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.

UW tenure: the task force awakens

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.)

1 Comment

Austerity at UWM: CCOET

Budget cutting is in full swing at UW-Milwaukee. Beyond the loss of meaningful tenure protections (underscored by recent developments with the Regents’ Tenure Policy Task Force) and the gutting of shared governance, UWM faces a looming financial crisis. The crisis is the result of the massive 2015–17 biennial budget cut in combination with a variety of other factors. UWM’s chancellor, Mark Mone, has convened two groups to deal with the crisis: the Budget Planning Task Force, which has dealt with allocating the $30 million in cuts to UWM over the 2015–17 biennium, and the Chancellor’s Campus Organization and Effectiveness Team (CCOET), which is tasked with making recommendations for long-term structural changes to shrink the institution.

The bottom-line goal for CCOET is to cut $15–$20 million from UWM’s annual budget, permanently. CCOET has thus become the visible locus of austerity on campus. Its meetings, which are open to the public, are starting to attract crowds. Transparency, inclusion, and openness are the watchwords. The reality is a bit more complicated.

When asked about the relationship of CCOET to existing shared governance groups on campus, administrators have emphasized the degree to which CCOET’s membership includes representatives from those groups: the University Committee, the Faculty Senate, the Academic Staff Committee, the Student Association, and even our campus AAUP chapter all have members on CCOET. This is a canny way of constructing a committee whose membership is, in the end, dominated by administrators. Somewhat more troublingly, administrators’ responses to date indicate that this sprinkling of representatives is meant to serve as a kind of proxy for actual shared governance. It should be lost on no one that CCOET is, from a governance perspective, simply an extension of the chancellor, and that it therefore bears exactly the same relationship to other governance bodies that the chancellor himself does.

Sitting as it does in this uneasy space in the new shared governance landscape, CCOET’s role and powers have taken on a shape-shifting quality, changing to suit the purpose at hand. On the one hand, the committee is obviously meant to hash out the gory details of the campus’s downsizing: the task is enormous, with huge consequences for the institution, and all the heavies are there. On the other hand, the committee co-chairs often step back and remind us that they are simply generating recommendations to submit to the chancellor, as if to establish plausible deniability in the face of questions about adherence to established governance practices. The chancellor, meanwhile, indicated at today’s campus budget forum that he hopes to begin implementing CCOET’s recommendations within a matter of weeks after they are submitted to him in February, a timeline that holds out almost no hope of a meaningful vetting by the Faculty Senate or any other shared governance body.

The substance of those recommendations, meanwhile, remains a major unknown. CCOET has exhorted the campus community to give it its best ideas about how to restructure the campus to save money. Those calls ring hollow in the absence of detailed, interpreted, publicly available financial data on which to base such ideas. CCOET has trumpeted its transparency, and it is certainly to be commended for holding open meetings and posting meeting notes and selected data presentations on its website. But CCOET, or a subset of its members, is very obviously working with far more financial data than has been shared with the campus. This is, to some extent, inevitable: university budgeting is complex, and even the best-informed CCOET members have remarked publicly on the ways in which they have only belatedly come to understand certain aspects and implications of the data. It is not in and of itself a problem that CCOET has more data, or a clearer interpretation of the available data, than everyone else does at this point. What is a problem is that CCOET will soon be making detailed proposals on how to proceed, without the campus community (or, if last week’s meeting is any indication, even the entirety of its own membership) having had access to that same set of interpreted financial data. How can CCOET’s members, much less the broader campus community, assess the merits of a funding formula with very disparate impacts on UWM’s different schools and colleges without having had the chance to consider other possibilities? The accelerated timeline and the asymmetry of access ensure that only a select few will have an adequate factual basis for making recommendations; everything else is moot.

Meanwhile, CCOET’s recommendations will come on the heels of the FY16 and FY17 cuts enacted by the Budget Planning Task Force. The FY16 cuts were decided on over the summer, but, rather amazingly, the campus administration still does not have a comprehensive picture of what has actually been cut. Those FY16 cuts were one-time cuts in the amount of $15.7 million, coming in part from spending down the campus’s now almost entirely depleted reserves. The chancellor has now accepted the BPTF’s recommendations for the FY17 cuts, which are permanent base-budget cuts of $14.5 million, $8.8 million of which will come out of Academic Affairs. Details of the FY16 cuts have now been collected and will be shared with everyone soon; units have until Dec 23 to provide details on how they will handle the FY17 cuts. Meanwhile, CCOET is working on further permanent cuts of $15–$20 million, doing the bulk of its work without any detailed knowledge of the cuts that have gone before.

