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Special Report: COVID-19 and Academic Governance [1]

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Date: 2021-05-26  -04:00

Read the full report | Download a PDF

Published May 2021.

Executive Summary

This report details an investigation of the crisis in academic governance that has occurred in the wake of the COVID-19 pandemic, with a focus on eight institutions: Canisius College (NY), Illinois Wesleyan University, Keuka College (NY), Marian University (WI), Medaille College (NY), National University (CA), University of Akron, and Wittenberg University (OH). AAUP governance investigations are conducted under the aegis of the Association’s standing Committee on College and University Governance by AAUP members who have had no previous involvement in the cases under investigation. The investigating committee is charged with independently determining the relevant facts and the positions of the principal parties before reaching its findings.

For American higher education, as for almost every other aspect of life and livelihood in the United States, the arrival of the COVID-19 virus in early 2020 was a cataclysmic event. Within a matter of weeks, instruction moved online, meetings and conferences were canceled or transferred to platforms such as Zoom, residence halls were evacuated, and athletic and hospitality facilities were closed. As the first wave of the virus spread, the longer-term impact of the pandemic began to be felt, and many institutions faced dire challenges in the 2020–21 academic year. While the financial impact of the pandemic presented a sudden and unforeseeable challenge at most institutions, at others it exacerbated conditions that had been festering long before COVID-19. This report does not dispute the financial challenges faced by colleges and universities in the pandemic, especially the small, private, tuition-dependent institutions that most of this report concerns; nor do we contest the fact that, in the first wave of the pandemic, some decisions, such as to conduct all business remotely, had to be made expeditiously.

The investigation on which this report is based, however, was prompted largely by opportunistic exploitations of catastrophic events. Some institutional leaders seem to have taken the COVID-19 crisis as an opportunity to turbocharge the corporate model that has been spreading in higher education over the past few decades, allowing them to close programs and lay off faculty members as expeditiously as if colleges and universities were businesses whose CEOs suddenly decided to stop making widgets or shut down the steelworks.

These problems are widespread and this report is unavoidably incomplete. As soon as news of this investigating committee and its charge was released, faculty members from a wide range of institutions contacted the AAUP’s staff with accounts of similar developments on their campuses, and as the committee reviewed information about the eight institutions under investigation, news reports continued to pour in about the financial effects of the pandemic on other institutions. This report, then, should be understood as illustrative rather than exhaustive.

Although variations among the eight institutions make generalizations difficult, the investigating committee offers, by way of conclusion, the following general findings and recommendations.

Findings

The COVID-19 pandemic has presented the most serious challenges to academic governance in the last fifty years. The colleges and universities included in this investigation are by no means the only institutions that witnessed dramatic board and administrative action regarding governance since the pandemic began.

Faculty members at the investigated institutions faced the dilemma of either participating in ad hoc governance processes they knew to be flawed in the hope of shaping their outcomes or refusing on principle to participate at all, thereby allowing administrators and board members to move forward without them.

Sudden, unilateral decisions by governing boards or administrations to set aside an institution’s regulations, in whole or in part, amount to declarations that agreed-upon rules and procedures—which should obtain under all conditions—can be discarded altogether in moments of crisis. But over the long term, sudden decisions to revise faculty handbooks unilaterally—whether made by administrators or trustees—are possibly even more corrosive, since the disaster-management procedures enshrined in those revisions will become permanent aspects of the governance of the institutions that adopt them, and they may seem all the more legitimate for that.

Force majeure‒type clauses in collective bargaining agreements, faculty handbooks, and faculty contracts or letters of appointment provide administrations with a nuclear option that nullifies all the other financial exigency‒related provisions of those documents.

At most of the institutions under investigation, restoring or maintaining financial health was the board and administration’s rationale for abandoning institutional regulations, disregarding fundamental principles and practices of academic governance, discontinuing academic programs, and terminating tenured appointments—yet financial exigency was not declared at any of the eight. The reluctance to do so is not new. The AAUP’s 2013 report The Role of the Faculty in Conditions of Financial Exigency pointed out that “most colleges and universities are not declaring financial exigency even as they plan for widespread program closings and terminations of faculty appointments.”

The investigating committee encountered scant evidence that the governing boards and administrations of the investigated institutions terminated the positions of the affected faculty members based on considerations that violated their academic freedom; nevertheless, the committee did encounter overwhelming evidence that tenure—and, thus, academic freedom—faced a frontal assault at these institutions and many others in the wake of the pandemic.

The policies and procedures at the investigated institutions were generally adequate, yet boards and administrations, in the interest of rapid decision-making, chose to ignore, revise, or circumvent them, including those relevant to areas where the faculty exercises primary responsibility.

Association policies and regulations regarding institutional governance, financial exigency, academic freedom and tenure, and academic due process remain broad and flexible enough to accommodate even the inconceivable disaster. We found no evidence that relevant AAUP-supported policies failed in any of the cases under investigation. Indeed, at most of the institutions included in this investigation, those policies were never given a chance to demonstrate their efficacy, either because they did not exist in institutional regulations or, more commonly, because they were unilaterally abandoned by the administration and governing board.

Academic governance has been under severe pressure since the onset of the pandemic. Though it would be premature to say that we have entered a new era of institutional governance in advance of what some observers are calling “the great contraction” in American higher education, the evidence already before us suggests that this has been a watershed moment. There is no question that many colleges and universities are in financial distress, and many more will face daunting challenges in the next decade. The question is whether robust shared governance will survive those challenges.

Primary Recommendation

Governing boards, administrations, and faculties must make a conscious, concerted, and sustained effort to ensure that all parties are conversant with, and cultivate respect for, the norms of shared governance as articulated in the Statement on Government of Colleges and Universities. The Statement on Government was jointly formulated in 1966 by the AAUP, the American Council on Education, and the Association of Governing Boards of Universities and Colleges. It makes the case that effective institutions of higher education practice “joint” or what has come to be called “shared” governance, which, in practical terms, means (a) that no important institutional decision is made without the participation of the governing board, the administration, and the faculty and (b) that each institutional component has decision-making authority based on its primary responsibilities. The faculty has “primary responsibility” and thus decision-making authority “for such fundamental areas as curriculum, subject matter and methods of instruction, research . . . and those aspects of student life which relate to the educational process” as well as for matters related to faculty status—that is, “appointments, reappointments, decisions not to reappoint, promotions, the granting of tenure, and dismissal.” As shared governance is practiced at most reputable institutions of higher education, the administration and governing board accept faculty recommendations in these two broad areas “except,” as the Statement notes, “in rare instances and for compelling reasons which should be stated in detail.”

Additional Recommendations for Faculty

When faculty members opt to participate in a makeshift governance process, they should do so under the same conditions that govern their participation in the standing governance structure: they should be elected by the faculty rather than appointed by the administration, and they should be free to discuss the body’s work with their colleagues and report regularly to them.

Faculty members, especially those serving in their institution’s faculty senate or similar representative body, should be exceptionally vigilant about changes to handbooks that may change the character of academic employment at their institutions irrevocably.

Faculty should steadfastly oppose the inclusion of force majeure clauses in collective bargaining agreements, faculty contracts and letters of appointment, and faculty handbooks.

Faculty should be centrally involved in deliberations about exigency; they should also object to any attempt to introduce new categories of financial crisis that would circumvent AAUP-supported standards on financial exigency.

Canisius College (New York) | Illinois Wesleyan University | Keuka College (New York) | Marian University (Wisconsin) | Medaille College (New York) | National University (California) | University of Akron | Wittenberg University (Ohio)

A Crisis in Academic Governance | Faculty Participation in Ad Hoc Governance Processes | Suspension of Faculty Handbooks | Force Majeure–Type Provisions | Financial Exigency | Academic Freedom and Tenure | Adequacy of Institutional Policies | Adequacy of AAUP Policies | Outlook for the Future

