFC minutes, "President Floyd asked
that
VP Lehmkuhle inquire about the status of any pending appeals and asked
that
a letter be written to each person on the list to provide a timeline of
perhaps
60 days before a decision was rendered. He expressed regret about
this
situation." In May of that year the IFC minutes report that "his
office
has cleared the backlog of grievance communications. They have
responded
to each and every grievance."
This commendable concern is a
refreshing change from UM practice. Apparently, however, some
cases were not dealt with (
see Merrow).
Our contributors' solutions to the grievous grievance situation in the
UM system differ, but almost all point out that due to abuses of the
system within the university, the courts are frequently the sole
remaining venue for obtaining due process. Several suggest
drastic changes regarding the definition of the University in Missouri
law. Most express a feeling of betrayal at the hands of the
university.
For the University of Missouri
Collected Rules and Regulations (CRR) pertaining to grievances
(chapters 370, 380 and 390) and to tenure (chapter 310) see
http://www.umsystem.edu/uminfo/rules/content.htm#grievance and
http://www.umsystem.edu/uminfo/rules/content.htm#tenure . For
the current makeup of the UMKC pool of Grievance Hearing panel members,
go to the Faculty Senate website at
http://sbs.umkc.edu/fsenate
. Please note, however, ten of these members' terms expired
October 1, 2004, so the website should be updated soon.
The pertinent AAUP policies on
grievances can be found in
AAUP Policy Documents and Reports,
9th edition. They include cases of nonreappointment, sexual
harassment, salary disputes, and access to faculty personnel files, and
also recommend standards for university policies. The AAUP states
that a faculty member shall be able to "petition the elected faculty
grievance committee... for redress ... The grievance committee
will consist of ... elected members of the faculty. No officers
of administration will serve on the committee" (29-30). This
emphasis on an elected faculty committee is central to the idea of
faculty governance: it is the faculty who have the right and
responsibility to hear and judge the grievances of their peers.
One important change in the proposed new UM grievance rules is that all
members of the hearing panel pool are
to be chosen by the faculty alone.
The campus AAUP chapter can help
by advising actual or potential grievants about their rights and the
procedures that need to be followed. We are preparing a list of
area attorneys who are experienced in and willing to take grievance
cases.
Big Brother Says: You
have Mail!
by Patricia Brodsky
Forty years ago, in October 1964,
students at the University of California Berkeley, in response to a
draconian university crackdown on information tables on campus,
embarked on what was to become one of the seminal events of the 1960s
and a landmark in the defense of free speech: the Free Speech Movement,
or FSM. Four decades later free speech is still in urgent need of
protection on university campuses. On September 27, 2004, the
following logon notice appeared on a number of faculty, staff, and lab
computer screens connected to the UMKC network (MAC users and those
with older PC systems were not affected).
This computer system
and/or network is the property of the Curators of the University of
Missouri. It is for authorized use only. Users (authorized
or unauthorized)
have no explicit or implicit expectation of privacy.
Any or all uses of this system
and all files on this system may be intercepted, monitored, recorded,
copied, audited, inspected and reported to authorized site, government,
or law enforcement personnel, as well as authorized officials of
government agencies, both
domestic and foreign.
By using this system, the user
consents to such interception, monitoring, recording, copying,
auditing, inspection, and disclosure at the discretion of such
personnel or officials. Unauthorized or improper use of this
system may result in civil or criminal penalties
and administrative or disciplinary action, as appropriate. By
continuing to use this system you indicate your awareness of and
consent to these terms and conditions of use.
Log off immediately if you do not
agree to the conditions stated in this warning.
Users were instructed to click
"OK" indicating their consent to these conditions. Otherwise they
could not continue their logon, and were denied access to their
professional files and e-mail--in effect, they were prevented from
doing their jobs.
A number of faculty members,
above all Gary Ebersole, recognized the threat to freedom of speech,
privacy, and academic freedom, and responded immediately. The
following timeline of events, prepared by Ebersole and Pat Brodsky,
gives a picture of the speed with which events developed.
September 28
* Ebersole leaves voice mail
message for UMKC CIO Mary Lou Hines seeking information on the notice,
and informs AAUP officers and Jakob Waterborg of concerns over privacy.
* Waterborg in his capacity as
Senate Chair sends e-mail to Hines and Information Services Director
Tom Brenneman seeking information on the logon message and requesting
their appearance at the next Faculty Senate meeting.
* AAUP chapter president Pat
Brodsky solicits feedback from national AAUP legal counsel.
September 29
* Ebersole e-mails Hines and
President Floyd with questions and concerns.
September 30
* AAUP secretary Karen Bame
alerts chapter membership to developments
* Provost William Osborne e-mails
Ebersole, calling the message in the login screen "a summary statement
of the Collected Rules and Regulations... 110.005 paragraph A, which is
4 years old," not "some new policy dreamed up by IT or a response to
Terrorism." Osborne asserts university-provided e-mail is not a
property right and never has been. He cautions against sparking
too broad a debate on these
issues: "While such a debate may be interesting it cannot produce any
useful
outcome to our current situation."
* Ebersole sends reply
"respectfully disagreeing" about the usefulness of discussing these
issues on campus.
* President Floyd replies to
Ebersole, "I will have to look into this matter; however, this message
was not authorized by me."
* Pat Brodsky forwards response
from AAUP counsel Donna Euben to Waterborg, Ebersole, AAUP officers,
and
several professors in the Law School
October 1
* Ralph Caruso, VP for
information Systems, UM System, e-mails Ebersole: "President Floyd
asked me to contact you on this issue. This was not cleared
through my office or to the best of my knowledge with General Counsel's
office. I am attempting to contact Mary Lou Hines, UMKC CIO about
this issue. Thank you for bringing it to the President's
attention."
* The notice is removed from
computer log-in.
October 2
* Provost Osborne forwards
selected parts of e-mail correspondence from Chancellor Gilliland to
Caruso. Caruso offers a
mea culpa: "We (UM System and
UMKC) blew it." The wording of the log-in message
had,
according to him, been cleared by Legal at UM System, although it was
certainly not the type of message that should be sent to users.
* Gilliland chastises Caruso for
communicating directly with a faculty member before informing her.
October 5
* Faculty Senate meeting, at
which Provost Osborne and CIO Hines answer questions about the
events. Osborne apologizes for the wording of the message and
distributes copies of CRR 110.005, official university policy on
computer use.
* Senators and attending Faculty
members strongly object not only to the message but to the policy that
underlies it. Removing the logon message is public
relations. It is the policy represented by the message that is
reprehensible.
* Bob Popper, UMKC Law School,
presents eloquent summary of the threats to first and fourth amendment
rights and academic freedom (
see below).
* Immediate results of the
discussion include plans to form Senate/faculty ad hoc committee to
study CRR 110.005 and privacy policies at other universities which are
much more focused on protecting faculty and other user rights, and to
come up with revisions or possible new policy. Provost Osborne
offers to take faculty concerns to Curators.
As this timeline shows, concerted
faculty action was able to accomplish limited results rather
quickly. This should be a lesson for the future--but the battle
has just begun. Judging from the response, the issue strongly
engaged many on campus. The principles under assault, besides
privacy, freedom of speech, and academic freedom, are freedom to
dissent and freedom from self-incrimination. Specific potential
danger areas include the threat to lawyer/client, doctor/patient, and
professor/student confidentiality; the possibility of unnamed outsiders
deciding a research topic or a conversation was criminal, pornographic,
terroristic (we recall the ignorant but no less frightening attack on
the work of Harris Mirkin, Sociology, several years ago); the threat to
sensitive or unpublished research; and the chilling effect on speech
critical of administrative policies, particularly for vulnerable staff
and non-tenured faculty. The knowledge that one's e-mails to
colleagues can be and are being "intercepted, monitored, recorded,"
etc. is intentionally intimidating.
Other questions include: who
decides what "unauthorized or improper use" is? Who decides which
persons' files will be monitored, and on what grounds? What are
the limits of these actions? When are "civil or criminal
penalties and administrative or disciplinary action" deemed
"appropriate," and by whom? As Ebersole pointed out, the most
significant example of property rights trumping constitutional rights
was in the arguments in support of slavery at the time of the Civil
War. This issue is at bottom a clash between property rights--the
basis for the policy is that the University owns the computers
and
everything on them--and constitutional rights: to freedom of speech and
privacy, and against unreasonable searches and seizures by governmental
officials.
The following presentation was
made by Bob Popper at the Senate meeting. His remarks provide a
good summary of the situation, and his suggestions are well worth
thinking about. David Brodsky then offers some ideas about larger
contexts.
Presentation to
UMKC Faculty Senate, October 5, 2004
by Robert Popper
Jacob asked me to come today and
speak about the notice we received via our computers, that the
University will be "listening" in on us--reading our messages--those we
receive and those
we send. These unnamed people will be doing it secretly.
