Investigative Procedures in Academic Freedom and Tenure Cases

Nothing can trump the hundred-year-old story of the Association’s first investigation: its hero, AAUP founder Arthur O. Lovejoy of Johns Hopkins University, was arriving in New York in April 1915 to see plays when he read in a local newspaper that the administration of Utah’s state university had dismissed some faculty, that seventeen members of the university had resigned in protest, and that a Utah newspaper editorial had called on the AAUP, then only three months old, to look into the matter. “We had no machinery for sending investigating committees to universities,” Lovejoy wrote, “but I decided then and there to go up and see Professor [John] Dewey, who was living near Columbia University. It was late when I arrive—he was on the point of retiring—but I showed him the editorial and said I would go to Salt Lake City myself if he would put up the money for the railroad fare.” AAUP historian Walter P. Metzger of Columbia University told the full version of this story in a 1961 article published in the AAUP Bulletin.

My own first experience on an investigating committee was a page-turner with a hero, plot twists, reversals, and surprises that would have delighted Aristotle, but I was learning the investigative job, wide-eyed, under the tutelage of two committee colleagues who were both seasoned giants of procedural justice. My second investigation concerned issues that had been so thoroughly anticipated by the national staff, and so well documented by an activist chapter, that most of the task was the systematic confirmation of others’ work. The third was all pain: a weak and demoralized faculty with virtually no statutory powers or protections, living in fear of a charismatic president who claimed the will of God behind his harsh disciplinary measures. The fourth was nightmarish, a political bloodbath already in the courts, complex and protracted, with supplements, sequels, and depositions to scrutinize before the report could be completed. Then there was the follow-up to an investigation and censure when the situation had improved to the point that censure could be removed: a joyful campus visit to certify that a proud college under new leadership had earned removal from the AAUP’s list of censured administrations. No two investigations are the same, though they share a structural similarity.

Before an Investigation Is Authorized

An AAUP investigator enters the scene in carefully selected cases only when other efforts to resolve a major academic freedom case have failed. An investigation is rare, and it should be rare. Most appeals for help and complaints of unfairness to the Association can be addressed under local grievance procedures or with the assistance of chapter officers knowledgeable about navigating an institution’s regulations, sometimes in consultation with state conference officers or the national staff. In some circumstances, particularly where discipline-specific policies or guidelines have been infringed, or in areas such as appointment or promotion that are harder to reach in the triage process necessitated by the AAUP’s scarce resources, committees established by societies in the various disciplines have been able to offer appropriate assistance.

The chances of rectifying an injustice are greatest in the early stages, when discreet inquiries can be made in measured tones, without accusations or threats of publicity, and when existing channels can be used to explore alternatives. Enlightened administrators, and many of them exist, need only to be reminded of national standards, internal policies, inconsistencies, or what might be detrimental to the institution’s image to be motivated to act prudently. The national staff addresses requests not only from faculty members but also from administrators who want to do the right thing. Those of us who are not on the national staff may rarely see proof of that fact outside our own universities, though there is much evidence for it. I recall a vice president from a public university outside my state who phoned me at home after I had made a confidential inquiry to her institution on behalf of a fellow philosopher who had encountered difficulties there. She read a policy aloud to me and asked how it needed to be changed to meet the AAUP’s recommended standards so she could present a proposal to the appropriate faculty committee. That she was an exception I accept—but no more the exception than many of the “cases settled by staff mediation” that are published in the AAUP Bulletin as part of the annual report of Committee A on Academic Freedom and Tenure.

In more complicated or egregious matters, a national staff member may correspond extensively with a complainant to develop a full account of the relevant issues, determine what evidence is available to verify allegations, and suggest potential courses of action. When it is possible to work with administrators informally, that opportunity too is pursued, and it often succeeds. Throughout these efforts, recordkeeping and documentation by the campus chapter and the state conference, if these exist, can be very helpful both to the faculty member and to the staff. There are limits to the latter’s role, but I will return to that topic later.