I. Introduction For American higher education, as for almost every other aspect of life and livelihood in the United States, the arrival of the COVID-19 virus in early 2020 was a cataclysmic event.1 Within a matter of weeks—at some institutions, a matter of days—instruction moved online, meetings and conferences were canceled or transferred to platforms such as Zoom, residence halls were evacuated, and athletic and hospitality facilities closed. As the first wave of the virus spread, the longer-term impact of the pandemic began to be felt, and many institutions faced dire challenges in the 2020–21 academic year. Over the summer of 2020, amid the mass protests that swept the country in the wake of the murder of George Floyd, many campuses faced not only an overdue reckoning with their historical entanglements with racism but also a contentious debate about the educational mission of colleges and universities during a pandemic. As New York magazine asked in May 2020, What is college without the campus? And many wondered whether students would continue to enroll in college at all if “enrollment” consisted in paying tuition for a series of online classes. The financial effects of the pandemic were immediate and felt most keenly at first by residential and dining staff who faced across-the-board layoffs.2 More alarming for many institutions, however, were the long-term implications of those financial effects, which induced numerous administrations to announce measures ranging from the relatively mild (hiring and salary freezes) to the draconian (program closures and mass layoffs of tenured and nontenured faculty members). While the financial impact of the pandemic presented a sudden and unforeseeable challenge at most institutions, at others it exacerbated conditions that had been festering long before COVID-19. This report is about those responses to the crisis that, in disregard of the norms of academic governance, were effected largely by administrative fiat, with little or no consultation with the faculty even where austerity and emergency measures had dramatic effects on the curriculum, an area traditionally considered the faculty’s primary responsibility. This investigating committee does not doubt, nor does it dispute, the financial challenges faced by colleges and universities in the pandemic, especially the small, private, tuition-dependent institutions that most of this report concerns; nor do we contest the fact that, in the first wave of the pandemic, some decisions, such as to conduct all business remotely, had to be made expeditiously. The investigation on which this report is based, however, was prompted largely by opportunistic exploitations of catastrophic events. This phenomenon, generally known as “disaster capitalism,” a term coined by Naomi Klein, was exemplified in early December 2020 by James White, interim dean of the College of Arts and Sciences at the University of Colorado at Boulder, who, after announcing a long-term plan to replace tenured faculty members with non-tenure-track faculty members, said, “Never waste a good pandemic.” Even though Dean White apologized the following week, calling his remark “flippant and insensitive,” to many faculty members the gaffe seemed to exemplify what in political circles is called saying the quiet part out loud.3 In this respect, as in so many others, COVID-19 served as an accelerant, turning the gradual erosion of shared governance on some campuses into a landslide. Larry Gerber’s Rise and Decline of Faculty Governance was published in 2014, long before the events that precipitated this investigation and report. It charts two parallel developments that have transferred decision-making authority to administrations and instituted a corporate model of university governance: one, the expansion of areas of university administration, from the financial office to the office of the general counsel to the offices of risk management, in which the faculty has no involvement; and two, the casualization of the faculty workforce entailed in the decades-long transition from a majority tenured to a majority nontenured faculty. Some institutional leaders seem to have taken the COVID-19 crisis as an opportunity to turbocharge the corporate model, allowing them to close programs and lay off faculty members as expeditiously as if colleges and universities were businesses whose CEOs suddenly decided to stop making widgets or shut down the steelworks. In certain respects we have been here before. In 2005, Hurricane Katrina wreaked devastation on universities in New Orleans, some aspects of which were arguably more severe than the pandemic. As the AAUP’s report on that disaster noted, Katrina was “undoubtedly the most serious disruption of American higher education in the nation’s history” insofar as “no earlier disaster destroyed virtually an entire community, not only depriving affected institutions of usable facilities, but also depleting severely the student population, leaving faculty and staff without homes [and] teaching hospitals without patients.”4 Then, as now, administrations insisted that unforeseeable, catastrophic events warranted unprecedented emergency measures, including suspension of crucial institutional regulations and mass terminations of tenured faculty appointments; then, as now, the Association held that its policies and procedures, especially those concerning financial exigency, are designed to respond to crises the nature of which no one can predict. Besides the report that resulted from the Katrina investigation, the other precedent in the annals of the AAUP for this multi-institution report is Academic Freedom and Tenure in the Quest for National Security. That 1956 report on eighteen cases was also a response to a nationwide phenomenon—in this case the advent of McCarthyism and the widespread demand, instigated by both individual institutions and state legislatures, that faculty members sign loyalty oaths or refrain from invoking their Fifth Amendment right against self-incrimination as a condition of retaining their appointments. Over the course of the postwar Red Scare, hundreds of faculty members were dismissed without due process, and academic freedom and the institution of tenure were severely eroded. Academic Freedom and Tenure in the Quest for National Security, however, was published well after McCarthyism had reached its peak; the current report, by contrast, attempts to capture and respond to a national crisis as it has unfolded. For that reason, this report is unavoidably incomplete. As soon as news of this investigating committee and its charge was released, faculty members from a wide range of institutions contacted the AAUP’s staff with accounts of similar developments on their campuses, and while the committee reviewed information about the eight institutions under investigation, news reports continued to pour in about the financial effects of the pandemic on other institutions. This report, then, should be understood as illustrative rather than exhaustive. That an institution goes unnamed in this report does not mean that it is in compliance with AAUP-recommended governance standards. This report should be read as an affirmation of AAUP-supported standards of academic governance that apply to any institution that has abandoned such standards in response to the pandemic. It must be stressed that this multi-institution report also differs from its two predecessors in not being the product of an investigation of academic freedom and tenure violations. This report concerns academic governance, even when administrations have traduced AAUP governance standards in ways that entail the termination of tenured faculty appointments. As with all AAUP governance investigations, the primary “task of the investigating committee is to . . . reach findings on whether the standards enunciated in the Statement on Government of Colleges and Universities and in derivative Association documents have been violated” (Standards for Investigations in the Area of College and University Governance).5 Also worth noting is that, unlike the 2007 report on Hurricane Katrina, but like the 1956 report on McCarthyism, this report tends not to offer highly detailed accounts for each institution (as would be typical in single-institution governance and academic freedom and tenure investigations), although in some cases the committee was compelled to delve into the details in order accurately to gauge the severity of the departures from AAUP-recommended governance standards. Finally, we note that in some cases examined here, public statements by administrators or board members rendered detailed investigation all but superfluous. In the December 6, 2020, issue of the Wall Street Journal, for example, Douglas Belkin reported about this investigation, writing as follows about one of the cases in this report: When Kenneth Macur became president at Medaille College in 2015, the small, private school in Buffalo, N.Y., was “surviving paycheck to paycheck,” he said. Enrollment was declining and the small endowment was flat. Then came the coronavirus pandemic. The campus shut down and revenue plummeted 15%. Dr. Macur saw what he considered an opportunity: With the approval of the board of trustees, he suspended the faculty handbook by invoking an “act of God” clause embedded in it. He laid off several professors, cut the homeland security and health information management programs, rescinded the lifelong job security of tenure and rewrote the faculty handbook, rules that had governed the school for decades. “I believe that this is an opportunity to do more than just tinker around the edges. We need to be bold and decisive,” he wrote in a letter to faculty on April 15. “A new model is the future of higher education.” Dr. Macur and presidents of struggling colleges around the country are reacting to the pandemic by unilaterally cutting programs, firing professors and gutting tenure, all once-unthinkable changes.6 The AAUP announced the initiation of this investigation on September 21, 2020. The AAUP’s staff had first written to President Macur on April 29. In his May 12 response, the president declined a request for an interview by the investigating committee, submitting instead a three-page statement, which claimed that Medaille “has no affiliation or relationship with the AAUP, does not have a faculty chapter of the AAUP, and does not have any faculty listed as members on the AAUP’s website.7 The AAUP does not govern, accredit, or have any authority over Medaille College.” It is symptomatic of the current state of affairs in American higher education, we believe, that a college president would declare his intention to dismantle tenure at his institution to the Wall Street Journal but refuse to participate in an investigation conducted by the AAUP. But it is our hope that this report will serve as a reminder of why AAUP-recommended principles and standards of academic governance have historically been, and should continue to be, followed by leaders of reputable institutions of higher education in the United States. II. Case Reports This section contains the reports of case investigations at Canisius College, Illinois Wesleyan University, Keuka College, Marian University, Medaille College, National