We get no notice before, during, or after this
spying.
Spying is what it is--or
snooping. Government snooping, because our employer--UMKC--is a
state University, part of the state University system. The
actions against us are limited by the Missouri and the United States
Constitutions, which preserve our liberties--as against state
infringement and, of course, state and federal law--and also the rules
and regulations of the University.
The notice we got states that any
use we make of the computers may be seen by the UMKC officials.
Or, in the words of the notice, our uses of the system "maybe be
intercepted, monitored, recorded, copied, audited, inspected, and
reported to [the] government, and law enforcement personnel." If
you want to use the system, you
must consent to this. Otherwise, log off.
That's
it. And I suggest to you that it is an outrageous intrusion, a
broad
based invasion of the rights of all University personnel.
Of course, UMKC has an interest
in insisting that its employees behave lawfully on their job and don't
use University facilities or equipment for improper or illegal
purposes. But a legitimate goal doesn't justify
illegitimate means. We shouldn't use our offices (owned by the
University) to conspire with others to blow up a University
building. Does that mean the University can put a surveillance
camera or listening device in the ceilings of our offices? We
shouldn't use our telephones (UMKC owned) to plan a murder. So
can UMKC tap
our phones without court approval? Can our sealed letters be cut
open,
read, and copied? Can our desk drawers and filing cabinets be
searched
and the contents seized? You get the point. Because we use
University owned property such as offices, phones, stationery, the mail
room, desks, file drawers, computers, are we deprived of all privacy
rights in connection with these uses?
The answer is clearly, "no."
It might be premature to prepare
a carefully researched legal brief on this. That's up to
you. But I can say clearly that privacy is protected by the
Fourth Amendment to
the Constitution, which prohibits unreasonable searches and
seizures. And the American way is for government to ensure that
we will be secure against search and seizure, unless in a particular
instance there is good reason
to suspect that an individual is engaging in criminal behavior.
In
such a case, government can obtain a warrant from a court authorizing a
search and seizure. That's the normal and
accepted procedure.
There are, however, exceptions,
and the workplace poses special problems. There is some
indication
in court decisions that an employer who gives notice to employees that
they have only limited privacy on the job will, in effect, eliminate or
limit the employee's expectation of privacy, and that no warrant is
needed when the employer acts reasonably in light of the employer's
interests and conducts a work-related reasonable search. A lot
will depend on the stated, official policy the employer puts into
place. How detailed is it? What does it cover (e.g. all use
of computers, e-mails included)? Does
the University policy apply to only work-related reasons unrelated to
criminal
conduct? If so, there is more leeway for employers to intrude.
In analyzing it, we can break it
down into two parts. First, do we have a reasonable
expectation of privacy in the use of the computers? I suggest we
do. If we do, then secondly, is the University acting reasonably
in intruding on that privacy in the way it has gone about trying to
preserve its interests? I don't think it has.
In this wholesale-type authority, it allows
itself to act without any guidelines or rules to ensure that its
discretion
is exercised fairly and reasonably.
The University setting, it seems
to me, strengthens the case for preserving and honoring individual
privacy, since employees, especially faculty, are often engaged in the
type of work which is enhanced by maintaining privacy and
confidentiality and, in many cases, such privacy and confidentiality is
essential to our work. Computers are commonly used in a way that
absolutely requires privacy and confidentiality. Lawyers
communicating with clients, doctors with patients, etc. Spying on
those relationships is completely unwarranted and reprehensible.
Research and grant work may have similar concerns.
I mentioned the Fourth
Amendment. Of course, there is also the First Amendment, which
guarantees freedom of speech and press and thought. UMKC's policy
on computer snooping raises serious issues on First Amendment
grounds. It is a chilling action on this Constitutional freedom,
which protects us in what we say and what we don't want to say
publicly, and on academic freedom. And there is the
Constitutional protection of our liberty under the due process clause
of the 14th Amendment.
Legal niceties aside, isn't there
something obnoxious and insidious about this University action?
The University is acting as "big brother," treating its faculty and
staff as
pawns, whose personal integrity can be compromised and who are not to
be
trusted. We've become untrustworthy and must be monitored,
surveilled,
scrutinized.
The University's Rules and
Regulations (Section 110.005) have an "acceptable use policy" governing
computers. It allows inspection of personal electronic
information where
1) It is necessary to maintain or
improve functioning of all University computer resources;
2) Where there is a suspicion of
misconduct under University policies or violation of law; and
3) Where it is necessary to
comply or verify compliance with federal or state law.
Even this is questionable.
It may be vulnerable to legal challenge in a particular case. But
it
does not provide for the carte blanche snooping that the recent notice
we
got allows.
Why did the University take this
action? We should find out the exact reason for this drastic
step. What justifies it? At whose prompting was it
adopted? Was a legal
memo prepared endorsing it? If the University's aims were
legitimate, could they have been achieved by less intrusive means?
Our first step should be to get
the University to officially respond to our inquiries and
concerns.
We should adopt a resolution objecting to this surveillance and calling
for the University to explain its justification for what is really a
wholesale invasion of, and a heavy-handed intrusion on, the rights of
its employees.
A final thought: maybe this
incident is a good thing. It has brought to light an important
issue. The courts don't like to interfere with educational policy
and some lower court decisions are unfavorable to computer related
privacy interests. But the University is not bound by court
decisions which don't go far enough in honoring privacy. The
University of Missouri can and should go farther than the law requires
and protect faculty and others employees more fully, i.e., they can
take the high road and not the low one.
We should insist on that.
On intelligent, carefully circumscribed, fair rules and regulations
respecting individual privacy in the use of computers. A more
intelligent approach than the current one is essential. And the
final rule ought to be a consensus product arrived at with faculty and
staff input.
Robert Popper is Professor Emeritus and Dean Emeritus, UMKC School
of Law
UMKC Computer Policy
in Context
by David Brodsky
The notorious logon message and
the underlying university policy it represents, requiring UMKC computer
users to passively renounce their constitutional rights and academic
freedom, should be understood in several broader contexts.
Gary Ebersole raises the issue of
property rights as the basis for ante-bellum arguments defending
slavery, suggesting that if the the Curators (or the administration)
own everything that faculty, students, and staff place on their
personal computers, they effectively reduce the university community to
the condition of slaves. From another perspective Bob Popper
concurs by using the term "pawns." However, federal legislation
passed over 20 years ago permits universities (i.e. administrations) to
claim ownership of intellectual property created by faculty who use
university facilities and equipment.
In the wake of that legislation,
there has been a coordinated national effort to expropriate the
faculty's intellectual property--courses, research, publications,
discoveries, inventions, notes, correspondence, etc. Its aim is
to fill administrative coffers with revenue from potential commercial
applications, through institutional ownership of patents and copyrights
(Lawrence C. Soley,
Leasing the Ivory Tower: The Corporate Takeover
of Academia [Boston: South End P, 1995]). One attempt to
commercially exploit faculty intellectual property, serving the
interests of administrations and multi-national computer industry
giants, has been through electronic delivery of courses, or so called
online distance education (David Noble,
Digital Diploma Mills: the
Automation of Higher Education [NY: Monthly Review P, 2002]).
Universal online education was intended to replace 1) professionally
trained faculty with low paid "course managers" possessing minimal
intellectual and disciplinary preparation; 2) effective face to face
learning between teacher and student with atomized, anonymous, and
alienating electronic "interaction"; and 3) accredited academic
institutions with substandard "digital diploma mills."
Commercial online education has
been a flop as a cash cow (rescued by the Pentagon as buyer of last
resort--Noble, pp. 85ff), and income from university held patents,
copyrights, and online courses has in most cases been rather
modest. Failed economic undertakings, however, have not
discouraged the drive for political control. The pathological
police state environment manufactured by the Patriot Act and related
executive orders and legislation is a war of government terrorism
against the people of the US and the Bill of Rights. The
foundation of the police state is the pretext of "security," which
controls people through intimidation and through fear of one's
neighbors and colleagues. In the workplace, "security" (for
management) translates into surveillance of the workforce, often
enlisting employees' personal computers as company spies. The
UMKC logon message declares property rights to be the rationale for
company spying. Threats to report the contents of personal
computers to police agencies essentially criminalize the entire UMKC
community of computer users. Such a policy violates the basic
constitutional principle of US jurisprudence, which assumes innocence,
not to mention the basic institutional principle of academic freedom.
Policies of this sort, public
disinformation notwithstanding, are not standard practice even in the
private corporate sector--to which a public institution like UMKC does
not
belong. Normal business policy is to restrict use of computers at
work to business purposes and to prohibit personal use.
Businesses which do indulge in
surveillance of employees, in order to maintain a docile (and
demoralized) workforce, have been persuaded to change their policy by
labor unions, or through other concerted action by workers (see Adria
Scharf, "Scripted Talk,"
Dollars and Sense [September-October
2003]: 35-37, 53).
