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.