Language Politics

By Nicholas Fleisher

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.