So, we are rushing headlong into an extraordinary budget-cutting process that, for all its invocation of inclusiveness and transparency, will be decided by those few who have both the information necessary to make concrete recommendations (or something approaching it) and the power to enact them. Top administrators and CCOET members insist that the research mission of the university is not on the table; but it is hard to avoid the feeling that CCOET’s work amounts to flinging the entire institution against the wall and seeing what sticks. Meanwhile, rumblings about cuts to the UW System in the 2017–19 biennium have already begun.


UW tenure: the end

So: no, there will not be real tenure in the University of Wisconsin System.  That much has been more or less clear since May 29, when the Joint Finance Committee dropped its UW omnibus motion bomb.  It became even clearer when the motion’s broad provisions for terminating tenured faculty became law, essentially unaltered, with the signing of the biennial budget in mid-July.  And it walked up and punched any remaining doubters in the nose yesterday, at a meeting of the UW System Tenure Policy Task Force in Madison.

The news of the day was that UW-Madison will not be allowed to write its own tenure policy, but instead will be bound within the parameters of a system-wide policy developed by the Board of Regents.  Why would anyone have thought otherwise?  Perhaps because UW-Madison’s chancellor spent the summer explicitly and repeatedly insisting that Madison would be able to write its own policy, as part of its newfound autonomy in personnel matters (Wis. Stat. 36.115).  The UW-Madison University Committee did as much, drafting language that attempted (however hopefully) to assert strong, AAUP-level tenure protections while staying within the confines of the new statutory language of Act 55.  Many seem to have believed that a strong Madison tenure policy could serve as a model for the entire System; but in any case Madison would be okay.  The reality check came on Tuesday in the form of a memo from Ray Cross, and yesterday’s task force discussion made clear that no amount of campus-level rule-making will trump the policy to be adopted by the Regents.

We learned a bit more yesterday about what that Regents policy will look like.  In particular, we learned that the Regents will mandate a post-tenure review process one of whose possible outcomes is termination of a tenured appointment.  The Regents’ post-tenure review proposal has been drafted and presented in much the same way as the Legislature’s program modification language in May: a brief nod at a good thing (merit pay, a tenured appointment) followed by lengthy, point-by-point detail on how to fire people.  System lawyers asserted that termination of an “underperforming” faculty member through the post-tenure review process will fall under dismissal for cause (the AAUP, to put it mildly, does not share this view).  Never mind that there are no agreed-upon performance parameters, and that any attempt to codify such parameters will (i) be a bureaucratic nightmare and (ii) introduce perverse incentives for tenured faculty, almost certainly to the detriment of students.  The Regents insist, plausibly, that this is what legislators have demanded.  But the Regents have yet to convince anyone that those legislators can actually be appeased.

Meanwhile, we are further and further from anything even remotely resembling a tenure policy that meets AAUP standards.  The notion that it was possible to create such a thing without contravening post-Act 55 statute was always misguided at best and deceitful at worst, no matter how insistently Cross, Blank, et al. pointed to the auxiliary “may”.  Commendable as the Madison and Milwaukee UCs’ efforts to create strong policy language have been, we were only ever going to get AAUP-standard tenure back by getting the Regents to put pressure on legislators, i.e., by effecting a complete reversal of the political dynamics of the UW System.  In September, before the last meeting of the Tenure Policy Task Force, the executive committees of the UW-Milwaukee, UW-Whitewater, and UW-Madison chapters of the AAUP released a joint statement outlining some guiding principles and specific recommendations that the Tenure Policy Task Force could make along those lines (disclosure: I am vice president of the UWM chapter).

The Regents, it seems, were unmoved.  Even so, the statement remains a useful yardstick for determining just how far from AAUP compliance the forthcoming system-wide Regents tenure policy will be.

