Minutes of 13 November 2006 SACUA Meeting

Present: Combi, Frier, Giordani, MacAdam, Potter, Riles, Seabury, Smith (chair); Lehman; Carr, Leu, Schneider

Guests: T. St. Antoine, R. Fraser, S. Masten, K. Brown, D. Gershman, J. Frumkin

3. December 4, 2006 Agenda for Academic Program Group Meeting at the Detroit Center with additional information available @ www.detroitcenter.umich.edu regarding the mission statement, facilities, contributing partners, new initiatives, and samples from 31 active projects and major initiatives

4. Electronic mail message from Charles B. Smith to Sally Churchill dated 13 Nov 2006 regarding comments for the Regents

5. Electronic mail message from Charles B. Smith to Teresa Sullivan dated 8 Nov 2006 regarding the aftermath of Proposal 2

6. Electronic mail message from Charles B. Smith to Mary Sue Coleman with copy to Teresa Sullivan dated 13 November 2006 regarding response to Proposal 2 passage

10. Electronic mail message from John Lehman to SACUA dated 9 November 2006 forwarding message dated 9 Nov 2006 from David States to Teresa Sullivan, Mary Sue Coleman, and John Lehman regarding UM response to passage of Proposal 2

11. Electronic mail message from Brett Seabury to SACUA regarding The Chronicle of Higher Education article "ETS Accused of Squelching New Approach on Racial Bias"

12. "ETS Accused of Squelching New Approach on Racial Bias: Plan was an alternative to using race in admissions; testing service denies charge" by Peter Schmidt in The Chronicle Daily News: 11/10/2006, THE CHRONICLE OF HIGHER EDUCATION

13. Electronic mail message from Brett Seabury to SACUA regarding The Chronicle of Higher Education article "Underrepresented Students Benefit Most From 'Engagement'"

14. "Underrepresented Students Benefit Most From 'Engagement': Annual survey of involvement in college life also finds high levels of interaction between distance learners and faculty members" by Paula Wasley in The Chronicle Daily News: 11/17/2006, THE CHRONICLE OF HIGHER EDUCATION

16. Space Utilization Initiative PowerPoint slides shared by Associate Provost Phil Hanlon at his presentation to SACUA

17. Electronic mail message from John Lehman to Charles B. Smith dated 13 November 2006 regarding announcements for Senate Assembly

18. "Benchmarks of Effective Educational Practice" based on 42 key questions from the NSSE survey that capture many of the most important aspects of the student experience shared by Barbara MacAdam for consideration in thinking about the Spellings Report response

Chair Smith convened the meeting at 2:30 P.M. The proposed agenda was approved. Professor Riles expressed dissatisfaction that a presentation about university preparations for a flu pandemic has been postponed by 10 weeks.

The minutes of 6 November 2006 were corrected and approved.

ANNOUNCEMENTS/UPDATES

1. On 4 December 2006, the Academic Programs Group is taking a bus trip to the Detroit Center; the bus will return in time for the SACUA meeting that afternoon. Members who wish to join the trip should notify the Faculty Senate Office.

2. A motion is in order for endorsement of modification of SPG 201.92. Professor Potter moved that SACUA endorses proposed modification to SPG 201.92 (MacAdam seconded). Professors Giordani and Riles raised questions about the meaning of certain language in the proposal. The chair declared that further action on the motion would be postponed until clarifications could be obtained and reported back next week.

3. Nominations have been received for University Marshal; four names will be forwarded to the office of the provost.

4. The Chair will meet tomorrow with Laurita Thomas in preparation for the 27 November Senate Assembly meeting. Pending the outcome of this meeting there may be a resolution on creation of a Faculty-Staff Benefits Oversight Committee

5. The Chair met privately with Lester Monts to discuss a matter arising from the Advisory Board on Intercollegiate Athletics. Discussion of registration brackets ensued and Professor Monts reported that he has been told to get the matter resolved. The chair also learned in that meeting that two exceptions already exist for the registration brackets rules: one for students with disabilities, and one for student athletes. Professor Giordani remarked that student athletes are always behind their cohorts in terms of credit hours because they take reduced course loads.

