Language Politics

By Nicholas Fleisher

Clearing the way

The attack on tenure and shared governance in the UW System is now attracting national attention. A coalition of twenty-one scholarly organizations issued an open letter denouncing the proposed changes. Others have since followed suit, including the AAUP. The higher ed media recognizes it for the signal event that it is. And the national political media has jumped at the opportunity to write more stories about Scott Walker, taking a subsidiary and almost prurient interest in the fate of the University of Wisconsin, which now takes the place of public-sector unions as foil to Walker’s all-conquering political persona.

Closer to home, the editorial board of the Milwaukee Journal-Sentinel issued a startlingly strong defense of tenure and shared governance on Friday. The party line on the proposed changes—which has been repeated by everyone from the members of JFC to the Regents to Ray Cross and Becky Blank—is that tenure protections are simply being moved from statute into Board policy. Many of us have been pointing out, to precious little avail, that this is a bit like saying that your shield will continue to protect you when your counterpart has traded in its sword for a weaponized drone. It is, frankly, amazing that the JS called bullshit here, and that they further decried Assembly Speaker Robin Vos’s “willful misreading of the whole idea of academic tenure.” To be sure, the editorial board is not nearly so kind to shared governance, which it professes to exalt while in the next breath opining that chancellors “need control over the major decisions on their campuses including what courses of study are offered.” But for its defense of tenure, and its vindication of reality in the face of willful and near-universal obfuscation from both legislators and UW administrators, the JS deserves major credit.

Largely lost in the present furor is attention to the state disinvestment that has precipitated the tenure crisis in the first place. The JFC omnibus motion attacks the UW System from all sides. And while it’s hard to argue with people’s devoting their efforts to protecting tenure and shared governance, this has shifted attention decisively away from the massive $250 million cut to the System proposed for the next two years. For all the pugnacity of the JS‘s stance on tenure, there was not a peep about money. Even the sharply worded resolution passed by the UW-Madison faculty senate last week limits itself to a call for legislators and administrators to remove “non-fiscal language” from the JFC omnibus.

The irony of this should be obvious: ideological animus notwithstanding, the major purpose of getting rid of tenure is to clear the way for more cuts. It is an absolute certainty that Wisconsin Republicans intend to continue cutting state appropriations to the UW System for the foreseeable future. This is clear when Robin Vos asks, “[D]o we need to have every major on every campus, or should we specialize more or do a more collaborative process?” (Never mind that an administrator’s efficiency is a student’s lack of opportunity; see Chuck Rybak today for more.) It is clear when our newest Regent, the son of Walker’s preeminent political patron and gubernatorial campaign chair, talks immediately about cutting degree programs and says, “I think eliminating a campus is probably a pretty high mountain to climb,” relishing the challenge as much as lamenting the impediment.

Regardless of what happens with tenure and shared governance, the cuts are coming. They will be devastating, and they will be followed by further cuts in future biennia. Ultimately, saving the UW System will require more than the preservation of tenure and shared governance. It will require a reversal of the long-standing downward trend in state funding. And it will require a mechanism for ensuring that increases in state funding benefit students in the form of reductions in tuition. That is to say, it will require a management structure that undoes the present moves to concentrate power, CEO-like, in the hands of chancellors, who, among other things, can recoup lost tuition revenue by unilaterally increasing other fees.

For the moment, the attack on tenure and shared governance is performing its tactical purpose admirably, distracting attention almost completely from this year’s $250 million cut. But the JFC omnibus motion is a multipronged attack that calls for a correspondingly multifaceted defense, of which saving tenure and shared governance is but a single part.


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Stop making sense

In the wake of the UW System Board of Regents’ decision last week to “pretend to have tenure”, System leaders are coming to acknowledge more and more in their public statements the correctness of the worries they have simultaneously attempted to depict as alarmist. The very grave problem posed by section 39 of the JFC omnibus motion is finally on the public radar of UW administrators, though they continue to soft-pedal its severity.

Here is the relevant portion of Chapter 36.21 as it currently stands: “Notwithstanding ss. 36.13 (4) and 36.15, the board may, with appropriate notice, terminate any faculty or academic staff appointment when a financial emergency exists.”

The JFC motion hasn’t yet been publicly released in the form of proposed statutory language, but when section 39 is incorporated into statute, the relevant portion of 36.21 (or its replacement) will likely end up looking something like this: “Notwithstanding [potential replacements of to-be-deleted tenure/indefinite status provisions], the board may, with appropriate notice, terminate any faculty or academic staff appointment when such an action is deemed necessary due to a budget or program decision regarding program discontinuance, curtailment, modification, or redirection.”