Out of balance

The Wisconsin Legislature passed the 2015-17 biennial budget this week. The Senate went first, in order to accommodate the Mexican vacation plans of Sen. Frank Lasee, who early Tuesday sponsored an amendment repealing the state’s prevailing wage law, which in turn brought the final two Republican holdouts in the Senate on board. The Assembly passed it Wednesday, with 11 Republicans joining all Democrats in opposition.

The final hope for tenure, shared governance (on which do yourself a favor and read this immediately), and indefinite status in the UW System now lies with Scott Walker’s veto pen. Likewise for Milwaukee Public Schools, which face an uncertain future in the wake of the passage of the OSPP/MPS takeover plan. Rep. Dale Kooyenga, the plan’s cosponsor, was visibly drunk on the floor of the Assembly during the debate leading up to its passage. [Update: if you suspected Kooyenga’s LWI ravings were misleading and economically baseless, you were right!] Kooyenga is also a vice co-chair of the Joint Finance Committee. On Monday, he sheepishly claimed not to have understood the scope of the open records law evisceration he happily supported last Thursday. What exactly does it take to disqualify yourself from a spot on the Legislature’s most powerful committee?

In the absence of a Walker veto, Democratic legislators could demand the undoing of these budget items in exchange for supporting the public financing plan for the new Bucks arena, which will need fairly broad Democratic support to pass. But they would have to present a credible threat of being willing to let the Bucks leave. There may be more hope for a Walker veto.

Meanwhile, yesterday in Madison the UW System Board of Regents approved the System’s 2015-16 budget. Initial media reports Monday highlighted the differences in base budgets from 2014-15 to 2015-16 shown in Table A-1 of the Regents agenda. In fact, those differences mask a plethora of adjustments beyond this year’s cuts; for example, UWM Chancellor Mark Mone explained in an email Monday evening that UWM’s figures include an $18 million correction for federal financial aid that “has no impact on UWM’s actual revenues for operating purposes.” The allocation of the cuts across campuses, shown on p. B-3, amounts to between 2% and 4% of most campuses’ 2015-16 operating base budgets.

More ominous is the proportion of each campus’s 2015-16 operating budget that will come from the one-time use of cash balances. I have compiled those figures in the table below, with campuses listed in descending order according to the percentage of their 2015-16 operating budget that will disappear the following year. Look who’s no. 1.

UW System budgets, 2015-16
Campus Operating budget Use of balances %
Milwaukee 623,594,306 30,924,709 4.96%
Colleges 123,210,483 6,081,695 4.94%
Whitewater 241,445,297 11,500,000 4.76%
Eau Claire 202,420,333 8,679,660 4.29%
Stevens Point 206,237,084 8,162,955 3.96%
Oshkosh 248,763,292 8,517,647 3.42%
Parkside 88,385,378 2,848,000 3.22%
Green Bay 115,320,807 3,002,500 2.60%
Stout 186,193,939 4,333,252 2.33%
Platteville 166,101,513 1,742,860 1.05%
Superior 62,588,915 446,309 0.71%
River Falls 120,412,533 500,000 0.42%
Madison 2,710,038,526 10,000,000 0.37%
Extension 201,153,961 650,000 0.32%
La Crosse 199,000,147 0 0.00%
System Admin 10,643,174 0 0.00%
Systemwide 131,786,217 34,966,460 26.53%

Finally, System President Ray Cross secured a small victory by getting the Senate to treat $25 million of UW’s 2016-17 funding as a lapse. In other words, the UW System will get a $25 million funding increase in the second year of the coming biennium, but it will immediately give the money back to the state. The benefit for UW is that the System’s base funding level heading into 2017-19, on paper, will be $25 million per year higher than it otherwise would have been. That’s equal to a 20% restoration of this biennium’s $125 million-per-year cut.

With all due credit to Cross, however, this was not necessarily a difficult concession for Senate Republicans to make. In particular, lapses don’t count for purposes of the Legislative Fiscal Bureau’s calculations of structural deficits going forward: whereas the UW System gets to treat the lapsed $25 million as if it’s going to be spent the following year, the LFB and the politicians who tout its projections treat it as if it’s *not* going to be spent. The UW System lapse gets added to over $700 million in other lapses assumed in the second year of the coming biennium, all of which combines to paint an unrealistically rosy picture of the state’s fiscal health (and even under these manipulated assumptions, the state still has a $500 million structural deficit). The likelihood that the UW System will ever actually see this additional $25 million in yearly funding seems low indeed.