University, University of Akron, and Wittenberg University. A. Canisius College (New York) Located in Buffalo and describing itself as “Western New York’s Catholic, Jesuit college,” Canisius College enrolls about three thousand students. The full-time faculty numbers around 150, the part-time faculty around 230. The institution’s president is Mr. John J. Hurley. An alumnus, President Hurley left his law practice in 1997 to join the college’s administration, serving in several administrative roles, most recently vice president for college relations, prior to his appointment as president in 2010. In July 2020, Professor Tanya Loughead, the college’s AAUP chapter president, informed the AAUP’s national office that the Canisius College governing board and administration had discontinued nine academic programs—classics, creative and performing arts, entrepreneurship, European studies, human services, international business, physics, religious studies, and urban studies—and reduced the number of faculty positions in several more. As a result, twenty-two full-time faculty members, most of whom were tenured, received letters of termination. The letters stated that the basis for closures, reductions, and terminations was the governing board’s decision to adopt a budget requiring $12.3 million in cuts, with $2.5 million in cuts explicitly required to come from faculty lines. Seven of the twenty-two affected faculty members sought the AAUP’s assistance—Professors M. Fernanda Astiz, Ji-Hee Kim, Steven M. Maddox, Matthew Mitchell, Melissa A. Mosko, James Oigara, and Kathryn F. Williams. All seven were tenured, with an average length of service to Canisius College of thirteen years. According to them and other faculty members, the decisions to reduce and close programs and to terminate full-time appointments were reached without meaningful faculty participation and in violation of key provisions of the faculty handbook. Through its inquiries and its review of the available documentation, including some fifty pages of material submitted to the committee on January 18 by the administration and its attorneys, the investigating committee has reached the following understanding of the most relevant events.8 Canisius had been facing increasing financial challenges because of enrollment declines and managing small deficits in previous years with the hope that various changes would turn the situation around. But the increased costs and lost revenues presented by the COVID-19 pandemic made the financial problems more severe and the financial projections much more dire. By June 2020, according to the administration, the institution faced a $20 million operating-budget deficit. On June 4, the administration formed an ad hoc Faculty Budget Working Group (FBWG) to address the mounting financial problems. The FBWG consisted of the “senior leadership team” (President Hurley; Dr. Sara R. Morris, vice president for academic affairs; Mr. Marco F. Benedetti, vice president for business and finance) and the faculty members serving on the faculty senate’s executive and budget committees. Professor Robert Nida, the faculty senate chair, had worked with President Hurley to ensure that the faculty would be represented on this body.9 FBWG members were told that confidentiality was expected and enforced, but Professor Nida was permitted to report to the faculty generally about the meetings. According to faculty sources, the administration removed the dean of the school of business from the FBWG “specifically for violating confidentiality” after she sent a “frank” email to the faculty in her college detailing the committee’s first meeting. The FBWG met four times over the summer. In their January 18 letter to the investigating committee, the attorneys representing the Canisius College administration wrote that “the administration provided a complete exposition of the budget” to the FBWG, shared salary/compensation information as needed, and “encouraged [faculty members] to challenge the administration’s assumptions and conclusions on the academic cuts and most importantly, [to] offer alternatives.” Unfortunately, the investigating committee has seen no evidence to support these assertions. On the contrary, despite the confidentiality requirement imposed on the FBWG, faculty sources have reported that the process engaged in by that body bore little resemblance to genuine shared governance. As one of the faculty members who had served on the FBWG put it, “By no means was all information regarding the budget presented” since that “would have been impossible in the time frame created.” The FBWG, furthermore, “never discussed staffing . . . job responsibilities, salary information, or . . . compensation” with any specificity. With respect to the claim that the administration encouraged FBWG members to challenge the administration’s assumptions and conclusions regarding the program closures and to offer alternatives, this FBWG member stated, “None of this was discussed at any length that would have been deemed shared governance or problem solving. This statement is factually untrue.” On June 30, 2020, the dean of the college of arts and sciences sent an email message to the faculty in his school noting that, despite the expiration of faculty contracts, he felt optimistic that “next year will be calmer.” According to faculty members, President Hurley also reassured the faculty by email in early July that, despite not receiving new contracts, faculty members should still all consider themselves employed under the old contracts.10 On July 17, however, the college’s three academic deans informed several departments that a certain number of reductions had to occur in their departments. They instructed department members to “choose from among themselves” the colleagues to be let go. If senior faculty members did not volunteer to retire, faculty members were told, the dean would begin dismissing people based on length of service, beginning with the most junior faculty members. That afternoon members of several academic departments around the college received requests for teleconference meetings with their deans. At these meetings the deans informed faculty members that their appointments were being terminated and that human resources staff would be presenting them with options for terminal contracts and severance packages. Other faculty members learned of their appointment terminations at department meetings the next day. Eventually, all but four of the twenty-two affected faculty members selected one of the proffered options; those four professors are currently in litigation with the college over the terms of their severance.11 On July 20, President Hurley sent a letter by email to the entire Canisius faculty announcing that in order to achieve the $12.3 million in budget cuts required by the board, the administration was discontinuing academic programs and terminating twenty-two faculty lines. Cuts would be made in majors that had low enrollments, and the core curriculum would be “streamlined.” Vice President Morris called for a meeting of the Committee on Faculty Status (CFS) that same day to present the planned terminations for the committee’s review and eventual recommendation, as required under the faculty handbook. The committee, which consists of the academic vice president, the three academic deans, and eight elected faculty members, declined to make a recommendation on the terminations because two preconditions spelled out in the faculty handbook had not been met: the college’s budget committee had not documented “compelling budgetary reasons” for the terminations and the administration had not provided the faculty senate with the required financial information. The faculty evaluation process set out in the faculty handbook specifies that a recommendation from the CFS precedes an appeal to the Evaluation Review and Appeals Committee. As a result, none of the affected faculty members filed an appeal with that body. On July 22, the faculty senate adopted a resolution of no confidence in the board of trustees and the president. On July 27, the Faculty Welfare Committee issued a statement condemning the terminations and pointing out that the administration had disregarded applicable provisions of the faculty handbook, undermined tenure, and violated AAUP standards. On July 28, the Core Curriculum Committee issued a statement documenting its “non-involvement” in the core-curriculum revisions and the role it should have played in changes to the core under the college’s governing documents. And on July 28, the CFS emailed the faculty to announce its decision not to review the terminations because “the administration and the Committee on Faculty Status were unable to come to an agreement about the correct process.” The AAUP’s staff wrote to President Hurley on August 6 to convey the Association’s concerns regarding apparent departures from the governance provisions of Regulation 4c, “Financial Exigency,” of the AAUP’s Recommended Institutional Regulations on Academic Freedom and Tenure. The letter stated that, in discontinuing nine programs and terminating more than two dozen faculty appointments, the administration and governing board had apparently observed “almost none” of the relevant standards of Regulation 4c, which requires meaningful faculty participation in every stage of the process. As a result, the AAUP was compelled to “regard these actions as illegitimate and sharply at odds with widely accepted norms of academic governance, tenure, and academic freedom.” The staff’s letter called on the administration to rescind the notices of termination and, going forward, to adhere to a process consistent with the principles and standards cited in the letter. Although President Hurley emailed the staff on August 17 to say that he would “respond shortly,” he did not do so, and the staff wrote again on September 8 to inform him that the Association’s Staff Committee on Investigations would be meeting on September 14 to advise the executive director regarding an investigation. This communication prompted an immediate response from the college’s outside attorneys, with whom the responsible staff member spoke the next day. The attorneys informed the staff member that the college, as a Jesuit institution, wished to “do the right thing” and was therefore attempting to reach what they characterized as generous financial settlements with the affected faculty members.12 The staff member welcomed the news but hastened to point out that because the investigation was being conducted under the aegis of the Committee on College and University Governance, not Committee A on Academic Freedom and Tenure, it primarily concerned alleged departures from AAUP-recommended principles and standards of academic governance. Therefore, the staff member added, assuming that the relevant faculty governance bodies did not withdraw their governance complaints, the AAUP would not consider the case resolved even if all the faculty members whose appointments were terminated withdrew their academic freedom and tenure complaints. There is little dispute that the financial situation at Canisius went from bad to worse as the result of the global pandemic. A careful consideration of how to address this situation, undertaken through