Trust Me, I'm a Lawyer...

Or, Erosion of Academic Freedom
At the University of Minnesota?

Quoted material is from the minutes of the Academic Freedom and Tenure Committee (Friday, November 21, 2008)

Background:

"Professor Clayton convened the meeting at 9:35 and welcomed Provost Sullivan to discuss amendments to the Regents policy on Academic Freedom and Responsibility that have been proposed by this Committee and additional amendments proposed by General Counsel Mark Rotenberg."

Hmm... this is immediately suspicious given Counsel Rotenberg's recent record in the openness and transparency department.

------side rant------

"The Board of Regents and the administration of the University made it clear years ago that it would not tolerate undisclosed, simultaneous full-time employment," Rotenberg said.

"As a matter of fact, Julie and I have not even signed an employee contract yet with Minnesota. ... We have only agreed to unofficially start this semester with full residence starting in May."

Francois Sainfort February Email

But the couple had already begun working full-time for the University of Minnesota at that time, according to documents. Mark Rotenberg, the general counsel for the U of M, said the couple's compensation and contracts at Minnesota began Oct. 1.

Those folks still on board, counselor? Oh, I see. We are still waiting for Georgia Tech to act. No doubt Provost Cerra and Dean Finnegan approve of this foot dragging? If we just stall long enough, maybe people will forget about it? Is that the strategy here? This behavior is a disgrace for an institution that aspires to be a great university.

And then of course there were the wonderfully forthcoming, open, and transparent activities of Counselor Rotenberg's office during the latest data extraction from his office by the Star-Tribune. See:

Openness and Transparency
at the University of Minnesota

Nor did OurProvost demonstrate these qualities in his recent coup d’état at the U Graduate School:

Graduate School Restructured
Provost Sullivan Believes in the American Method
Shoot First and Ask Questions Later

----end of side rant-------

"Provost Sullivan began by asking what the Committee's goal is in seeking the amendments it has proposed in Section II. "

"Professor Clayton said that when the Committee became aware of the decisions in Garcetti and Hong, it proposed amendments that would preserve what the Committee believes to be standard practice by making explicit in the policy that which all have assumed."

"(Language to be added IN CAPS; language to be deleted [in brackets].)"

"SECTION II. ACADEMIC FREEDOM

Academic Freedom is the freedom to discuss all relevant matters in the classroom; to explore all avenues of scholarship, research, and creative expression; and to speak or write [as a public citizen] without institutional discipline or restraint ON MATTERS OF PUBLIC CONCERN AS WELL AS ON MATTERS RELATED TO PROFESSIONAL DUTIES AND THE FUNCTIONING OF THE UNIVERSITY."

"Provost Sullivan said that was his assumption. He has reviewed the cases cited by the Committee, and noted that he is a lawyer, has practiced and taught, served as Dean of the Law School, and still follows court decisions closely. The Garcetti case was about an assistant district attorney and he said he does not believe that universities need be concerned that the case would be applied in the context of academic freedom."

Trust me, I'm a lawyer...

"He said he doubted that this Supreme Court, which is quite conservative, would apply the case to academic freedom, which has its own niche in the law. He said it is also clear, in the Court opinions, that if an academic freedom case were to come before the Court, that academic freedom would be defended, because this Court has been a steadfast defender of the First Amendment. The Garcetti case is an exception and he is not concerned that academic freedom will be trampled by this Supreme Court."

That's a comfort, Tom. This Supreme Court?

"The Committee's view is that it is better to be safe than sorry, Professor Clayton responded, because it is possible that the principles enunciated in Garcetti could be extrapolated to academic freedom."

Hear, hear!

"Provost Sullivan turned next to Section III, which contained amendments proposed by the General Counsel:"

SECTION III. ACADEMIC RESPONSIBILITY.

Academic Responsibility [implies] IS the faithful performance of ALL ASSIGNED academic duties and UNIVERSITY obligations, the recognition of the demands of the scholarly enterprise, and the candor to make it clear that the individual is not speaking for the institution in matters of public interest.

"Professor Clayton noted that the substitution of "is" for "implies" affects the sense for the worse in asserting that “responsibility is . . . performance,” while also eliminating the force of “implies” in the original statement, which comprehends everything Mr. Rotenberg wishes to prescribe. "Faithful performance" includes activities that are not assigned; "faithful," he said, is a strong word. "Implies" could be replaced by "assumes," he said. "

"It may be that Mr. Rotenberg was simply seeking a parallel construction between academic freedom and academic responsibility, Provost Sullivan said. When the term "implies" is used, it comes before there has been a definition of the term, and it could be that the term should be defined before getting into its implications. Professor Clayton said that "implies" expresses obligation and persons affected are to act according."

"Professor Clayton asked Provost Sullivan if he approved the changes proposed by Mr. Rotenberg. "

"Provost Sullivan said he would like to hear Mr. Rotenberg's definitions and why the language speaks to "academic duties" in one paragraph and "professional duties" in another. What is the distinction between "University obligations" and academic responsibility?"

"Professor Clayton said the Committee would be happy to hear from him but the words speak for themselves."

I always thought that the law meant what the law said, Provost Sullivan? Or did you teach your law students otherwise?

"She [Professor McLoon] went on to say that she was troubled by "all assigned" duties because the language could be used to get rid of a faculty member. Say that a new chair dislikes a faculty member, so assigns him or her a lot of extra duties. Provost Sullivan said that normally there are annual discussions between a faculty member and chair, and perhaps dean, with assignments agreed on. In Professor McLoon's hypothetical there has been no agreement, or there was mutual agreement followed by a unilateral change. In either case, the issue is grievable. "

Given the Provost's intimate knowledge of the faults of the grievance system and his deadpanned statement about normal behavior, especially in the Medical School, his response is absurd on its face...

"Perhaps so, Professor McLoon said, but grieving would create an uncomfortable situation in the department and pressure on the faculty member to leave."

These folks did not just fall off the turnip truck, Tom...

"Professor Clayton thanked Provost Sullivan for joining the meeting."

"Later in the meeting, after the discussion with Chancellor Lehmkuhle, Committee members took up the policy again. They expressed views on various points: the Committee would prefer to see no changes in the policy rather than accept the proposals for Section III; "assumes" should be substituted for "implies"; the use of the word "assignments" implies that faculty have "supervisors," which they do not; and a concern that faculty could bring academic freedom claims in cases where they have been assigned to teach classes in one area after their research interests have evolved in another direction and want to teach in their new area of research (the proposed language would not make it violation of academic freedom if the chair assigns teaching irrespective of the faculty member's areas of research)."

As for the possibility of grieving, Professor Abul-Hajj was skeptical. How many times will a faculty member win a grievance against the University? About 5% of the time, he surmised; the faculty, he said, will be on the losing end.

[And even if a faculty member should be successful in a grievance, he or she might run through two provosts, a dean, and two associate deans, before the judgment was finally enforced. Don't ask how I know...]

As a reward for reading through this post, I leave you with a gift, Warren Zevon's version of a song that should be music to the ears of any lawyer: