Op-ed: Keep tenure protections robust

Sunday, May 10, 2020 - 3:53pm

The University of Michigan’s Board of Regents is considering revisions to Bylaws 5.09 and 5.10, which have to do with the demotion or dismissal of faculty members. The bylaws are the University’s legal constitution — they are an expression of our values, just as the U.S. Constitution expresses American national values. It is thus of great concern to me, and to many other University faculty, that some of the proposed changes weaken academic freedom and erode the institution of tenure. The University should be a leader in supporting these institutions, not undermining them. 

Last fall, I was asked to join a working group of faculty to make recommendations for revisions to Bylaws 5.09 and 5.10. Though never officially acknowledged, it seemed clear that at least some of the impetus for revisions came in response to a recent 5.09 case that involved an allegation of sexual assault. 

Under the existing bylaws, a faculty member charged under 5.09 continues to receive their salary and benefits until the proceedings come to a conclusion. Thus, it can happen — as it did in that recent case — that a faculty member accused of a heinous crime receives full compensation while the formal 5.09 process unfolds over several months. (We were told that a typical 5.09 case can take about nine months to complete, though many end sooner through faculty resignation.)

I am as unhappy as anyone to see faculty members apparently guilty of serious crimes compensated with public funds during a lengthy dismissal procedure. But, the operative word here is “apparently”: To protect those who are innocent despite the appearance of guilt, we need a robust due process in every case, particularly in the case of tenure — the closest thing we have to a sacred institution at modern research universities.

The proposed revisions allow for a process occurring simultaneously with the main 5.09 hearing that would allow the president, under certain circumstances, to suspend the salary of an accused faculty member before the main hearing comes to a judgment of guilt. There are many problems with the proposal such as augmenting the president’s power over the proceedings, no compensation if found not guilty, poor definitions, racial bias and lack of protection for non-tenure track faculty altogether. But, arguably the greatest problem is the very possibility of suspending pay prior to the completion of the main hearing. 

Such a provision violates the fundamental principle of “innocent until proven guilty.” Assuming that the main 5.09 hearing includes the robust due process we believe necessary for dismissing a tenured professor, then why should anything less be acceptable for removing pay, the main intention of tenure? 

Allowing the president to suspend pay all but gives the president the power to fire a tenured faculty member at will — exactly what tenure is meant to guard against. Imagine that a faculty member writes public op-eds about a controversial political issue. The University may come under fire for the op-ed, even if the contents are protected under the First Amendment and by the principle of academic freedom. The University may suffer declines in alumni donations, and the president might decide it would be best to remove the faculty member. Casting a minor oversight in duties as "job abandonment," the president could then invoke 5.09 and suspend pay (it would be easy enough for someone with the authority of the president to find three committee members willing to go along with the decision). Without pay, the faculty member might not be able to eke out a living, much less sustain the legal fees required to mount an effective defense against the University’s well-funded legal team. They might give up and resign or lose in the hearing, even if innocent. I do not expect that any reasonable president would do such a thing, but one reason we have bylaws at all is to protect against arbitrary authority and the abuse of power. 

And unfortunately, abuses of power do happen. Bylaw 5.09 was added in the aftermath of the McCarthy era, when three University of Michigan faculty members — Chandler Davis, Clement Markert and Mark Nickerson — were suspended, with Davis and Markert eventually terminated, for acting on their conscience and refusing to testify before the House Un-American Activities Committee. The University was subsequently censured by the American Association of University Professors, the foremost institution representing faculty at American universities, and the bylaws were instated in response. The AAUP continues to recommend that major sanctions such as suspension of pay “should not be imposed until after a hearing in which the same procedures apply as in a dismissal case.” The proposed bylaw revisions go against this AAUP recommendation, against the practices of most of our peer universities and against the original spirit in which the bylaws were enacted.

Any erosion of tenure sends a message to us, the faculty — the vast majority of whom are, of course, not guilty of serious offenses — that we are collectively unworthy of tenure’s robust protections. This is particularly unfortunate given the specifics of some of the recent events that likely prompted a rethinking of Bylaws 5.09/5.10: In those cases, the underlying issues involved problems of administration at least as much as tenure protections. In the prominent Michigan State University case, there were complaints going back to 1997 which administrators ignored. (Portions of the proposed bylaw revisions read very much like MSU’s recent changes.) In the recent University of Michigan case, there were complaints of sexual misconduct prior to the faculty member gaining tenure. Eroding tenure protections in response to such cases feels like scapegoating. It sends the wrong message about how the University leadership views faculty, undermining academic freedom and trust in those of us who teach the University’s students. 

While I understand the desire to tinker with the bylaws to address recent cases, no rule can be perfect. The existing bylaws protect academic freedom, due process and the institution of tenure — which are bedrock University values. At their expense, the proposed changes might save us some cash and avoid public embarrassment — those are mere inconveniences. I sincerely hope that the Regents will lead with our values and reconsider the planned revisions.

Kentaro Toyama is a W.K. Kellogg Professor of Community Information at the School of Information and can be reached at toyama@umich.edu