Steven Lovett
It turns out the university in question is a place where
Curmie used to work as a part-time rent-a-prof for a year, Emporia State
University in Kansas. Curmie had a
decent time there, but that single year was occasioned not merely by the fact
that he was able to find a full-time position elsewhere, but by the fact that
he couldn’t have stayed on if he’d wanted to.
This wasn’t because the university was dissatisfied with Curmie’s work
(he taught more sections in the spring than in the previous fall, so they
couldn’t have wanted him gone too badly), but because they were interested in
saving a few bucks.
Curmie forgets the exact details, but it was something like that
anyone who taught more than two semesters over a three year period was entitled
to benefits; the university therefore had a rotation of three professors to
teach the course in question, each for a single academic year at a time. Curmie got the job because the guy whose turn
it was had acquired a full-time job as a bookstore manager and recommended
Curmie. But I couldn’t have kept the job
for another year, lest the university would have been forced to treat part-time
faculty ethically.
Anyway, let’s fast-forward a couple of decades to the time
of COVID shutdowns, which cost colleges and universities, especially
non-flagship state schools like Emporia, a lot of money in lost tuition and
especially lost room and board income.
That’s when the state Board of Regents decided that state schools could propose plans whereby faculty, even tenured
faculty, could be fired without the university’s needing to demonstrate
financial exigency. (N.B.,
there’s a difference between having a financial motive and financial exigency.)
To be fair, the policy was intended to be temporary,
although of course its implementation would be rather more permanent on those
affected. Moreover, the political
appointees of the Board neither know nor generally even care anything about
education and, unlike, say the sociopath who pretends to think that firing park
rangers, air traffic controllers, and USAid workers is going to be a net
positive, they might actually have thought they were doing the right thing.
They weren’t, of course, and almost all of the state’s
public colleges and universities declined to participate (although it took the
chancellor of Curmie’s PhD alma mater, the University of Kansas, five months to
reach that obvious conclusion). Emporia,
though, cheerfully signed on, and fired some thirty tenured and tenure-track
faculty.
To say that the layoffs were handled poorly would be an
understatement. And it’s not just Curmie
saying that. The AAUP’s lengthy report concludes that Emporia’s administration’s actions “constituted a direct assault
on tenure and, by extension, academic freedom” and “[demonstrate] that
conditions for shared governance at Emporia State University are deficient.”
More significant, because more potentially binding, the
lawsuit filed by eleven tenured faculty dismissed by the university was allowed
to go forward by a US District Judge in December.
Whether because the short-term emergency had passed, because
the administration saw the proverbial light, or because of the slap-down in
court, Emporia officials now appear to be doing what they can to appear, at
least, to support tenure. Or, at least
they were, prior to their lead legal counsel going rogue.
Yes, Emporia State’s chief legal counsel, Steven Lovett, de
facto introduced House Bill 2348, which would re-define tenure by declaring
that it should not “be defined, awarded, or recognized as an entitlement,
right, or property interest in a faculty member’s current, ongoing, or future
employment by an institution.” That “property
interest” business is really what this kerfuffle is all about. Curmie struggles to parse that particular
legalese, but this part is pretty clear: that tenure can be “at any time
revoked, limited, altered or otherwise modified by the awarding institution or
by the state Board of Regents.”
In other words, the bill doesn’t end tenure; it simply
renders it meaningless. The whole idea behind tenure is that faculty who have earned it, which is anything but automatic, should
be able to do their research and teaching without administrators looking over
their shoulders the whole time. Academic
freedom kicks in completely with tenure, allowing faculty to propose
unconventional, perhaps even iconoclastic, ideas. This benefits both the faculty member and the
discipline. It’s not a bad thing to question
conventional wisdom; indeed, it’s the only path to progress.
What people outside academe often don’t understand is that
tenure also benefits the institution by making it less likely that good faculty
are lured away by another university. It’s
not coincidental that the vast majority of job postings in the academy are for
untenured assistant professorships. Also,
of course, the professoriate is well-educated and, generally speaking,
intelligent. Most faculty members could
be making more money, often a lot more money, doing something else. The job security that comes with tenure is a
compensating factor, and becomes a way of securing good faculty.
Also, because the granting of tenure has a higher threshold
than simple re-appointment, and because denial of tenure almost always results
in a terminal contract, mediocre faculty tend to be weeded out before there’s
even a tenure decision. Obviously,
mistakes can be made (in both directions), but in general the process works
pretty well, and the existence of tenure is unquestionably a net positive.
For these reasons, the privileges that accompany tenure
should be revoked only under extreme circumstances. Gross misconduct—plagiarism, not meeting
classes, sexual impropriety, etc.—would qualify. So would actual financial exigency: not simply
that the university is looking to save money, but that it has no other choice
but to cut the position (i.e., not just this particular faculty
member).
Back in Curmie’s debating days, one of the mantras was that “the
presumption rests with the negative.”
That is, the burden of proof is on whoever wants to change the status
quo. The best-known version of this
idea is “innocent until proven guilty”: the prosecution must prove its case;
the defense need only poke enough holes in the case to create “reasonable doubt.”
The same phenomenon applies to tenure. Applicants must affirmatively prove that they
deserve it, not merely that there’s no particular reason to deny it. But once tenure has been granted, the
university must prove that it should be revoked… and it must do so in accordance
with both applicable laws and their own guarantees of due process. That doesn’t mean that such revocation shouldn’t
exist, and indeed it does, often but not always with just cause.
Mr. Lovett knows that, or he damned well should. Thus, that he would seek to undermine the foundations
of tenure is odd. That he would do so in
direct contravention of his (only?) client’s wishes is… well, Curmie isn’t a
lawyer, much less an authority on legal ethics, but the phrase “grounds for
disbarment” comes to mind.
On the one hand, we can appreciate that “the university
respects Mr. Lovett’s constitutional rights and freedom of expression.” That’s a good thing. On the other hand, it doesn’t take much
imagination to contemplate a scenario like this:
Lovett: You wanted to see me?
ESU: Yes, we wanted your advice on a legal strategy.
Lovett: Sure, what’s the case?
ESU: How do we defend the university’s interests against this fucking moron who wants to undermine our ability to attract and retain the best possible faculty?
Lovett: Oh.
This doesn’t look like it’s going to end well. For anyone.
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