The UW System Tenure Policy Task Force has now circulated draft policies on faculty layoff and post-tenure review, to be discussed at its upcoming meeting on Dec 23. These are notable for being the first bits of actual policy language we have seen from the task force. At its Nov 30 meeting, the task force took up a set of recommendations about what the eventual draft policies should include, but proper policy drafts were not on the agenda. Those pre-circulated recommendations came under sustained criticism from the UW AAUP chapters and several task force members, prompting the scheduling of the Dec 23 meeting (Nov 30 was originally to have been the group’s last) and thereby giving task force members an opportunity to weigh in on the actual policy language that will be forwarded to the Regents.

The draft policies include some encouraging AAUP-inspired clauses: if the Board of Regents chooses to go against a faculty recommendation on financial emergency or program discontinuance, it should be “only for compelling reasons which should be stated in detail”; in post-tenure review, “[t]hose who must have a role…include peer faculty members”. In other places, a seemingly strong AAUP-derived principle is undermined by a subtle change: “faculty layoff will be invoked only in extraordinary circumstances and after all feasible alternatives have been considered”, says the draft, disquietingly non-committal next to the AAUP RIR‘s decisive “pursued”.

If one can glimpse daylight between the draft policy and AAUP RIR in the passage above, once we get to program discontinuance it’s time to break out the shades. The problem stems from how the draft policy defines the “educational considerations” that may lead to the closure of a program or department (and the faculty layoffs that may ensue). AAUP RIR 4(d)(1) puts things very simply, stating that program discontinuance must “be based essentially upon educational considerations, as determined primarily by the faculty as a whole or an appropriate committee thereof”, and noting further that “‘Educational considerations’ do not include cyclical or temporary variations in enrollment. They must reflect long-range judgments that the educational mission of the institution as a whole will be enhanced by the discontinuance.” The task force’s draft policy, by contrast, moves immediately and repeatedly to inject financial considerations into the definition of educational considerations:

• “Educational considerations may include financial or strategic institutional planning considerations such as long-term student and market demand” (II(1))
• “This includes the reallocation of resources to other programs with higher priority based on educational considerations. Such long-range judgments generally will involve the analysis of financial resources” (II(2))
• “The proposal…shall contain appropriate information and analysis regarding the educational considerations, including programmatic and financial considerations, supporting the proposed program discontinuance.” (II(3))

Where AAUP countenances program discontinuance as a possible outcome of academic reorganization in response to the advancement of knowledge, the task force’s draft policy sees it as a tool for shoring up the System’s balance sheet (or for kicking perceived moochers or other unfavorables to the curb). This is where the dirty work of downsizing the university is meant to fly under the banner of AAUP compliance: “educational considerations”, understood in this way, can be invoked to shut down academically unimpeachable programs in order to accommodate a legislatively induced financial quasi-emergency.

To fully appreciate the gulf between the AAUP’s recommendations on program discontinuance and the UW draft policy, consider the fates they respectively envision for faculty in the affected programs. For AAUP, this is spelled out in RIR 4(d)(3) (which, incidentally, contains the lone occurrence of the word “financial” in the entire section on program discontinuance): “Before the administration issues notice to a faculty member of its intention to terminate an appointment because of formal discontinuance of a program or department of instruction, the institution will make every effort to place the faculty member concerned in another suitable position. If placement in another position would be facilitated by a reasonable period of training, financial and other support for such training will be proffered.” AAUP’s injunction to retain faculty from shuttered programs is conspicuously absent from the task force draft policy. Indeed, the draft policy is totally silent on the matter of the institution’s responsibilities to faculty in discontinued programs (beyond the general requirements governing layoff and termination). It is hard to avoid the conclusion that the primary purpose of program discontinuance in the UW System will be to downsize the faculty workforce, and only secondarily to realign programs for educational purposes. [Update: see here.]

For all that, perhaps the greatest point of interest in the draft policy is its engagement with Act 55’s notoriously broad language around layoff and termination. Wis. Stat. 36.22(2)(a) now allows the Board to “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”; “program change” here is shorthand for the Four Horsemen of the Tenure Apocalypse: “program discontinuance, curtailment, modification, or redirection” (36.22(1)(b)). UW administrators spent the summer and fall reassuring everyone that this statutory language was merely permissive, and that the Regents would be able to adopt policies that prescribed a narrower set of conditions on faculty layoff than the legislature put into law (and quite literally any set of conditions would be narrower). The task force draft policy is our first look at what the Regents have in mind. How goes the forswearing of broad firing powers?

Creditably, at least so far. The draft policy limits faculty layoff outside of financial emergency to cases of program discontinuance, as the UW AAUP chapters called on the task force to do: per section II(1), faculty “may be laid off in the event that educational considerations relating to a program change require program discontinuance” (keeping in mind the enormous caveat above about “educational considerations”). Curtailment and friends appear in the draft policy, but they are limited to cases of financial emergency (section I(1)). The charitable reader will imagine System lawyers assiduously including all of 36.22’s infamous defined terms while endeavoring to limit their scope of application so as to avoid making a complete joke of tenure. The skeptical reader will observe that the draft policy does not expressly prohibit the Board from firing faculty via curtailment et al. as part of a program change outside of financial emergency. And the observer of UW and Wisconsin politics will understand that those terms are but a single motion-to-amend away from potential reappearance at the Regents’ meeting in February.

In that connection, we must keep in mind that the task force’s work is advisory to the Regents, and that the draft policies we see this week are subject to revision by the Education Committee and the full Board. While the task force’s members have done an admirable job of pushing back against the worst proposals from the Regents in charge (though to little avail on negative post-tenure review decisions, which are still not grievable), they have been constrained by the task force’s rules of procedure, which have limited their role to one of reaction and consultation. The draft policies we are seeing this week were developed in their particulars and written entirely by System lawyers, never voted on by task force members. The task force is thus not so much a committee as a focus group, convened for the sake of showing that it was convened. Whatever the ultimate fate of their work, its members have a final chance to take advantage this public role on Wednesday.

(A footnote: in a document where “termination” and “layoff” are separate defined terms, specifying very different sets of rights for affected faculty, what on earth is the phrase “terminate through layoff” supposed to mean? It appears in the Policy preamble to the faculty layoff document.)