In instances of apparent significant violations of the Association’s core principles, a case is opened and the staff member writes to the head of the institution, stating the complaint and relevant policies, seeking an explanation for the apparent infringement. Effort is made to reach an arrangement on which the parties can agree. In recent years it has become increasingly common for administrators to transfer responsibility for dealing with the AAUP to in-house lawyers when formal correspondence begins, so it is counterproductive for the staff to take an official position prematurely. In some cases, however, administrators remain willing to discuss their concerns with the Association, even when already involved in litigation. No two cases are the same.

Authorization and Preparation

When direct measures are judged ineffective against prima facie evidence of serious disregard of AAUP-supported standards, the possibility of a formal investigation is discussed. Only the Association’s executive director can authorize such an investigation, an important responsibility and a step that acknowledges the failure of all previous efforts at resolution. The authorization in most cases calls for the appointment of an ad hoc investigating committee of AAUP members who will research the case, conduct interviews, evaluate the institution’s more general conditions for academic freedom and tenure, and produce a report that assesses claims and counterclaims fairly.

Knowing that the call to serve often comes at the end of months of effort on the part of the Association’s expert staff should be a comfort to the would-be investigating committee members, who are being asked to participate in what can be a wrenching experience that may drain every spare moment for months. The comfort is in knowing that the staff is well prepared to provide the support required to make the investigation efficient and successful. It helps, too, if one can count on a partner to take up the slack at home for the period when ordinary academic obligations can barely be met. Of course, it would feel better if our task were simply, white knight–like, to defend a faculty member against an enemy—as an attorney is expected to do, or as all of us do when we serve as advisers in grievances—but feelings are poor guides in convoluted circumstances. The investigative responsibility is to make a number of determinations about principles and their application despite numerous conflicting accounts, and to make them disinterestedly. I recall an interview with the head of an institution’s board of trustees and its attorney, and how they became cooperative when they learned that we were a committee of volunteers defending principles, not the union partisans they expected, paid to defend members. The hard work of our unions deserves great credit, but different cases require different sorts of responses and, on that particular broken campus, no union—or AAUP chapter, for that matter—was even conceivable. The Association needs many arrows in its quiver.

When a faculty member has accepted an invitation to serve on the investigating committee, and especially to chair it, the next step is preparation. The committee, consisting of two, three, or four individuals, can expect to receive a briefing memorandum accompanied by hundreds of pages of documentation compiled by the staff member in charge of the case in advance of a campus site visit, much of it pointing to other materials online. But we are all used to doing our homework, right? If we do not learn the specifics of the case in adequate detail, witnesses will have to repeat themselves, time will be wasted during the investigation, irrelevant questions will be asked, wrong leads will be pursued, and principals will rightly lose confidence in the process. The AAUP’s Policy Documents and Reports must be second nature, too, but that is a big part of why the staff brief is so important: the policies that may have been disregarded or violated are quoted, and outstanding questions asked. The committee will add and subtract, but it will know in advance which Association statements the staff believes to be implicated in the case, or cases, under investigation.

A document adopted by the AAUP Council, Association Procedures in Academic Freedom and Tenure Cases, specifies that the committee should “set up personal interviews with individuals who have first-hand information, whether members of the faculty, members of the governing board, or officers of the administration. The committee should also seek meetings with officers of faculty bodies and of the AAUP chapter.”Ordinarily, however, those meetings are arranged by the staff member in charge, who remains in contact with the investigating committee and also with the local chapter (if one exists) in the event of changes in the schedule or circumstances. When the committee convenes, it reviews the list of individuals who have agreed to be interviewed, sometimes contacting others who may have been reluctant initially but whose attitude might have changed. How cell phones and e-mail have changed procedures since the old days!

