Language Politics

By Nicholas Fleisher


All rule, no law

At the heart of Wisconsin’s current special elections dispute is a syntactically ambiguous text. The first sentence of Wis. stat. § 8.50(4)(d) currently reads as follows:

Any vacancy in the office of state senator or representative to the assembly occurring before the 2nd Tuesday in May in the year in which a regular election is held to fill that seat shall be filled as promptly as possible by special election.

The ambiguity turns on the prepositional phrase (PP) in the year in which a regular election is held to fill that seat: specifically, on its syntactic position of attachment and its associated semantic import. Does the PP attach low, to May (or, equivalently for present purposes, to 2nd Tuesday in May; in either case forming part of the definite description headed by the), thereby telling us which year’s month of May we are talking about, in order to specify the point before which vacancies obligatorily trigger special elections? Or does the PP attach higher, at the level of the verb phrase, thereby providing an additional restriction on the event introduced by occurring, so as to limit the range of vacancies for which special elections must be called?

The grammatical structure of the text cannot tell us the answer. There are competing interpretations because the text is the (externalized, flattened) residue of at least two distinct grammatical structures. The pure textualist train runs out of track before we reach our destination. Nor will it help to appeal to canons of construction here, since the canons that deal with syntactic ambiguity are little more than labels for the competing readings. In order to rule one way or the other, we must look outside the text.

And we don’t have to look far before we find well-nigh dispositive interactions between the entailments of each reading and the legislative intent behind the statute. On the first (low-attachment) reading, the statute sets an upper limit on the date when vacancies trigger special elections. On the second (high-attachment) reading, it sets both upper and lower limits: in particular, a vacancy does not automatically trigger a special election if it occurs prior to January 1 of the year in which the seat would be regularly up for election. So, for example, on this reading the governor would be within his rights to leave a state senate seat open for as much of its four-year duration as he saw fit, provided the vacancy occurred prior to January 1 of the regular election year for the seat.

The second (high-attachment) reading of the statute plainly conflicts with legislative intent. The statute emphasizes that special elections should be called as promptly as possible, a clear indication that the purpose of the statute is to ensure that legislative seats not remain empty and that the people of the affected districts not remain unrepresented. While the grammatical structure of the statutory text is indeed ambiguous, only the first (low-attachment) reading leads to a sensible interpretation. This is enough to settle the question of the statute’s meaning. It’s not a close call.

The special election dispute has arisen, of course, because the governor has chosen not to call elections for two seats vacated in late December 2017, relying on the indefensible second (high-attachment) reading of the statute as his justification. It’s an obvious violation of the law as written, and it has now been duly laughed out of court. (Update: twice.) Notably, the DOJ recognized the absurd consequences of their chosen interpretation in a March 7 brief (h/t Jordan Ellenberg), where they insist that the special elections called by the governor to fill vacancies in 2017 were exercises of his discretionary authority, not fulfillments of his plain and positive duty under the law. They likewise fail to acknowledge or address the grammatical ambiguity of the statutory text, instead simply claiming that the second (high-attachment) reading is the operative meaning.

The reaction of Wisconsin Republican leaders is telling. The governor failed to fulfill his duty under the law, in obvious violation of the plain meaning of the statute. Plaintiffs went and got a court order (from a judge appointed by this governor, no less!) demanding that the governor call special elections by this Thursday. Legislative Republicans’ response? Change the law! The proposed changes to Wis. stat. § 8.50 would prevent the governor from calling special elections for the currently empty seats, and the bill text explicitly seeks to override the court order issued last week. At a minimum, this tees up another round of litigation, if not an outright constitutional crisis. All ostensibly to save the public the monetary expense of holding two small local elections.

There is no shortage of theories about the governor’s motivations for refusing to hold these special elections, and no shortage of irony in the legislature calling an extraordinary session to prevent special elections at a time of supposed legislative inactivity. The broader point, and the bigger concern, is the relationship between the exercise of political power and the restraints of the rule of the law. The governor has chosen to ignore the law in a case where it is contrary to his political will. The Wisconsin Department of Justice has been enlisted to defend the governor in flouting the law. His legislative allies have chosen to ignore the plain meaning of the law, to impugn the character of the judge who insisted that the law means what it does, and finally to change the law that they do not wish to be bound by.

