A new Regents policy on firing tenured faculty caught national blowback, and KU is in the crosshairs

Rafael Garcia
Topeka Capital-Journal
Mabel Rice, a distiguished professor of child development at the University of Kansas, stares out the window of the Dole Center for Human Development where she teaches. Under a policy the University of Kansas is looking closely at implementing, tenured professors like Rice could be stripped of the job protections tenure provides.

Mabel Rice had already been dealing with “a blizzard of documents” in getting ready to teach spring semester child development classes at the University of Kansas when the Kansas Board of Regents approved a new policy document that could essentially strip her of any semblance of job security she’d had.

The Regents in late January had voted to allow the six state universities the ability to implement policies to more easily trim down payroll. University leaders could more easily suspend, fire or dismiss any staff — including tenured professors — “in light of the extreme financial pressures placed on the state universities because of the COVID-19 pandemic.”

The distinguished professor — a title conferred on some of the state’s most respected and senior faculty members, alongside the ultimate job protection of academic tenure — had been focused much more on complying with demanding, but necessary, COVID-19 protocols and class adjustments.

The Regents decision, as well as the very idea universities were even considering the policy option, came as a shock to Rice and most faculty across the Regents’ six state universities.

“We’d heard more about building security than we had heard about this possible, substantive change in policy,” Rice said.

Mabel Rice, distiguished professor of child development at the University of Kansas, left, talks with, from right, Kylie Helm, first-year doctoral student, Teresa Girolamo, PhD candidate, and Kathleen Earnset, research associate, outside of the Dole Center for Human Development.

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In the wake of the Regents’ decision, the Kansas higher education governing body has drawn blunt criticism from not only faculty within the state but also higher education groups across the country.

The American Association of University Professors condemned the Regents decision as abandoning the principle of academic freedom that tenure provides. While the Regents decision simply allows universities to adopt such policies through the end of 2022 and within frameworks subject to Regents approval, the AAUP said even temporary policies would be detrimental to Kansas’s universities.

“While some regard tenure as an exalted faculty status separable from the due-process protections of the kind described here, tenure is inseparable from those due-process protections which in fact define it,” the letter read. “An institution that fails to afford those protections cannot protect academic freedom in service of the common good.”

KU not ruling out policy

Out of the six state universities, leaders at all but one have announced they will not seek to implement such policies and instead defer to existing avenues, in consultation with campus leadership groups, to address any financial difficulties.

The University of Kansas — the state’s largest and flagship university — has declined to rule out eventually implementing a policy under the new Regents language.

Out of the six state universities, only the University of Kansas has yet to rule out implementing a controversial measure that would allow university administrators to more unilaterally fire tenured faculty.

KU provost and executive vice chancellor Barbara Bichelmeyer on Friday wrote to the campus community and said KU administrators would seek an extension from the Kansas Board of Regents to July 1 to continue discussions on whether the extreme measure is necessary.

"We value and want to protect tenure, while we also accept and respect our responsibility to serve the needs of our various constituencies," she said.

She earlier had said the university will continue to rely on other budget reduction measures, such as a voluntary separation program and policies clamping down on travel and extraneous expenses, that are expected to save several million dollars over the next year.

KU also hopes to build enrollment back up after higher education enrollment across the nation cratered in the wake of COVID-19, particularly at institutions like KU that had ambitious plans to bolster enrollment from international students. With travel restricted across the globe, many of those students did not return or never came to Kansas campuses.

Still, the university's statements have done little to assure campus faculty, and 1,000 professors and staff signed a letter demanding University of Kansas chancellor Douglas A. Girod and KU join the other state universities in declining to pursue a policy under the framework.

“For faculty that have spent many years teaching at KU, and who have been loyal to KU, I imagine there is deep disappointment that the university is considering a policy that would allow them to be dismissed with only 30 days’ notice,” said Berl Oakley, a distinguished professor in KU’s Department of Molecular Biosciences. “For faculty who are leaders in their fields or young faculty who have recently received tenure and who are doing well in their research and scholarship, I imagine they will be looking around for better jobs.

“KU has been hemorrhaging excellent faculty in recent years and this policy will certainly make KU less attractive,” added Oakley, who is also the university’s AAUP representative. “Departmental chairs and directors have already signed a letter indicating that this policy will make it more difficult to attract and retain excellent faculty.”

