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Tuesday, January 15, 2013

What Rights Do Faculty Have in the Decision to Close a Law School?

AAUPInside Higher Ed:  Shared Crisis:

Citing a recent wave of unilateral moves to eliminate academic programs by university administrators claiming financial crisis, the American Association of University Professors today released new guidelines designed to tighten the definition of financial exigency and increase faculty participation in deciding whether to close programs. ...

AAUP accepts that academic programs may be  cut due to true financial exigency or sound educational reasons, said Bérubé, professor of English at Pennsylvania State University and immediate past president of the Modern Language Association. But some of the cuts in recent years have not been based on a “you’re bankrupt and owe money to the mob tomorrow” imperative, but rather “festering” financial crises related to the greater economic climate in which administrations have looked to cut instructional costs before other, extracurricular priorities, such as athletics. ...

John Lombardi, a former president of the Louisiana State University and expert on institutional finance, said that financial exigency has historically been a point of contention between administrations and faculty precisely because it means different things to different groups at different levels of the institution. Union groups tend to hold that any available funds should be spent on keeping jobs, while administrators have to balance a wider variety of obligations.

American Association of University Professors, The Role of the Faculty in Conditions of Financial Exigency:

In recent years, American institutions of higher education have begun closing programs that should be part of any serious educational institution’s curricular portfolio and have been implementing policies that further erode the ranks and the discretionary power of the tenured professoriate. Program closures on the scale we have recently witnessed represent a massive transfer of power from the faculty to the administration over curricular matters that affect the educational missions of institutions, for which the faculty should always bear the primary responsibility. In most cases the decisions to close programs are made unilaterally and are driven by criteria that are not essentially educational in nature; they are therefore not only procedurally but also substantively illegitimate. Increasingly, administrators are making budgetary decisions that profoundly affect the curricula and the educational missions of their institutions; rarely are those decisions recognized as decisions about the curriculum, even though the elimination of entire programs of study (ostensibly for financial reasons) has obvious implications for the curricular range and the academic integrity of any university.

This report responds to this state of affairs in two ways: one, by making recommendations intended to strengthen shared governance and faculty consultation with regard to program closures and, two, by addressing the gap between Regulation 4c and Regulation 4d of the AAUP’s Recommended Institutional Regulations on Academic Freedom and Tenure. Regulation 4c pertains to financial exigency, and Regulation 4d concerns program discontinuance based on educational considerations.

First, as to governance and consultation, this report insists that faculty members must be involved in consultation and deliberation at every stage of the process, beginning with a determination that a state of financial exigency exists. We offer specific recommendations for such faculty involvement. ...

Second, this report proposes a more detailed and specific definition of “financial exigency” that will extend the standard of exigency to situations not covered by our previous definition. As set forth in the introduction, our new definition names a condition that is less dramatic than that in which the very existence of the institution is immediately in jeopardy but is significantly more serious and threatening to the educational mission and academic integrity of the institution than ordinary (short- and long-term) attrition in operating budgets. Financial exigency can legitimately be declared only when substantial injury to the institution’s academic mission will result from prolonged and drastic reductions in funds available to the institution and only when the determination of the institution’s financial health is guided by generally accepted accounting principles. In proposing this new definition, however, we insist that financial exigency is not a plausible complaint from a campus that has shifted resources from its primary missions of teaching and research toward the employment of increasing numbers of administrators or toward unnecessary capital expenditures.

The AAUP has long acknowledged that a college or university can discontinue a program of instruction, but our standard has been that if the discontinuation is not undertaken for financial reasons, it must be shown to enhance the educational mission of the institution as a whole; we have long acknowledged that programs can be cut in times of financial exigency, but only if an appropriate faculty body is involved in the decision-making process, beginning with the determination of whether an institution is experiencing bona fide financial exigency. But by and large, the program closings of recent years do not meet any of these standards. They represent a violation of the principles on which American higher education should operate and must be contested by a vigorous, principled, and informed faculty.

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> cut instructional costs before other, extracurricular priorities, such as athletics.

Many, if not most, althletic departments are profitable. Many of the rest are cash-negative only because the "big sport" profit doesn't cover as other recreation activities, activities that the University would have to pay for if it cut "big sport".

In other words, cutting athletics rarely improves a school's financial situation and usually makes it worse.

But it does help faculty feel good, so they'll have that when the inevitable happens.

Posted by: Andy Freeman | Jan 15, 2013 12:56:06 PM

Tenure has outlived its usefulness. They should be conflicted out from voting on such an issue.

Posted by: Cali | Jan 15, 2013 2:59:18 PM

Actually, the overwhelming majority of college sports programs are money losers.

For every winning team, there are a dozen mediocre and losing teams that are losing money for the university and draining resources from academic instruction. And sports are not just football and basketball. Add all the others in, mens and women's, and you see the costs.

The sports teams are basically expensive PR machines, because it's apparently easier for politicians to fund sweaty muscle bound 20 year olds chasing after a ball than highly trained researchers trying to find a cure for cancer.