Such is the law under organized one-party rule.

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Laboratories of austerity

UW-Stevens Point has attracted national attention for its administration’s plan to shutter the bulk of its majors in the humanities and social sciences. UW-Superior’s administration summarily suspended 25 programs in October, sidestepping the governance process and triggering a vote of no confidence in the chancellor. And the UW Colleges and Extension is being dissolved as a freestanding institution, its 13 campuses to be absorbed by nearby UW universities barely 9 months after UW System President Ray Cross’s surprise restructuring announcement last fall.

In other words, we are now seeing exactly the kinds of developments that were made possible by the statutory changes to tenure and shared governance in 2015 and the resulting Regent policies on faculty termination via program change, which triggered no confidence votes in Cross and the Regents across the System in the spring of 2016. The ideological vision behind those changes is apparent in the squeezing of campus budgets and in the content of the resulting program change proposals, which uniformly point toward narrow job training and “career pathways” and away from the broad educational mission that makes a university what it is.

The elitism underpinning this set of developments has not gone unnoticed. The Colleges’ predicament was accelerated by the 2015 regionalization of administrative services, taking advising and other support away from where it was most needed on the System’s open-door campuses. The UW-Superior administration struck a remarkably patronizing tone, suggesting that its many first-generation students might be overwhelmed by the range of choices available at a truly comprehensive university. And the UW-Stevens Point administration has spun a tendentious hunch about its students’ career planning into a suggestion that they seek fancy things like English and history degrees elsewhere. This is not a strategic retreat from the educational ideal so that the university might be saved; it is an abandonment of our neediest students, of entire regions in central and northern Wisconsin, and of the democratizing mission of the public university.

The Stevens Point situation, in particular, cannot be understood in isolation from that of the Colleges. Stevens Point is set to absorb two Colleges campuses this summer. The Colleges restructuring was undertaken ostensibly to address a budget and enrollment crisis; merger with nearby UW institutions was presented as a favorable alternative to closing multiple campuses. What has never been made clear, however, is how the merger is supposed to mitigate any of the underlying issues. By going this route, Cross and the Regents have delayed the Colleges’ reckoning until after the reelection campaign of the governor who appointed them, and have offloaded responsibility for the truly tough decisions to local campus administrations, to boot. We’ll soon see what emerges from these laboratories of austerity.

Finally, it bears mentioning that the amounts of money involved here are not large. UW-Stevens Point’s administration says it is aiming to close a $4.5 million two-year budget gap. At UW-Superior, the budget deficit is $2.5 million. Meanwhile, the Wisconsin Legislature approved $3 million in new funding in the 2017-19 biennium for a new “public leadership” center named after former GOP governor Tommy Thompson…at UW-Madison.

As the saying goes, show me your budget and I’ll show you your values. There is money to preserve and enhance UW-Superior, UW-Stevens Point, and the UW Colleges. There is money to restore Wisconsin’s commitment to world-class public higher education for all. The infrastructure is there, built by generations. It’s not a hard lift for us now. It just requires leadership willing to make the choice.


Fund the freeze

The UW-Madison Faculty Senate will vote on a resolution of no confidence in UW System President Ray Cross and the Board of Regents on Monday.  The proximate cause is the egregious handling of Madison’s faculty layoff policy by System legal counsel, Cross, and the Regents, all of which is detailed at length in the text of the resolution.  A further contributing factor is Cross’s much-publicized decision to scrap the Chancellors’ presentations on the effects of the 2015–17 budget cuts at the Regents meeting earlier this month (“no whining!”).  All of this is set against the backdrop of the nonstop crisis that has been with us since Scott Walker unveiled his 2015–17 budget proposal fifteen months ago, starting with Cross’s questionable and ill-fated decision to advocate a public authority model for the university system, and continuing through the gutting of shared governance, the weakening of tenure, and the soft-pedaling of the cuts’ fallout.

The prospect of a no confidence vote has caused a surprising number of legislators to lose their minds.  When a purely symbolic gesture by faculty elicits immediate threats of material retaliation from a powerful State Senator, it’s because it hits uncomfortably close to the mark.  Those Republican legislators who have weighed in have, predictably, played the class resentment card against faculty in an attempt to divert attention from the substance of the complaint.  In the current Wisconsin context, this means invoking the four-year tuition freeze early and often, and accusing faculty of not caring about tuition-paying students and families.  (No one ever bothers to explain how weakening tenure and shared governance will prevent tuition from rising, of course.)