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Why was policy necessary?

As a policy making and implementing body, the Regents typically make decisions on a timeframe of months or even years, rather than days or weeks.

But in addressing COVID-19, the Kansas Board of Regents has moved at relative lightspeed to allow universities greater latitude in how they deal with any issues from the pandemic, such as in March 2020 when universities suddenly shut down for in-person operations.

And the speed at which the decision to allow policies latitude on firing or suspending employees came especially shocked faculty groups, since the proposal was only discussed the morning of the Regents’ January meeting and added to the board’s agenda during the meeting itself.

That said, in the week before the meeting, the Regents and Kansas’s state university presidents were reacting to an analysis from the Kansas Legislative Research Department that showed that Gov. Laura Kelly’s proposed budget would amount to a $37.4 million reduction in state general funding for higher education.

Even then, faculty groups said universities have been dealing with the financial toll of COVID-19 since last March, and other existing financial mitigation measures — already agreed to and accepted by administration, faculty and student leadership representatives — have been available to universities.

One of those measures, if extreme, is for a university to declare a financial exigency. Per Regents definition, a financial exigency is an emergency state of operations when universities, having exhausted all other avenues of cost-reduction, may decide to not reappoint tenured faculty. To declare one, university administrators must notify the Regents of that intent.

A financial exigency, though, is a last-ditch measure that signals potentially insurmountable financial difficulties and a university on the verge of collapse. Such declarations also have further financial implications, since universities may face higher interest rates on bonds or other debt instruments. Few universities across the U.S. have declared financial exigencies, even in the wake of the pandemic.

A view of the University of Kansas in Lawrence from a drone.

Bichelmeyer on Friday said KU officials are not exploring declaring a financial exigency, especially since that measure would apply to the entire university system. Other austerity measures will take a priority over the next few months, she said.

"Because financial exigency applies to an entire institution, and our fiscal challenges are primarily on the Lawrence campus, this is not an option that we will pursue," she said.

The University of Kansas system, at the start of the school year, had $667 million in outstanding revenue bond debt and $30 million in capital leases and notes payable, although those numbers were down from $725 million and $44 million respectively. 

Faculty critics have also said the university is looking to sidestep declaring a financial exigency because doing so would inevitably lead to an increase in the university's indebtedness from resulting hikes in interest rates.

Furthermore, KU faculty members are arguing that the existing method of declaring a financial exigency at least requires university administrators to consult with other campus leaders and groups in deciding how to make any staffing cuts, and any policy under the Regents’ new language essentially does the same thing a financial exigency would do while circumventing that requirement for collaboration.

“My understanding is that the existing policy, which is very well-described and laid out, nevertheless requires time to implement,” said Rice, KU professor in child development. “Somehow, the impression is that we no longer have time for anything that has deliberative judgment involved in it.”

Any employee fired or suspended under a policy using the Regents' new language would have to be given 30 days of written notice, which could then be appealed through the Regents to the state's Office of Administrative Hearings. Faculty groups, though, say that any appeals under that system would likely be in vain.

Matt Keith, a Regents spokesperson, said declaring a financial exigency would require state university CEOs to first make "sweeping cuts to positions other than tenured faculty.

"This policy was adopted to give university CEOs flexibility to make staffing reductions that might be necessary because of pandemic-related budget constraints in a way that makes the most sense for their institutions and has the smallest possible impact on students and the universities’ missions," Keith said.

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Enrollment strains

In the past two decades, Kansas universities' revenue from state funding and tuition, as proportions of their overall budgets, have essentially flipped, with universities now receiving a bigger chunk of their funding from rising tuition rates.

While all six state universities have dealt with dropped enrollment this year, KU leaders say they face a particularly unprecedented $74.6 million budget cut that will require the university to make drastic cuts and even “eliminate programs and departments, reduce services, and implement furloughs and layoffs,” Chancellor Girod previously told the campus.

Bichelmeyer, the provost, said one of the keys to the university’s recovery will be bolstering the number of prospective students and admissions to increase the university’s enrollment, as well as working on student retention and graduation rates.

That’s in addition to other measures that are bound to be less popular.