The Site Visit and Report

At their initial meeting, committee members typically review the essentials of the official account of the investigative process, including the charge set forth in Association Procedures in Academic Freedom and Tenure Cases: “The task of the investigating committee is to ascertain the facts involved in the incident(s) under investigation and the positions of the principal parties. The committee will determine whether the 1940 Statement of Principles on Academic Freedom and Tenure and/or related standards as interpreted by the Association have been violated, whether the institution’s own stated policies have been disregarded, and whether conditions for academic freedom and tenure, as well as related conditions, are generally unsatisfactory.” Anyone serving on an investigating committee for the first time will welcome elaboration of the directive about declining hospitality and social events that might appear to compromise the objectivity of the investigation: accepting coffee, working while eating, and using campus offices are fine. The first meeting also explores what each of the committee’s members perceives as the most salient features of the case, the questions arising from the briefing materials, and what information should be sought from particular interviewees. Because the responsible staff member has made an effort to bring together on the investigating committee academics from different backgrounds and disciplines, the meeting should also be organized in a way that distributes the questions to be asked, maximizes the effectiveness of follow-up questions, and leaves some time for interviewees’ own contributions and questions.

Once the interviews begin, the committee must be sure to take accurate and complete notes, because it is rare to have even a moment between interviews to share observations. That can come only at the end of each long day, when notes can be consulted and compared. When this process yields new questions, as it often does, they are added to the list for the next set of interviewees, or to the list of follow-up inquiries the chair will make in the days or weeks following the formal interviews. Through all of this process, confidentiality is paramount, and committee members must also resist the impulse to express personal opinions to interviewees— which can be difficult. While interviewees may name one another at will, the committee must be careful not to reveal what people have said in confidence or who else is being interviewed. The committee may be asked about the process, the timeline for producing its report, and confidentiality, and it should be prepared to answer these questions succinctly.

Upon completion of the interviews, it is very helpful (though not always possible) for the members of the investigating committee to meet together to consider their assessments in light of the issues raised in the original briefing memorandum and such further information as was uncovered in the interviews. Agreement in conversation makes it more likely that the committee’s report can be delivered within a couple of months. Usually, the committee chair takes responsibility for drafting the initial text and corresponds with committee colleagues until consensus is reached. The committee is under no obligation to frame the issues as they are identified in the staff’s advisory brief, since each investigation turns up decisive facts and evidence. The chair sends the draft report in confidence to the national staff member in charge. More than one staff member then reviews the draft text to ensure that the commentary is to the point and that the prose is clear not only to those familiar with the case but to outsiders as well, and the staff notes carefully where sources of evidence may be missing. When the committee has had an opportunity to revise the report in light of the staff’s review, the revised text is forwarded to the members of Committee A for consultation.

Because I now serve on the AAUP’s Committee A on Academic Freedom and Tenure myself, I see the beauty of its former chair David Fellman’s 1962 description of the next step in the process, which has not changed:

There is the added problem of achieving consensus among the members of Committee A. I can testify, from very considerable personal experience, that the members of this committee not only take their functions seriously, but also have minds of their own. I should add that, even as an abstract proposition, you must agree that getting more than a score of professors to agree to a report is at best no easy task. Furthermore, the members of Committee A are scattered all over the country, they have their normal academic functions to fulfill, and each has a right to express opinions about the draft report and suggest changes. As a result, a generous supply of comment can flow into the [national] office . . . on every conceivable point, ranging from minor grammatical items to substantial discussion of basic questions of high principle. All of this is bound to take time, though I should add that members of Committee A are almost invariably prompt in making reply to inquiries from the office. But differences of opinion do develop, occasionally very fundamental differences, and in some fashion they must be reconciled.