6. Names requested by L. Monts for task force memberships have been transmitted.

7. SACUA will meet for lunch with the Regents at Inglis House this Thursday. Following that, the Chair will meet privately with the performance and personnel subcommittee for up to 30 minutes.

8. The Chair has been asked to limit his public presentation to the Regents to only 5 to 10 minutes.

9. The Senate Secretary has conveyed concern that the Senate Assembly should be informed that a case under Regents' Bylaw 5.09 is pending. SACUA developed an announcement for Senate Assembly operating as Committee of the Whole.

10. The Chair met with the LSA executive committee to discuss unit governance issues. The executive committee members were well prepared and had lots of questions. The meeting was short and pleasant; no timetable emerged for action.

11. Vice-president and general counsel Krislov will attend the 27 November Senate Assembly meeting to discuss the implications of passage of Proposal 2. The provost will also attend the meeting. Copies of recent press reports are included in the distributed items.

The guest arrived at 2:50 P.M. and remained until 3:45 P.M. After a round of introductions, Professor St. Antoine commenced discussion of the nature of the contract between the U-M and faculty. Salient points were as follows:

Subsequently, the Michigan Supreme Court has become considerably more conservative than it was in the 1980s. If there is no evident negotiation, statements like "as long as you do a good job you have a place with us" are no longer considered to constitute a guarantee of employment.

There are alternative legal theories relevant to the nature of the contract between faculty and the U-M:

(1) Express contract theory- there may be an explicit written or oral statement;

(2) Implicit contract- a jury must infer the existence of a contract from the words and actions of the parties;

(3) Public policy- judicially formulated policies or statutes such as non-discrimination law may protect employees.

The Michigan Supreme Court recently has treated a number of cases as matters of public policy, whereby a "reasonable" or "legitimate expectation" of continuing employment existed, rather than as matters of contract limitation.

Constitutional rights to continuing employment furthermore may exist at public institutions in ways that do not apply to private employers. For example, the constitutional right to free speech is protected from act by the State or public employers.

Specifically regarding faculty at U-M, the offer letter seems to create a binding and enforceable contract. A particularly famous and influential U.S. Supreme Court case in this regard is that of Perry v. Sindermann, 408 U.S. 593 (1972). The case established the principle that faculty with tenure cannot be dismissed except for good cause. Michigan Courts have accepted this model in the case of Bundo v. City of Walled Lake (395 Michigan 679 1976). The Perry principle holds that tenure is a property right, even if tenure is de facto.

Likewise, in the case of tenure-track faculty, the standard LSA offer letter to a beginning assistant professor makes clear that the period of initial appointment is 3 years. Then it states that the department will appoint a committee to decide about a second appointment. Then it states that in the 6^th year the department will evaluate the candidate for tenure. This seems to constitute a binding, enforceable contract for fair consideration.

Although the Faculty Handbook carries a disclaimer about contractual obligations, the Regental Bylaws do create "reasonable expectations" when they speak of indeterminate tenure. There is every reason to believe that faculty members have legally enforceable contracts. Beyond this, there will certainly be performance reviews, and room for discretion.

Termination of the faculty contract can result from violations of law, such as stealing, assault, or sexual harassment, but also for "substantial breach of contract." What constitutes "substantial breach of contract" would have to be decided by reviewing committees. The key point is that a "substantial" breach goes to the essence of the contract so thoroughly that it threatens the entire contract itself. Interpretations could be somewhat problematic, as in the hypothetical claim "Your research does not rise to the expected level." In general, the courts can be expected to give the U-M some discretion in its internal decisions.

There is some ambiguity in the degree of freedom that is enjoyed by the university in its ability to interpret de novo violations of contract. In the general employment field, employers are permitted to alter conditions and standards as long as they are not arbitrary and capricious. The academic situation, especially backed up by tenure, is different. Any such case would have to be handled on a reasonableness basis. In the case of multi-tiered levels of internal review, the courts would likely give deference to the highest level of review, but would want to look further behind that final decision.