Tuition had been in the news even before the no confidence resolution came to light.  At the most recent UWM budget forum, Chancellor Mark Mone repeated his (and, by extension, UW System leadership’s) hope that the Legislature will allow for a modest tuition increase in the next budget.  This led Rep. Dale Kooyenga to opine, “I just don’t get how the left can say the tuition cap is bad but yet many of the same people are ‘feeling the Bern,’ saying we need to have free college altogether.”  UW leadership is displaying the same political cluelessness around tuition that it did in the early public authority days, and legislators are wasting no time using administrators’ remarks as a pretext for beating faculty senseless.  (And if Mark Mone voted for Bernie Sanders, I will eat ALL THE HATS.)

So let’s be clear: I know I speak for many UW faculty when I say that we endorse the tuition freeze and want it to continue.  If anything, tuition should be decreased.  But a tuition freeze has to be funded by the Legislature.  Right now, the UW System is in the midst of a four-year unfunded mandate coupled with steep cuts in base funding, and it is hurting students.  A tuition freeze does no good when you can’t enroll in the classes you need and end up taking longer to graduate.  It does no good when it means the program you wanted to major in has to shut down.  Shifting costs away from students is the morally correct thing to do; declining to fund those shifted costs is pure deception.

All of which brings us back to the no confidence resolution.  The only way to contain tuition costs is for the state to agree to bear those costs through increased funding to the system.  The only way to get the state to increase funding is to make a compelling case to the public that our current path is harming students and families.  Ray Cross has moved, instead, to stifle public discussion of the cuts’ effects.  The Board of Regents has adopted tenure and layoff policies that will make it easier to accommodate continued austerity, and that will thus encourage additional cuts.  This is the heart of the case for no confidence.

Faculty are on the side of students and families.  Fund the freeze, fund a tuition decrease, restore our public commitment to public higher education.


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UW tenure: as little as possible

Tenure weakened in Wisconsin.”  So says the national AAUP in response to the UW System’s now-official policies on tenure, faculty layoff, and post-tenure review, which were adopted by the Board of Regents this past Thursday, unaltered in their essentials from the problematic drafts issued by the Tenure Policy Task Force in January.  At the Regents meeting there was much talk of difficult decisions and harsh new realities.  The first casualty of the new policies, it seems, is the pretense that they might be consistent with nationally recognized standards.

The formal decline of tenure in Wisconsin has coincided with renewed media interest in faculty pay.  System President Ray Cross said in an interview earlier last week that, while changes to tenure “are causes to make faculty nervous…the real reason I think faculty are being lured away is compensation packages.”  The Milwaukee Journal-Sentinel reported on faculty retention efforts at UW-Madison, detailing the tens of thousands of dollars in raises and additional research funds that a handful of faculty have negotiated in the face of job offers from elsewhere.  The casual observer could be forgiven for thinking that the end of tenure will bring a financial windfall for UW professors near and far.

Indeed, the elephant in the room last Thursday was money, particularly the Regents’ apparent unwillingness or inability to advocate for more of it in the face of legislative slashing and burning.  The overarching goal of the new policies, we were repeatedly told, is to give chancellors flexibility.  Flexibility, of course, is code for a host of austerity measures predicated on the consolidation of power in administrative hands.  It can also be read here as a byword for Regental buck-passing: far from standing up to legislators, the Regents have turned around and told chancellors to stand up to faculty, all while adopting policies that create a glide path for further cuts.  The time to draw a line in the sand was yesterday; instead, our new flexibility-enhanced chancellors will be able to use program prioritization and other means to enact a kind of financial emergency in slow motion.

Conspicuously absent from Thursday’s discussion was any suggestion from the new policies’ proponents that the changes will help the UW System regain the confidence of legislators.  Rather, endless austerity was presented as a given, with faculty chided for their lack of business sense.  The obvious cynicism of this line of attack didn’t prevent some faculty from rising to the bait, telling reporters of their long experience issuing layoff notices to academic staff.  The divide-and-conquer reflex was evinced by UW-Madison’s chancellor, as well.  In her prepared remarks and subsequent blog post, she spoke of the “different needs” of the various UW System campuses, a framing that meshes entirely too well with that of the right-wing Wisconsin Policy Research Institute, which in a recent manifesto questioned whether tenure is needed at every UW campus.

