OFFICE OF THE FACULTY GRIEVANCE COMMISSION

Howard University

C.B. Powell Building, Room C-119

Washington, DC 20059

                                                (202) 806-7653 • Fax (410) 381-0222

                                E-mail address (Grievance-commission@howard.edu)

 

 

M E M O R A N D U M

 

 

TO:         H. Patrick Swygert, President

Howard University

 

Richard A. English, Provost

Howard University

 

Dr. Floretta McKenzie, Chair

Board of Trustees

 

FROM:   Faculty Grievance Commission

 

                Dr. George E. Holmes, Chairman, College of Medicine-Microbiology

Dr. Ruth A. Anderson, College of Dentistry

            Dr. Alyce Gullattee, College of Medicine-Psychiatry

            Dr. Jerome Pittman, College Pharmacy, COAS

            Dr. Felix E. Grissom, Department Biophysics & Physiology, College of Medicine

 

DATE:                December 20, 2004

 

RE:                Interference with and obstruction of the proper functioning of the duly constituted Howard University Faculty Grievance Commission

                The Howard University Faculty Grievance Commission exists by terms of the Howard University Faculty Handbook as an independent body of faculty elected by their peers. It is charged to investigate, hear, consider and make recommendations regarding actions adverse to faculty member’s personnel status or terms and conditions of employment that are alleged to be arbitrary and capricious (i.e., unsupported by the record) or involve violations of established rules and procedures or violations of academic freedom. Recognizing the need for the Howard University Faculty Grievance Commission to function apart from the University’s administration, the Board of Trustees directed in the Howard University Faculty Handbook that the Commission is to be assisted by an independent counsel in its operations.

The Commission’s function as a peer review body with these duties fills an essential role in the modern university setting. Specifically, the 1940 Statement of Principles on Academic Freedom and Tenure issued by the AAUP and endorsed by several hundred academic bodies, including the Association of American Colleges and Universities, the Council of Independent Colleges, the Association for the Study of Higher Education, and the Council of Colleges of Arts and Sciences, states as a norm to which all institutions should conform:

Termination for cause of a continuous appointment, or the dismissal for cause of a teacher previous to the expiration of a term appointment, should, if possible, be considered by both a faculty committee and the governing board of the institution. In all cases where the facts are in dispute, the accused teacher should be informed before the hearing in writing of the charges and should have the opportunity to be heard in his or her own defense by all bodies that pass judgment upon the case.

This norm is so central to the tenure principal that we can confidently state that the absence of peer review of administration action adverse to faculty members is nothing less than the elimination of tenure as it has been known, no less than the elimination of career faculty would constitute a fundamental alteration of our system of higher education. Functionally, the Commission is the body that ensures that the delicate balance between the administration of university plant and business functions and the freedom of faculty to teach and to inquire is not compromised. Absent a vital functioning peer review system, faculty members would be no more than employees at will of a corporate body, where the university is meant to be more, and different, from the for-profit corporation. Tenure is the engine that drives this machine. With an effective Commission, faculty members enjoy their traditional right to have their actions judged by knowledgeable peers who understand from a lifetime of academic service the difference between administrative convenience and university necessity in the special environment of higher education, and the highest authorities in the University enjoy the ability to be informed by an enlightened academic body regarding decisions on which they would wish to have this perspective.

We write to you because we see an assault on the integrity and future of this wonderful system that has created some of the best institutions of higher education that this world has ever seen. Among other matters, the Faculty Grievance Commission has been operating for over a decade without any budget, with the result that it has been forced to rely on the charity of other bodies within the university politic. It has, in particular, been unable to compensate it’s independent legal counsel as promised to it by Dr. Joyce Ladner, interim President’s letter of December 8, 1994, Dr. A. Toy Caldwell-Colbert, Provost in November 2003, and by the University’s Board of Trustees, and has been unable to secure support and services adequate to its basic needs to function. The Commission needs it own office space, budget, and staff to function properly to serve Howard University and the community with high standards, integrity and credibility. In the last several years, the Commission’s jurisdiction to hear entire classes of cases that it once heard without question has been challenged by Howard University’s General Counsel’s refusal to participate in proceedings, and instructions to administration officials to do likewise. More recently, the makeup of the Commission’s hearing panels, which had been unquestioned since this system’s inception at Howard, has been challenged as improper, and the same technique of refusal to participate has been used. These actions are insidious to our fundamental system of governance; they weaken and isolate the Commission and make it seem like a partisan collection of advocates rather than the peer body meant to inject deliberation and balance into a process.             

