USC Academic Senate
Winter 2002/2003 Edition 

Volume 4, Number 1, 2002-2003


 

 In This Edition

  A Letter from the President
  Open Letter to Senators and Other Colleagues
  Health Care Costs, Preferences, Risks and Equity
  Recruiting and Retaining a Diverse Faculty
  Non-tenure-track Faculty at USC
  Marshall Online Teaching Evaluation System
  Concerning Terminations of Tenured Faculty
  Mediation
  The University After 9/11

Concerning Terminations of Tenured Faculty
Sol Golomb, University Professor

Dear Faculty Colleagues,

I was one of the faculty members who, in late 2001, as referred to by Peter Nosco in his March 8, 2002, memo to the faculty, expressed "their concern over rumors that the university administration had been dismissing tenured colleagues for less than egregious offenses, at an increasing rate, in disregard of faculty committee recommendations, and in a manner based on administration 'tampering' with the Faculty Handbook." In fact, in early January, 2002, at a private meeting with President Sample convened for an unrelated purpose, I expressed these concerns to him in considerable detail, and in a somewhat less than temperate tone.

Rather than reacting angrily, Dr. Sample said he would make sure that these issues were carefully investigated, and would begin by tasking the Provost to produce a complete record of all cases involving proposed dismissals of tenured faculty members since Dr. Sample's arrival at USC. My concern that this investigation might be a whitewash was quickly dispelled a few weeks later, when I was invited to the Provost's office, where Dr. Armstrong presented the results of his review of these cases to me in considerable detail, withholding only the names and identifying characteristics of the faculty members involved, because of their legal right of privacy. In fact, by that time, I had become familiar with the general circumstances of the individual cases, from other sources. The results were as summarized in Faculty President Nosco's statement to the Academic Senate in March, 2002:

"During the twelve years of President Sample's tenure here, there have been thirteen cases in which a dean has initiated dismissal proceedings against a tenured professor. Of these thirteen, President Sample dismissed six tenured faculty. In each of the six instances, the dismissal followed a faculty hearing board's findings of adequate cause: job abandonment in four cases and serious misconduct in two. As a percentage of the total tenured faculty at USC, the annual dismissal rate is less than 1/10 of 1%. In four instances the Provost or President decided not to proceed to dismissal, and three cases did not come to a final decision (in two cases owing to the faculty member's resignation, with one case still pending.) The related rumor that the administration tampered with the Handbook's dismissal section is demonstrably untrue, as was reported on in detail to the Senate by two of my predecessors as Senate President."

I feel that I owe it to President Sample and Provost Armstrong to acknowledge that they have indeed proceeded prudently and deliberately in these dismissal cases, and that the rumors to the contrary were unfounded. Individuals threatened with dismissal are free to publicize their version of the circumstances to anyone who will listen, while the administration might be sued for defamation of character if it acted similarly. Not surprisingly, there are two sides to each of these stories, and after hearing both sides, I concluded that the actions of faculty committees which recommended charges, faculty hearing boards which recommended dismissal, and the President in dismissing, were reasonable.

Nonetheless, I grieve for those of our tenured colleagues who were dismissed. Not being granted tenure in the first place is very sad, but usually survivable; having a tenured position and losing it may be the academic equivalent of receiving the death penalty. Finding another academic position under the circumstances is often a virtual impossibility, and the resulting stresses on the individual may lead to economic hardship and serious personal difficulties. Of course, if discipline is justified, the hardships that ensue should not be blamed on the "judges." In several cases of which I know the circumstances, it seemed to me that the individual was almost intent on achieving his own dismissal, spurning all collegial advice of moderation, while in other sad cases the individual's behavior may have been a result of emotional problems. However, because dismissal from tenure is so momentous, it is important for all of us to understand how much, or how little, job security is actually provided by tenure; and what legal recourse is, and what is not, available when tenure is "revoked" (to use a term mentioned both in our Faculty Handbook and in the decisions of the California courts).

Some may believe that once tenure is granted, the lucky individual is then free to do anything, or nothing at all, yet continue to receive full salary forever after (or at least until death or voluntary retirement). I doubt that this was ever the case anywhere, and it is certainly not the case at USC. In fact, "neglect of duty" has been listed as a valid cause for dismissal of a tenured faculty member as far back as I can remember (it is in the 1961 Handbook and every edition since), though its precise definition may have evolved over time.
Our current Faculty Handbook specifies that if a faculty member receives an assignment (such as teaching a particular course) from a department chair, the faculty member may file a grievance, but is required to perform the assignment until the grievance is heard and adjudicated. The Handbook specifies several protections: it requires that assignments be made after consultation with department faculty, and that they be based on departmental or schools needs, and it prohibits assignments for retaliatory or discriminatory reasons. Clearly there should be continued vigilance to ensure that a vindictive department chair does not give an assignment which the faculty member would not be competent to perform. (How many of us are able to teach every course in our department's offerings?) The grievance process is the basic protection offered, if such a situation should arise. Statistics recently presented to the Academic Senate show that in recent years the individual has prevailed about half the time in decisions on formal grievances, though many problems seem to have been resolved without the need of formal procedures.

I think many of our colleagues are unaware of the type of recourse to the courts that is available to a tenured faculty member who is dismissed by the university's internal processes. Not only the trial court, but on at least two occasions the appellate court for our region of California has ruled (as recently as September, 2002) that just as the courts will not normally second-guess the academic process whereby tenure is granted by colleges and universities, they will generally not intervene in the inverse academic process whereby tenure is revoked. Judges will review the fairness of the university's process, but they leave up to faculty committees and university presidents the questions of what are the relevant academic norms and whether a professor has violated them. They regard it as necessary for academic freedom that academics, not lay juries, decide who is part of the tenured faculty. Some may agree and others may question the judicial reasoning behind this position, but it is important to realize that the Law of the Land is whatever the courts declare it to be, and this is now the law in the part of the land where we live. It is also questionable whether members of a lay jury would have much sympathy for the concept of academic tenure. They are likely to have had friends or relatives who were fired on short notice from jobs in the private sector, and might actually resent tenure as an unwarranted extra privilege for college teachers.

Another misconception may involve the belief as to the source of "due process" in dismissal proceedings. Constitutional "due process" limits what governments may do. It is our own university, through the Faculty Handbook, that guarantees us academic due process. A faculty member may obtain court review of whether the dismissal procedure was a fair procedure, but not a review of the substance.

Meanwhile, the Federal and California governments continue to pass laws that regulate the behavior of faculty members with an ever-lengthening list of offenses. I believe this list includes, among other things, substance abuse, research fraud, sexual harassment, and financial chicanery on research grants, at least when the offenses exceed some threshold of seriousness; and the faculty member may also face criminal prosecution. The general approach of the government is that a university is allowed to handle such disciplinary problems internally, but that if it fails to do so, the government will step in. Once powerful and respected institutions such as universities and churches are no longer allowed carte blanche on whether or not to discipline their members.

I would prefer to live in an ideal world where tenured faculty members are never dismissed, because no one would ever deserve dismissal. However, in our non-ideal world, any large body of individuals, even those as carefully chosen as a university faculty, may contain a few who because of emotional problems or character flaws commit serious sins of omission or commission. Since dismissals for cause at USC have averaged only one per two years, in our faculty of some 2000 individuals, over the past twelve years, and the Handbook procedures have been carefully followed, I cannot see how anyone can validly accuse the USC administration of either ignoring or attempting to abolish tenure, or of riding roughshod over faculty rights.

Respectfully,

Solomon W. Golomb