proper channels of shared governance and in accordance with AAUP-recommended standards, might well have reached a conclusion on the necessity of academic restructuring and the termination of faculty appointments similar to the conclusion at which the administration actually arrived. However, the college’s governing board and administration disregarded the role of elected faculty governance bodies in determining the course of action—as prescribed by the AAUP-supported standards set forth in the Statement on Government of Colleges and Universities and in Regulations 4c and 4d of the Recommended Institutional Regulations and reflected to some degree in the faculty handbook. While the faculty handbook lacks detailed policies and procedures governing terminations of appointment because of financial exigency and program discontinuance for educational reasons, unlike most other faculty handbooks, it does reprint the entire 1940 Statement of Principles on Academic Freedom and Tenure and 1970 Interpretive Comments, with the board’s stated endorsement. It also contains provisions embodying basic principles of academic governance, as enunciated in the Statement on Government of Colleges and Universities. It requires, for example, that the College Budget Committee be fully informed of budget issues, that the Committee on Faculty Status be consulted prior to the termination of faculty appointments, that the Faculty Welfare Committee be part of that process as well because of its role in making recommendations related to academic freedom and tenure, and that the Core Curriculum Committee and the faculty senate approve any changes to the core curriculum. In discontinuing nine academic programs and terminating the appointments of twenty-two faculty members, the administration elected to disregard these existing faculty governance bodies and the college’s applicable regulations. The governing board and administration failed to declare financial exigency but terminated tenured faculty appointments for budgetary reasons. Although the administration shared some financial information with the FBWG, it did not share the detailed information required by Regulation 4c of the Recommended Institutional Regulations when terminating appointments because of financial exigency. The administration’s requiring confidentiality from the faculty members on the FBWG meant that those representatives believed that they could not share what little financial information they received with colleagues who might have had more experience and insight into accounting and budget issues.13 The administration did not give faculty members adequate time, information, or opportunity “to render an assessment in writing of the institution’s financial condition” (Regulation 4c[2]). As a result, the faculty did not have the information or opportunity to assess fully the twin claims that Canisius faced a massive budget shortfall and that this shortfall could be resolved only by discontinuing programs and terminating tenured faculty appointments. Under the Statement on Government, timely and accurate communication between the administration and the faculty is a central condition of sound academic governance. Reassurances from the Canisius administration that faculty contracts were pending and that delays in issuing contracts through May and June were merely logistical had the effect of obfuscating the nature of the financial crisis. Nor did the administration follow AAUP-recommended procedures for terminating faculty appointments in the face of a budgetary crisis. Regulation 4c(1) states, “The faculty or an appropriate faculty body . . . exercise[s] primary responsibility in determining the criteria for identifying the individuals whose appointments are to be terminated.” However, there is no evidence that an appropriately constituted faculty body exercised any responsibility for making these determinations. The administration’s practice of convening confidential sessions in which a half-dozen faculty members are presented with a plan and then asked if they have any better suggestions is not a process by which the faculty exercises its “primary responsibility.” Under Regulation 4d, “Discontinuance of Program or Department for Educational Reasons,” of the Recommended Institutional Regulations, faculty appointments can be terminated, absent a declaration of financial exigency, when programs or departments are discontinued based on “educational considerations.” President Hurley at times asserted that such was the case. However, Regulation 4d(1) underscores that faculty governance bodies should be central to decision-making on academic restructuring; under Canisius’s policy that body should have been the Academic Program Board (APB). According to President Hurley’s August 3 letter to the chair of the faculty senate, the APB plays only an advisory role to the VPAA and “the ultimate authority for the discontinuance of academic programs rests with the Board of Trustees.” While the APB’s role is indeed advisory, there is a stated process by which its recommendations are supposed to be received and addressed. The administration did not follow this process. Other procedural requirements of Regulation 4d mirror those of Regulation 4c. Regulation 4d(2) states that the faculty in programs being considered for discontinuance should be “promptly informed” and be allowed at least thirty days to respond to the proposal.14 The administration did not afford this opportunity. Regulation 4d(3) states that the institution will make “every effort” to place affected faculty members in “another suitable position” within the institution.15 It does not appear that any such efforts were made, though the lack of transparency and of shared governance processes make verification difficult.16 Regulation 4d(4) states, “A faculty member who contests a proposed relocation or termination resulting from a discontinuance has a right to a full hearing before a faculty committee.”17 No such hearings occurred. * * * * * * President Hurley and the board of trustees, charged with the daunting task of addressing a budget crisis during a global pandemic, tried to stake out a middle ground between Regulations 4c and 4d. They neither declared financial exigency and followed the requisite procedures nor undertook a deliberative, faculty-led process of academic restructuring based on educational premises. Instead, they embarked on a hasty course of cuts and changes hoping for cost savings and improved enrollment, retention, and graduation rates. Some observers might consider such a strategy an entirely reasonable approach for improving an institution’s financial situation. A declaration of financial exigency acknowledges an extremely dire financial situation. Reluctance to declare it is understandable. Indeed, a public admission of financial distress could arguably worsen the situation by discouraging applications from students preferring to attend a college with a more predictable future. This line of thinking may also account for the creation of the FBWG, a closely controlled group where the administration strictly enforced confidentiality.18 By attempting to stake out a nonexistent middle ground, however, the college’s administration and governing board bypassed faculty governance and mired the institution in division at a time when unity was critical. The administration disregarded the expertise of the faculty when most needed, ignoring established systems of evaluation and making ad hoc changes to the undergraduate curriculum based on hope rather than on an evaluative process. This investigating committee finds that the administration and governing board of Canisius College, in its actions to discontinue and reduce academic programs and to eliminate faculty positions, disregarded normative standards of academic governance, as set forth in the Statement on Government of Colleges and Universities. In doing so, they degraded conditions for shared governance, weakened tenure, and damaged the climate for academic freedom.19 B. Illinois Wesleyan University A self-described “independent, residential, liberal arts university,” Illinois Wesleyan University, located in Bloomington, currently enrolls some 1,600 undergraduates served by 128 full-time and sixty-one part-time faculty members. The university’s president since August 2019 is Dr. S. Georgia Nugent, previously president of Kenyon College as well as a senior fellow at the Council of Independent Colleges. The chair of the university’s board of trustees is Mr. Timothy J. Szerlong, a retired corporate executive. IWU faculty leaders sought the Association’s assistance in mid-July 2020 after the board of trustees discontinued programs in anthropology, French, Italian, and religious studies and the administration indicated that it would be issuing terminal one-year appointments to nine tenured faculty members affected by the closures.20 The administration asserted, and continues to assert, that, in taking this action, it and the board had hewed closely to Regulation 4d, “Discontinuance of Program or Department for Educational Reasons,” of the AAUP’s Recommended Institutional Regulations (1999 revision), which the faculty handbook incorporates almost verbatim. As the Association’s staff noted in its August 28 letter to President Nugent and Chair Szerlong, faculty sources had informed the AAUP that the yearlong process that culminated in these actions was “marred by repeated departures, on the part of the administration and governing board, from AAUP-supported standards of academic governance”; that the faculty through its representative bodies had “repeatedly protested these departures in formal resolutions and other written communications”; and that the administration and board had “either ignored or minimized the faculty’s stated concerns.” The letter identified four questions of particular concern: whether the considerations that led to the program discontinuances were educational in nature, as required under Regulation 4d(1) of the Recommended Institutional Regulations; whether “the faculty or an appropriate committee thereof” had identified the relevant educational considerations as required under Regulation 4d(1); whether the administration had afforded those faculty members whose programs were selected for elimination thirty days in which to formulate a response, as required under Regulation 4d(2); whether the administration had made “every effort” to find other suitable positions within the institution for the affected faculty members before issuing notice of termination, as required under Regulation 4d(3). The letter stated that, based on the information available to the AAUP’s staff, the answer to all four questions appeared to be no. On Friday, September 11, the administration emailed a nine-page letter, signed by both the president and the board chair, detailing its response to the Association’s August 28 letter. In it, President Nugent and Chair Szerlong provided an update on the nine faculty members to whom the administration had issued terminal one-year appointments: Two faculty members accepted tenured appointments in other academic departments at the university. One of these will be provided with retraining, at the university’s expense. The other does not require retraining.