The Gilliland administration's
policy of harnessing personal computers to administrative surveillance
should not come as a total surprise. When she was provost at
Tulane, Gilliland had a history of snooping on the university community
("attempted entry into restricted listservs", see
D. Brodsky,
"Tulane University, testing ground for the UMKC Blueprint,"
Faculty Advocate 3.2 [Dec. 2002])
. In addition, Tulane faculty privately told us that they avoided
using their office telephones because they suspected their
conversations
were being tapped.
The Tulane administration is also
involved in a continuing battle with the faculty over the ownership of
intellectual property rights (ibid). The UMKC logon message,
which stressed surveillance based on administrative ownership, may have
been a trial balloon for a future claim stressing administrative
ownership in itself. Like Tulane and other institutions, UMKC may
be preparing to thoroughly expropriate the faculty's rights to
ownership of their own course and research materials, because
the faculty use university facilities and equipment. What could
not
be stolen through the ploy of online education may yet be filched
through
the ploy of "security."
The broadest context of the logon
message is the international war on public higher education, which is
being fought at UMKC on many fronts. For a brief summary of
reactionary
war aims and their intended consequences see
D. Brodsky, "The War
on Public Education in Europe," Faculty Advocate 4.3-4 (April
2004) . The rejection of administration computer policy by
the UMKC community, led by the faculty, and the rapid removal of the
offensive logon message by its perpetrators, is a good start.
Demonstrating the effectiveness of united community action, in the
short term it lays a foundation on which to build a strong resistance
against the numerous assaults which the UMKC community will face in the
immediate future. It also augurs well in the long-term campaign
to roll back the right-wing offensive against the academy.
Faculty Raise
Questions about New Promotion and Tenure Regulations
by Pat Brodsky
Vice Provost for Faculty
Development Jeff Thomas recently presented to the Senate and to the
Council of Chairs the recommendations of the "Roles and Rewards Task
Force" for changes in promotion and tenure procedures. A lengthy
discussion of the matter arose at the October 12 meeting of the Arts
and Sciences faculty. Discussion was hampered due to the absence
of the full report, but enough was known thanks to a summary of the
changes to raise misgivings about a number of points.
Faculty at the meeting objected
to the fact that the non-elected "task force," which grew out of the
old
Blueprint-driven "Pride Committee," is making policy without
consultation
with or approval by the faculty. But the conduct and control of
the
promotion and tenure process is a fundamental faculty
responsibility.
Secondly, there were concerns about the break with traditional
criteria,
which have formed a useful and fair basis for promotion and
tenure.
Among the proposals was the intention to "[put] more weight on
community
service," and to [put] more weight on [the] 'predictive future' of the
candidate."
Fears were raised that these changes will weaken the very nature of
tenure,
by diluting the requirements and endangering the quality of the faculty
over
time. Without seeing the specific wording and the rationale for
these
and other changes, faculty are understandably wary.
Furthermore, several changes in
the procedures have already gone into effect, without a discussion, let
alone a vote, by the faculty. These are contained in a separate
document, the "Clarification on the Promotion and Tenure Process" sent
by Vice Provost Thomas to the chairs on September 29. Among these
new policies is the requirement that in all current promotion and
tenure cases a department must now provide the candidate with the
breakdown of the faculty vote and a copy of the chair's letter to the
dean. The dean is required to show the candidate his/her own
letter. Among the possible adverse results of such a policy that
faculty raised at the A&S meeting are a chilling
effect on honesty and specificity in departmental deliberations and
letters,
which will no longer be confidential, and a destructive effect on
collegiality
as votes on colleagues become public knowledge.
The A&S faculty passed a
motion to ask the Steering Committee of the College to draft a protest
letter against the unilateral actions of the "Task Force." The
College Senators were also requested to have the issue placed on the
Senate agenda. In the coming weeks faculty will be studying the
full report and the "Clarifications" and discussing their
ramifications. The
Faculty Advocate will be addressing
the matter again in the near future. There is a debate among
faculty, and among the members of the "Task Force," about specific
recommendations. In the meantime, as the first contribution to
the debate,
we publish below a commentary on the "Clarifications" by Associate Dean
Charles
Wurrey.
Thoughts on the New
P&T Processes
by Charles Wurrey
First of all, let me state up
front that I applaud the efforts to make the Promotion and Tenure
process more open and transparent. However, I believe that the
pendulum has perhaps swung too far in this direction, with implications
which I will discuss below.
THE GOOD
There are two aspects of the new
guidelines which I especially like. (1) Notifying all P&T
candidates of decisions made at all levels--whether this decision is
negative or positive--is a very good idea. In the past, I have
had to tell candidates that if
they heard nothing, that was actually good news ("No news is good
news"), because they would hear for certain only if the decision was
negative. Providing this information in cases where positive
recommendations are made is relieving to the candidates, who are on
tenterhooks for nearly a year as it is. (2) Secondly, P&T
candidates should have the opportunity to approve possible external
evaluators, or at least screen those who might not be completely
impartial for one reason or another. This is nicely placed in the
new procedures, as it should be.
THE BAD
Two things should be spelled out
clearly in these new procedures. (1) While a CV is said to be
"optional," I believe it should definitely be included in the
candidates' portfolios. Frequently, this may be the first thing
that external evaluators look at--especially since they are practiced
in reviewing CV's in many other situations. (2) In addition, it
should be made clear to the candidates that they can update their
portfolios during the review process with new information--particularly
new information that would be viewed favorably, such as a grant awarded
or a publication accepted.
THE UGLY
1) Notifying the candidates of
the actual vote tally on their tenure and/or promotion
decisions--especially positive [but not unanimous ones--Ed.]--can only
be detrimental. At the least, it can lead to invidious
speculation ("Which of my colleagues may
have voted against me?"), needless rancor, a loss of collegiality, and
possible
retaliation (ranging from simple snubbing to outright physical
violence). It will also have an adverse effect on P&T
committee members, Chairs and
Deans. Frankness, candor, openness and honesty may "go out the
window"
in the evaluation process when those doing the reviewing realize that
their
comments and votes can be made known to the candidate. The
long-term
upshot of this is that it may be easier to pass mediocre candidates
through
the system simply to retain harmony within an academic unit, rather
than
suffering the possible consequences of a more difficult negative
decision. The Collected Rules and Regulations of the University
of Missouri [CRR 320.035A.4.b] only require that committees, chairs and
deans "communicate their recommendations" to the candidates and allow
them adequate time to respond if they so choose. The Collected
Rules say nothing about communicating the vote or sharing the actual
written recommendations.
2) Making the actual written
tenure and/or promotion recommendations available to the candidates
will have the same effects as making the vote tally known, and could
lead to increased litigation (even in the case of positive
recommendations) as well.
3) All this vests far too much
power in the hands of the campus P&T committee, the committee
farthest removed from the discipline itself. The campus P&T
committee is also the only place in the new P&T review process
where the vote and the recommendation do NOT have to be "communicated"
to the candidate (just to the Provost). Local control of faculty
quality--if not implemented properly during the annual reviews and
third-year review--could be lost for the reasons mentioned above.
Charles Wurrey is Professor of Chemistry and Associate Dean for
Administration
Tenure, Grievances, and
Faculty Governance: First Order of Business--Culture Change!
by Alfred Esser
In his insightful article on the
"Purpose of Tenure", David West remembers how difficult it was in the
mid-1960s to negotiate a grievance procedure with the Curators for the
faculty of the
University of Missouri. After 14 years he and his colleagues
finally succeeded, and on May 25, 1979 the Board formally adopted the
procedures that
now apply to all four campuses. [The Curators' ratification of
grievance
procedures occurred in the course of UM systemwide reforms negotiated
with
the AAUP. Reforms were a condition for AAUP action to remove MU
from
censure.--Ed.]
Clear and just grievance
procedures are a necessity to preserve and defend tenure and,
therefore, to assure the faculty the ability to participate in shared
university governance in a
meaningful way. Nowhere in the Missouri System are faculty tenure
and
faculty governance under stronger attack than here at UMKC. The
changes
to the current policies on Promotion & Tenure recommended by the
Task
Force on "Faculty Roles and Rewards" make this abundantly clear.
Redefinition
of scholarship as proposed will lead to lower standards and the
possibility
of rewarding candidates with lesser credentials but with stronger ties
to
the administration. Conversely, the inclusion of criteria such as
"community
engagement" or demonstrated support of administration-defined core
values,
which cannot be evaluated by peer review, will facilitate the process
of
driving out academically competent faculty whose only shortcoming is
that
they are critical of current administrative fads. Clearly, UMKC
faculty
members need strong tenure rules and grievance procedures more than
ever.
It is indeed astonishing how
different UMKC is from UMC when it comes to faculty effectiveness in
faculty governance. West writes, "On several relatively recent
occasions, in fact, a vote of 'no confidence' by the faculty has ended
an administrator's career on this campus." One could only wish
that this were true here. A vote of no confidence in Chancellor
Gilliland by the faculty of the School of Biological
Sciences was completely ignored by UM President Pacheco and the
Curators.