The staff member in charge of the case negotiates some of these differences and leaves others to the investigators, returning the report to the investigating committee with new sets of comments and suggestions. When the committee has again and again revised its report, and if a second approval by Committee A is unnecessary, a penultimate version is sent on a confidential basis to the principal parties involved in the case, inviting them to correct matters of fact and to comment as they see fit. Especially when administrators are leaning on their legal departments, the principals sometimes strike back with hyperbolic though vague criticism (“numerous factual inaccuracies”—but no instances—or “too many to list”). The staff is inured to hype, so it normally advises the investigating committee about which of the comments deserve attention or perhaps should be quoted with the report. The committee reaches its final consensus on the draft text.

This lengthy process of careful review and revision stands behind every Committee A report, warranting what is in effect the national association’s imprimatur and, with it, the earned respect of academia. 

What can hardly be emphasized adequately is that each major step in the process, communicated to the head of the institution, provides an opportunity for the administration to avoid the castigation of censure: the staff’s mediative efforts, the executive director’s authorization of the investigation, the naming of the ad hoc investigating committee, the setting of dates for the campus visit, the visit itself, Committee A’s decision to release the report, the draft report inviting corrections and comments, publication, and the approach of the annual meeting—the only body that can impose or lift censure. At each preliminary step, administrative turnarounds are recorded in the hundred-year archive of the AAUP, and decisions to make reparations and revise policies on the eve, or even on the floor, of the annual meeting are not unknown. More important, if censure must be imposed, the staff continues to encourage the adoption of Association-supported policies and amelioration of harms already inflicted. It is disappointing that the success of such efforts often requires a change of senior administrators at the institution.

Other Investigative Procedures

We benefit academia by reducing the number of complaints that need to be addressed by the national staff through investigating committees. AAUP resources are currently at a low ebb, and American faculty members now tend to identify with their academic disciplinary societies more readily than with the Association founded “to make collective action possible” across the disciplines. But even if that were not so, I would still hope that two underutilized resources could be expanded: chapter and state conference involvement and coordination with disciplinary societies.

When chapter and conference leaders are well versed in institutional policy, contract provisions, and grievance procedures, they can head off many complaints and correct many injustices. Knowledgeable, judicious chapter and conference officers are able to perform invaluable service through various aspects and stages of a case: working with complainants to produce accurate chronologies of incidents with supportive evidence, identifying issues of principle, making factual inquiries that effectively cite Association policies, documenting information along the way, and consulting with the national staff. When leaders have done all that, if a formal investigation nevertheless becomes necessary, its effectiveness is enhanced and its duration reduced.

Some have argued that chapter or conference officers are better placed to conduct investigations and write reports than a nationally appointed ad hoc investigating committee, because local leaders can get reports out faster. Moreover, they are closer to the incidents and persons, are more familiar with and committed to the integrity of their own institutions, and are more able to take past events and personalities into account. Local leaders also are far less expensive to maintain and can spread interviews over weeks instead of days. These are important considerations, but there are formidable arguments for leaving that final investigative tool in the hands of the Association’s executive director and the national staff.

• Administrations have good reason to trust the AAUP’s commitment to a disinterested process, impartiality that would be abrogated if local leaders were first involved in developing a case and issuing public statements, then also had the last word in an investigative report of record.
• Although chapter and conference leaders may indeed be driven by principle and uncompromised by bias, they will be suspected of being driven by an agenda, with clear conflicts of interest, and such suspicion reduces the possibility of remediation.
• The better one knows the injured parties, the harder it is to keep one’s feelings from contaminating one’s judgments. Emotions militate against resolution and remedy: a victim’s indignation, anger, or shame no less than a would-be defender’s arrogance, impatience, or frustration.
• It is more important, and indeed more effective, to be committed to the integrity of the profession than to that of one’s own institution.
• As we have seen in recent years, local leaders have contacts—or contacts who have contacts—in the media, making confidentiality difficult to maintain.
• Lacking a formal and stringent review procedure, accounts produced locally that might have assisted an investigative process are instead released to the public with their inaccuracies and inadvertent mistakes intact.