Two faculty members elected to enter into a phased-retirement agreement.

Two faculty members elected to continue teaching until they reach retirement age.

Two faculty members elected to enter into separation agreements with the university. In each case the faculty member will receive compensation greater than that recommended in the Faculty Handbook guidelines, supplemented by an additional payment based on years of service. Of the one remaining faculty member, Dr. Scott Sheridan, professor of French and Italian, the letter stated, “The University and that faculty member will make every effort during the terminal year to see if changing circumstances will present alternatives not available today.” On September 21, the faculty’s Council on University Programs and Policy (CUPP) issued an eleven-page open letter replying to what it characterized as “numerous inaccuracies and misrepresentations” in the administration’s September 11 letter to the AAUP and voicing “new concerns” that it said the letter raised. The investigating committee spoke with Professor Michael Theune, CUPP vice-chair, on December 7; with Professor Molly Robey, CUPP chair in 2019–20, on December 15; with Professor Sheridan on December 17; and with President Nugent on December 18. The faculty members interviewed report that the program-review process that led to the program cuts and appointment terminations began in fall 2019 with a board- and administration-initiated process that circumvented existing faculty governance bodies and procedures.21 The administration created a Program Evaluation Task Force (PETF) composed of faculty members drawn mainly from CUPP and the Curriculum Council (CC) as well as an associate dean and the vice president of research, planning, and evaluation, both of whom were nonvoting, ex officio members. The administration charged PETF with undertaking a “comprehensive, intellectually sound evaluation” of IWU programs based mainly on educational considerations, although most of the criteria employed were explicitly financial.22 The September 11 letter from President Nugent and Chair Szerlong to the AAUP states that “the PETF carried out exemplary analytic work” that reviewed “reports from all department and program heads, internal university data, and state and national data assembled by our external partner, Gray Associates,” and ultimately “produced a strong and well-reasoned report.” In its thirty-seven-page report, dated April 2, 2020, the PETF made scores of detailed recommendations, the most significant of which included converting the school of music and the school of art into departments and reducing the number of majors offered in each; replacing the major in educational studies with a minor; and discontinuing the majors in anthropology and French while retaining the minors. According to faculty members, the PETF recommendations were “designed to avoid the elimination of tenured positions” based on the president’s initial assurance that such an action was “off the table.”23 In lieu of terminating tenured appointments, these recommendations would have led to cost savings primarily through the elimination of support staff and adjunct positions. Matters appear to have gone off the rails after PETF submitted its report to the board of trustees in May 2020. In July, the board set aside PETF’s recommendations and proposed instead the closures noted in the second paragraph of this section.24 It is not entirely clear why. It is notable, however, that the board’s decision preserved intact the school of art, the school of music, and the program in educational studies, which were, by all accounts, entities with low enrollments; that decision, according to interviewees (faculty members and President Nugent alike), was driven by unforeseen involvement by alumni and other constituencies opposed to any substantive modifications to those programs. Be that as it may, the PETF’s report was effectively undercut by the introduction of so-called proformas—cost-benefit analyses accompanying the administration’s response to the report that calculated how much each academic program generated or lost, taking into account its tenured and tenure-track salaries and number of majors. That response recommended the closure of the programs in anthropology and French and changed the verdict on the sociology program from “sustain” to “transform” without explanation. The proformas, CUPP wrote in its September 21 open letter, “considered the financial outlook of each academic unit if the administration’s recommendations were accepted by the Board” but “were based solely on an academic unit’s number of majors (the revenue) and number of tenured faculty members (the expense)—a significant departure from the somewhat more finely-grained financial considerations that were supplied by the process’s consulting firm, Gray Associates.” Among the curious features of this case is the phenomenon of faculty members’ preferring the criteria of external consultants to the apparently reductive criteria of cost and revenue applied by the administration. All parties agree that after the May and July board meetings, the faculty felt betrayed; faculty members interviewed by the committee repeatedly used the terms “derailed” and “hijacked,” seeing the board’s action not as a legitimate disagreement between the faculty, on the one hand, and the administration and board of trustees, on the other, but as an unwarranted substitution of one set of criteria with another, a wholesale and unilateral change in the rules of the game. Central to that sense of betrayal is the faculty’s belief that the outcome was facilitated in large part by President Nugent’s statement in the September 18, 2019, faculty meeting that the review would not result in terminations of tenured faculty appointments. The CUPP letter cites the minutes of that meeting: “Program review of academic and non-academic units will be coming. Process will be announced soon. Will include outside consultants. Four possible outcomes: investing more, continuing as is, modify, discontinue some action or program. Not terminating tenured faculty” (emphasis added). President Nugent reported to this committee that, in her recollection, she had said that the point of the process was to review programs, not to cut faculty positions; that she did not believe that this statement amounted to an ironclad promise; and that, in any case, the financial prospects of the university looked rather different in summer 2020 than they had in fall 2019. The CUPP letter, however, calls President’s Nugent statement a promise, asserting, “It likely was the foundational promise that got faculty to participate in the program evaluation process initially.” Faculty leaders also informed the investigating committee of their belief that the May board of trustees meeting, and the follow-up meeting called for July, substituted financial for educational considerations in the review of programs and that the introduction of the proformas was evidence that, in the words of the CUPP letter, “despite any claims about decisions being made for primarily educational reasons, it’s actually quite clear that financial reasons ruled the day.” However, the CUPP letter also suggests that this possibility was there from the start, citing “The IWU Imperative,” a September 19, 2019, email message in which board chair Szerlong called for program review in terms that seem heavily weighted toward financial considerations: “The first priority of the Board of Trustees is to ensure Illinois Wesleyan remains a successful institution. The foundation for this success is fiscal integrity. Current and projected budgets fail to provide this solid foundation; more simply stated, our revenue does not cover our expenses. Change to university operations must be initiated to restore this fiscal balance. . . . This approach mandates program review, vigorous pursuit of organizational or structural change to adjust to a reduced student population, and identification of offerings that will attract new students, and better deploy our university resources.” The investigating committee asked President Nugent whether the concerns of the faculty were justified. She replied, not by denying that financial considerations were in play, but by arguing that at a small, private, tuition-dependent institution such as IWU, it is impossible in practice to separate financial from educational concerns. Faced with data that suggest the institution would be forced to declare a state of financial exigency within seven years, President Nugent said, the faculty and administration are impelled to try to determine how IWU can continue to attract students while maintaining its character as a liberal arts university. Regulation 4d stipulates 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.” President Nugent reports that the enrollment trends at IWU are not cyclical or temporary, but part of larger, long-term demographic shifts occurring nationwide that are putting pressure on all but the most elite institutions and rendering small, private liberal arts institutions especially vulnerable. The educational mission of IWU, according to President Nugent, can be maintained—or enhanced—only by curricular decisions that uphold the academic integrity of the institution while appealing to a student body drawn from a regional pool of applicants whose options include nearby Illinois State University, more than ten times the size of IWU with an in-state tuition rate less than one-third that of IWU. Whether this rationale informed the administration’s decision to introduce proformas to the board of trustees and the board’s decision to set aside the faculty’s recommendations is unclear. If this reasoning was the basis of the actions, however, an obvious question is whether Illinois Wesleyan could have made the decisions to discontinue programs during that seven-year window through a gradual process that involved existing faculty governance bodies and procedures. It is also not clear what role the pandemic played in the board’s decision. In the course of its eleven pages, the CUPP letter does not mention COVID-19 or its impact. In interviews, faculty leaders and President Nugent reported that the pandemic was not a consideration in the program review but that it did affect the university’s financial outlook in such a way as to make it impossible to create new positions for faculty members displaced by program cuts. President Nugent’s and Chair Szerlong’s September 11 letter to the AAUP’s staff alludes to this position without going into specifics: “What your letter quite presumptuously labels ‘a bait-and-switch scam’ is more accurately characterized as an effect of the global pandemic. It was impossible to know, in September or November or February, the extent to which the world would be altered. What has changed, since the inception of the review process, is not the intention of the administration, but unanticipated upheaval in the environment.” It is entirely plausible that hopes and plans to create new programs at IWU had to be scuttled as COVID-19 swept through every aspect of life on the planet. But even so, it remains unclear why the university has not placed Professor Sheridan in another suitable position.25 The committee was apprised of a December 1, 2020, email message from Professor Carolyn Nadeau, chair of the Department of World Languages, Literatures, and Cultures, to President Nugent and Dr. Mark Brodl, provost and dean of the faculty. In that message, Professor Nadeau states, “I can say with absolute certainty that WLLC has definite needs that Scott can fill. Although the French major and French and Italian minors will finish out over the next four years, WLLC still has several courses that need to be taught and Scott would be the perfect faculty member for the job.” The email proceeds to enumerate such courses, proposing a “regular rotation” of six courses per year. Additionally, on August 21, 2020, Professor Sheridan sent to Provost Brodl and the director of human resources a memorandum detailing five positions for which he might plausibly be considered, the most promising of which, it would seem, was that of associate dean for curricular and faculty development. “Given that this rotating, developmental position will be vacated at the end of this academic year, I would like to be considered for it,” Professor Sheridan wrote. “When I last applied to the Associate Dean position in fall 2016, CUPP selected me as a very close second to the colleague who currently holds the position.” Professor Sheridan also mentioned his “extensive committee work (chair of PAT, CC, chair of Academic Standards, Vice-chair of CUPP)” and his “important leadership roles in chairing a department and directing an interdisciplinary program.” The committee member who spoke with President Nugent asked if she and Provost Brodl were pursuing either of these options. President Nugent responded that Professor Sheridan’s case remained a subject of ongoing concern and that she would be meeting with Provost Brodl the following week to discuss it further. Faculty leaders, for their part, were not reassured that, as President Nugent and Chair Szerlong’s September 11 letter put it, “even if the worst result comes to pass, the number of affected faculty members will not be greater than one.” For them, it was a matter of principle: if this can happen to one of us, it can happen to any of us. The effect on faculty morale at Illinois Wesleyan University has been baleful. This, too, is something about which all interviewed parties agreed. On February 3, 2021, the Curriculum Council brought forward motions to revise the international studies program, “a