A faculty member's rights in a free university
I was motivated to write this essay when nameless administrators infringed my "free speech" right to e-mail messages to the faculty and deprived me of a timely, orderly and "fair" procedure to redress my grievances. This article is based on my experiences and knowledge learned from 20 years of legal battles with the Board of Regents, administrators and attorneys of the University.
Most faculty believe that academic freedom, tenure, due process and the courts protect them from the misconduct and misdeeds of the regents and their administration who run the University.
The harsh reality is that academic freedom is amorphous and ill defined. Tenure is merely a word modifier that converts an "at-will" employment position to a "for cause" open-ended university appointment, and due process is protean in nature. University attorneys take the position that it is their duty to cover-up the transgressions of the regents and their administrators. And the courts are reluctant to override the decisions of the regents and their administration.
For example, a faculty member has never won a court decision based solely on academic freedom. A tenured appointment gives a faculty member a property right protected by due process via Regents' By-law 5.09. However, faculty members rarely gain access to 5.09. When faculty members file complaints under the University's grievance procedures, the University attorneys control the procedure. Based on my observations from reading hundreds of cases, if a faculty member files a complaint in court, the court will 90 percent of the time dismiss the complaint on a technicality and never reach the merits of the case. In 9 percent of the cases, the court twists facts and law so the university wins. Hence, a faculty member has a 1-percent chance of prevailing in court.
In Radolf v. Univ. Of Connecticut, et al., 364 F. Supp. 2d 204 (D.Conn. 2005), a tenured professor left his position as director of the Center for Microbial Pathogenesis. The professor claimed he had a First Amendment academic freedom right to participate in writing a grant proposal and performing research. The court rejected his claims saying: "In this admittedly amorphous area of First Amendment jurisprudence is that no court has ever held that a university professor has a First Amendment right of academic freedom to participate in writing any particular grant." Id. at 216. "Dr. Radolf cites no provision of state law and no section of the University By-Laws that establishes a tenured professor's cognizable property interest in participating in research grant proposals of his or her choice. Dr. Radolf has no cognizable property interest in a discretionary benefit or privilege such as this." Id. at 219-20.
The question is: What power do faculty have to protect their rights? From my experience, the only power they have is the right to vote. The problem is most tenured faculty members are not interested in or concerned about faculty rights and do not vote.Nontenured faculty members are scared to speak out because they are fearful of losing their jobs.
Thus, after more than 90 years of litigation, billions of dollars in court cost and attorney fees, countless hours in the courtroom, discovery and pleading, millions of reams of paper, and hundreds of court decisions, academic freedom, tenure and due process remain in limbo. The faculty's perception that academic freedom, tenure, due process and the courts will protect them from transgressions by regents and administrators is a fiction.
What can the faculty do about this? My proposition is that faculty of each school and college vote to attach the following instrument to their bylaws to protect their fundamental rights.
THE FACULTY'S BILL OF RIGHTS
Section 1. All faculty shall have the fundamental rights secured by the First Amendment to the U.S. Constitution.
Section 1. No faculty member shall be discriminated against because of their race, religion, gender, color, creed, national origin or ancestry, age, martial status, sexual orientation, disability, economic status, political ideology, war veteran or any other personal factor.
Section 1. All faculty with 50 percent or greater appointments shall have the right to vote regardless of their title.
Section 1. All faculty shall have the freedom to exercise their independent professional judgment in evaluating the quality of students' work and determining the proper grades for students in their courses.
Section 2. Grades assigned by faculty to students in their courses shall be posted on the students' transcripts.
Section 3. A grade posted on a student's transcript certifies to the Board of Regents a student's successful or unsuccessful completion of a course of study.
Section 4. An assigned grade cannot be changed or destroyed by the regents or their administrators without the professor's consent on the basis of a pretext or an impermissible intent.
Section 5. Faculty shall have the widest range of discretion in making judgments as to students' motor skills and competence in academic, laboratory, clinical foundation and clinical courses and their entitlement to promotion or graduation.
Section 1. Administrators, teachers and students shall abide by the rules and regulations for grades, promotions, dismissals and graduation voted into place by the governing faculty.
Section 2. An administrator, teacher or student who does not abide by the rules and regulations voted into place by the faculty may be dismissed from the University of Michigan.
Section 1. Faculty shall have the right to publish books, theses, articles or papers on any subject matter and obtain copyrights.
Section 2. Faculty shall have the freedom to compose, perform and publish music and obtain copyrights.
Section 3. Faculty shall be able to create, perform and display their work(s) of art and obtain copyrights.
Section 1. A faculty member shall have the freedom to: (1) write proposals and grants; (2) perform legal, moral and ethical research; and (3) publish true and accurate research abstracts and articles.
Section 2. A researcher shall have the right to obtain a copyright, royalty or patent.
Section 1. A faculty member shall have the right to serve on federal, state and University committees as a service to the University.
Section 2. A health care provider's clinical duties are a service to the University.
Section 1. The administration shall share budgetary matters such as salaries, merit increases, cost of living increases, retirement plans, health care costs, etc. with the faculty.
Section 1. In a free university, the Board of Regents shall share the governance of the University with the faculty.
Section 2. The faculty of each school or college of the University shall elect its dean.
Section 3. The faculty of each school or college shall elect the members of the executive committee.
Section 4. The faculty of a department or division within a school or college shall elect its chairperson.
Section 5. The faculty of each school or college shall decide who receives tenure.
In a free university, faculty members have certain fundamental rights. A tyrannical, totalitarian university cannot safely allow its faculty complete freedom. I believe a free university can survive the faculty's fundamental rights.
The Faculty Perspectives page is an outlet for faculty expression provided by the Senate Assembly. The opinions expressed in Faculty Perspectives are the views of individual faculty members and do not represent the official position of U-M nor the faculty governance system. Prospective contributors are invited to contact the Faculty Perspectives Page Committee at email@example.com. Submissions are accepted in electronic form and are subject to review by the committee. Essay lengths are restricted to one full printed page in The University Record, or about 1,500 words.