The Ultimate Sanction
New procedures promise more clarity in hearings for dismissed, reassigned, or suspended facutly


Allison O. Adams

Academic Exchange September 2000
Contents Page

From the Resolution of Faculty Council Concerning the Faculty Hearing Committee

Rancor at Emory
--Chronicle of Higher Education
6/2/2000

Letters in response to the Chronicle article
8/14/2000

Conflict is as natural in an academic community as sparks from friction.

But what happens when disagreement escalates into a question of termination of a faculty member's contract? How is fairness ensured for everyone involved? In the summer of 1998, a new set of procedures were implemented
to clarify and strengthen the role of Emory's Faculty Hearing Committee. According to the university's Statement of Principles Governing Faculty Relationships (the "Gray Book"), that panel hears cases when a faculty member is suspended, terminated, or reassigned on grounds of "moral delinquency, neglect of academic duty, incompetence, permanent physical or mental incapacity, or other such adequate cause."

Before 1998, "the problem was that nobody knew exactly what the committee was supposed to do," says Richard Freer, professor and associate dean in the law school and former chair of the Faculty Hearing Committee, who led the group through redesigning its procedures. "The Gray Book simply said it was to hear appeals from folks who had been fired, reassigned, or suspended. But nobody knew what was supposed to happen on that appeal. Was that committee to look at everything afresh, to make a new determination on the case, or was it just to review the process that had led to the dismissal-to discern whether the rules had been followed at the school level?"

The new procedures-which apply to all faculty under contract- define the committee's role as fact-finders. In most cases, the hearing will not be an appeal, Freer explains. "The dean, who determines that he or she has probable cause to fire or suspend a faculty member, invokes the committee's jurisdiction. The committee holds a hearing and makes findings of fact and recommendations to the dean on whether this person has done something to deserve firing, reassignment, or suspension."

In some circumstances, however, the dean may act before there is a hearing, if the dean believes there is an urgent need to do so. In those cases, the faculty member, rather than the dean, may invoke the committee's jurisdiction, and the process is an appeal from the dean's decision. "I think everyone anticipated that this route would be traveled less frequently," Freer says.

The new procedures, which have so far been used only once, also level the playing field for both parties, with rules designed to assure the committee will have the best chance to ascertain the facts. Under the old rules, the faculty member and the hearing committee might have lawyers, but the school and the dean did not. Now, Freer says, "whether there are lawyers involved is entirely up to the faculty member. If the faculty member hires a lawyer, then the school has one."

A FORMAL PROCESS

The hearings themselves are carried out quite formally, but the manner and order of the presentation of evidence are left to the committee's discretion. The five committee members sit at the head of a table that serves as a "bench," as in a courtroom. The faculty member and his or her attorney sit at a table on one side, and the dean or a representative of the academic unit and its attorney sit at a table opposite. The faculty member may be present throughout. Unless the committee decides otherwise, no witness hears another testify.

A hearing may go something like this: at the committee's direction, each side may present a pre-hearing brief, a list of witnesses, and an overview of evidence as an opening statement. The academic unit presents its case first, and the faculty member may cross-examine witnesses who testified. Then the
faculty member presents his or her evidence, and the school may cross-examine. The committee members also may ask questions. A stenographer records the entire proceedings. After any additional or rebuttal
evidence is presented (including a post-hearing brief, if required) the committee deliberates and presents a report of findings of fact and a recommendation to the dean or president. If the decision is not unanimous, then the dissenting opinion may be presented as part of the report, but neither the dissenters nor members of the majority are identified.

The committee's recommendation is not binding, but if the dean disagrees with it, in most cases, he or she is expected to state the reasons for the disagreement. If the dean recommends sanctions, the final decisions rests with the Board of Trustees or its executive committee after they have consulted with the executive vice president for health affairs (if applicable), the provost, the president, and the academic affairs committee of the board.

"You're dealing with the ultimate sanction," Freer says. "Somebody may lose his or her job. So we wanted to build into the system sufficient safeguards to make sure the faculty member is protected while at the same time seeing that the school's interests are represented."

 

MEDIATION PROPOSAL SHELVED

As it was revising the hearing procedures, the same committee developed a proposal for a mediation process to address disputes that have not developed into a question of firing, suspending, or reassigning the faculty member. "Some of the complaints, once they are aired, turn out not to be quite as much the gravity-bearing issues as they first seemed to be," says theology professor David Pacini, who helped draft the proposal. "We wanted to create a way of giving people a chance to say what they had to say but achieve some resolution to disputes before they wind up at a more serious level."

That proposal has languished, however, primarily due to the objection that it required mandatory participation in mediation. "It's very tough to draft without it being too broad," Freer says. "If a faculty member doesn't like his salary, can he really drag the dean into mediation?"

Pacini maintains hope, however, that the faculty and administration will revisit the idea of mediation. "This whole process is about getting the logjams loosened up, so we don't wind up with some of these extreme situations," he says. "There don't seem to be winners in those."