program,” according to Professor Theune, “both greatly affected by the Board’s firing of tenured professors and where it was believed that faculty with terminal contracts might still be relocated.” Professor Sheridan is a former director of that program. Nevertheless, he has not been considered for relocation to it. * * * * * * The investigating committee finds that the administration and governing board of Illinois Wesleyan University, in taking action to close four academic programs and terminate nine tenured faculty appointments in stated adherence to Regulation 4d of the Association’s Recommended Institutional Regulations on Academic Freedom and Tenure, departed from AAUP-recommended principles and standards in several respects. In disregard of the Statement on Government of Colleges and Universities, the administration and governing board did not engage in “adequate communication” regarding the possibility that the program review might result in terminations of tenured appointments; they failed to honor existing provisions in the faculty handbook designed to preserve the faculty’s “primary responsibility” for curricular decision-making; they imposed their own program-review process despite the faculty’s primary responsibility for such matters; and they declined to provide “compelling reasons stated in detail” for rejecting the PETF’s final recommendations. In disregard of the 1940 Statement of Principles on Academic Freedom and Tenure and the derivative Regulation 4 of the Recommended Institutional Regulations, the administration and governing board have failed to make “every effort” to find another suitable position within the institution for the single remaining displaced faculty member.26 C. Keuka College (New York) Keuka College, a private undergraduate and graduate residential college founded in 1890 and located in New York’s Finger Lakes region, enrolls 1,116 undergraduate residential students, fifty-two graduate residential students, 413 undergraduate and 196 graduate “adult and online” students, and approximately 2,500 overseas students (through programs in China and Vietnam). Its faculty consists of about ninety full-time and 320 part-time members. In 2019 Keuka College’s endowment was $14.6 million. Ms. Aqua Y. Porter, a former vice president of business transformation for the Xerox Corporation, is chair of the college’s board of trustees. Ms. Amy Storey is the president. President Storey began her employment at Keuka College in 2013 as the institution’s chief advancement officer; she was promoted to vice president for advancement and external affairs and served ten months as interim president before being appointed Keuka’s twentieth president on July 1, 2019. President Storey declined the committee’s invitation to be interviewed. Dr. Steven Hallam, a tenured professor of psychology with twenty-nine years of service to Keuka College, was informed in a July 1, 2020, videoconference with Dr. Bradley Fuster, provost and vice president for academic affairs, of the termination of his appointment, effective that same day. Provost Fuster did not provide Professor Hallam with reasons for the administration’s action but stated that it was “not performance related” and that the board of trustees had “suspended all processes” related to the faculty handbook. A follow-up letter, also of July 1, contained a general release of legal claims and a severance agreement, which Professor Hallam did not sign, offering three months’ severance salary to be paid within thirty days. Eleven additional tenured or tenure-track faculty members were likewise notified of the termination or nonrenewal of their appointments that same day. The college community was informed of the administration’s unilateral decisions in two July 1 email messages—one from the current and previous board chairs and one from President Storey. The first message from the board chairs began as follows: “Recently, the Board met and made decisions to improve the College’s long-term viability. Next year’s projected $7-million budget shortfall caused by the COVID-19 pandemic requires us to take bold, unprecedented action.” This bold, unprecedented action amounted to enacting a one-year suspension of the faculty handbook’s procedures governing the termination of appointments and the closure of academic programs. The board’s message continued: As is common in higher education, the Keuka College Board of Trustees approves process and policy recommendations from the faculty in the form of the Keuka College Faculty Handbook. While these policies have generally served our institution well as it makes decisions in ordinary times, it has become clear that the policies are not designed to accommodate the current, unimaginable environment of our College, our nation, and our world. After much deliberation and analysis, the Board of Trustees has voted to suspend the processes outlined in the Keuka College Faculty Handbook addressing the closure of academic programs and terminations of Faculty appointments, including appointments held by members of the Faculty with continuous tenure, from now until July 1, 2021. Please know that the decision was motivated neither by an objective to erode tenure at Keuka College—tenure was in fact approved for four faculty members earlier this spring—nor to interfere with the expression of academic freedom. Ultimately, the College cannot financially afford to follow the processes outlined for faculty separation. To do so would be risking the educational futures of more than 2,500 students across the world, the livelihoods of more than 300 employees, and the pride of more than 13,000 alumni. The suspension of these handbook provisions, both of which ensure the faculty’s primary role in the educational mission of the institution, permitted the board to terminate faculty appointments in the absence of either a declaration of financial exigency or a bona fide formal discontinuance of a program for educational reasons and, furthermore, deprived affected faculty members of important due-process rights as required in the Association’s Recommended Institutional Regulations on Academic Freedom and Tenure, which the Keuka faculty handbook comprehensively incorporates. Just as troubling was the board’s determination that handbook regulations governing severance pay—not declining enrollments, not the rising cost of tuition, not increasing student loan debt, not even the impact of the coronavirus—constituted a singular threat to the college’s survival, thus warranting the abolition of faculty governance and the protections of tenure. The Faculty Liaison Committee (FLC) reported in the August 18, 2020, faculty meeting that it had not been consulted about the program and position reductions and was not aware of them until an hour before they were announced on July 1. As its name suggests, the FLC functions as “a liaison between the Academic Faculty and the other components of the College” whose chair the president and provost will advise “of issues under consideration that come within the purview of the FLC.” The faculty handbook furthermore upholds an ethos of shared governance explicitly grounded in AAUP-supported principles: “The Faculty and the President acknowledge that a positive working relationship between the Faculty and administration is vital for maintaining and improving the quality of Keuka College. To enhance coordination, communication, and consultation, the FLC and the administration affirm the principles below. These principles are in conformance with the AAUP principles and establish shared governance processes.” President Storey’s July 1 email, which followed on the heels of the board’s communication, provided details on the administration’s decisions. The president’s message stated, “The best thinking in national higher education finance is to plan for a 10-25% decline in enrollment revenue as a result of the pandemic. When combined with other shortfalls (e.g., no on-campus summer conference business, an uncertain economy causing less philanthropic giving and a lower endowment draw, as well as strained U.S.-China relations), the College is facing a gap of more than $7 million between projected revenue and typical expenses for the coming fiscal year.” To close this anticipated budget gap, the board had authorized multiple measures. The first was the elimination of six “undersubscribed” academic programs—biochemistry, criminal justice administration, mathematics, medical technology, nursing education, and organismal biology. The email stated, “For some of these programs, because of the looming revenue shortfall that threatens the College’s viability, the Board has exercised its authority to do so without the typical recommendation of the faculty as a whole.” According to faculty members who served on the Curriculum Committee, which, under the faculty handbook, is responsible for the review and approval of all changes to academic programs, the provost had earlier asked the committee for its assessment of the viability of five programs the administration considered not “financially sustainable.” Using data provided by the provost, including enrollment numbers, students graduated, and cost of instruction, the committee narrowed its focus to three programs—biochemistry, criminal justice administration, and medical technology—and sought additional information on course dependencies, enrollment history, and impact on other programs. Faculty members on the committee noted that financial information was limited. After its review, the Curriculum Committee brought three motions to the full faculty for a vote at the May 5, 2020, faculty meeting: to maintain the biochemistry program but to close the criminal justice and medical technology programs. All three motions carried. Curriculum Committee members reported to the investigating committee that the administration did not respond to the faculty’s recommendations until the July 1 announcement. Only then did the faculty realize that the board, in eliminating the six programs, had acted unilaterally in all but two instances and had explicitly rejected the committee’s recommendations and the faculty votes. Faculty members on the committee described a “disconnect” between the expression of the faculty’s will and the provost’s goals and tactics by which faculty governance was ultimately circumvented. President Storey’s July 1 email only briefly addressed the termination of appointments: “In addition to the employee separations necessitated by the closure of undersubscribed programs, the College has made budget-related faculty and staff separations.” At no point to date has the college indicated how many faculty positions were eliminated because of program closures and how many because of cost alone, nor what specific criteria were used to identify the latter. That the psychology program was not one of the six shuttered by the board (in fact, psychology is advertised on the college’s website as one of its top five programs and incorporates three concentrations in the major as well as a minor) suggests that Professor Hallam’s position was eliminated for financial reasons. We can be certain, however, that the decision did not honor his tenured status, his rank, or his length of service. The board implemented additional cost-saving measures in order to address the college’s projected $7 million budget deficit: the indefinite suspension of four athletics programs, 8 percent across-the-board salary reductions, two weeks of unpaid furloughs for all members of the faculty and staff in 2021, and a reduction in retirement contributions. Faculty members informed the investigating committee that the potential 10–25 percent enrollment revenue decline that had been projected in July did not come to pass. In fact, they reported, not only had students been successfully brought back to campus for in-person instruction but fall enrollment numbers had slightly exceeded the college’s targets. Indeed, with respect to the college’s financial condition, a September 8, 2020, article in a local media outlet quoted President Storey as stating, “The College has run budget surpluses the past two fiscal years and is on track to exceed the authorized budgeted surplus this year, so our fiscal house is in order.”27 In other words, despite a global pandemic that continued unabated, Keuka College was “on track” to exceed its authorized budgeted surplus in 2020–21. The proud announcement of a budget surplus, and the institution’s “financial health” and “fiscal order,” invites the obvious question whether that surplus may have been sufficient for Professor Hallam and his eleven colleagues to have retained their appointments after all. Professor Hallam sought the Association’s assistance shortly after July 1, the date on which his appointment was terminated. The AAUP’s staff wrote to President Storey on July 14 to convey the Association’s concerns in his case and to advise the president regarding AAUP-recommended standards governing the termination of appointments for financial reasons. The letter concluded that, to the staff’s knowledge, the college’s governing board had not declared a state of financial exigency and the administration had followed none of the Association’s recommended procedural standards in acting to terminate Professor Hallam’s appointment. A July 23 response from outside counsel Ms. Mary Jo Korona maintained that the college “had been engaged in efforts to respond to the financial burdens anticipated and/or already imposed by the pandemic” and that, “as time and the pandemic wore on, the College determined that . . . drastic and immediate measures would be needed to close a significant budget gap.” The letter went on