There are two other and more potent reasons to ensure that local and conference interventions are carefully conducted in collaboration with the national staff.

• The ability of a chapter to undertake an independent investigation can become the expectation that it should do so. And that expectation may be unwarranted. On some campuses where chapters are weak, another set of conflicts of interest can be introduced: motivated by fear of retaliation, faculty members may fail to mount robust investigations.
• The details of a specific case, its people and incidents, potential ramifications and inconsistencies, are useless unless they are understood in light of the Association’s principles and policies. Intimate knowledge of them is a key tool in the kit of the investigator, just as it is for the savvy negotiator in contract disputes—and such knowledge as the staff collectively commands requires years of concentrated work across a broad variety of situations.

Other investigative procedures would be improved through the coordination of committees established by many discipline-based associations. I refer to them as “disciplinary committees,” but you will have to excuse the pun. I chaired the “defense committee” of the American Philosophical Association (APA) in the early 2000s when the APA and the AAUP were closely allied, as they had been from the APA committee’s origin in 1970, aided by a member of Committee A. At that time, assistant professor of philosophy Angela Davis of the University of California, Los Angeles, was a cause célèbre and the June 1970 APA Bulletin reported the following:

There have during the last few months been a number of cases in which decisions not to reappoint non-tenured teachers of philosophy or to terminate the contracts of tenured ones have been made, or threatened, or seriously considered, and in which it has been alleged that the action or the threatened action has been dictated by considerations not allowable according to the 1940 Statement of Principles on Academic Freedom and Tenure issued jointly by the Association of American Colleges and the American Association of University Professors, and subscribed to by the three divisions of this Association. The considerations have, in all these cases, been political: membership in a political party, participation in political movements, protests, demonstrations, and so on. In the most widely known of these cases, the case of Professor Angela Davis, there can be no doubt of the truth of the allegations: so much has been admitted by the regents of the University of California.

The APA defense committee’s first members included philosophical heavyweights John Rawls and Judith Jarvis Thomson, and its charge, in part, was to “maintain liaison with the AAUP, and with similar committees in philosophy and in other academic disciplines.” During my tenure on the defense committee, Thomson, a stalwart of both associations, was chairing the APA’s Eastern Division. I consulted often with various members of the AAUP’s national staff, and I sent copies of my committee work to the AAUP staff for advice and for their records.

It became clear that some colleges and universities were frequent offenders, and that some complaints withered because with each complaint reported separately to a different disciplinary society’s cognizant committee, each appeared to be an aberration. In fact, those scattered complaints were expressions of systemic problems in particular institutions, overlooked because individual disciplinary committees, however well intentioned, could rarely see the institution’s big picture. Neither could the AAUP when there was no coordination with the disciplinary societies. In the 1970s the AAUP, with a grant from its Academic Freedom Fund, convened representatives of the disciplinary organizations that had established committees to address academic freedom issues. Another 1970 APA Bulletin notes that political scientists, historians, philosophers, and sociologists met that year at the offices of the AAUP.

In 1915, when the first Committee A could not mount as many investigating committees as were needed, it handed over its preliminary findings to the American Chemical Society, the American Philosophical Association, and the American Physiological Society. There have not been adequate AAUP resources to organize the disciplines in recent times, and we are all the worse for that.

It is no less imperative in 2015 than it was a century ago for the AAUP to stand as a bulwark against the erosion of academic freedom, continuing the honorable legacy of defining and articulating the standards as well as the ideals by which the profession understands its best self. And when those standards are infringed or violated, it remains the vital role of the AAUP to conduct the staff work and carry out the investigations that ensure higher education’s contribution to the common good.

Debra Nails, professor of philosophy at Michigan State University, is a member of the AAUP’s Committee A on Academic Freedom and Tenure and chairs the MSU chapter’s Committee A. A former member of the national Council and former chair of the Committee on Professional Ethics, she has held various conference and chapter offices. Her e-mail address is [email protected].