Tenure has been modified, shared governance curtailed.  Local media has turned its normalizing gaze to outliers at the very top of the faculty pay spectrum.  The flagship’s chancellor appears poised to throw the rest of the System under the bus.  Campuses are struggling to absorb the $250 million in cuts handed down in the current cycle.  And with negotiations over the next biennial budget less than a year away, the Board of Regents has adopted policies that will make it politically easier for legislators to cut again.

Welcome to the 21st century, indeed.


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UW tenure: a challenger appears

With the UW System Board of Regents set to adopt new tenure policies next week, Wisconsin’s right-wing policy apparatus has sprung into action.  On Tuesday, the Wisconsin Policy Research Institute (WPRI) released a report questioning the value of tenure and urging the Regents to adopt policies allowing them to terminate tenured faculty for the full range of reasons delineated in Act 55: program discontinuance, curtailment, modification, and redirection.  The issue at the heart of the Tenure Policy Task Force’s work since last summer—namely, whether it is possible for the Board of Regents to adopt policies that are more stringent than those now enumerated in statute, and thereby to salvage something resembling tenure in Wisconsin—has thus been brought once again to the fore.

To repeat what has been said many times: allowing institutions to terminate tenured faculty for reasons of program curtailment, modification, and redirection—i.e., changes short of full discontinuance—is totally incompatible with academic freedom.  It is an open invitation to administrative abuse and political intrusion into the university.  Tenure is the guarantor of academic freedom.  The Regents have claimed since the summer that tenure will be safe in the UW System, and this claim has always rested on the proposition that the Regents will able to limit the range of circumstances in which tenured faculty can be fired, i.e. that the offending statutory language of Act 55 is “merely permissive.”

The Regents have thus implicitly acknowledged that an institution where tenured faculty can be fired for reasons of program curtailment, modification, or redirection is an institution that does not have tenure in any meaningful sense.  But this is what WPRI is now expressly advocating.

The WPRI report also offers some hints as to what future efforts to weaken tenure in the UW System will look like.  In particular, it suggests a classic divide-and-conquer strategy, questioning whether tenure is necessary in the UW Colleges and Extension, or at the four-year non-doctoral campuses.  UW-Madison and UW-Milwaukee faculty thus must be prepared to stand up for tenure everywhere in the UW System.

The publication of the WPRI report underscores the importance of ensuring that the policies adopted by the Regents next week are as strong as possible.  To that end, the Faculty Representatives to the Board of Regents and the faculty members of the Tenure Policy Task Force have unanimously endorsed a set of recommended changes to the draft policies approved by the Education Committee last month.  Those recommendations address some of the well-documented deficiencies in the draft policies, which were written with minimal faculty input, despite the best efforts of the task force members.

WPRI and its backers want to kill tenure in the UW System.  Faculty across the System are, with remarkable unanimity, asking for modest changes to the draft policies that no Regent who actually cared about tenure and academic freedom could reasonably oppose.

Thursday should be interesting.

[Update, 3/5/16: Chuck Rybak offers an assessment of the WPRI report here.]


UW tenure: endgame

Two weeks ago today, the Education Committee of the UW System Board of Regents unanimously approved the new policies on tenure, faculty layoff, and post-tenure review developed by the Tenure Policy Task Force, forwarding them to the full Board for approval at its March 10 meeting. Hank Reichman at the Academe Blog has a writeup of the day’s proceedings. The policies were approved essentially unmodified: there was a minor change in the definition of the remediation time-frame in the post-tenure review policy. The faculty layoff policy was approved as drafted, with no discussion, despite the fact that the Education Committee had convened an extraordinary session with all Regents present for the express purpose of discussing the policies. Okay, then.

