<nettime> Chron: Layoffs Without 'Financial Exigency'

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< http://www.insidehighered.com/news/2010/03/02/exigency >

Layoffs Without 'Financial Exigency'

   March 2, 2010

   By Scott Jaschik

   One of the ultimate protections of being a tenured faculty member,
   historically, has been being immune from layoff in all but the most
   extraordinary circumstances. Under policies issued by the American
   Association of University Professors and largely accepted by higher
   education leaders, only institutions that declare "financial exigency"
   -- a state so dire that it "threatens the survival of the institution
   as a whole" -- can eliminate the jobs of tenured faculty members.

   Given the strict criteria on when an institution can declare exigency,
   and the obviously unwelcome scrutiny such a declaration would bring
   about, institutions have hesitated to invoke that status. As a result,
   while institutions eliminate adjunct positions all the time, the
   tenured faculty member has been protected.

   But maybe not so much anymore. In a series of recent actions, colleges
   appear to be ignoring the exigency requirement either when eliminating
   tenured jobs or considering the possibility of doing so. Administrators
   defend their moves as necessary to manage institutions in tight
   financial times, but faculty leaders see an erosion of a key right.

   Consider these developments:
     * Florida State University, without declaring financial exigency, is
       currently moving ahead with [41]layoffs for 21 tenured faculty
       members (along with many more who lack tenure).
     * Clark Atlanta University [42]eliminated 20 tenured faculty members'
       jobs last year (along with more layoffs of non-tenured faculty
       members) without declaring financial exigency.
     * The Idaho Board of Education last month changed the rules on the
       budget cuts that public college and university presidents can
       impose without declaring financial exigency. The impact of the
       language that was approved is in dispute. Everyone agrees that
       campus presidents can now impose furloughs without declarations of
       financial exigency. Faculty members believe the language could be
       used to impose layoffs -- including of tenure faculty members --
       without a declaration of exigency.
     * The University of System of Georgia on Monday released lists of
       program and position cuts its campuses would make -- including the
       elimination of tenured faculty positions -- if additional steep
       cuts are ordered by the state. The lists were compiled at the
       request of legislative committees and nobody in higher education is
       pushing the planned cuts. But while faculty groups are insisting
       that these cuts could be imposed only under a state of exigency,
       the system has resisted linking an exigency declaration to the
       potential cuts.

   Why does a declaration of exigency matter so much? "It really guts
   tenure when you have layoffs" without financial exigency, said Jack
   Fiorito, a professor of management and president of the faculty union
   at Florida State University. Right now, he said, Florida State is
   hiring in some programs, even as tenured faculty members must search
   for work elsewhere while waiting for the outcome of a union grievance
   on the layoffs. True tenure rights should mean that no university with
   the means to be hiring some faculty members should be getting rid of
   those promised lifetime job security in other academic areas, he said.

   So if declaring financial exigency would give colleges more flexibility
   to impose layoffs, why don't they want to do so?

   Officials cite a variety of reasons, including concerns that
   bond-rating agencies or accreditors may immediately impose extra
   reviews, and that students and donors might be scared off. They argue
   that the current economic downturn is so severe that colleges need more
   flexibility even if their financial survival isn't threatened. Indeed,
   given the general unwillingness of states to close public colleges and
   universities, but great willingness to impose deep cuts, some state
   higher education leaders say that they need more budget-balancing
   options to be available quickly -- even if they can't claim that their
   campuses are about to collapse.

   Mark Browning, a spokesman for the Idaho Board of Education, said that
   these times really are different. "You've got to give the presidents
   all the tools possible to manage" in a situation where "conditions
   erode rapidly" and colleges could easily run out of money, he said. The
   speed with which financial realities change today may not allow a state
   board to meet and deliberate on financial exigency before a president
   needs to impose cuts, he said. (Browning stressed his belief, however,
   that the new authority approved by the board doesn't extend to layoffs,
   although he acknowledged faculty fears on the issue.)

   A related issue, said John Millsaps, associate vice chancellor of the
   University System of Georgia, is that higher education systems are
   being forced to plan for budgets that they hope to avoid. In the last
   year, the university system has seen state support fall from $2.3
   billion to $2.1 billion, and the governor's proposals for next year
   would bring state funds down to $1.9 billion. The new list of program
   cuts is in response to state legislative committees that, noting a
   massive additional shortfall in the state budget, asked the university
   to come up with plans to cut an additional $300 million in state funds.

   In planning, the Board of Regents has told individual campuses that
   they may not declare exigency, and that only the system could do so, as
   a system -- an event considered highly unlikely.

   Millsaps noted that, even if the additional cuts were imposed,
   something he said system officials hope does not happen, it's not clear
   that exigency would be appropriate. "We aren't going to take steps that
   aren't necessary," he said. In fact, he said it would be wrong to
   declare much of anything about the fiscal health of the university
   system without knowing what the final state budget looks like.

   Likewise, he said system officials are not endorsing the list of
   potential cuts that they have just released. The system had to comply
   with the legislative requests for cuts, he said. "We want to give a
   realistic picture [to legislators] so they understand the magnitude of
   what they are asking of us," he said. "Our hope is that once
   legislators see these levels of magnitude, they will help work with us
   to help mitigate that."