“…And, unfortunately, it is likely that, in addition to all the other work we have before us, we will need to close some low-enrolled programs and programs that don’t align with the core mission of the university and consolidate some administrative services, all of which will likely result in the need to let some people go,” she wrote.

Under the Regents policy, KU — or any other state university, if their presidents go back on their words — has until March 6 to return to the Regents with a framework to enact any new policy subject to the board’s approval. KU officials have said they'll ask the Regents for an extension to that deadline to further discuss the issue and have additional time to create such a framework.

Even though much of the criticism has been aimed at KU, a group of over 100 distinguished professors from across the state on Wednesday called on the Regents to repeal the policy language for all state universities.

“To jettison best practices with this substitute policy not only reveals a lack of respect for each campus' system of shared governance, it threatens long-term damage to the missions of each institution,” a letter from the group read. “It undermines the purpose of tenure, which is to allow faculty to pursue their scholarship without fear of repercussions.”

Keith said statewide faculty representatives were given the chance to respond to the new policy language at two different meetings, although both were on the same day. The first meeting was the Regents' governance subcommittee, which met before the second meeting, the Regents' regular meeting in which the board adopted the new language.

At both meetings, Aleks Sternfeld-Dunn, a Wichita State University professor representing the state universities' faculty senate presidents, said the faculty senate presidents had "grave concerns" over the policy and the potential trouble it could cause for Kansas's universities.

He warned the policy would attract national scrutiny, and by demonstrating a lack of collaboration with tenured faculty, Kansas universities would struggle to recruit new faculty.

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Bridges burned

Philip Nel, a Kansas State University distinguished professor in children’s literature who signed on to the letter, was more critical of the Regents. He said January’s vote was the result of having well-intentioned business experts who nevertheless lacked higher education experience in charge of the state’s colleges and universities.

Philip Nel, a Kansas State University distinguished professor, was one of over 100 distinguished professors signing onto a letter urging the Kansas Board of Regents to repeal a decision allowing state universities broader latitude to fire tenured employees in dealing with COVID-19 financial difficulties.

He said Kansas already had a mixed record on higher education in the nation, and the Regents’ decision only further tarnished the state as a place for academics to avoid.

“This policy is currently only under consideration at the University of Kansas, but there is nothing to prevent it from applying to other places,” he said.

Opponents of the policy have particularly honed in on the policy as inherently violating the principle of tenure, which is supposed to offer professors protection from retaliation for academic views, as controversial as they may be.

It is an academic freedom that has made U.S. public research universities the envy of the world, said Rice, the KU professor in child development.

“They are a wonderful source of pride, but they run well under a common purpose and sense of trust,” she said. “That’s one of the most concerning elements — that sense of trust and adherence to professional standards. Under the situation we’re in right now, there’s concern about whether these standards as we know them will be honored.”

While measures taken to mitigate financial losses could be understood, if not forgiven, the faculty groups said the potential policies were a bridge too far in providing university higher-ups with unchecked power to choose which staff or faculty to lay off.

It is tenure, then, that allows older faculty the ability to speak out when younger staff might be reluctant, Rice said.

“As the group of distinguished professors, we are more senior and are in a position to reflect on the implications of this vote when some of our younger colleagues may not feel comfortable expressing their opinions,” said Rice.

Bichelmeyer, in her Friday letter, said the university was doing what it could to balance professor tenure as a priority, but the university is also responsible to other stakeholders, like taxpayers, accrediting agencies and even the university itself.

"While we aspire to the twin goals of bringing our university back to fiscal health and to upholding the rights afforded through tenure for our faculty, it is critical we recognize that we secure the right to tenure by addressing the rights of our various constituents, investors, benefactors and advocates," she wrote. "Ultimately, tenure means that we are accountable for monitoring, demonstrating and reporting our commitment and responsiveness to the common good."

And while Rice said she believed KU administration is erring in not yet ruling out implementing the policy, she said she understood the difficult position the administrators are in.

She said she hopes Chancellor Girod and other university leaders are willing to work with faculty, instead of against them.

“Our chancellor and provost are very capable and very strong leaders who have had careers in this system as well, and I can only assume they’re trying to solve a difficult problem,” she said. “Almost all of us who signed that document did it from a spirting helping to solve these problems from the ways we know how. It isn’t in a climate of hostility, it’s in a climate of caring.”