With no substantive changes to the earlier drafts, the policies’ many problems remain. Several Regents have tacitly acknowledged the existence of those problems by impugning the character of the policies’ critics rather than defending the policies solely on the merits. Regent President Regina Millner said that some faculty leaders would have complained about the policies “no matter what we wrote.” System President Ray Cross said, “It’s frustrating to me that the emotional reaction on the part of some folks failed to realize the substance of tenure was simply moved from statute to board policy.” Such emotional reactions apparently include that of the national AAUP, which wrote the following in a joint statement with AFT-Wisconsin: “We remain concerned, however, that some of the provisions in the draft regent policy documents fall far short of [AAUP] standards.”

The claim that tenure has simply moved to board policy is belied by Cross’s comment, two sentences later, that the new policy “also had to honor language in new legislation”. Chuck Rybak lays bare the illogic in the space of a tweet (journalists, take note!):

Cross appears to be referring here to new legislation around post-tenure review, describing it as “new legislation concerned about accountability with reasonable timelines and processes to deal with underperforming faculty, and to reward faculty who exceed expectations.” Likewise, Regent Gerald Whitburn, the chair of the Education Committee, said of the UW System’s existing post-tenure review policy (adopted in 1992) that “It did not facilitate accountability and result in an even playing field across our institutions. Frankly, I think that’s why the Legislature did what they did.”

The thing to know about this, though, is that on post-tenure review, the Legislature did nothing. The Legislature made massive, largely destructive changes to the UW System in Act 55 (the 2015–17 biennial budget), but nowhere in Act 55 did they require the Board of Regents to make changes to its post-tenure review policy. It’s entirely plausible that individual legislators have told the Regents that they would like to see such changes, but there is no legislation to this effect. (Again, journalists, hello?)

A major remaining concern about the faculty layoff policy is the question of whether faculty may be laid off or terminated in program changes short of discontinuation. Chapter 36, as amended by Act 55, clearly says yes. The Regent policy says that layoff and termination can happen in cases of program discontinuance, but is silent on curtailment, modification, and redirection. After the policies were approved by the Education Committee two weeks ago, both UW System counsel Tom Stafford and Regent John Behling, who chaired the task force, insisted that the Board would not be permitted to lay off or terminate faculty in program changes short of discontinuation:

“Stafford told reporters Friday that if the proposed policies are adopted, regents would need to vote to change the policy before exercising their statutory power to lay off faculty for program changes short of discontinuation.”

“The new policy allows for faculty to be laid off only if their program is discontinued, however, and ‘clearly restricts’ UW officials from using the other justifications lawmakers gave them, said Regent John Behling, who led the task force that wrote the policy.”

If this is indeed the intended interpretation of the policy, then surely the Regents wouldn’t object to amending the policy to include a positive assertion to that effect? Perhaps something like “Notwithstanding the powers granted to the Board by Wis. Stat. s. 36.22 (2)(a), no faculty member shall be laid off or terminated as a result of a budget or program decision requiring program curtailment, modification, or redirection, unless that decision requires program discontinuance.” Such a change would be consistent with statute, would help build confidence with faculty, and, per the Regents’ own characterization, would be semantically innocent.


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Modify and redirect

This week the UW System Board of Regents will take up the draft policies on faculty layoff and post-tenure review developed by the Tenure Policy Task Force, the latest versions of which were circulated on January 22.  The policies go before the Education Committee not at its regular Thursday meeting, but at an extraordinary session on Friday, with all Regents in attendance.  The policies will go before the full Board for approval at the Regents’ March meeting.

The draft policies are substantially similar to the versions released in December before the final meeting of the task force, and many of the criticisms of the December drafts apply to the current drafts, as well.  The “educational considerations” that are to serve as the fundamental criteria for program discontinuance decisions are still defined in such a way as to be inseparable from financial considerations.  Negative post-tenure review decisions are still not subject to institutional grievance procedures, a gross violation of due process; failure to complete a remediation plan can lead to dismissal for cause, in a cavalier expansion of the definition of just cause for dismissal.  And the preamble to the faculty layoff policy still purports to quote AAUP’s language on using layoff as a last resort, when in fact it says only that all feasible alternatives must be “considered” (AAUP says “pursued“).