   So Millsaps said that the decision to declare financial exigency is one
   question while the development of lists of potential cuts is another.
   He acknowledged, however, that the additional $300 million in cuts does
   in fact involve tenured faculty jobs -- primarily through colleges and
   universities saying that they would deal with cuts by eliminating
   entire programs.

   Some of [43]the institutional cut plans submitted specifically state
   that tenured jobs would not be at risk, although these plans typically
   have exceptionally high projected layoffs for those off the tenure
   track. The University of Georgia, for example, says that it could
   absorb its share of the cut in part by eliminating 543 filled
   instructor positions held by those off the tenure track, but that it
   could avoid tenured or tenure-track cuts.

   But the plan for Georgia Southern University calls for eliminating 33
   tenured faculty positions and the plan for the University of West
   Georgia would eliminate 17 tenured faculty jobs. Many of the plans call
   for eliminating entire departments and their associated faculty -- and
   while they don't specify that tenured faculty would be included, they
   suggest that would be the case (at least in any programs with tenured
   faculty members).

   The reports are detailed on the negative impact that all of the cuts
   would have on students, with enrollment limits, fewer options for
   majors and so forth. And university leaders say that detailing all of
   these impacts doesn't mean that they want layoffs, but is part of a
   strategy to avoid or minimize them.

   That doesn't reassure Hugh D. Hudson Jr., a history professor at
   Georgia State University and executive secretary of the Georgia
   Conference of the AAUP. He views the current process as "a massive
   assault on tenure."

   That's for several reasons. One is that AAUP guidelines do not allow
   program elimination (as is central in all of the plans) to be a
   substitute for declaring financial exigency when it comes to
   eliminating tenured jobs. The AAUP rules give colleges the right to
   eliminate academic programs for educational reasons decided by the
   faculty -- and in those cases, tenured lines may be eliminated,
   although the colleges are supposed to make every effort to find other
   appropriate positions for those who'd lose their jobs. But that's
   supposed to be an educational decision-making process, not a
   budget-cutting process. That's also an issue at Florida State, where
   administrators have justified the layoffs by saying those losing their
   jobs are in areas from which the university has decided to withdraw.

   Hudson said he is receiving calls from around the state with reports
   that the campuses have been told that they can go ahead and eliminate
   programs (if the additional cuts are ordered) without financial
   exigency and with tenured faculty members losing jobs. The campuses
   "are being told to just figure it out," he said.

   Idaho may provide an illustration of why faculty members care so much
   about the process of declaring financial exigency. In 1981, the state
   board declared financial exigency and layoffs followed, including some
   of tenured faculty members. Some of those faculty members sued, and won
   a court battle over the appropriateness of the declaration of financial
   exigency and the way layoffs were determined. The AAUP censured the
   University of Idaho over the issue in 1983, lifting the censure in
   1989. A key part of the lifting of the censure was an agreement about
   declaring financial exigency, with stipulations about the conditions
   that would be required for such a declaration.

   Nick Gier, a professor emeritus of philosophy at the University of
   Idaho and president of the Idaho Federation of Teachers, said that the
   board's recent action followed presidents "begging for more power" to
   make cuts as they wish, regardless of the pledges made in 1989. (Idaho
   law bars collective bargaining by public college faculty members, but
   the federation -- an affiliate of the American Federation of Teachers
   -- works on behalf of faculty members while pushing to change the law.)

   Gier said that the disputes of the 1980s show why "emergency powers"
   should be reserved for true emergencies that have been verified as
   such, not just declared by a campus administrator. He said that the
   strict rules that have been in place have forced administrators to look
   elsewhere -- not at tenured faculty members -- when making cuts. "And
   I've been amazed at how well the university has responded to
   significant cuts" without layoffs, he said.

   Gary Rhoades, general secretary of the AAUP, said that "no one is
   contesting that we face bad times" economically in higher education.
   But he said that colleges are trying to have it both ways. "What you
   have is institutions playing a game of internally invoking financial
   difficulty, but not wanting externally to indicate financial difficulty
   in ways that could hurt their public image or bond rating."

   Rhoades also said that the protection provided by financial exigency
   rules -- namely that in many rounds of cuts, tenured faculty jobs can't
   be included -- is appropriate. "What has been happening nationally is
   that we have been moving money away from the students and educational
   activities, moving money away from hiring tenure-track faculty," he
   said. A strong tenured and tenure-track faculty, he said, is directly
   related to student learning in that these professors develop the
   curriculum and build relations with students. "The very first thing we
   should be protecting are the people and activities that serve the
   students," he said, and financial exigency rules do that.

   Although Rhoades said he is "skeptical" that significant layoffs of
   tenured faculty members are needed or will help higher education, he
   said it was possible that some institutions need to declare financial
   exigency. But he said that the traditionally high standard for such
   declarations was appropriate. "You have checks and balances and you
   have a wide range of people, not just administrators, determining how
   dramatic an economic situation is," he said.



References

  41. http://www.tallahassee.com/article/20100219/NEWS01/2190335/FSU-layoffs-of-tenured-faculty-cause-a-stir
  42. http://www.insidehighered.com/news/2010/01/14/cau
  43. http://www.usg.edu/fiscal_affairs/documents/summary_of_reductions.pdf
  

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