Actually the reverse is the obscene rule here at UMKC: unanimous
support
by the faculty can lead to the dismissal of a dean, as Professor
Martinez-Carrion
points out in his article. Another essential standard that West
mentions,
the requirement of academic promotion and tenure "to pursue an
administrative
position or advance through the ranks to higher administrative
authority,"
does not exist at UMKC. Chancellor Gilliland did not receive
tenure
and promotion during her first academic appointment and it is unknown
whether
later on a departmental faculty committee ever evaluated her for tenure
based
on teaching and research accomplishments. It is not surprising,
then,
that her first appointee for a deanship to lead a new school at UMKC
was
an assistant professor who had not passed the rigorous tenure
evaluation
but compensated for it by being one of her strongest supporters in
"transforming"
UMKC.
Despite all the hard work that
West and his colleagues at UMC put in to formulate strong grievance
procedures, the effectiveness of these procedures during the past years
leaves much to be desired. As usual, the "devil is in the
details". It is not the procedures that are at fault but the
"devilish" lack of oversight by
the Curators and UM presidents, and the ease with which administrators
can
ignore these rules with impunity. A recently released study by
the
UMC Faculty Council reveals that eleven cases out of thirteen violated
the
requirement, stated in the Collected Rules and Regulations [CRR], to
complete
the process within 180 days. Another thirteen never made it to
the
hearing stage. After many years of trying to force the UMC
administration to speed up ongoing grievance cases and convert these
procedures into a useful vehicle for conflict resolution, the UMC
faculty has now voted on new procedures that await approval by the
Curators. In my view, it is unfortunate that
in this new version the UMC faculty agreed to prolong the maximum time
for
completion to 285 days, ostensibly because experience had shown that
the
previous deadline was seldom met.
Prolonging the deadline weakens
faculty grievance cases. Faculty members who are protected under
federal
EEO rules or by the regulations of the Missouri Commission on Human
Rights
have only 180 days to file a complaint with these agencies. Other
agencies have even shorter time periods for filing and when such
deadlines
are missed the University Counsel can use this to request dismissal of
such
complaints on technical grounds, as the case of
MacDonald vs
University
of Missouri vividly demonstrates [
http://www.oalj.dol.gov/public/wblower/decsn/90era59a.htm].
In this case a UM instructor
claimed that she was discriminated against by the university because
she reported violations of the Energy Reorganization Act involving
radioactive chemicals. Under the whistleblower provisions of this
Act a complaint must be filed within a 30-day period, which she missed
because the University's counsel, Mr. Philip Hoskins, suggested to her
"she might want to first exhaust her available remedies through the
University grievance procedure". Fortunately for the complainant,
when the University then tried to have the case dismissed because it
was filed too late, the judge offered this admonition: "I think he
[Hoskins] failed to take due care in a situation that required extreme
care, knowing that he was a professional talking to a nonprofessional."
This case is an unambiguous
reminder that university counsel works for the benefit of the Curators
and not the faculty or employee. Fortunately, the new UMC
grievance procedures allow the grievant to be accompanied by an
attorney and to be advised on any
matter at any stage of the process. Another significant
improvement is the provision that the Faculty Council, and not the
chancellor as is presently the case, will select the Investigating
Officer, who supervises the proceedings, although the chancellor
retains veto power. Furthermore, a grievant cannot be dismissed
during the process and remains employed with appropriate salary
reimbursement. One of the most significant provisions in the new
procedure is the fact that the chair and the thirty members of the
Grievance Committee, from which the Hearing Panel members are to be
selected, are all chosen by the Faculty Council without interference
from the chancellor. Whether the Curators will actually consent
to these new procedures and how long it will take remains to be
seen. The UMC faculty approved the new rules with a 91% majority
on May 20, 2004 but they did not appear on the
agenda of the last two Board of Curators meetings. One can only
wonder
why.
What is the relevance of UMC
grievance procedures for UMKC? The new procedures will be valid
for a three year trial period at UMC only, although the IFC and Vice
President Lehmkuhle appear to favor uniform rules across the
system. The current procedures apply to all four campuses and the
problems faced by UMC faculty are, therefore, the same here.
However, our situation is worse, because for years the UMKC Faculty
Senate has not followed the rules. As a consequence we have a
Grievance Committee in place whose members received their appointments
from the chancellor. The rules state unambiguously that the
chancellor appoints half of the panel and the faculty governing body
the other half. To his credit, the current Chair of the Senate is
aware of this violation and has asked senators in the units to seek
candidates for appointments. Unfortunately, he still believes
that the deans in the units need to be involved in the selection
process, and that even a senate-selected appointment becomes effective
only "if confirmed and appointed by the Chancellor." When the
Inter-campus Faculty Council [IFC] debated the merits of the revised
UMC procedures in May 2003 he opined that UMKC has not had some of the
problems that MU has. How did he know that UMKC did not have
problems similar to UMC? Not only did Chancellor Gilliland select
the grievance panel, she also appointed her Associate Provost as the
Grievance Officer and chair of the campus-wide Faculty Promotion &
Tenure Committee. She is known for rejecting faculty for
membership on the P&T Committee when they are openly critical of
her policies. Thorough analysis of the current
grievance procedure by a task force in Columbia yielded one clear
result:
one of the biggest obstacles was the lack of confidence by the faculty
in
the fairness of the process. What can UMKC faculty expect when
the grievance
procedures are totally controlled by the Chancellor and the Senate
Chair
plays along?
One of the many valid concerns
raised by West is the loss of institutional memory due to large-scale
retirements of senior faculty in recent years. Indeed, the
University is losing regular faculty at an astonishing rate. The
minutes of the IFC meeting of May 17, 2004 cover discussion with VP
Lehmkuhle and reveal that "some 50% of regular faculty in the UM System
in 1999 are no longer here in 2004 due to retirements, moves or not
being granted tenure." However, are the VERIP cycles really the
major reason for this exodus? In my unit--the School of
Biological Sciences, with thirty-three regular faculty lines--only two
took VERIP among the thirteen regular faculty who resigned since April
2000. The vast majority left because of Gilliland's policies, and
with them went over $2 million in yearly grant funding.
Why do people vote with their
feet rather than proclaim UMKC to be their workplace of choice?
In an article entitled "
From Financial Captivity to Freedom.
UMKC is reinventing itself as a quantum university. First order
of business: culture change" [
http://www.universitybusiness.com/page.cfm?p=321],
Chancellor Gilliland explains how she tracks the progress of the
transformation process, and specifically how she assesses her success
in shifting the culture at UMKC. Indeed there has been a change
in culture, as demonstrated by her relentless usurpation of tenure and
grievance processes at UMKC and her control of the membership of
virtually every "governing" committee. With respect to faculty
governance the culture has been reversed, it now leads to captivity and
certainly not to freedom. Thus the Faculty and its elected
representatives should continue to demand that the university
administration adhere to its own rules and respect faculty rights, no
matter how badly the deck is stacked against fair and sincere grievance
procedures.
Alfred Esser is a Professor in the School of Biological Sciences,
and Vice President/Treasurer of the UMKC-AAUP
The Purpose of Tenure
by David A. West
Thirty years ago, several tenured
and untenured MU faculty members were fired for participating in a
national protest against the Vietnam War. The Faculty Council and
most MU faculty members supported those colleagues. The Board of
Curators stood firm, however, and MU was censured by the AAUP.
After a decade of negotiations by both faculty and administrators, the
Board of Curators finally approved new tenure and promotion policies
and procedures, including a new tenure
appeal process. This is the background that is significant to me
as
I perceive and evaluate the purpose of tenure.
I was a member of the MU faculty
during those difficult years, and one of the faculty representatives
who negotiated the new tenure and financial exigency agreements that
were ultimately acceptable to the Board of Curators and the AAUP.
During that same period, the Faculty Council tried for 14 years to
negotiate a faculty grievance procedure, which was finally approved by
the Board of Curators. I was
involved also in resolving the first formal faculty grievance.
Because
of these personal experiences, perhaps, tenure and faculty governance
seem
more important to me than to many newer colleagues.
In recent months, the debate
concerning tenure has resumed with some vigor. The critics of
tenure appear to be more numerous and vocal. Although some
critics are external to the campus, there also appear to be two or more
perspectives on campus that reflect quite different views of
tenure. Some people seem to view tenure as principally an issue
of economic security. A few suggest that tenure is designed to
protect incompetent faculty. Newer colleagues seem
more likely to take tenure for granted and to perceive less breadth in
its
purpose. Many newer faculty members seem more oriented toward
their
disciplines and less committed to their institutional employer of the
moment.
Consequently, they may have less interest in the faculty rights and
governance
that tenure provides.