So, to recap: System leadership, through its “new partnership with the legislature“, has secured a largely symbolic commitment on future funding and nothing on tenure and shared governance, which are now at the mercy of Scott Walker. As campuses sprint towards the fiscal cliff, the one-time use of cash balances will keep many of them suspended, Wile E. Coyote-like, in mid-air. The coming year will be an exercise in looking down.


Going through the motions

What to say about last night’s Motion #999, with which JFC finished its work and sent the budget back to the full Legislature? The effective elimination of state open records requirements for Wisconsin legislators and their staff has grabbed headlines and been met with bracingly universal condemnation. It is an abuse of power so breathtaking that the twelve Republican legislators who voted for it are literally walking away from reporters when asked for the names of its sponsors.

In its contempt for democracy, transparency, public input, and the public good, however, it is entirely of a piece with the K-12 and UW System omnibus motions that JFC passed in May.

Of the many bad things in the K-12 motion, the “Opportunity Schools and Partnership Program” (OSPP) outlined in section 39 is perhaps the worst. Known locally as the MPS takeover plan, it was proudly sponsored by Rep. Dale Kooyenga and Sen. Alberta Darling, both from the Milwaukee suburbs. (Kooyenga’s Assembly district includes a small slice of the City of Milwaukee; the district is centered on Brookfield and Wauwatosa, and was formerly represented by Scott Walker. Darling’s Senate district used to include a similarly tiny slice of the City of Milwaukee, including the block I live on; post-2010 redistricting moved her district entirely out of Milwaukee. [Correction: the post-2010 redistricting completely removed from Darling’s district the portion of Milwaukee’s east side that she formerly represented; there remains a small section of Milwaukee’s northwest side that falls within the district.])

The plan creates, in effect, a parallel school district within Milwaukee that will be empowered to seize MPS schools and turn them over to charter operators or voucher-taking private schools. While there is, in principle, a mechanism for returning OSPP schools to MPS after a period of five years, that mechanism carries qualifications intended to ensure that no OSPP school will ever return to MPS. This, alongside funding provisions for OSPP and MPS spelled out in the motion, makes it hard to avoid the conclusion that the plan’s purpose is to bankrupt the Milwaukee Public Schools. It is a measure of Darling and Kooyenga’s contempt for the city and its people that they may sincerely believe that this would be a good thing for Milwaukee schoolchildren.

Aiding and abetting the plan is Milwaukee County Executive Chris Abele (who, like, Kooyenga, occupies a post once held by Scott Walker). The K-12 motion stipulates that the OSPP district be run by a commissioner appointed by the Milwaukee County Executive. At a lunchtime forum last week, Abele pointedly declined to state his opposition to the plan. Last night he received his apparent reward, in the form of section 67 of Motion #999, which drastically expands the powers of the Milwaukee County Executive relative to the county board. Abele is thus fully complicit in a plan whose all but openly acknowledged purpose is to destroy the Milwaukee Public Schools. It is depressingly far from implausible to think that the 2018 race for Wisconsin Governor could pit the Democrat Abele against the Republican Kooyenga.

The last hope for removing the MPS takeover plan from the budget comes from JFC’s failure to include funding for a new Bucks arena in their final budget motion. Republican leadership clearly does not want to lose the Bucks; Scott Walker himself jetted back to Wisconsin recently to hold a pro-arena press conference, selling short our collective dignity under the slogan “Cheaper to keep them“. Some outstate Republicans have balked, at least at the prospect of including the arena funding in a budget which their Democratic counterparts will have the political good fortune of being able to oppose unanimously. Republican leaders, in concert with JFC, have thus stripped the arena funding out of the budget and are now daring Milwaukee Democrats to vote against it as a standalone bill. This is the all too rare moment where Wisconsin’s Democratic legislators have negotiating leverage. They must use it to get the MPS takeover plan out of the budget.