Posted by: Anon | Jan 15, 2013 3:07:17 PM

College athletics called "losers" by some, especially club sports like golf and tennis, generate significant alumni contributions far beyond the costs of the programs. Such sports also provide a complete college experience for students, who use that as a factor in choosing where to attend and spend their tuition money. Colleges also spend a lot of money on upgrading infrastructure to recruit students and their money. Most young people don't want to go to a college in a warehouse and with no outside activities. Cutting many costs of colleges, whether sports or building programs, is a poor economic decision.

Now, repealing Title IX would make sense, especially given the current occupant of the White House and his extension of it beyond womens sports.

Quotas limiting the number of male students in science may be imposed by the Education Department in 2013. The White House has promised that “new guidelines will also be issued to grant-receiving universities and colleges” spelling out “Title IX rules in the science, technology, engineering and math fields.” These guidelines will likely echo existing Title IX guidelines that restrict men’s percentage of intercollegiate athletes to their percentage in overall student bodies, thus reducing the overall number of intercollegiate athletes. ... President Obama celebrated the fact that 25 percent fewer men than women graduate from college, calling it a “great accomplishment” for America.

Posted by: Woody | Jan 16, 2013 9:30:19 AM

How about cutting all the "diversity" programs first?

Oh, that's right, Universities aren't about teaching people, they're about making people "feel good."

Posted by: Greg Q | Jan 16, 2013 12:08:18 PM

Private universities may be covered by the WARN Act as well:

Posted by: holmes | Jan 16, 2013 12:39:55 PM

Sports are a problem, but we had big-time college athletics long before tuition shot the moon. The bigger problem is the bureaucracy, which has gotten completely out of control.

Fire half the bureaucrats, see where you stand, and go from there.

Posted by: Foobarista | Jan 16, 2013 12:57:46 PM

The important question isn't whether a given sport or academic program should be cut, it is who gets to decide -- the faculty or the President. Money is fungible and "financial exigency" is of course something which is subjectively judged -- otherwise it wouldn't matter who did the judging -- and a judgement which is necessarily political. Like other decisions, someone must be the tie-breaker if the President and the faculty committee disagree. There are certainly decisions where the faculty should be paramount, arguably including academic hiring decisions. But asking the faculty to decide whether or which program to cancel makes about as much sense as asking the coaches which of their sport(s) should go. We should leave the actual decision up to the President, subject to the Approval of the Board, of course, at whose pleasure he should serve.

Posted by: DWPittelli | Jan 16, 2013 2:05:41 PM

More static from the alternative universe!

Nothing but naked and illogical self-interest ploys driven by the fact that the product cannot command the price and share in the market needed for sustainability AND they have run out of "other people's money" to prop up their parochial interests.

Fix the problem! Quit messing with the deck chairs.

Posted by: Larry Weber | Jan 16, 2013 2:54:17 PM

They have no rights whatsoever. Close it down; fire their asses. BS artists.

Posted by: patch | Jan 16, 2013 2:55:17 PM

Universities are places where men and women who possess knowledge can learn and share learning with others.

The days are gone when you could go down to the local slave market and buy a greek philosopher for the kids, or an Egytian doctor to serve as a family doctor. Lawyers always knew how to avoid being slaves. Tech guys were always available cheap, but who needed labor saving inventions when everyone was either a slave or a slave owner?

Letting the marketing department run the university is a step back in time.

Posted by: grey eagle | Jan 16, 2013 3:45:01 PM

Our friends at the AAUP show us the real root of so many of the university's problems - financial and otherwise:

"... curricular matters that affect the educational missions of institutions, for which the faculty should always bear the primary responsibility"

Faculty are mostly narrowly focused specialists who are ill equipped to define the mission of a complex institution like a modern university. It's daft to expect a faculty senate to formulate a coherent mission that extends beyond guarantees of future employment for themselves. It's long past time for trustees to step up to their obligations on this.

Posted by: Edison Carter | Jan 16, 2013 4:26:03 PM

Why is this last second rule rewrite binding on the Universities? AAUP cannot unilaterally impose contract conditions on the schools.

Further, AAUP has zero leverage on the stand alone law schools. Even schools that do have other divisions aren't really exposed.

What is AAUP going to do? Call a strike? Given the academic job market, striking profs can be replaced by younger and cheaper hires in a heartbeat.

Posted by: Walter Sobchak | Jan 16, 2013 5:51:17 PM

...programs that should be part of any serious educational institution’s curricular portfolio... --AAUP

Has the AAUP ever identified any programs that don't meet this criteria? Greivance studies programs, perhaps?

For every winning team, there are a dozen mediocre and losing teams that are losing money for the university and draining resources from academic instruction. --Anon (6:07:17 PM)

Let's not get into a row over Title IX unless the AAUP is ready to condemn it.

[D]iscontinuation... must be shown to enhance the educational mission of the institution as a whole... --AAUP

Closing a law school that pumps more lawyers into already well-overlawyered state and
replacing it with a school of nursing with a graduate program - UC Irvine, I'm looking at you - would definitely enhance the educational mission at a lot of taxpayer-funded institutions.

Writing these comments has been such fun!

Posted by: Micha Elyi | Jan 17, 2013 1:06:57 AM