The University of Michigan’s Board of Regents is considering revisions to Bylaws 5.09 and 5.10, which outline processes for demoting or dismissing teaching faculty. The bylaws are the university’s legal constitution — an expression of our values. It is thus of great concern that some of the proposed changes weaken academic freedom and erode the institution of tenure. The University of Michigan should be a leader in supporting these institutions, not undermining them.
Last fall, I joined 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 some of the impetus for revisions was a recent 5.09 case that involved a former U-M faculty member. Under the existing bylaws, a faculty member charged under 5.09 continues to receive their salary and benefits until the proceedings end. Thus, it can happen that someone accused of a heinous crime receives full compensation while the formal 5.09 process unfolds over several months.
It is difficult to witness faculty members alleged to have committed possible crimes compensated with public funds during a lengthy dismissal procedure. But, the operative word here is “alleged”: To protect those who are innocent, despite the possible appearance of guilt, we need a robust due process in every case, and particularly in the case of tenure.
The proposed revisions 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. That provision runs counter to a key recommendation of the faculty working group, which took into account the comments of over 300 faculty across three campuses.
Most problematically, the proposed provision violates the principle of “innocent until proven guilty.” Allowing the president to suspend pay prior to a full hearing is exactly what tenure is meant to guard against. Imagine a faculty member who writes public op-eds about a controversial political issue. The contents are protected by principles of the First Amendment and of academic freedom, but the university may suffer declines in, say, alumni donations. Casting a faculty member’s possible oversight in duties as “job abandonment,” the president might then invoke 5.09 and suspend pay (technically, the decision is made by a three-member committee hand-picked by the president). Without pay, the faculty member would struggle to mount an effective defense against the university’s well-funded legal team. They might 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. Bylaws 5.09 and 5.10 were added in the aftermath of the McCarthy era, when Professors Chandler Davis, Clement Markert, and Mark Nickerson were 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 (AAUP), America’s foremost institution representing faculty, 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 and 5.10. The underlying issues often involved administrative processes. 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 U-M 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.
Our rules should align with our values. The existing bylaws protect academic freedom, due process, and the institution of tenure — these 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 pay-suspension provision.
— Kentaro Toyama is W.K. Kellogg Professor of Community Information at the School of Information and was a member of the 5.09/5.10 Faculty Working Group. A version of this article also appeared as an op-ed in The Michigan Daily.
— Faculty Perspective is provided by The University Record as an opportunity for U-M faculty representatives to comment on university issues. Opinions presented are those of the author and do not reflect the views of the Record or the University of Michigan. Submissions are coordinated through the Faculty Senate Office.
James Hathaway
Professor Toyama’s comments are thoughtful as well as ethically and legally sound. His invocation of the history behind rules 5.09/5.10 is especially important, making clear why the proposed revisions should be withdrawn or rejected.
Rebekah Modrak
Thank you, Professor Toyama, for framing these arguments with historical perspective. I serve on another university committee that reviewed these revisions, the AAAC, and many of us share Professor Toyama’s concerns. To add to his point that recent cases at MSU and UM are now being used to eroding tenure protections, I would point out that, in those instances, the Office of Institutional Equity (OIE) had the opportunity to check abusive behaviors before the individuals obtained tenure, and failed to do so. Let’s examine how the OIE conducts investigations of misconduct rather than weaken tenure protections.