These attacks on the Commission’s integrity and function have had results beyond the isolation of the Commission as a deliberative body in the university decision-making process and the consequent weakening of the integrity of the normative governance system. Because it’s members must volunteer their time and money, because deliberate thoughtful action takes time and effort, because the consequences of its actions are so vitally important to individual faculty members who must rely on it as a voice of reason informed by understanding of academic needs and norms, and because of the growing isolation of the Commission as a result of actions of the General Counsel and the current chair of the Senate, several members have resigned in frustration. In seeking to address this problem the Commission has come under further assault. Historically, when a member resigned mid-term, the candidate receiving the next-highest number of votes in the most recent election of Commissioners was appointed in the resigned member’s stead. Now this time-honored procedure too has been called into question by the declaration of the recently-appointed chair (September 2004) of the Faculty Senate Governance Committee, without explanation as to how the declared principle contradicts the actual process employed –substitution of the next-highest vote-getter for the resigned Commission member– , that "the chair of the FGC is not authorized to fill a vacancy in the FGC, and that said vacancy can be filled only by an election of the full membership of the Senate."

            It can be well documented that the lies and deceptions did not occur as were presented at the full faculty senate meeting on November 4, 2004, and were passed out for all to read. The chair of the FGC went under the customary practice, to the chairman of the committees on committees (by E-mail) and requested the names of the next highest votes which had taken place at the full senate election on April 4, 2004, which were by the full membership of the eligible faculty members that voted. The chairman of the Committee on Committees E-mailed the chairman of the FGC the names of one for the Faculty Grievance Commission and the other name for the Hearing Panel. The chair of the senate had gone in the spring and requested a ruling from the then chair of the Governance Committee.  There was not a ruling for a member of the Faculty Grievance Commission resigning in mid term, being this was the first time such happened in a decade. This again, we reject, oppose, and contest all the suggested changes put forth by the senate at the Faculty Senate meeting on November 4, 2004, pertaining to the Faculty Grievance Commission. It was proposed on November 4, 2004, “that there should be two members from the 17 colleges and schools they listed to serve on the 30 member faculty Grievance Commission hearing panel, and others would be seated before additional representatives will be seated based on popular vote.” It was stated that “for many years, some schools/colleges/units have had zero or one representative and other units have had eight or more representatives on the Hearing Panel (the eight referred to were from the medical school faculty, which had the second highest eligible faculty members). The total Howard University faculty that voted May 21, 2003, was 186; and the total Howard University faculty that voted April 7, 2004, was 191.

 During the full senate vote on May 21, 2003, there were eleven (11) eligible faculty members from the School of Divinity and zero (0) voted. On April 7, 2004, there were eight (8) eligible faculty members from the School of Divinity, and again zero voted. During the full senate vote on May 21, 2003, there were four (4) eligible faculty members from the Graduate School of Arts and Sciences, and one (1) voted. During the full senate vote on April 7, 2004, there were unlisted the number of faculty members eligible and none voted. Would their stooges or those that go along to get along be put in those slots as was voter fraud as seen in the last election with the Faculty Grievance Commission several hearing panel list.  Were these additional schools/colleges created in order to get control of the Faculty Grievance Commission by the senate and administration? We, the Faculty Grievance Commission, reject, oppose, and contest any and all documents and statements passed out at the full senate meeting on November 4, 2004.

This bizarre pronouncement in a void further compromises the ability of the Commission to do it’s job in the future.

Because of the fundamental importance of the Commission as the voice of reason in an otherwise unilateral process, and because of the growing effects these assaults are having on the Commission’s ability to function, we senior members of the Commission, who also serve on other faculty bodies, including the Governance Committee, have no choice but to request in the strongest way that these problems be immediately redressed so that the Commission can do its job. Specifically:

• We believe the Commission should be provided funds directly, with which it can conduct basic operations.
• We believe the Commission needs it own office space and staff with privacy of vital documents.
• We believe that the General Counsel should be directed not to instruct any administration officer to refuse to cooperate to the fullest extent in the Commission fact-finding process.
• We believe that all administration officers should be specifically instructed to honor the Commission investigative and decision-making process and tender their fullest cooperation.
• We believe that questions regarding the Commission's functioning and exercises of jurisdiction over classes of cases should be presented, with full knowledge of and participation by the faculty, to the Board of Trustees which authorized the existence of this Commission and empowered it to act so that the Board may deliberately decide whether to override the Commission's judgments as to its authority.

Because the need for these actions is so vital and the assaults have in combination so hampered our ability to perform the functions entrusted to the Commission by Howard’s Board of Trustees, we have copied this request to the Board of Trustees and to all tenured faculty members.