It’s difficult to overstate the awfulness of the MPS takeover plan. I am both a tenure-track UW professor and an MPS parent. It is no small thing for me to say that the OSPP/MPS takeover plan is the provision in this budget that I find most objectionable.

Speaking of the university, Motion #999 left unchanged the termination language from section 39 of the UW omnibus that will effectively end tenure in the UW System (there were likewise no changes to the proposed elimination of indefinite status for academic staff and student control over segregated fees). The past few weeks have seen top UW administrators insisting furiously that tenure will remain secure. Unlike legislators, who continue to push the half-truth that tenure is moving into Board of Regents policy, UW administrators have begun to attempt a more nuanced parse of the offending termination language itself.

The result has been a mess of mixed signals: the new party line among UW administrators is that the System can retain bona fide tenure even if the section 39 language becomes law, but that the language has created a damaging public misperception and sown mistrust among faculty and others, and so should be removed as a gesture of good faith. UW-Madison Chancellor Rebecca Blank’s Chronicle op-ed of last week exemplifies this argument, which has also appeared in emails from System President Ray Cross and in conversations with UW-Milwaukee Chancellor Mark Mone reported by colleagues.

The administration’s argument that tenure can be preserved under section 39 rests on what one might charitably call a Pollyanna-ish misreading of the modal auxiliary may. Here are the relevant passages from the beginning of section 39:

Layoff due to budget or program decision: Modify current law to specify that 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, instead of when a financial emergency exists as under current law.

Specify that the Board may layoff or terminate a tenured faculty member, or layoff or terminate a probationary faculty member prior to the end of his or her appointment, when such an action is deemed necessary due to a budget or program decision requiring program discontinuance, curtailment, modification, or redirection.

In the terminology of the linguist Angelika Kratzer’s highly influential theory of modals, may and necessary here are interpreted with respect to different ordering sources, i.e., different sets of background facts and considerations. When JFC asks us to consider a situation in which the actions contemplated above are “deemed necessary”, it is necessity in view of what the university’s finances make possible, what the present educational imperatives of a university system are, and so forth. When JFC moves that such actions “may” indeed be taken in such a situation, it is possibility in view of what the law provides.

Cross, Blank, and Mone all claim to draw hope from the fact that the motion says may instead of must. This merely empowers the Board of Regents to take action under the (extremely broadly defined) circumstances specified in the motion, they say; it doesn’t force the Board to take any particular action. To which one can only respond: yes, how could it be otherwise? Imagine that may were replaced with must: this would create an absurd situation in which it would be necessary *in view of what the law provides* to fire tenured faculty when such an action is deemed necessary in view of budget and program considerations. In other words, it would be illegal not to fire tenured faculty in that case.

There is no hypothetical villainous must lurking here: may itself is the problem. Until now, budget necessities short of financial emergency (to say nothing of program necessities) have been situations in which it is impermissible, in view of what the law provides, for the Board of Regents to fire tenured faculty. The mere legal possibility, newly introduced by the JFC motion, *is* the problem. It is not a problem of perception or communication; it is a problem of law and power. UW administrators have made a show of staring this problem in the face, but they still dare not speak its name.

It hardly needs repeating at this point, but all of these extremely damaging changes to the state of Wisconsin—the gutting of open records laws, the planned dismantling of the state’s largest school district, the elimination of tenure in the UW System, and much more besides—were developed totally in secret by the twelve legislators who comprise the JFC majority, and passed on party-line votes within hours of being released to the public (or to committee Democrats, for that matter). The open records changes have drawn the harshest and broadest rebuke, but they are emblematic of a broader pattern of brazen disregard for the public that this committee has exhibited throughout the budget process. Chris Abele’s aligning himself with this committee in its attack on Milwaukee Public Schools is unforgivable. UW administrators’ steadfast refusal to question this committee’s false narrative of budgetary strain and scarcity has predictably led to a dire outcome for everyone but those administrators themselves. Meanwhile, legislative leaders invoke cash balances amassed by UW administrators as an excuse for slashing funding, while in the next breath calling for those very same administrators to be vested with newly broadened powers.

It is difficult to imagine a moral failure of leadership more absolute than the one we are now witnessing at almost every level in Wisconsin.

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.