One improvement from the December drafts concerns the institution’s responsibility to faculty who are laid off.  Both the financial emergency section and the program discontinuance section now contain the following language: “As provided in Wis. Stat. s. 36.22 (12), institutions shall devote their best efforts to securing alternative appointments for faculty laid off under this section, and also shall provide financial assistance for readaptation of faculty laid off under this section where readaptation is feasible.”  This is an aesthetic improvement to the policy, not a substantive one, since the protections enumerated here reside in statute (36.22 was created as part of 2015 Act 55, the biennial budget bill), but it is nonetheless welcome.  Wisconsin’s newly amended statute appears to be consistent with the AAUP’s Recommended Institutional Regulations on this point. [Update: Dave Vanness points out that AAUP RIR calls for a year’s severance pay for faculty for whom a suitable alternative position cannot be found, whereas 36.22 and the Board’s draft policy do not.]

What remains conspicuously absent from the draft policy on faculty layoff is any specific forswearing of the Board’s statutorily granted powers to lay off or terminate faculty in cases of program curtailment, modification, or redirection, i.e. program changes short of outright elimination or closure.  The ability to make such micro-changes to programs invites all kinds of administrative abuse and is a clear threat to academic freedom.

Let’s go through this piece by piece.  We begin with Wisconsin statute:

  • Wis. Stat. s. 36.22 (2)(a): “The board may, under this section and s. 36.21, with appropriate notice, lay off or terminate any faculty member when such an action is deemed necessary due to a budget or program decision requiring a program change.”
  • Wis. Stat. s. 36.22 (1)(b): “‘Program change’ means program discontinuance, curtailment, modification, or redirection.”

So, state law now says that tenured faculty can be laid off for essentially any reason whatsoever.  The UW System has a thing called tenure, but it bears no resemblance to tenure as defined by the AAUP, every normal university in America, and pre-2015 Wisconsin.  This was the starting point for the Tenure Policy Task Force’s work; it’s old news by now.

Now to the draft policy language:

  • Faculty layoff draft policy (preamble): “As provided in Wis. Stat. s. 36.21 and Wis. Stat. s. 36.22, and Chapter UWS 5 of the Wisconsin Administrative Code, the Board of Regents of the University of Wisconsin System (Board) has authority, with appropriate notice, to terminate through layoff a faculty appointment when necessary in the event of a financial emergency, or a program decision resulting in program discontinuance.”

True, but incomplete.  Continuing on:

  • “The Board is permitted by Wis. Stat. s. 36.21 to adopt procedures relating to faculty layoff. Consistent with Chapter UWS 5 and Wis. Stat. s. 36.22, this Board policy sets forth those procedures. Faculty layoffs at University of Wisconsin System institutions may be undertaken only in accordance with this policy, Chapter UWS 5, Wis. Stat. s. 36.21, and Wis. Stat. s. 36.22.”

It’s hard to see how this rules out the possibility of layoff for the several reasons enumerated in 36.22 (2)(a).  Remaining silent on the matter of curtailment, modification, and redirection doesn’t mean that layoffs for those reasons are barred, or even that they are against Board policy…since the draft policy explicitly says that faculty layoff can occur in accordance with 36.22!  This isn’t exclusion by omission; it’s a glaring lacuna in Board policy.

It would be easy for the Board to adopt specific language addressing these points, e.g. by including a clause that says, “Notwithstanding the powers granted to the Board by Wis. Stat. s. 36.22 (2)(a), no faculty member shall be laid off or terminated as a result of a budget or program decision requiring program curtailment, modification, or redirection, unless that decision requires program discontinuance.” Such a clause wouldn’t contradict statute: negated “shall” is consistent with positive “may” (different ordering sources, if you want to get technical about it).  This is where the “merely permissive” rubber of the 36.22 language could have hit the Board policy road, as Ray Cross and Becky Blank repeatedly insisted it would.  Instead, we have a draft policy that does nothing to address the problem at the root of the Wisconsin tenure crisis, and that, if approved in this form, will consummate the elimination of tenure in the UW System in all but name.

Finally, it’s worth noting that the “discontinuance, curtailment, modification, or redirection” language wasn’t plucked from thin air: it’s been part of the Wisconsin administrative code governing academic staff in the UW System for years.  Per UWS 12, academic staff with indefinite appointments—the analogue of tenure—are subject to layoff in all of the above scenarios.  36.22, in combination with the Regents’ selectively silent draft policy, puts tenured faculty on an equally bad footing.  Academic staff in the UW System have, and faculty soon will have, wholly inadequate guarantees of academic freedom.  It’s time to fix this for everyone.