Arkansas Democrat-Gazette

Scrap suit over tenure, judge urged

- LINDA SATTER

The University of Arkansas System’s board of trustees asked a federal judge Tuesday to dismiss a lawsuit challengin­g a policy revision that three faculty members say makes it easier to fire tenured professors.

In March 2018, when the board amended the faculty tenure policy, Michael Moore, the system’s vice president for academic affairs, said that “nothing in the proposed changes undermine academic freedom or the value that the University of Arkansas System places on tenure.”

But the plaintiffs said the revision allows trustees and administra­tors to use annual reviews as a basis for terminatio­n and provides more “grounds” that an administra­tor could cite in firing someone.

Tenure is defined by the UA System as the right of continuous appointmen­t. Professors gain tenure based on their job performanc­e over several years, though they still undergo annual reviews.

In court documents filed Tuesday, the system’s associate general counsel, David A. Curran, said, “The revised policy sensibly requires performanc­e improvemen­t plans for faculty members who receive unsatisfac­tory evaluation­s, clarifies the grounds for terminatio­n, and makes other reasonable changes.”

He said it also reflects that tenured and tenure-track faculty members, unlike at-will employees, may only be terminated for cause; guarantees academic freedom in teaching, scholarshi­p and service; protects faculty members’ right to speak as citizens on matters of public concern “without institutio­nal censorship or discipline;” and confers numerous pre-terminatio­n procedural rights “that far exceed the minimum requiremen­ts of the Due Process clause” of the Constituti­on.

The lawsuit alleges that the revision violates faculty due-process rights by retroactiv­ely modifying faculty contracts. It was filed by three faculty members at three UA institutio­ns: Philip Palade, a pharmacolo­gy and toxicology professor at the University of Arkansas for Medical Sciences in Little Rock; Gregory Borse, an associate professor of English and philosophy at the University of Arkansas at Monticello; and J. Thomas Sullivan, a distinguis­hed professor of law at the W.H. Bowen School of Law at the University of Arkansas at Little Rock.

Before the board unanimousl­y approved the revision, faculty members argued that the changes were too broad and could threaten intellectu­al freedom by allowing faculty members to be fired for intellectu­al disagreeme­nt.

The old tenure policy lists four examples of grounds for dismissal: “incompeten­ce, neglect of duty, intellectu­al dishonesty, and moral turpitude.”

The revised policy lists 12 examples of grounds for dismissal, including “a pattern of conduct that is detrimenta­l to the productive and efficient operation of the instructio­nal or work environmen­t.”

The lawsuit, assigned to U.S. District Judge James Moody Jr., seeks class-action status.

Curran argued that the plaintiffs don’t have legal standing — a vested interest in the outcome of the case — because none have received a notice of terminatio­n under the current policy. He also said the law doesn’t require contract and performanc­e standards “to be frozen for the entirety of each tenured and tenure-track professor’s career.”

“Faculty members have always been on notice that the Board reserved the right to amend Policy 405.1, and the most recent amendments lie at the heart of the Board’s fiduciary obligation to maintain an efficient and productive workplace while preserving a robust marketplac­e of ideas,” he wrote.

He asked the court “to reject Plaintiffs’ invitation to second-guess the Board’s judgment on matters of internal governance,” and throw the case out for failure to bring a claim that can be pursued “under any legal theory.”

In a 45-page brief, Curran also cited previous examples of revisions the board made to the policy; discussed the obligation of institutio­ns of higher learning to “assess and adjust their policies;” and outlined the history of the revision in question.

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