to describe how the administration undertook a program-review process to identify “undersubscribed programs” and to analyze each division “in terms of cost of instruction.” With respect to the elimination of Professor Hallam’s tenured position, the letter concluded, “The College engaged in decision-making that prioritized the continued viability of the institution over some individual interests.” The staff’s August 4 response reiterated the Association’s concerns regarding the absence of a declaration of financial exigency and the lack of due-process protections afforded Professor Hallam. The letter concluded by announcing the staff’s intention, absent a satisfactory resolution, to recommend the case for investigation in view of the apparent implications for academic freedom and shared governance. Attorney Korona’s August 19 reply took issue with the Association’s “characterizations” of events leading up to the termination of Professor Hallam’s appointment and denied that the adverse action was “improper” in any respect. The letter maintained further that “the decision that led to the termination of Dr. Hallam’s tenured position was made in direct response to the pandemic” and was “part of a comprehensive plan expressly contemplated and permitted by the 2019 Faculty Handbook.” It is unclear what faculty handbook provisions the letter refers to, since, as noted above, the handbook incorporates almost verbatim Regulation 4c, “Financial Exigency,” and Regulation 4d, “Discontinuance of Department or Program for Educational Reasons,” of the AAUP’s Recommended Institutional Regulations on Academic Freedom and Tenure. With the AAUP’s executive director having authorized an investigation, the staff so informed the administration and the board in a September 14 letter, which closed by inviting their cooperation. On September 23, Keuka College issued a press release in response to the Association’s announcement of this investigation. In it, President Storey averred that the authors of the Statement on Government of Colleges and Universities could not “have foreseen a financial environment like the one in which modern-day institutions currently operate” and concluded that “it would be the ultimate dereliction of duty for this administration to risk institutional closure and the devastating impact that action would have on its faculty, staff, students, alumni, and the surrounding community by exhausting our scant financial resources to strictly follow AAUP guidelines during these unprecedented times. Neither faculty nor the principles of shared governance are the problem. The problem is the immense financial challenges institutions across the country are facing because of the pandemic.” The faculty at Keuka College believed otherwise. In the wake of the administration’s suspension of the handbook provisions, the chair of the Faculty Liaison Committee at the August 2020 faculty meeting led a robust discussion of the deleterious effects of the board’s decisions on shared governance and faculty rights. The FLC proposed the following motion on reinstating the suspended portions of the handbook: The FLC supports the President’s goal of prudent financial management, and we support the temporary pay cuts and recognize the current need for furloughs; but the FLC believes that further reductions could have been achieved without suspending portions of the Faculty Handbook. Hence, we will ask the Faculty to vote on the following motion. Whereas, The AAUP has stated that “AAUP-supported policies—most notably those that recognize the special challenge of ‘financial exigency’—are sufficiently broad and flexible to accommodate even the inconceivable disaster”; Resolved, That the Keuka College Faculty requests that the suspended sections of the Faculty Handbook be reinstated. The motion passed. The committee chair concluded the discussion with this statement: “I hope the message that will be communicated is that we are a strong faculty who are utterly committed to do what it takes. But we need to be treated fairly as well.” Unfortunately, the board and the administration have not honored the faculty’s request. * * * * * * The investigating committee finds that the governing board and administration of Keuka College—by unilaterally suspending critical portions of the faculty handbook, closing academic programs and departments, and terminating faculty appointments—violated the principles of sound academic governance set forth in the Statement on Government of Colleges and Universities. The committee further finds that the governing board and administration—by taking these actions without declaring financial exigency and by failing to afford academic due process to tenured faculty members, to respect tenured status in selecting appointments for termination, and to provide affected faculty members with adequate notice or severance salary—contravened the 1940 Statement of Principles on Academic Freedom and Tenure and damaged, if not destroyed, the college’s tenure system and the academic freedom it protects. D. Marian University (Wisconsin) Located in Fond du Lac, Marian University is a Roman Catholic institution with an undergraduate enrollment of about 1,400. The university had experienced budget shortfalls for years, so when the seventy-odd full-time faculty members at the university received their 2020–21 faculty contracts on March 27, 2020, some three weeks after the declaration of COVID-19 as a global pandemic, no one was surprised that the contracts contained the usual stipulation that the agreement was contingent on the board of trustees’ approval of “the budget for the course(s) provided for in [the] agreement.” Absent such approval, the contracts stated, the administration would notify faculty members within five days of the board’s decision regarding the status of their appointments. Two months later, at the May 27 board meeting at which trustees were scheduled to vote on the budget, then-acting university president Michelle Majewski declared an “enrollment emergency,” a “sudden or unplanned progressive decline in student enrollment within a program, the detrimental effects of which are too great or rapid to be offset by normal procedures outlined in the Handbook,” as defined by section 6.5 of the faculty handbook. The governing board, however, did not declare the institution to be in a state of financial exigency. With the announced enrollment emergency in place, the board suspended handbook procedures and authorized the closure of some nine programs, including undergraduate programs in music and music industry; minors in art history, music, and studio art; and graduate programs in educational administration and leadership, resulting in the termination and nonrenewals of the appointments of nine tenured or tenure-track faculty members. These actions, according to a June 2 university press release, were “proactive steps in anticipation” of the impact of COVID-19 on the university’s budget and enrollment projections. At a June 3 virtual “town hall meeting,” according to a summary of the meeting, administrators maintained that “under other circumstances, the opportunity to involve faculty, of course, is the preferred path, but these are not normal circumstances.” When the faculty asked how the handbook “justified” terminating tenured appointments, administrators maintained that the “alternative” was “to close the University,” adding, “We have no intention of closing the University.” And in answer to faculty questions about the criteria used for selecting programs to be closed and faculty positions to be eliminated, administrators stated simply, “We examined programs with low enrollments and decreasing enrollments.” Many of the faculty members whose positions were eliminated had a decade or more of service to the university, including Professor Mark Merline, a tenured professor of art who had taught at the institution for twenty years. In a July 16 email message seeking the advice and assistance of the AAUP’s staff, Professor Merline reported that he had been “abruptly dismissed with no warning.” In a June 1 teleconference with the president and the provost, Professor Merline learned that the termination of his position had been effectively finalized fifteen days earlier. According to the administration, none of the terminations was carried out for performance-related reasons; all were “strictly financial.” Yet the administration presented no data to show why certain programs and faculty positions were selected for elimination. By letter of July 29, the AAUP’s staff advised President Majewski regarding AAUP-recommended principles and procedural standards on academic governance, financial exigency, tenure, and academic due process. The letter noted that the college’s governing board, in reaching the decision to terminate the services of the faculty members, had not declared financial exigency and had not followed any of the requisite procedures specified under Regulation 4c, “Financial Exigency,” of the Recommended Institutional Regulations on Academic Freedom and Tenure. In her brief August 5 reply, President Majewski stated, “Marian University, Inc., disagrees with both the factual and legal assertions contained in [the AAUP’s] letter.” Responding by email of September 9, the AAUP’s staff stated that the administration’s reply appeared to confirm rather than allay the Association’s concerns about the lack of appropriate procedures. The email message went on to inform the administration that, absent the prospect of a suitable resolution and given the severity of apparent departures from AAUP-supported standards, the staff would recommend to the Association’s executive director that she authorize an investigation at Marian University. In a September 14 letter, the staff informed the administration and the board that the investigation had indeed been authorized, and the letter closed by inviting their cooperation with the investigation. President Majewski responded by letter of September 28, stating that the AAUP’s “purported ‘investigation’ lacks both a factual and legal basis”; that the “AAUP’s public relations campaign to disparage” Marian and the other “fine educational institutions” was “inherently unfair and without basis”; that the university in its actions had complied with its faculty handbook and “all applicable Wisconsin employment laws”; and that the “AAUP appears to be willfully ignoring the extraordinary circumstances brought about by the COVID-19 pandemic” that “compelled” institutions like Marian University to take the actions it took. “While you indicated you would welcome us providing a name and contact information of the person I would designate to assist the committee in arranging interviews,” she wrote in ending her letter, “I respectfully decline this offer.” The principal parties with whom this investigating committee spoke and the documents it reviewed reveal an administration that approached program review in a haphazard manner largely without the benefit of faculty consultation. To cite one example, in her June 1 letter to Professor Merline, President Majewski gave the following explanation for terminating his appointment: “After considering your Program’s continuing low enrollment, together with the President’s declaration of a state of enrollment emergency justifying a permanent layoff, the Board of Trustees determined that the educational mission of Marian University as a whole will be strengthened by the elimination of the Program.” However, according to Professor Merline, the art program was not underenrolled nor was it losing money, and the administration had never presented any enrollment data to the faculty.28 Indeed, in early March 2020, in response to the ongoing financial difficulties at Marian, members of the faculty presented a “curriculum-efficiency” proposal that did not include layoffs. There is no evidence to suggest the administration gave serious consideration to any faculty recommendations. * * * * * * The situation at Marian resembles that of other institutions discussed in this report—a university that has experienced financial problems for some time suddenly suspends its normal processes and ignores any obligations to observe AAUP-supported governance standards to facilitate making quick personnel changes, including appointment terminations. Indeed, many of these changes may have been under consideration previously, but now the pandemic provided an “alternative explanation” for what may have been long-standing goals of cost-cutting, achieving “lean operations,” and reducing student choices—in short, hastening the arrival of the corporatized university. AAUP-supported standards of shared governance and academic freedom serve different ends than those of the corporate university: improving educational quality by bringing professional expertise to bear on curricular decision-making and by protecting academic freedom though academic due process and tenure. We hope that Marian University has not permanently abandoned these principles and goals, the importance of which it has previously affirmed.29 The investigating committee finds that, in acting to close programs and terminate the appointments of Professor Merline and other faculty members, the administration and governing board of Marian University disregarded principles and standards of academic governance articulated in the Statement on Government of Colleges and Universities as well as the principles and standards of academic freedom and tenure set forth in the 1940 Statement of Principles on Academic Freedom and Tenure. E. Medaille College (New York) On April 15, 2020, President Kenneth Macur of Medaille College, a private liberal arts