Perhaps because we were here
before we had some of these rights, tenure is especially important to
many senior faculty. Within recent days, however, 150 more senior
MU faculty have announced their intent to retire. These
retirements will shift faculty numbers even further toward newer,
untenured and non-tenure track faculty. With the hope that added
explanation of our institutional background might shed a somewhat
different light on why tenure and governance are so highly valued by
some of us, I want to share my perspective of the rights, privileges
and obligations of tenured faculty members.
I believe tenure provides
academic freedom, enables faculty governance, and requires professional
responsibility. Tenure confers the right and authority to express
our views, even when they are unpopular, without undue fear of
administrative reprisal. Academic freedom applies in the
classroom, in research or print, and during faculty
deliberations. Along with these rights, we incur substantial
obligations to participate actively in faculty governance, we accept
accountability for our academic behavior, and we agree to conduct and
review ourselves with
professional responsibility.
Academic freedom to experiment in
the classroom and laboratory is crucial. As we all know, however,
new course preparations require extended amounts of time and effort
that
may be unwise prior to tenure. Untried and unpopular teaching
methods
usually should await tenure, also. Supervision of doctoral
dissertations
is extremely time consuming, perhaps especially for a new, untenured
faculty member, and may be very costly, career-wise. Most
textbooks involve a four to five year commitment of time and
energy. Some take longer, and many are failures. During
such extended periods, of course, research activities and the
preparation of journal manuscripts frequently suffer.
Academic freedom to pursue
interesting research is equally important. The freedom to conduct
controversial research is only a small part of that purpose. A
more significant component is the opportunity to investigate unpopular
and unexplored areas of research. Although we, as untenured
faculty members, may have a serious interest in resolving major social
problems of great national need, the chance of any success is so small
that we can hardly afford to bet our academic lives
on such projects. Upon receipt of tenure, on the other hand, if
we
still have the same interests, we then can assume the risk of tackling
really
difficult, longer-term research projects that might not produce any
publishable
findings. Only with tenure, can we take the chance of such
failures.
Finally, tenure and promotion are
important as indications of professional growth and stature. If a
faculty member has a desire to pursue an administrative position or
advance
through the ranks to higher administrative authority, academic
promotion
and tenure are virtually essential. Similarly, national
recognition--for
purposes of appointment to grant application evaluation teams, election
to professional offices, or serving on accreditation teams--usually
requires
tenure and promotion because of the professional stature they
imply.
In these capacities, we establish and implement educational policies
that
require a more thorough understanding of the integrated roles of
teaching,
research and service.
To some extent, of course, one
purpose of tenure is economic security, because fear of reprisal is
very serious. Moreover, expressing an unpopular view in a
non-academic organization can and often does result in
termination. Faculty governance and corporate governance,
however, differ significantly. To suggest that job security is
the principal purpose of tenure is to badly miss the real point of the
issue. Tenured faculty members are first and primarily concerned
about where their university is heading and who will determine its
goals, objectives, strategies, and educational policies. A more
appropriate comparison may be the determination, implementation and
review of medical policies within a hospital; no hospital administrator
does this alone. We truly believe in faculty governance at
MU. We do not believe academic concerns and decisions should be
left to our administrators alone. On several relatively recent
occasions, in fact, a vote of "no confidence" by the faculty has
ended an administrator's career on this campus.
The Board of Curators, like the
trustees of other universities, has delegated primary authority to the
faculty
for many academic issues, including standards of performance, research
guidelines, curriculum, courses, student admissions, graduation
requirements, tenure, faculty promotion and termination, doctoral
dissertation supervision, faculty committee structure, and faculty
responsibility. Additionally, the faculty shares authority with
the campus administration on matters of students' rights, the calendar,
and the application of criteria affecting the professional standing of
faculty members. We also have advisory responsibility on resource
allocation, selection of academic administrators, and the use of
physical facilities.
Only tenure track faculty can
vote on these faculty matters. Only tenured faculty can vote on motions
to tenure, promote, or terminate faculty members.
The MU faculty, in turn, has
delegated much of its authority to the Faculty Council as the result of
a hard-fought victory over tremendous administrative opposition.
Nonetheless, the Faculty Council must always act for and report to the
faculty as a whole. It takes only 25 faculty signatures to
require the Chancellor to call a special meeting of the entire faculty
within 10 days to challenge anything the Faculty Council has done or
failed to do.
In my judgment, the principal
purpose of tenure is the protection of academic freedom.
Moreover, the primary risk to a faculty member is internal, not
external. The only time(s) I might have been fired from the MU
faculty were over political issues. Those issues, however, were
not matters of great concern to any legislator, newspaper editor, or
voter. They were disputes over internal policies. At least
one of my previous Chair(s) or Dean(s), I suspect, would have fired me
because I voted the wrong way. The ultimate purpose of tenure,
therefore, is to enable us to be active, participating members of this
academic family who cannot be removed by administrative edict,
regardless of whether we
support or oppose the winds of power that happen to blow at any
particular time.
To an untenured faculty member,
I would say this: The decision by your colleagues to tenure you is an
expression of their belief that you should be a part of this academic
family exercise for the rest of your academic life. The rights
conveyed by tenure and the privileges and responsibilities
"appertaining thereto" require professional sensitivity and
behavior. Our academic freedom--faculty rights and faculty
governance--is worth preserving. We preserve our academic freedom
only through accountable governance.
David A. West is Professor of Finance, University of Missouri
Columbia. His article is reprinted from the UMC Faculty Handbook
with permission of the author
The Collected Rules of
the University of Missouri System: Fable or Fiction?
by George R. O'Connor
The University of Missouri is "a
part of the body politic of the State of Missouri," according to
Chapter 172 of the Revised Statutes of Missouri (R.S.Mo.). See
http://www.moga.state.mo.us/statutes/c172.htm ; and 172.020 at
http://www.moga. state.mo.us/statutes/C100-199/1720000020.htm .
The effect of the statutory
designation of the University as a part of the "body politic" of the
State of Missouri is that any action (or failure to take action) on the
part of the Curators of the University of Missouri, their employees and
agents, is an action of the Executive Branch of the government of the
state.
The legislature of the State of
Missouri exempted the University of Missouri System from the state's
Administrative Procedure Act in 1994. See 536.018 R.S.Mo.
The legislature implemented this law to streamline "grievance
procedures" where the University has established rules that protect the
rights of the employees and all others who are subject to those rules.
[S]uch institution has established written procedures to
assure that constitutionally required due process safeguards exist and
apply to a proceeding that would otherwise constitute a "contested
case" as defined in section 536.010.
The University of Missouri posts
its rules on the World Wide Web (where they may be easily changed
without notice) [see
http://www.umsystem.edu/uminfo/rules/content.htm]. In
theory, the faculty, staff and students of the University
of Missouri System may try to apply the rules to protect their jobs,
research, tenure, and status. In reality, the rules are rarely
applied. Absence of candor is the usual response to any attempt
to apply the Rules. In the recent lawsuit, Lord v. Curators,
(U.S. District Court for the Western District of Missouri Case No.
03CV0992), a law librarian brought suit for gender
discrimination. Prior to her lawsuit, Ms. Lord filed a
grievance. Her grievance was delayed and, eventually, denied by
the simple expedient of the Campus EEO Officer dismissing the grievance.
When a grievant misses a deadline
the Collected Rules provide for a "default"--a win by the University
due
to the lack of diligence on the part of the grievant. In the Lord
matter, the University missed deadline after deadline--and ignored the
argument that Lord had "won" due to the University's default.
Only after the lawsuit had been filed did the University's Counsel (in
this case, Mr. Phillip Hoskins) respond to this and other lapses in the
application of the Collected Rules--he said, "we applied an unwritten
rule" to Ms. Lord.
Over and over the University
applies the Collected Rules when it suits the interests of the
administration and, where the Rules do not result in an outcome that
suits the administration, it turns to "unwritten rules" and "customary
policies" to justify ignoring the Collected Rules and
Regulations. There is presently a Boone County Court Order
granting a writ of "Prohibition" mandating that the University apply
their Collected Rules to the evaluation of a denial of tenure
appeal. The Courts are presently the only way that a typical
University employee can be certain that the rules are applied fairly.
There is a solution: write your
legislators and ask for the repeal of the University's exemption from
The
Administrative Procedure Act, Chapter 621 R.S.Mo [see
http://www.moga.state.mo.us/statutes/c621.htm]. If the
Administrative Hearing Commission can regulate professional licenses,
liquor licenses and the actions of any other Executive Agency, then the
time has come to entrust the application of the University's Collected
Rules and Regulations to a neutral body.