The Board of Regents at its meeting last week did not even entertain the idea of adopting the current 36.21 language as Board policy, as it did with the current 36.13 language around dismissal. There may be a variety of reasons for this, but here is an obvious and politically disinterested one: the new statutory language emanating from section 39 will logically entail the old 36.21 language. Financial emergency is just a special case of the much broader conditions outlined in section 39, and so putting the old 36.21 into Board policy would be completely ineffectual. (On the other hand, specifying in Board policy that termination could happen “only when a financial emergency exists” would be a far more stringent condition, and so would contradict statute.)

System President Ray Cross and UW-Madison Chancellor Rebecca Blank are apparently now working actively to remove the section 39 provisions from the budget, and this is indeed welcome news. At the same time, they are attempting to reassure everyone that something like adequate tenure protections can be maintained even if section 39 stays in. This was stated by Cross in his weekend email to chancellors (as reported by Karen Herzog yesterday) and by Blank in her message to the UW-Madison community today. Here is the relevant excerpt from Blank’s message: “Section 39 isn’t a command or directive. It merely authorizes the Board of Regents to lay-off faculty for the stated reasons. The Regents can decide when and how they want to invoke that authority.”

In other words, Cross, Blank, and other UW administrators are attempting to hang a meaningful set of tenure protections on the “deemed necessary” hook in the anticipated statutory language. They think they have found a loophole; I’m not a lawyer, but count me as highly skeptical. The problem comes down, once again, to the difficulty of finding a way to articulate conditions under which the actions could be “deemed necessary” that doesn’t conflict with statute, which will specifically outline a broad set of conditions of just this type. For instance, the proposed conditions certainly couldn’t limit such actions to cases of financial emergency, for reasons outlined above.

The Board of Regents can, as a matter of informal practice, “decide when and how” to use the powers granted to it by the Legislature. But it cannot formally adopt a written policy that forbids it from using its statutory authority. That would be, in the most literal sense, against the law. (And of course, this whole discussion sets aside the very open question of whether the present Board of Regents has any interest in forswearing the broad firing powers that JFC wants to give it.)

The only hope for tenure in the UW System is for section 39 to be removed from the budget. As my colleague Richard Grusin put it yesterday, Wisconsin is about to go from being the only state with tenure in statute to being the only state with broad provisions for firing tenured faculty in statute.

A final note: it will be important for UW-Madison and UW-Milwaukee faculty to maintain their current mobilization in the event that the section 39 language becomes law. The threat against tenure and shared governance (including for academic staff and students) is a universal one. In practice, the firing ax, if and when it falls, is likely to fall first and most heavily at the UW Colleges and the 11 four-year non-doctoral campuses, far from Milwaukee and especially from Madison. For all the ideological animus behind the attack on tenure and shared governance, the motivation is perhaps most immediately a financial one. The Madison faculty’s preeminence in winning external funding means that the savings from firing the average Madison faculty member is likely lower than at any other UW campus, and in many cases there would be a large net cost to the System; and likewise, though to a far lesser extent, for Milwaukee.

As our state government turns the austerity screws, those who fare best under its logic must not abandon the principled fight that, for the moment, has united faculty across the UW System.

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Post-tenure review: BOR-ed to death

Reader, I was there: at yesterday’s meeting of the Education Committee of the University of Wisconsin System Board of Regents, held here at UWM, where a resolution on tenure was taken up; where faculty from UW-Madison and UW-Milwaukee addressed the Regents about the importance of tenure and questioned the motivation for altering its legal status and definition; and where a symbolic but nonetheless significant amendment asking the Legislature to remove nonfiscal items from section 39 of JFC’s omnibus motion #521 of last Friday was snuffed out, on a party-line vote, in a bit of well-orchestrated parliamentary sabotage.

The existing statutory protections for tenured and tenure-track faculty in the UW System consist of two parts, one limiting the grounds for “dismissal” and the other providing an override permitting “termination”. Chapter 36.13 says that faculty “may be dismissed only for just cause and only after due notice and hearing”; but Chapter 36.21 adds that, notwithstanding those and related provisions, “the board may, with appropriate notice, terminate any faculty or academic staff appointment when a financial emergency exists.” In other words, a faculty member can be fired and their position refilled only if there is “just cause” for doing so; but if a financial emergency forces the elimination of the position altogether, a faculty member can be fired absent any independent just cause. The various penalties and other difficulties attendant upon declaring a financial emergency are severe, and the existing protections for faculty are correspondingly quite strong.