institution based in Buffalo and enrolling approximately 2,200 students, sent the Faculty Council, the executive committee of the college’s Faculty Assembly, a proposal to address the “need for the College to move quickly to respond to the current budget crisis exacerbated by the COVID-19 pandemic and the multiple states of emergency.” To do so, he would, as he had informed the council a week earlier, invoke a provision of the faculty handbook that permitted the president, after consultation with the Faculty Council, to petition the chair of the board of trustees to suspend the handbook in response to “natural disasters, acts of God, declared states of emergency or other emergency situations.” In his proposal, the president stated that, despite the administration and the faculty council’s having, “in the spirit of cooperation,” already discussed potential revisions to the handbook based on several principles of agreement, he now “believed that this [was] an opportunity to do more than just tinker around the edges.” Although the cited provision permitted only the suspension of the handbook, the proposal called for the document’s extensive revision. “We need to be bold and decisive,” the president wrote, because council-supported revisions did not “go far enough” to “accomplish the bold changes” needed. Listed among proposed “bold changes” were “eliminate tenure” and “re-work the grievance process” to prohibit its applicability to “hiring/firing issues.” “Let me talk about the ‘big rock’—tenure,” President Macur continued. “There is an old saying that good faculty don’t need it and bad faculty don’t deserve it.” In an April 27 letter, the Faculty Council called upon the board to deny the president’s request and wait for “a mutually agreed upon proposal that more responsibly and viably addresses [the] current fiscal crisis,” one that followed “the path of shared governance.” With respect to the college’s financial situation, the council alleged “irrefutable evidence that the College’s ongoing fiscal crisis—while, of course, exacerbated by the current pandemic and consequent states of emergency—clearly predates these circumstances and is in fact the direct result of budgetary mismanagement and administrative failings going back several years.” According to faculty members on the Faculty Budget Committee, during President Macur’s six-year tenure, the school had only one year of positive net income, even though his predecessor had substantially reduced fixed costs and balanced the budget. For fiscal year 2020, the college had projected a net loss of $6.5 million, the largest deficit in almost a decade, well before anyone had heard of COVID-19. The pandemic actually brought a substantial reduction in that deficit when the college received a significant appropriation under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, and projected enrollment declines were lower than originally feared. President Macur and members of his cabinet ceased meeting with the Faculty Budget Committee in April 2020, after which the committee played no role. Its members were not given access to the 2021 fiscal year budget—approved by the board in September 2020—until December 2020. The council’s letter called the president’s plan to suspend the handbook “an illegitimate effort to seize upon the current pandemic as a convenient opportunity to force College employees—both staff and faculty—to bear an undue burden in rapidly remedying the institution’s budgetary shortfall that has been years in the making.” Nonetheless, it continued, “we recognize the very serious and imminent need for substantial budget cuts, including academic programs and faculty lines.” The letter ended with an appeal to the administration and governing board to work “collaboratively” to resolve the crisis. That same day, however, council members learned that the president had received board approval to invoke the “Act of God” provision even before making his April 15 proposal. Several weeks later, the entire Faculty Assembly, the Faculty Council’s parent body, voted overwhelmingly against negotiating further revisions to the handbook while it remained suspended. Members of the Faculty Council sought the AAUP’s advice and assistance in late April. They contended that the decision to suspend the handbook was not preceded by any demonstration that the financial emergency was of such magnitude that it could not be addressed by existing policies. They also questioned the adequacy of faculty participation in the discussions preceding the administration’s action. The AAUP’s staff wrote to President Macur on April 29 to convey the Association’s concerns and to highlight applicable AAUP-recommended principles and procedural standards on academic governance, financial exigency, tenure, and academic due process. His May 12 response sought to justify the administration’s actions, claiming that the Faculty Council had not “provided any suggestions that afford any immediate or long-term fiscal relief” and, further, that “their ideas suggest that faculty should make administrative decisions on financial condition, organizational restructuring, and the like,” a notion that President Macur seemed to consider self-evidently preposterous. In responding to the staff’s request for comment on the president’s May 12 letter, the Faculty Council stated that the president had not adequately explained why the administration believed it was necessary to suspend the faculty handbook, along with its faculty governance procedures, in order to address the financial crisis. With respect to the president’s contention that the faculty had been regularly informed about Medaille’s financial condition, council members contended that the administration had repeatedly failed to respond to budget committee requests for audited financial statements. On June 11, the president sent the Medaille faculty an update on academic programs, describing a review process undertaken six weeks earlier by an administratively appointed Program Prioritization Task Force consisting of four administrators and two faculty members. The email explained that the process had followed the “nationally recognized Dickeson Model of program review” in which the task force “led the data collection, analysis and deliberation process” and program directors and department chairs had input. The message announced that programs in marriage and family therapy, health information management, and homeland security would be eliminated, while programs in e-sports management, accounting, and social justice were “under development.” The AAUP’s previous experience with the so-called Dickeson Model leads to the suspicion that any administration employing the model is unlikely to value shared governance and academic freedom.30 However, according to reports by faculty members involved, even that model served mainly as “a fig leaf” for a process that was largely arbitrary and involved no genuine faculty participation. According to a faculty participant, “It was supposed to follow the Dickeson Model but did not even follow that.” Several weeks later, Professor Erika Hamann, an assistant professor in the Department of Interdisciplinary Studies who had served as a full-time faculty member for fourteen years, and Professor Keith Klostermann, a tenured associate professor in the Department of Counseling and Clinical Psychology with nine years of service, sought the AAUP’s assistance after they received termination notices effective June 2020. The five additional full-time faculty members whose services were terminated did not seek the AAUP’s assistance. The administration gave the affected faculty members no explanation for its action to terminate their services. According to faculty members who met by teleconference with the investigating committee, only half of the affected faculty members held positions in programs that were eliminated, leading them to infer that the actions against them were at best arbitrary and at worst motivated by vendettas or efforts to silence opposition. The administration soon presented the Medaille faculty with a revised handbook and employment agreement for its review and approval. The revised handbook allowed faculty members awarded tenure prior to July 2020 to retain that status, but their employment agreements would now “contain grounds for dismissal or termination” and be “subject to annual performance reviews” that “may result in discipline and/or termination.” Faculty members not awarded tenure prior to July 2020 would now receive three-year renewable term appointments. With respect to discipline and termination, the revised handbook stated that “a faculty member has the right to contest” efforts to impose discipline or termination and that “[d]ismissal shall not be used to restrain a faculty member’s academic freedom.” The new employment agreement, however, provided the administration with broad latitude for dismissal, stating that appointments may be terminated “prior to the expiration of the Appointment Period, ‘for cause,’ immediately upon giving written notice of such action to the Employee.” Grounds for “cause” include “failure to perform the Employee’s duties, including failure to comply with any lawful and reasonable directive from Medaille, after being provided with notice of such failure or defect and [after] the Employee fails to cure such failure or defect to Medaille’s satisfaction with[in] thirty (30) days of such notice.” The agreement also included a provision whereby a faculty member must acknowledge and agree “that the Prior Handbook was validly replaced and rescinded . . . and that the Employee shall not claim any right, benefit, obligation, or entitlement to any provision contained in the Prior Handbook.” The agreement also released Medaille “IRREVOCABLY AND UNCONDITIONALLY from any and all claims, demands, suits, causes of action, obligations, promises, damages, fees, covenants, agreements, attorneys’ fees, costs, expenses, debts, contracts and torts of every kind whatsoever” that the faculty member “ever had, now has, or . . . may have.” On July 17, the Faculty Council informed the board of the faculty’s conclusion that both the draft handbook and the employment agreement were “completely unacceptable,” pledging not to sign the agreement. “The faculty handbook, it is important to stress, did not cause the current financial crisis at Medaille College,” the council declared. “Tenure, long-term contracts, office hours, etc., are not the reason for the financial crisis that existed prior to the current pandemic.” Notwithstanding the faculty’s objections, the board approved both documents at the end of July. The Faculty Assembly responded with unanimous passage of a resolution condemning the board’s action. In June 2020, the full-time faculty received letters informing them that if they declined to sign the employment agreement, the administration would regard them as “at-will employees” whose services can be terminated “for any reason.” According to faculty sources, except for three new appointees who signed the agreement in August 2020 unaware of what had transpired, no faculty members have signed the agreement. The investigating committee received no documents with which to evaluate the administration’s claims regarding Medaille’s financial condition. In a written response to the investigating committee, the administration merely assured us that the budget crisis was “significant and perilous” and had been adequately communicated to the faculty. Faculty members agree that the college’s financial difficulties are genuine, but they almost uniformly blame the Macur administration both for causing these difficulties and for exaggerating their seriousness. They also contend that less drastic measures could have been employed to address whatever challenges the college faced. As the AAUP’s staff wrote to President Macur on April 29, 2020, The AAUP recognizes that financial emergencies can occur and that institutions may have to make hard choices to avoid compromising their academic integrity—or going out of existence. The Association, however, is concerned that such an emergency might serve as a pretext for terminating faculty appointments based on considerations that violate principles of academic freedom and tenure. The Medaille administration did not declare financial exigency. While President Macur contended that the COVID-19 pandemic necessitated program eliminations and appointment terminations, the administration’s failure to provide financial data in support of that contention—as well as the college’s receipt of significant federal pandemic funding—suggests that this claim was largely pretextual. Of more significance to this report, the administration observed none of the Association’s relevant procedural standards, as set forth in the Recommended Institutional Regulations. The investigating committee, moreover, has seen no evidence that faculty representatives participated meaningfully in decisions regarding program elimination and terminations of faculty appointments. The Medaille administration’s written response to the investigating committee declares: “Medaille College is deeply committed to the principles of shared faculty governance. . . . Faculty are included in the budget process and were integral in last year’s program and position assessment and elimination,” including in “numerous meetings and town halls that involved hours of transparent discussion and debate.” Testimony of faculty members, including those involved in the discussions referenced by the administration, contradicts these claims. The unilateral decision of the administration and board 

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