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Updated 8:00 AM March 9, 2009
 

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  Monthly report to the Board of Regents
Faculty Governance
Subject: Regents Bylaw 5.09

Regents' Bylaw 5.09 governs the demotion and dismissal of faculty. Initially adopted at a regents' meeting exactly 52 years ago this month, Bylaw 5.10 (as it was then) replaced the earlier Bylaw 5.09, which had proved insufficient to safeguard the rights of three faculty members in the anti-communist scare of the early fifties — Chandler Davis, Mark Nickerson and Clement Markert — who are now commemorated in the annual lecture on Academic and Intellectual Freedom that was founded in their honor. The importance of the new bylaw was to establish a procedure that would prevent a rush to judgment by allowing a case against a faculty member to be held outside the faculty members' unit, and for an appeal for a new hearing under the auspices of central faculty governance in case an initial hearing within the unit went against the faculty member. In 1959 the Bylaw was changed to provide for a two-stage process within central faculty governance, ordering that SACUA's subcommittee on tenure would hear the case in the first instance and that SACUA would review the findings of the tenure committee from a procedural perspective once it had reached its conclusions (SACUA also could decide if procedural appeals by the respondent in the procedure were of sufficient gravity that the Tenure Committee should hold a new hearing). SACUA's role was thus set as ensuring the fairness of the procedure.

The bylaw would be invoked, then as now, in cases where the administration felt that a prior investigation of a faculty member's conduct raised the question of whether or not that faculty member should be dismissed or demoted, with demotion being defined as "academic rank and the salary paid for academic services" (Proceedings of the Board of Regents (1837-2006), 867). The due process procedures under Bylaw 5.09 are elaborate and serve to protect the interests of the faculty, which is why we may be concerned that they are detached from other University disciplinary processes. There are cases where administrative sanctions may be imposed on faculty that fall short of demotion or dismissal (the denial of merit increases for a number of years, or restriction on access to research facilities), but can still have a serious impact on the effectiveness with which a faculty member can perform his/her duties. Due process — the right to present exculpatory evidence before an impartial hearing committee and to confront accusers whose evidence has been presented in what is often a one-sided fact-finding and decision making process — should be afforded in these cases. The more serious the sanction, the greater the need for due process if we hope to resolve these disputes within the University community.

Proceedings under Bylaw 5.09 have been very rare. That is, on the one hand, as it should be. On the other hand, it is not ideal that the one process guaranteeing due process is so seldom used, while the grievance procedure is used a great deal more often (the last three years have seen 10 grievances filed at the University). It also appears to be the case that, after reviewing grievances, some units are more prone to be involved in the grievance procedure than others, and that rate of involvement is not directly related this to the size of the unit. Rather there appears to be a great deal of variance in the way that deans in different units perceive their authority. Although we take pride in the decentralized nature of this University, this is an area where greater structure is highly desirable. In particular we feel that "structured decentralization" in matters of discipline can be achieved through routine consultation of the expertise of the general counsel's office.

Faculty members have the responsibility to behave professionally towards their students and maintain collegial relations with their colleagues, to show the highest integrity in their research, and to serve the community as a whole. On the whole this is exactly what the faculty do, and the international reputation of the University reflects this. In those rare cases when relationships break down we need to make sure that our institutions permit the fair resolution of the disputes. Bylaw 5.09, although old, was forged in the heat of deeply trying times and reflects the wisdom of those who were forced to confront the need to guarantee that arbitrary action has no place in the campus community. Despite its age Bylaw 5.09 offers a model upon which to base other procedures that will ensure fair and equitable resolution of conflict.

(Submitted February 2009)

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