The current talking point among Republican legislators and many Regents is that tenure is being moved from statute into Board policy. Quite apart from the question of why one would do this in the absence of a desire to weaken tenure protections (the oft-repeated point that Wisconsin is the only state where tenure resides in statute is just an observation, not an argument), this way of framing the matter obscures what is actually happening. The dismissal provisions of 36.13 are being deleted from statute and copied into Board policy; but the termination override language of 36.21 is being drastically expanded in statute by JFC in section 39 of the omnibus motion. The Education Committee yesterday, and the full Board today, voted not to exhort the Legislature to drop the expanded termination language from statute. If that language becomes law, the restraints previously imposed by the financial emergency condition will be completely removed, and essentially any program change, reorganization, or downsizing initiative can be used as a reason (or a pretext) for terminating faculty.

Animus towards tenure is of course not only a Republican trait: some of the most zealous “school reformers” of recent years are Democrats who have taken aim at tenure for K-12 teachers and principals. More generally, the project of putting private interests in the way of massive public cash flows is a fully bipartisan one.

But the present attack on faculty tenure in the UW System is also part of a particularly Republican project. Specifically, UW faculty tenure is an obstacle to the broader project of dismantling the state. With state appropriations to the UW System having been continually cut (by both Democratic and Republican administrations) over the past fifteen years, we are now at the point where cutting further would require firing faculty. The law is being changed accordingly. As we now know, this is being done with the tacit approval of the Board of Regents, who will oversee the downsizing necessitated by this year’s cuts and those that will surely follow in the future.

Meanwhile, the Regents also moved at this week’s meeting to dramatically expand their power relative to faculty in chancellor searches, in line with the newly downgraded role of faculty in university governance spelled out in the JFC omnibus motion.

There is a slim hope that tenure in the UW System might be saved, but it will require the removal of the section 39 termination language from the budget. The Board of Regents will not advocate for its removal; perhaps individual Regents might. It is incumbent upon faculty to do what little is in their power to generate goodwill with legislators, particularly with those few Republican state senators who might swing the budget vote. One specific action that can be taken is for faculty senates across the UW System to pass resolutions in support of a future cap on tuition increases for resident undergraduates. This might rankle administrators, who have argued vehemently against any such cap, but it would be a good thing for students, and faculty should support it independently of present concerns over tenure. It also happens to be a major concern of State Senator Steve Nass (R-Whitewater).

In all likelihood, we are headed for the elimination of tenure in the UW System in all but name, and its messy fallout: certainly lawsuits, probably censure by professional organizations, possibly even loss of accreditation and access to federal student aid. Some faculty will leave for other universities; many more won’t be able to, for a variety of reasons. But all UW System faculty will have one eye on the door from here on out.

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UW post-mortem: outcomes

In the wake of JFC’s disastrous UW System omnibus bill passed last Friday, here are a few reflections on the role of UW System administrative leadership in getting us to this point and the consequences for the various parties involved. An assessment of outcomes, if you will.

From the perspective of faculty, academic staff, classified staff, and students, System leadership’s strategy of accommodation and non-confrontation with the Legislature looks like a spectacular failure. Tenure and shared governance are gone; indefinite status for academic staff is gone; students’ role in shared governance is gone. We have a $250 million cut, an unfunded tuition freeze, and no “stable and predictable” funding increases scheduled for the future. The notion that the much-touted “flexibilities” somehow depended on the public authority structure has likewise been shown to be false: section 19 of the omnibus bill exempts the UW System from state law governing purchasing and procurement by state agencies. It’s two sentences long; easy peasy.

From the perspective of System administrators, things look rather different. While tenure can be nominally reimplemented in Board of Regents policy (even if section 39 of the omnibus bill kills it in practice; but please do sign this petition!), shared governance is definitively neutered in statute. Legislative leaders have loudly declared their intention to make chancellors more like CEOs, and our local right-wing think-tank community wants to go even further. Against this backdrop, UW System leaders’ public statements in response to JFC’s omnibus bill—statements whose overriding tone is one of gratitude undergirded by obsequiousness—make perfect sense, even as they alternately disgust and infuriate the rest of us. Amid the general calamity for faculty, academic staff, classified staff, and students, there is an alignment of legislative priorities with administrative interests.

The question is what will be left for our newly empowered chancellors to preside over. The question is perhaps most pressing for the system flagship, UW-Madison. While Madison is the campus best able to weather the financial challenges of the $250 million cut, it is also the campus most vulnerable to the financial fallout of faculty poaching and defection: it has the farthest to fall. As scholars depart and take their external funding with them, the $250 million cut in state support will represent an ever larger proportion of the System’s total budget.

The big fish in UW administration are getting bigger, and the pond is getting smaller. The rest of us may have to evolve and take our chances on dry land. God help the students.