George R. O'Connor is an attorney in private practice
Failure of the
Grievance Process at UMR
by Clifton Merrow
When I accepted an offer to join
the Chemistry Department at UM-Rolla, I never envisioned that one day I
would have to educate myself in legal matters. Yet six years
later my only option left was to take legal action against the
University to force it
to obey its own rules and regulations. I am providing this
synopsis as a primer for my colleagues who may believe erroneously that
the University of Missouri (UM) Collected Rules and Regulations provide
sufficient protection against capricious or even malicious actions by
university administrators against their own faculty. As I have
learned the hard way, the highest ranking administrators and even the
legal officers of the University display very little respect for these
rules and are free to ignore them without the slightest concerns for
repercussions.
In a letter dated April 28, 2003,
Dr. Y. T. Shah, the Provost of the University of Missouri Rolla (UMR),
informed me that I had been denied promotion and tenure (P&T),
despite the fact that Provost Shah does not have authority under the UM
and UMR Rules to grant or deny tenure, but can make recommendations
only. Upon receiving this news, I sent a letter to Chancellor
Gary Thomas informing him of my decision to appeal Provost Shah's
recommendation. On the same day, Provost
Shah wrote and instructed Dr. Ekkehard Sinn, UMR Chemistry Department
Chair,
to inform me that the decision was made jointly with Chancellor Thomas,
and
that University policy dictated that I would not be afforded an
"internal appeal" and that any appeal would be "wasting a lot of
time." This was
a denial of my rights as established in UM System rules. The
rules state
that, "In the event of a recommendation at any level for nonrenewal of
a
regular appointment or for a terminal appointment... the faculty member
shall
have an opportunity to request a reconsideration of the decision and to
appeal
the decision to the Chancellor." I was not advised of the
negative
recommendation of Provost Shah nor given the opportunity to rebut that
recommendation
before its submission to the Chancellor as required by UM rules.
I have no knowledge of any other
final negative recommendations regarding my P&T application that
were made by the Faculty College and Campus P&T review committees
or administrators. To date, I have not been contacted by, spoken
with, or received any written communication from Chancellor Thomas or
President Elson Floyd, as Chief Academic Officer, about my P&T as
required.
The above was just one of many
instances during my P&T process in which the policies and rules
established by the UM System and the UMR campus have not been
followed. For example, I have been forced to send an appeal
through the same person who rejected me, been denied the opportunity to
view the non-confidential portions of my
dossier, could not get erroneous information pertaining to my
publications removed from my dossier (this same erroneous information
was present during the external reviews and at every level of the
process), had a funded research project given to other faculty by UMR's
administration, been subjected to two rounds of voting by the UMR
Chemistry Department faculty (Final vote: 11 positive and 2 negative),
have never received in writing any specific reasons
for a negative recommendation so I could properly formulate a rebuttal,
been
denied academic freedom by having my association with another faculty
member
entered into the evaluation process, had my dossier reviewed by
committees without legal standing, and had my own integrity called into
question.
UM System Rules provide a faculty
member the opportunity to file a grievance under the Faculty Grievance
Procedures, if the result of an appeal is not satisfactory. My
grievance, with its charges and evidence, has been submitted three
previous times against UMR administrators, in particular, Chancellor
Gary Thomas and Provost Shah, and has never been processed.
According to UM rules, when the
grievance is against a UM administrator, in this case Chancellor
Thomas,
then the grievance is to be filed to the next highest level above the
perpetrator. Accordingly, the first submission of my grievance
was to President Elson Floyd, who in his letter of August 5, 2003,
declined to accept the grievance, and insisted that it be processed at
UMR. This was done with full knowledge
of the fact that Chancellor Thomas would select the grievance officer
and
one-half the members of the grievance hearing panel, and as ultimate
decision
maker can simply rule in his own favor. President Floyd was also
made
aware of the fact that members of UMR's Grievance Hearing Panel
Committee
did not conform to the rules.
In compliance with President
Floyd's demand, the second submission of the grievance on September 10,
2003 was to Chancellor Thomas. Chancellor Thomas selected two
individuals with conflicts of interest to serve as the grievance
officer, denied me an opportunity for an impartial mediation by
appointing a person who had recommended against my P&T to serve as
both the respondent and mediator, appointed two individuals with
conflicts of interest to draw the names for the hearing panel, and when
confronted with the requirement to constitute a grievance hearing panel
with members that conform to UM Sys-tem Rules, chose to not proceed
with the
selection and assembly of this panel, and denied me a grievance
hearing.
On March 7, 2003, Chancellor
Thomas and UMR administration exceeded the 180 day limit.
According to UM rules, "In the event the appropriate administrative
officer fails to make a timely response as herein provided, the faculty
member may pass to the next
step." The next step in the grievance process was "presidential
adjudication."
The third submission of the grievance, for presidential adjudication,
went
to President Floyd on April 16, 2004. The UM rules state that the
President
shall send a certified letter to the grievant, indicating the
disposition
of the grievance and a date that a determination will be made if it
cannot
be processed in thirty (30) days. As of the date of filing this
action,
more than 180 days after filing the grievance for presidential
adjudication,
I have never been contacted by, spoken with, or received any written
communication
from President Floyd regarding my grievance or its status.
On August 5, 2004, Mr. David
Moen, my legal counsel and acting on my behalf, submitted a Petition in
Mandamus and Prohibition to the Boone County Circuit Court of Missouri
against the University of Missouri. Judge E. Roper issued a
Preliminary Order in Mandamus and Prohibition on August 11, 2004.
This preliminary order, in part, requires that the University of
Missouri comply with its rules and provide me the grievance process
required in the UM rules governing the
application of tenure.
For the present grievance hearing
of Fall 2004 Chancellor Thomas has again demonstrated a total disregard
both for the policies and procedures established by the University, and
for common fairness. There is an expectation that the officer
charged
with the responsibly of overseeing and ensuring the integrity of any
hearing
or review must be impartial and without conflict of interest. The
Grievance Officer's duties are, as I understand them, the following:
(a)
he may be designated to participate in the drawing of names for the
hearing
panel; (b) he notifies hearing panel members and selects alternates,
and
(c) he prepares an annual report on the status of grievances.
Once
again, as he did in Fall 2003, Chancellor Thomas has appointed Provost
Shah
to be the Grievance Officer for my grievance hearing, thus calling into
question the integrity of the process. Provost Shah is the
administrator with the greatest conflict of interest, since he is part
of the grievance. He should have recused himself from this
appointment.
UM rules state "The chairperson
of the faculty governance body (or designee), with the Academic
Grievance
Officer (or designee), shall randomly draw 12-16 names" for the
Grievance
Hearing panel. The rules expressly state that other persons may
be
designated to participate in the drawing. As the two persons to
"draw"
the names for my hearing, Chancellor Thomas made two inappropriate
selections:
Provost Shah, and the spouse of another faculty member, who "acquired"
one
of my proposals without permission and was also part of my
grievance.
The current membership of the
Grievance Hearing Panel Committee is the same, with one exception, as
that of December 2003 and again not properly constituted. Mr.
Moen, my legal counsel, informed the University of the numerous defects
in the membership of this committee in his letter of August 20,
2004. Of the present Grievance hearing Panel Committee, twelve of
the thirty members have served more than three consecutive years in
violation of UM rules. Seven have eleven-month administrative
appointments and are prohibited from serving on this Panel. Seven
participated in the decision to deny my P&T. Fourteen are
serving on more than two standing committees in violation of UMR
Faculty Bylaws.
UMR Faculty Bylaw 300.030.D.5.j.
provides that the Grievance Hearing Panel is a Standing Committee of
the General Faculty and shall consist of thirty faculty members,
fifteen selected by the Academic Council and fifteen selected by the
Chancellor. Only fourteen persons have been chosen by the
Academic Council and fifteen persons by the Chancellor.
Chancellor Thomas elected to reduce the number of
members of the committee to twenty-eight rather than to afford UMR's
Academic
Council the opportunity to elect its fifteenth member as required by UM
rules.
As of this date, one year and two
months from the initial submission of my grievance, I may be afforded a
grievance hearing--but only under court order.
I naively assumed at the very
beginning of this process that UM System Legal, which is appointed by
the Board of Curators and serves at their pleasure, would be primarily
interested in making sure that the rules established by the Board were
observed by everyone, including the administrators. Leading me to
this assumption was the Board's very strongly worded statement that
"Students, faculty, administrators and employees who are not in
sympathy with the basic philosophy expressed herein and do not intend
to abide by the rules and regulations of the University should not
attend the University nor become associated with the institution nor
continue to be associated with the University." My train of
thought was simple: make everyone follow the rules, protect all the
employees equally, and thus minimize the number of people who are
forced to seek redress on the
outside through litigation.
I was obviously wrong in my
assumption. UM system legal appears to operate as "contract"
lawyers to protect the administrators regardless of their actions,
ignore the complaints (only one of my lawyer's six letters were
answered), and stall until the grievant gets frustrated
and leaves. Wouldn't it be better simply to follow the rules,
treat
people respectfully, and avoid the legal problems?
[The relevant sections of the CRR
referred to by Professor Merrow are chapters 310.020 F3, and
370.010.--Ed.]