The current situation has now grown intolerable and threatens the integrity of this great institution; to the extent integrity has not already been compromised by the actions to date. We believe that these serious problems merit immediate and aggressive investigation and remediation, and that failure to resolve them now is no less than failure of the surgeon to excise the cancer before it has spread. In disseminating this communication as we have, we have deliberately elected to see this matter addressed and cured in our house, without involving the AAUP or any accrediting organization, because we believe that the situation is sufficiently grave and obvious to result in remediation now, by our body politic. 

We respectfully look forward to your actions appropriate to the gravity of the problems we have presented and will keep our peers throughout the University advised of what progress is made.

cc:           Dr Floyd J. Malveaux, Dean, College of Medicine

Victor Scott, M. D., Sr. Vice President for Health Sciences

Dr. Floretta McKenzie, Chair of Academic Excellence Committee, Board of Trustees

Cornell Moore, Trustee, Board of Trustees, Howard University

Glegg Watson, Trustee, Board of Trustees, Howard University

Richard D. Parsons, Trustee, Board of Trustees, Howard University

Board of Trustees

Lauckland Nicholas, Independent Legal Counsel for Faculty Grievance Commission

 

Dr. James Donaldson, Dean, College of Arts and Science

Dr. Barron Harvey, Dean, School of Business

Dr. Jannette Dates, Dean, School of Communications

Dr. Leo. E. Rouse, Dean, College of Dentistry

Dr. Bertram Melbourne, Interim Dean, School of Divinity

Dr. Vinetta Jones, Dean, School of Education

Dr. James Johnson, Dean, College of Engineering, Architecture and Computer Sciences

Dr. Orlando Taylor, Dean, Graduate School

Kurt L. Schmoke, J.D., Dean, School of Law

Dr. Pedro Lecca, Dean, School of Pharmacy, Nursing, and Allied Health Sciences

Dr. Cudore L. Snell, Interim Dean, School of Social Work

Evans E. Crawford,

 

Medical School Faculty

Howard University Hospital Faculty

Entire University faculty

 

 

 

 

 

 

 

 

 

Luke 4:18                                                                                 Tyj

AAUP Responds: UC Boulder Decision on Churchill Statement
"In Keeping with Academic Freedom"

Washington, D.C. - The American Association of University Professors today issued the following statement:


 "The decision of the administration of the University of Colorado, Boulder, not to initiate action against Professor Ward Churchill on the basis of hostility toward his statements was in keeping with principles of academic freedom. A university truly committed to academic freedom will do its utmost to resist pressure from those who want to rid the institution of an offending professor, even when the pressure is intense and threatening.


The Boulder administration has, however, decided to refer allegations of research misconduct against Professor Churchill to the Campus Committee on Research Misconduct.  We note that the administration acted on these allegations after it had investigated Professor Churchill's controversial writings. We trust that the professor's offending opinions and the reactions to them have not influenced the administration's decision to refer his case to the campus committee and will not influence future decisions to be reached in this case. In the event that the committee concludes that a full investigation is warranted and recommends possible disciplinary action, the administration will be required, under the university's own rules and generally accepted standards of the academic profession, to demonstrate before a faculty hearing committee adequacy of cause to impose punishment. Adherence to these rules and standards not only protects the individual, but also, like academic freedom, benefits society at large.


The controversy stirred by those who objected to Professor Churchill's remarks about the victims of the attacks on September 11, 2001, is a forceful reminder that there are many who, misunderstanding the mission of the university, would curtail academic freedom rather than allow the expression of unsettling even repugnant ideas. We believe, to the contrary, that society is best served when members of the academic profession are free to take strong issue with the most deeply held beliefs and are at the same time afforded responsibility for judging whether one of their own is fit to continue on the institution's faculty."       


The American Association of University Professors is a nonprofit charitable and educational organization that promotes academic freedom by supporting tenure, academic due process, and standards of quality in higher education. The AAUP has 45,000 members at colleges and universities throughout the United States.


Robin Burns

American Association of University Professors

Department of Public Policy and Communications

1012 Fourteenth Street, NW, #500

Washington, DC   20005

rburns@aaup.org

202-737-5900 ext. 3013

800-424-2973

FAX 202-737-5526

E-Mail Number 2
        
From: DONNA EUBEN [ mailto:deuben@aaup.org]
Sent: Tuesday, March 29, 2005 1:47 PM
To: aaupxdir@aaup.biglist.com
Cc: DONNA EUBEN; Roger Bowen
Subject: FW: Update on S. Ct. Ruling in Jackson v. Birmingham (Title IX)


Some good news.  The U.S. Supreme Court agreed with the AAUP that a retaliation cause of action exists under Title IX.  More below. 

