Shared Governance Was Eroding Before Covid-19. Now It’s a Landslide, AAUP Report Says.

Among the many higher-ed trends being amplified by Covid-19? The downfall of shared governance, according to a new report from the American Association of University Professors.

The report, commissioned in September, examines Covid-era decisions — which faculty members and the AAUP determined were unilateral actions taken by governing boards and university administrations — at eight institutions, seven of them private. Those examples, the report says, are illustrative of a larger trend in academe, “the gradual erosion of shared governance on some campuses into a landslide,” and prove the pandemic to be the most serious challenge to shared governance in the past 50 years.

Here are four key takeaways from the report.

1. The language being used to threaten tenure is changing, but the message is clear.
Tenured faculty members, longstanding AAUP guidance suggests, can be fired only for cause related to performance or conduct, or “under extraordinary circumstances” like financial exigency — a declaration that a college faces a crisis threatening its core educational mission — or the discontinuation of an academic program. But none of the eight institutions the AAUP investigated declared financial exigency. In fact, only one institution, Lincoln University of Missouri, appears to have declared financial exigency because of the pandemic, the report notes.

One institution the report discusses, the University of Akron, invoked a status even more serious than financial exigency: “force majeure,” which the report calls a “nuclear option.” Force majeure clauses nullify any provisions for faculty input that are typically involved in a declaration of financial exigency, leaving faculty members without any recourse. (The Akron AAUP chapter filed a grievance with an arbitrator, who ruled that Akron’s invocation of force majeure was justified.)

“Allowing an administration to invoke force majeure (or catastrophic conditions, act of God, extraordinary circumstances, and the like) to nullify existing policies, unilaterally shutter programs, and terminate tenure are inimical to principles and standards of academic freedom and governance,” the AAUP report’s authors declare.

There’s another term floating around, too: “budgetary hardship,” which John Carroll University, in Ohio, proposed adding to its financial-exigency policy in the fall. The bar for declaring “budgetary hardship” would be lower than the one for financial exigency — it could be invoked if the university saw a projected 6-percent loss in cumulative net revenue over a three-year period — and it, like financial exigency, would let administrators fire tenured faculty members without appeal. An attorney working with John Carroll’s board, the report says, “is reportedly working with nine other institutions to incorporate ‘budgetary hardship’ provisions into their faculty handbooks,” which the AAUP argues “would effectively render tenure meaningless at those institutions.”

No matter the wording, said Michael DeCesare, co-chair of the AAUP investigating committee, the message is clear. “Any less strict criterion” than financial exigency, “no matter what it’s called, simply puts faculty at greater risk.”

2. Suspending faculty handbooks is one pandemic-era mechanism for abrogating shared governance.
Faculty handbooks have long been standard-bearers for how an institution can, and should, deal with thorny issues involving budget shortfalls, academic freedom, tenure, and more. But what happens when the rulebook is tossed out? At several of the institutions AAUP’s report examines, that’s exactly what happened.

In a July 1 message, Keuka College, in New York, announced it would suspend for a year the faculty handbook’s processes on terminating appointments and closing academic programs. “Ultimately,” the board wrote, “the College cannot financially afford to follow the processes outlined for faculty separation.”

Suspending those provisions, the AAUP report says, allowed Keuka to fire tenured faculty members without first declaring financial exigency or discontinuing an academic program, the two circumstances under which the AAUP acknowledges tenured faculty members’ jobs may be lost, and without allowing the affected faculty members due process.

Marian University, in Wisconsin, the AAUP notes, also suspended handbook procedures after declaring an “enrollment emergency,” and Medaille College’s president exercised a clause in the faculty handbook that allows the handbook to be suspended because of “natural disasters, acts of God, declared states of emergency or other emergency situations.” Also at Medaille, in New York, the administration produced a revised faculty handbook which, among other things, would subject faculty members who received tenure prior to July 2020 to “annual performance reviews” that “may result in discipline and/or termination,” while faculty members who were tenured after July 2020 would work on three-year contracts. A corresponding employment agreement asked signatories to agree that “that the Prior Handbook was validly replaced and rescinded … and that the Employee shall not claim any right, benefit, obligation, or entitlement to any provision contained in the Prior Handbook.” Over objections from faculty members, Medaille’s board approved both documents, and sent full-time faculty members letters saying that if they did not sign the new employment agreement, they would be considered “at-will employees” who could be fired “for any reason.” None of the Medaille faculty, except three new arrivals who weren’t aware of the controversy, have signed the agreement, according to the AAUP report.

Before the pandemic, said DeCesare, an administration unilaterally revising or suspending a faculty handbook was “extraordinarily uncommon.” It is, DeCesare said, “one of the most egregious governance violations that an administration or board can take,” and in the past would have likely resulted in the AAUP sanctioning the institution. (That may happen here, too: DeCesare said that the AAUP’s Council will vote in early June on whether to recommend sanctions for any of the institutions in the report, based on recommendations from the Committee on College and University Governance, which he chairs.)

3. Many faculty members are being left between a rock and a hard place.
At several institutions the AAUP investigated, faculty members “faced the dilemma of either participating in ad hoc governance processes they knew to be flawed in the hope of shaping their outcomes or refusing on principle to participate at all, thereby allowing administrators and board members to move forward without them.” In one case, though, the faculty didn’t even get that catch-22. National University, in California, “really engaged in what we call this trinity of the most egregious violations of longstanding governance standards,” DeCesare said. Administrators there unilaterally abrogated faculty contracts (National has never had a tenure system), suspended the faculty policies, and replaced the elected Faculty Senate with a new “University Senate,” whose members were not elected by the full faculty. The interim handbook that replaced the suspended policies, the AAUP wrote, incorporated no “decision-making participation” for faculty members.

4. Breaches of shared governance have implications for academic freedom, too.
The AAUP investigation took up only issues of shared governance. But that doesn’t mean academic freedom isn’t in danger: Where tenure is threatened, inevitably, academic freedom is, too, DeCesare said. “When tenured faculty can simply be dismissed under the guise of a global-health crisis, then, as so many faculty members we interviewed told us, tenure really doesn’t mean anything. And therefore, academic freedom doesn’t really exist at those institutions.”

Watchers of academic-freedom issues would do well to keep an eye on the state of Kansas, where the Board of Regents unanimously approved a policy that allows the state’s six public universities to carry out “emergency” terminations and suspensions of faculty positions — including tenured ones — through 2022, the AAUP report says. Under that policy, an institution doesn’t need to declare financial exigency to lay off a tenured faculty member, or schedule an adjudication hearing if it does so.

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