[At press time, UM had not
decided on a grievance hearing for Professor Merrow. However, the
chair of the Grievance Hearing Panel had resigned, because of a
possible conflict of
interest (not more closely defined in his letter to Dr. Merrow).
In
addition Phil Hoskins, UM System Legal, had requested an extension of
the
Court's writ beyond the original sixty days.--Ed.]
Clifton Merrow is an Assistant Professor of Chemistry at UM Rolla
Calvin without Hobbes on
Oak Street
by Marino Martinez-Carrion
Calvin wants the world to behave
according to his wishes. The UMKC Chancellor has assumed Calvin's
role,
but lacks the tempering influence of a Hobbes, which even in her
fantasy world she cannot quite bring to life. In her cartoon-like
obsession with being in total control, she engaged in a policy of
retaliation against me because I questioned her disregard for
university policies, her disdain for faculty opinion and the faculty's
role in university governance, and her
use of expensive consultants with links to EST to "transform" the
university. During my tenure as dean, I had built the School of
Biological Sciences into a significant national player in selected
areas of research without experiencing a single faculty grievance, much
less a lawsuit. Yet, shortly after having received the highest
rating of any dean at UMKC in a secret ballot by SBS faculty, I was
dismissed as dean. Other deans who had received dismal appraisals
from their faculty in similar surveys, and had faced, and lost, several
lawsuits but were brilliant in paying obeisance, maintained their
jobs. This is what matters to Calvin.
When the Chancellor could not
control the faculty of SBS, which for over a year had unanimously
resisted the indoctrination of her brainwashing team, she unilaterally
hired a private consultant to run the School. This unqualified
person proceeded to retaliate against me as well, freezing the accounts
under my control as Director of Research. The Chancellor later
claimed this action was not directed against me, since other accounts
were also frozen throughout UMKC. Nevertheless, those other
accounts were eventually reinstated, but not those of the Director of
Research at SBS, nor the staff under his supervision. The role of
Horton, the expensive urban geographer made Life Scientist by the Grace
of Calvin--oops, the Chancellor--was to bring SBS under the boot.
His threats
even included dissolution of the unit.
After I had taken VERIP and filed
a complaint with the Missouri Human Rights commission, the campaign of
retaliation continued. I was offered a part-time job to assist
another professor in a federal research project, which I could do under
the terms of VERIP. The offer was signed by the department
chairman and the dean of SBS and was accepted by me in December
2003. At this point, the administration made a major blunder.
In April 2004 Provost Ballard finally replied, denying the offer
because it "was not in the best interest of the university."
Privately he admitted that he would have approved it but the Chancellor
would not do it. When pressed for clarification, Oak Street said
by phone that since I was suing the university, this "disqualified" me
for employment. [Professor Martinez-Carrion had in fact not yet
filed a suit against the
University.--Ed.] By this time I was seriously considering
dropping
even the possibility of a lawsuit as a long-term headache, but this
preposterous
action convinced me otherwise. And there was worse to come.
The
faculty member in whose laboratory I was promised the part time job
pressed
for further information. He was advised, in writing, by Ballard's
successor,
Provost Osborne, to drop the issue because "one wonders if there is not
a
person in SBS who is younger" who could be offered the job.
As the university lawyers were
made aware of all these blunders and the prospect of a long legal
battle loomed on the horizon, an arrangement was worked out for an
out-of-court settlement, in response to the whole gamut of my
complaints. This has now taken place. As a consequence the
university is now poorer, not just in funds but also in principles and
the image of fairness. The School of Biological Sciences is a
shadow of what it was in 2001. Having lost one fourth of its
faculty, which represents a substantial amount of its extramural
funding, SBS may not be a puppet Vichy France, but an atmosphere of
surveillance
and control prevails, nevertheless. There is constant supervision
from the administration, so that the school does not go astray but
conforms
to the party line. Nothing can be done without Oak Street
approval.
Puppet groups, whose main credentials are sycophantic loyalty to the
Chancellor, are altering the fundamental laws of university governance
and faculty evaluations. The aim, as in Calvin's mind, is to make
the (UMKC) world conform to his/her wishes. Meanwhile, bylaws and
procedures are trampled to bring faculty into "alignment with the UMKC
vision." For someone who lived through it, the present situation
at UMKC is reminiscent of the totalitarian nature of Franco's governing
methods, using handpicked "loyalists"--who would later change their
colors as expediency demanded--to rewrite the laws. I
expect my legal battles with the UMKC Chancellor will not be the
last.
Those faculty who do not vote with their feet will continue to defend
their
rights, and Calvin's fantasies will be thwarted once again.
Marino Martinez-Carrion is Professor Emeritus in the School of
Biological Sciences at UMKC
What's the Matter with
the University of Missouri?
by David Ormerod, MD, FRCP, FRCS
A recent incident points to the
fundamental faultline that underlies the historical malgovernance of
the
University of Missouri. Newly arrived President Floyd had
requested
that Athletic Director Michael Alden not revoke a student's scholarship
"until [the student] had due process," and was subsequently personally
aggrieved
when due process was not followed. If he had had more experience
at
UM, he would have known that "due process" is not usually a feature of
faculty
or student governance at his university.
The formal administrative
commitments to adhere to the Curators' Bylaws, Rules, and Regulations
have been ignored consistently back into the historical record.
This fundamentally unaccountable university is part of a Missouri
constitutional structure which places the Administration entirely
outside the oversight of the people of Missouri, the Governor, the
Legislature, the university student body, UM faculty, or its
staff. UM has progressively degraded over many years, as the
direct consequence of good-old-boy politics, to the detriment of all
Missourians. Despite its 60,000 students, no objective analysis
ever places UM in the top 300 universities. Have we asked
sufficiently how this has been allowed
to happen? Indeed, are our taxes being wasted? When due
process
and the rule of law are flouted with regularity, any institution will
inevitably
decay from within, for the simple reason that many academicians and
educators
dedicated to the truth are forced to leave.
Regular
Faculty Advocate
readers will recognize many incidents over the years that are
compatible
with this thesis. I am currently in litigation with UM, wherein I
allege that the University vitiated whole sections of its Regulations
and
then adopted a sordid campaign of lying and disinformation as a
cover-up.
Numerous University administrators consistently voided the Regulations
and
repeatedly refused to even talk to me, or to solicit facts. It
was
clearly orchestrated. Due process was absent in totality, at all
levels
up to the Curators. Such issues are now solely for the courts to
decide,
for I was denied any alternative. However, several incidental
aspects
of this process illustrate what is wrong with UM and indicate where the
culpability lies.
In a response to a US Federal
suit on the absense of due process, UM seeks to argue that they are
part of the State, and as a consequence claim sovereign immunity from
the due process provisions of the US Constitution. We argue that
the enabling legislation of University of Missouri provides a specific
waiver, in that the University "can be sued in all courts."
Whatever the ultimate legal decision, the meaning is plain for all to
see. UM claims that the Curators' Bylaws, Rules, and Regulations
are not worth the paper they are printed on, and that due process can
be disregarded at will--if all the Administration has to
do is claim immunity in the only venue in which they are actually
accountable.
In a separate Missouri case, we
argue that a document signed on first appointment guarantees
contractual
rights under the UM Bylaws, Rules, and Regulations. Although all
faculty sign under this statement, UM has disputed its contractual
nature. The implication is that the University wishes to argue
that its faculty do
not have a single inherent employment right, given the fact that this
is
the sole "contract" offered to them. UM further seeks to argue
that,
should the Court uphold this written contractual obligation for the
protection
of the Curators' Regulations, this obligation applies only to the first
year of faculty employment at the university, since in all subsequent
years
faculty are not asked to sign a renewal! UM quite clearly does
not
want to be seen arguing that it regards all its faculty employed purely
"at
will," but will do so expediently in the relative secrecy of a court
case.
I am seeking to hold UM
accountable in a lawsuit in Kansas City, because Missouri law states
that a "public corporation" can be sued wherever it has a place of
business. The University seeks to argue in this case that it is
not a public corporation, although a statement to the contrary appears
all over UM documents as well as on its website. UM also argued
the opposite at length to the same Court in a different case just one
month previously. Furthermore, Judge Frank Conley determined UM
to be a public corporation in the
Kansas City Star Missouri
Sunshine Law case. In previous losing litigation, UM sought to
claim that it was actually a municipality, and therefore could only be
sued in Columbia! Where is the integrity in such tomfoolery?
The Administration of the
University of Missouri has imperiously abused its position over at
least two generations, since the four universities were consolidated
under one system while still retaining an unaccountability to any
legitimate party. It has been too tempting for our often
suspect-quality administrators to rule by expedience and by
bullying. Examination of the available record in the University
Archives shows unmistakably that the Universitry Legal Counsel's Office
has repeatedly sought arbitrary power unfettered by Regulations to
underpin UM administrative culture. This Office is the enemy of
progress.