Donna Euben
AAUP Counsel
1012 14th Street, N.W., Suite 500
Washington, D.C.  20005
202-737-5900

Today, March 29, 2004, the U.S. Court ruled in a 5-4 decision, Jackson v. Birmingham Board of Education, that Title IX of the Education Amendments, which prohibits discrimination in federally assisted education programs and activities, provides for a retaliation cause of action.  The case was brought by Roderick Jackson, a high school basketball coach who was allegedly removed from this position in retaliation for complaining about his all-girl team being denied equal funding and access to sports facilities and equipment. The AAUP joined a variety of coaches associations in signing onto an amicus brief written by the National Education Association. The amici argued in the brief that the enforcement of Title IX would be seriously compromised if educators, who play an essential role in enforcing Title IX, could be subjected to retaliation without redress when they seek to correct violations of the law. The amici also contended that Congress' intent that Title IX "provide individual citizens effective protection" would be undermined if educators were not protected from retaliation for raising Title IX concerns. The amicus brief is available at http://www.aaup.org/Legal/cases/Jackson%20NEA%20Amicus.pdf.

The majority opinion, penned by Justice O'Connor, ruled that Title IX's private right of action encompasses claims for retaliation against an individual because he has complained about sex discrimination.  The Court reasoned that just because "Congress did not list any specific discriminatory practices in Title IX, its failure to mention one such practice [like retaliation] says nothing about whether it intended that practice to be covered."  Given that Title IX was enacted three years after the Supreme Court decision in Sullivan v. Little Hunting Park, in which the Court held that the general prohibition against race discrimination included retaliation against a white man for advocating the rights of blacks, the Court found "a realistic basis for presuming that Congress expected Title IX to be interpreted in conformity with Sullivan."

The Court further reasoned that that "the complainant is himself a victim of discriminatory retaliation, regardless of whether he was the subject of the original complaint."  The Court referred to a hypothetical raised by the petitioner in oral argument: 

If the male captain of the boys' basketball team and the female captain of the girls' basketball team together approach the school principal to complain about discrimination against the girls' team, and the principal retaliates by expelling them both from the honor society, then both the female and the male captains have been "discriminated" against "on the basis of sex."

The Court opined that "if Title IX's private right of action does not encompass retaliation claims, the teacher would have no recourse if he were subsequently fired for speaking out.  Without protection from retaliation, individuals who witness discrimination would likely not report it, indifference claims would be short-circuited, and the underlying discrimination would go unremedied."  The Court emphasized that "teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators."  The Court remanded the case for further fact finding consistent with its reasoning. 

The dissent, authored by Justice Thomas, argued that the majority was engaged in policy making best left to Congress.  The dissent reasoned primarily that Title IX does not protect against retaliation because "retaliatory conduct is not discrimination on the basis of sex," and thus is not within the plain meaning of Title IX.

Special thanks again to two AAUP Litigation Committee members in particular-Michael Gottesman (Georgetown University Law Center) and Martha Chamallas (Moritz College of Law, Ohio State University)-who contributed significantly to the final amicus brief.   

Donna Euben
AAUP Counsel
1012 14th Street, N.W., Suite 500
Washington, D.C.  20005
202-737-5900

E-Mail Number 3

From: Jane Buck [ mailto:buck@count.com]
Sent: Tuesday, March 29, 2005 2:18 AM
To: AAUP xdir list; CBC list; AAUP general list
Subject: Mary Burgan and Roger Bowen in the CHE

Dear Colleagues:

These articles are available only to Chronicle subscribers, but I alert you to them because of their level of interest to AAUP members.

Roger Bowen is quoted in the following article about the U. of Colorado's plans to investigate charges against Ward Churchill:

http://chronicle.com/prm/daily/2005/03/2005032501n.htm

"Roger Bowen, general secretary of the American Association of University Professors, said he was relieved that any additional review would now be done by a faculty committee instead of administrators. 'I think finally and at last he'll get a review by his peers,' Mr. Bowen said. 'This will be outside the political process. The peer review should depoliticize what has been an extraordinarily political process.' "

-----------------------------------------------
Mary Burgan, immediate past General Secretary is the author of the following article:

"A Voice for Professors in Campus Planning"

http://chronicle.com/prm/weekly/v51/i29/29b03201.htm

 
Best wishes,

Jane

Jane Buck, Ph.D.
National President
American Association of University Professors

email:  buck@count.com
fax:  775.383.4117


You can join AAUP through our web site: http://www.aaup.org/membership/index.htm
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