In a hypothetical case whereby an assistant professor became the object of sexual harassment, and was subsequently denied tenure, the harassment alone would not be a basis for setting aside the tenure decision; but a lot would depend on where the harassment came from- from dean or chair, for example. The harassment might have been so severe as to make it a practical "impossibility" for the candidate to meet the tenure standard in the time originally allotted.

Refusal to teach a newly assigned course could be labeled a substantial breach if it is a new course in the same area of existing teaching duties. But, if a faculty member is asked to teach a course once and once alone, that is arguably too much of a burden for the long term payoff, and the faculty member's refusal may not qualify as a substantial breach. It is necessary to look back to initial understandings at the time of hire. Equally important, circumstances and practices within the department need to be looked at. A most important element in contract interpretation is invariably past practice. The law places great emphasis on shared understandings that are an implicit part of an agreement.

Regarding an assertion that faculty members should be able to teach anything within the scopes of their Ph.D.s, it is generally understood that the further one is from the Ph.D., the more specialized one becomes. Colleagues' opinions in judging the capabilities of a faculty member are relevant, but not determinative; ultimately a court must decide what the faculty member's capabilities really are. The standard for judgment, again, is one of reasonableness.

The guest arrived at 4:00 P.M. After a round of introductions he distributed item 16. He proceeded to describe a new campus-wide initiative on use of space, closely following the handout.

Professor Seabury remarked that faculty seem to be involved only at the lowest level of the planned study. The associate provost replied that he would consider including faculty at higher levels, including the steering committee.

The associate provost said that the initiative will make a big push over the next five years to address matters affecting General Fund building space, which is almost everything except athletics and hospital space. Professor Potter said that efforts to increase efficiency of space use could have unexpected detrimental outcomes. He noted that departments that start offering course at 8 A.M. could see enrollments plummet, with consequent loss of GSI support. The associate provost suggested that evening courses might prove more attractive than early morning ones.

Members discussed how maintenance costs are handled when new buildings are planned, and the fact that indirect costs charged to research grants absorb many, but not all, of the maintenance costs. The associate provost stated that there was little doubt that units are charged too little for the space they occupy, and that the costs are subsidized internally. He noted further that the current State appropriation now matches dollar for dollar the total tuition discount given to in-state students.

Professor Seabury pointed out that there is a common perception by average citizens that it is the building boom on the U-M campus that has led to exorbitant tuition increases that are pricing the U-M beyond the reach of the middle class.

Professor Frier reported that the committee met and discussed a report from the Rules Committee regarding clinical faculty. He said there was a good deal of sympathy for including clinicals as members of the Senate Assembly.

Professor MacAdam reported that it appears there is no obvious or clear cut interpretation about the rules regarding inclusion of assistant librarians in the Senate Assembly membership. She explained that it has been internal school past practice not to include assistant librarians.

Professor Riles reported that response rates from the Ann Arbor Senate faculty are less than 20%. SACUA members urged the AEC to extend its evaluation period.

Professor Combi reported that the Research Policies Committee met on Friday, 9 November. There were two main agenda topics. The first was a discussion about proposed revisions to the Intellectual Property (IP) policy presented by Ken Nisbet, Executive Director of the Office of Technology Transfer. The main change is to remove a current prohibition for U-M members (or former members) from receiving licensing revenues from the University. The other changes were clarifications of several definitions in the IP policy documents. The second item was a presentation about Deep Blue by Jim Ottaviani from the University Library. Deep Blue is the University's service for compiling, publishing and maintaining University intellectual property and data archives.

Professor Riles reported that the committee met with representatives from the Study Abroad program; no actions were taken, other than to provide two nominations requested by SACUA..

The chair notified SACUA that a theme topic for the December communication must be proposed by next Monday.

In each school, college, or degree granting division of the University, including those at the University of Michigan-Dearborn and at the University of Michigan-Flint, the governing faculty shall be in charge of the affairs of the school, college, or division, except as delegated to the executive committee, if any, and except that in the School of Graduate Studies the governing board shall be the executive board, and in the Medical School shall be the executive faculty.