Excellent universities are not
run this way. UM must re-estblish the rule of law in all its
dealings, and the temptation for systematic opportunism must be
corralled by establishing accountability. The extraordinary
constitutional parastatal position that establishes this institutional
irresponsibility must be re-examined by the Missouri legislature.
The crass UM good old boy culture must be extinguished and accompanied
by a comprehensive changing of the guard. It is hoped that
President Floyd is capable of recognizing the problem and has the
courage and ability to deal with it. Nothing more blights the
University of Missouri than its unethical way of doing business.
David Ormerod is a former faculty member at UM-Columbia
IFC Election Invalidated,
Sent to Committee
In an unusual move the Faculty
Senate on September 21 voted overwhelmingly to invalidate the recently
completed election for a replacement (one-year) position on the
Interfaculty Council and to send the matter to the Senate's
Administrative Issues Committee. The vote came after a number of
concerns about the format of the election were raised by faculty
members, particularly by the AAUP executive committee.
Neither the eligibility of the
candidates nor the actual election results were contested--in fact, the
AAUP executive committee urged that the voting be broken off before
there were any results. It was the election process itself that
raised a number of serious concerns. In a break with campus
policy, Faculty Senate chair Jakob Waterborg, after consultation with
the Senate officers, prepared and sent out an e-mail ballot, rather
than a paper one. Objections were raised both to electronic
voting (for security reasons), and to the fact that neither the Senate
nor the faculty at large were consulted beforehand about the
switch. It turned out that a number of faculty were not able to
vote using the original mechanism. Prof. Waterborg provided
pin-numbers for these faculty, but
a few were still unable to vote. Some people printed out and sent
in
their ballots. Given the confusion, and the fact that some
faculty were
disenfranchised, the AAUP called for a new election.
Also of concern was the fact that
one of the three candidates, Professor Gary Ebersole, was not given
sufficient opportunity to write a statement of purpose. While two
candidates on the ballot had a paragraph describing their goals, under
Prof. Ebersole's name it said simply "no statement." For
voters who may not know the candidate, this implied a lack of
seriousness on his part. Thus the lack of a statement was
felt to be prejudicial to his candidacy.
Finally, the Senate minutes of
August 17 state clearly that the IFC election was one of the charges of
the standing Senate committee on Administrative Issues. This
committee had never been consulted, let alone prepared the ballot and
conducted the election, as was its responsibility.
For all these reasons, it was
urged that the election be invalidated. At the September 21
meeting Senate Chair Waterborg proposed that the election be accepted
as fair and the results as valid. After some heated discussion,
the Senators voted this proposal down, and ruled that the election must
be done over. It has been referred to the proper committee, which
at press time is in the process of preparing a new election, using
paper ballots. It has issued a call for nominations, including to
the original three candidates, and is aiming for an October date for
sending out the ballots.
The AAUP urges all eligible
faculty to vote in this--and all--campus elections. Through
elections we make sure that our voice is heard and accurately
represented. Even vulnerable non-tenured faculty, operating under
the familiar pressure to produce, can participate in faculty governance
by voting. Those of us who already have the protection of tenure
can expand their participation by a willingness to run for
office. The specific position of IFC representative is a vital
one, since the IFC, with members from the four campuses, meet on a
monthly basis with the system President. This is a one of the few
opportunities to compare notes with our UM colleagues, and make our
concerns known directly to the President. What these
representatives convey at those meetings is to a large part
who we
are in the eyes of the President and the other campuses.
Important? Extremely. So be sure to vote.
The Chapter executive committee
has been active in alerting the membership to issues as they arise,
such
as the problematic IFC elections and the computer logon "surveillance"
message. We urge members to keep us posted about developments in
their units or on the campus.
On August 26 after the lengthy
All-Faculty meeting, the Chapter held its first social get-together of
the semester, at Planet Sub. A dozen and a half attended, and
continued the discussion about restructuring. On September 17 we
had our second meeting, a very pleasant TGIF party hosted by Kelly
Pinkham. Among the attendees were several visitors from
universities in Erfurt, Germany, Cameroon, and California, who brought
interesting insights into university life and faculty governance.
The relaxed atmosphere spawned a very productive discussion of plans
for
future chapter projects, which will be discussed in a later issue of
the
Advocate .
We wish long-time Chapter members
Tim Thomas and Gene Wagner both a relaxing and productive
retirement. We also welcome the new members who have joined us
since last semester. The AAUP encourages our members to
participate actively in campus governance. We are pleased to note
fourteen chapter members among the Arts and Sciences officers and
standing committees, and nine AAUP members on the Faculty Senate.
Restructuring
Questioned
by Patricia Brodsky
On August 26, the "Day of
Learning," despite short notice and many conflicting activities, about
sixty faculty members attended the first Senate "All-Faculty Meeting"
of this academic year. The single item on the agenda was the
restructuring of the campus, which had been proposed by the Chancellor
in late May, and which was supposed to have gone through a process of
discussion and approval by the end of June! This proposal, its
timing and its deadlines met with strong resistance campus-wide (see
Faculty
Advocate, August 2004 for a summary of faculty objections.)
The AAUP was instrumental in alerting faculty to the proposal and its
dangers, and in urging the Senate to schedule a meeting early in the
fall semester.
At the All-Faculty meeting,
selected spokespersons from various units described the reactions and
concerns of their members. The meeting was then thrown open for
comments from the floor, which were many and strongly worded.
There was general agreement that the faculty themselves, not the
administration or a PR firm, should be
establishing the "goals and missions"--that we should take back our
proper role as intellectual and ethical core of the University.
There was also
skepticism that there was a need for a restructuring at all, and the
conviction
that much less drastic and disruptive means could be found to deal with
any
specific efficiency issues in the administration. At the end of
the
meeting, the faculty present voted unanimously to send a message to the
Chancellor
requesting in writing a list of justifications for the proposed
restructuring.
The sense was that if this were not forthcoming, or if the
justifications
were not convincing, the faculty would reject the whole idea.
This
message was conveyed to the Senate, which officially endorsed it.
There
has as yet been no response from the Chancellor.
The entire contents
of each issue of
The Faculty Advocate (except for public
domain material) is copyrighted.
The Faculty Advocate ,
October 2004, Copyright 2004 by the UMKC Chapter of the American
Association of University Professors. All rights returned to
authors
upon publication. Opinions expressed here do not necessarily
represent
the positions of the AAUP or the editor. AAUP chapters, state
conferences,
and the national organization have permission to reproduce and
distribute.
Permission for other non-profit publishers is a formality, but UMKC
AAUP
asks them for the courtesy of requesting it. Contact the Editor,
Patricia
Brodsky: 816-235-2826, e-mail: brodskyp@umkc.edu
AAUP Dues Information
Membership
Open to all faculty
Full-time tenured and tenure-track
Full-time non-tenure track
Part-time
Graduate teaching assistants
Membership requires payment of both local and national dues
Local UMKC chapter dues
$10 per academic year.
Send payment to Treasurer, Alfred Esser, BSB 417, 816-235-5316, or essera@umkc.edu.
Please make checks payable to "UMKC-AAUP Chapter."
Also please send Alfred your preferred mailing address(es), phone(s),
and e-mail address(es).
National dues
Varies by job
classification and state--click this link for up-to-date information
Discounts on national dues for following
categories
50% off
a) Entrant:
Nontenured full-time faculty, new to the AAUP, for first four years
of membership
b) Joint: Full-time faculty
member whose spouse or partner is a full-time member
c) Retired
75% off
Part Time: Faculty
paid on a per course or percentage basis
$10/yr
Graduate: Person
enrolled as graduate student at an accredited institution; five-year
limit
Please note that national dues also cover Missouri State
Conference dues (but not local UMKC dues)
Back
Issues
The Faculty Advocate,
Vol. 1, No. 1 (September 2000)
The Faculty Advocate,
Vol. 1, No. 2 (December 2000)
The Faculty Advocate,
Vol. 1, No. 3 (February 2001)
The Faculty Advocate,
Vol. 1, No. 4 (April 2001)
The Faculty Advocate,
Vol. 2, No. 1 (October 2001)
The Faculty Advocate,
Vol. 2, No. 2 (December 2001)
The Faculty Advocate,
Vol. 2, No. 3 (February 2002)
The Faculty Advocate,
Vol. 2, No. 4 (April 2002)
The Faculty Advocate,
Vol. 2, No. 5 (June 2002)
The Faculty
Advocate, Vol. 3, No. 1 (September 2002)
The Faculty
Advocate, Vol. 3, No. 2 (December 2002)
The Faculty
Advocate, Vol. 3, Nos. 3-4 (April 2003)
The Faculty
Advocate, Vol. 4, Nos. 1-2 (December 2003)
The Faculty
Advocate, Vol. 4, Nos. 3-4 (April 2004)
The Faculty
Advocate, Vol. 5, No.1 (August 2004)
AAUP chapter home page