Sullivan II is a proposed new tenure code for the University that on Dec. 5 will be considered by the Faculty Senate. It is the second version of a policy offered by Law School Dean Thomas Sullivan as a compromise between the June 6 Faculty Senate proposal and the regents’ Sept. 5 radical counterproposal.
Provisions for programmatic layoffs of tenured faculty and lack of provision for judicial review in the regents’ proposal so alarmed faculty that they petitioned for a collective bargaining election.
Sullivan II was adopted by the regents on Nov. 7 for the Law School’s 33 members. This was an attempt to encourage the entire faculty to accept it and to reject collective bargaining in the coming election. Sullivan II has since been strongly endorsed by University President Nils Hasselmo and various Senate officials. Law professor Fred Morrison, who also endorsed the proposal, issued a memo Nov. 3 that assures us that the new proposal is essentially the Senate proposal of June 6 with the layoffs provision removed and the judicial committee review restored.
Such endorsements and assurances fail to mention that the Senate proposal was drafted under intense pressure from the administration and was quickly passed by the Senate under the threat that the regents would do something worse (which they nonetheless did). More important, the assurances gloss over provisions in Sullivan II for temporary layoffs and for punitive terminations of tenured faculty that present, in lesser degree, the same threat to tenure and academic freedom contained in the regents’ Sept. 5 proposal.
Financial Stringency
Subsection 4.5 of Sullivan II has no counterpart in the Senate proposal. It provides that under conditions of “financial stringency,” as opposed to “emergency,” the salaries of both tenured and non-tenured faculty in any units may for a “temporary” period of two years be reduced or postponed. Although Senate approval is mentioned, it is not clearly stated that it is necessary, and the reductions and postponements are renewable by the original procedure. Even if Senate approval is required, an administration with a compliant Senate could renew the reductions indefinitely, a possibility that raises questions about the nature and role of a Sullivan II faculty senate.
What will be its constitution and by-laws? Will senate members be elected by and from the faculty by democratic procedures, and if so, by and from which faculties holding what appointments? Sullivan II does not answer such questions. This leaves open the possibility that section 4.5 will be used by corporate-minded regents and a willing administration to impose the equivalent of a layoff on the University, or to frighten faculty into submitting to reductions that achieve the same goal.
Morrison’s analysis
In his memorandum of Nov. 3, Professor Morrison deems section 4.5 (and the rest of Sullivan II) acceptable. He reassures us that salary cuts are prescribed for units (and by implication, not individuals) and that Senate approval is necessary, although the document does not explicitly say so. He observes that the cuts are temporary, but fails to note that they are indefinitely renewable. Morrison further reassures us that “a similar power already exists in section 11.4 of the current 1985 Tenure Regulations. The new Sullivan language simplifies its language and moves it immediately following the provision protecting base pay.” This interpretation is plainly erroneous.
Subsection 11.4 deals with financial emergency, not the explicitly distinct “financial stringency” of section 4.5, and it provides for cuts in base pay only after faculty have been given “full access to information about the situation and the alternatives being considered” and the University has considered the alternatives of “increases in tuition, sales of assets and borrowing” to avoid such cuts. No such preliminary safeguarding steps are required before cutting base pay under section 4.5. Moving the power in section 11.4 to immediately follow section 4.4 does not protect faculty members from cuts in base pay, instead it exposes them to such cuts.
Special Peer Review of All Faculty
Section 7A of Sullivan II (like the Senate proposal of June 6) requires that every unit conduct annual reviews of the “teaching contributions and evaluations, scholarly productivity, service, governance and outreach” of tenured and nontenured faculty. Such reviews are currently conducted by many departments for the purpose of awarding merit raises. But Sullivan II adds to this purpose “salary adjustment and faculty development.” If the performance of a faculty member is “substantially below the goals and expectations of the unit” and remains below after a trial period of at least one year, the department chair and elected review committee may recommend that the dean conduct a special peer review of the member. This review is to be conducted by five University faculty who will determine whether the member’s performance is adequate, justifies reassignment of duties, needs improving, is inadequate enough to justify a reduction in salary or is inadequate enough to justify formal proceedings for termination.
This additional procedure involves an abuse of merit raise review. Such reviews are designed to reward achievement over and above adequate performance of duties. They are not designed to uncover the rare case of an incompetent faculty member who managed to obtain tenure, or the almost equally rare case of a previously competent faculty member who has ceased to perform adequately but has not retired or resigned. A special, irregular procedure is appropriate for dealing with these rare cases, and such a procedure is already contained in the 1985 Tenure Regulations currently in effect and incorporated, with an addition, in Sullivan II.
Section 10.2 of Sullivan II provides that a faculty appointment may be terminated or suspended before its ordinary expiration for any of five causes, one of which is “sustained refusal or failure to perform reasonably assigned duties adequately.” (The other causes are unprofessional conduct that impairs professional fitness, misuse of professional position to solicit benefits and favors, sexual harassment and conduct destructive of human rights and other grave misconduct.) The required procedure for termination or suspension is extensively described in section 14: preliminary proceedings initiated by a dean, formal action by the dean, a judicial committee hearing, action by the president and an appeal to the Board of Regents. Termination or suspension for the cause of incompetence or nonperformance of duty can be and should be dealt with under section 10, under the cause of inadequate performance of duties. The use of the system of annual merit reviews for this purpose is therefore unnecessary, as well as inappropriate.
The proposed system of post-tenure reviews would dangerously weaken tenure. Traditionally, tenure has been based on the principle that tenured positions cannot be terminated, suspended or reduced except for: 1) financial emergency; or 2) cause. The introduction of a third method, such as post-tenure review, would weaken tenure and academic freedom, since violations of this freedom would become more likely. Under the best of circumstances, faculty would become more cautious about the research projects they undertake, the knowledge they accumulate, the information they disseminate and the views they defend for fear that they could be recommended for the dean’s peer review.
Under the worst of circumstances –retrenchment in a factionalized department –faculty might be desperately competing for their positions as well as for their right to pursue their academic interests and express their views. Academic freedom could thus dissolve, and with it the essence of a university.
The “Peer Review Option”
Section 7A of Sullivan II concludes with subsection 7A.5, which does not appear in the June 6 Senate proposal. “The Peer Review Option: Upon application to it by the dean of an academic unit, the Faculty Senate may adopt a system of peer review of performance of faculty of that unit different from the system set forth in sections 7A.1 through 7A.4 if in the Faculty Senate’s judgment so proceeding is in the University’s interest.” Some defenders of Sullivan II cite this section to allay concerns such as those raised here, suggesting that peer reviews can simply be abandoned if they prove undesirable. But it is highly unlikely that such an elaborately described system would have been included in Sullivan II unless the regents intended it to apply to a large subset of the faculty. Professor Morrison comments that the option “enhances flexibility, while preserving control in the representative faculty body,” which is a more plausible interpretation. To illustrate, the dean of the 35-member Law School might well apply for an alternative system of peer review. But it seems unlikely that the dean of the College of Liberal Arts, whose current merit review procedures most closely resemble those described in Sullivan II, or the dean of the Institute of Technology will apply for an alternative system. In any case, whether they do or do not apply will be a decision of the administration, not of the Faculty Senate. The “flexibility” thus “enhanced” is therefore likely to lead to different tenure codes for different units, an arrangement that not only would weaken tenure but would be invidious and unfair.
C. Wade Savage is a professor in thephilosophy department.