Anticipatory Obedience: 'To Yield a Little is to Run the Risk of Sacrificing All'

In this episode we discuss the AAUP's statement "Against Anticipatory Obedience" which offers guidelines about how to respond to attacks on higher ed like those being launched by the Trump administration and its right wing allies. The statement says in times like these, "it is the higher education community’s responsibility not to surrender to such attacks—and not to surrender in anticipation of them. Instead, we must vigorously and loudly oppose them." Henry Reichman, a professor emeritus of history at California State University–East Bay and one of the statement's writers, walks us through the history and the recommended actions in the face of attack.

In part two of the episode, we discuss what specific steps faculty can take to strengthen their CBAs and handbooks to safeguard academic rights and governance.  The guests in part two are Mark Criley, a senior program officer in the Department of Academic Freedom, Tenure, and Governance at the AAUP, and Monica Owens is a senior program officer and field services representative in the Department of Organizing. The episode is hosted by Mariah Quinn.

Links:

• Against Anticipatory Obedience, AAUP
• 1940 Statement of Principles on Academic Freedom and Tenure, AAUP
• Statement on Government of Colleges and Universities, AAUP
• Recommended Institutional Regulations on Academic Freedom and Tenure, AAUP
• Statement on Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments, AAUP
• Understanding Academic Freedom, Henry Reichman, Johns Hopkins University Press, 2025
  
  
  

Transcript

Anticipatory Obedience

Mariah: [00:00:00] 

Under the Trump administration, the attacks on higher education have come fast and furious. from the slashing of NIH research funding to the weaponization of federal grants to the expulsion, and attempts to deport student protestors to the executive order, calling for the closure of the Department of Education.

Trump and the right wing have launched an all out attack on higher ed. And in this moment, college and university administrators face a choice. They can fight back or they can obey some, like the administrators at Columbia University have chosen to obey 

Obedience and capitulation is the subject of AAUP presents today 

 In this episode, we'll talk to Henry Reichman, one of the authors of A A U P's statement against anticipatory obedience released earlier this year.

The statement says, in [00:01:00] the face of the barrage of attacks, it is the higher education community's responsibility not to surrender to such attacks not to surrender in anticipation of them. Instead, we must vigorously and loudly oppose them. Reichman who we all call. Hank is a professor emeritus of history at California State University East Bay, a former a UP Vice President, a former chair of Committee A, and he's currently a member of committee T. A second edition of his book, understanding Academic Freedom will be released by Johns Hopkins Press this month. After we talk to Hank, we'll hear from a's Mark Crowley and Monica Owens about what steps faculty can take to strengthen their contracts and handbooks to safeguard faculty rights, academic freedom and governance in these fraught times, we'll go to Hank first. 

So the, the statement opens with quite a [00:02:00] line. It says, as Donald Trump assumes the presidency for the second time, the outlook for higher education is dire. What are some of the biggest threats you have front of mind right now? What's under attack?

Hank: Well, uh, on one level, of course, it sometimes appears, reading the news that everything's under attack. But with respect to higher education in particular, I, I, Talk about two things. First, the attacks on DEI. I think it's very clear that the attacks we are seeing now coming from the Trump administration and from, uh, sympathetic state governments, and the MAGA movement in general, have little to do.

Uh, with the particulars of DEI programs that people may or may not, find controversial. Uh, indeed, the attacks are really on the underlying principles, on the [00:03:00] whole principle of should higher education strive to become, diverse, equitable, and inclusive. And clearly, the attacks. Are aimed at saying no to that.

In that regard, there are attacks not only on D. I. Programs, uh, but on curriculum on faculty on students who are themselves diverse. Uh, or who seek equitable, uh, treatment, uh, et cetera. So that I think is, is one of the biggest things. I think we've seen it most dramatically in the very recent Dear Colleague letter, which I want to stress is, has no legal standing.

In and of itself. The second thing I'm really concerned about with respect to higher education is the attack on science and research. the, the freezing of funding for scientific research and the [00:04:00] NIH, the, uh, the layoffs of, personnel at the CDC and elsewhere. and in particular, the effort by the administration, currently suspended by the courts, but still, very much hanging over us to, uh.

Uh, drastically reduce the ability of institutions to, recoup indirect costs, really threaten the whole research, mission, uh, in particular, of course, of research institutions, but even at predominantly teaching institutions, uh, like the one where I taught for, uh, 25 years, Cal State system. So those are the, the, the, the two major ones that I fear right now.

Although, as I said to begin with, we are seeing such a frontal assault on so many values that higher education holds dear, on our general democratic society, indeed even on our constitutional order, that it's often hard to focus on them. What are the main things?

Mariah: the statement [00:05:00] says some administrations are not only acquiescing to attacks on fundamental principles but engaging in what scholars of authoritarianism call anticipatory obedience. That is, they are acting to comply in advance of any pressure to do so.

Can you give us an example of where you've seen that happen and what forms anticipatory obedience can take? 

Hank: Well, I think, you know, uh, Inside Higher Ed ran its lead article, uh, on the fact that college and university presidents are largely remaining silent. Uh, in, in face of the, assaults on higher education that are, that really in many respects, uh, I think only just getting started, uh, from the Trump administration.

Uh, and that's one form I think of anticipatory obedience, but on the other hand, actions always speak louder than words. And I'd be less upset with, higher ed leaders if they remain silent, if they at the same time, don't [00:06:00] really comply. with the pressures being put on them.

But in, in far, far too many cases that isn't, hasn't been what's been happening. Uh, we've seen it, uh, particularly I think with the tax on DEI. that in particular, beginning at the state level, where, state, uh, attorneys general or governors, uh, and sometimes the legislature have, um, created new limits that are aimed at limiting DEI programs.

Administrations have, uh, in attempting to comply with those, edicts, which legally that in some cases they're compelled to do if they're. public institutions, uh, they've gone overboard in, uh, for example, in several instances. and the, the statement mentions a couple of early ones in university of North Texas.

We've seen it in Florida. we've seen it in [00:07:00] North Carolina where, The edicts do not really uh, them to police a curriculum or teaching, yet they do. So, um, I think we're seeing that in a number of places. And I worry in particular about this new Dear Colleague letter, uh, which really does not have Yet the force of law, uh, and they can be pushed back on.

Indeed, not only the Dear Colleague letter, but the January 21st executive order on diversity, equity, inclusion, inclusion, uh, really is far more limited than many higher ed leaders. I think are assuming it is. And, uh, Just recently, a very, prestigious and large group of law professors put out a nine page, single spaced memorandum, on,on DEI programs and their, and their legality, uh, arguing [00:08:00] that, the January 21st executive order and even the Dear Colleague letter, uh, do not create legality.

The kinds of, limitations on DEI programs that, uh, many people say they are, and that we all fear too many college administrations will assume they do.

Mariah: and just to clarify, when we're talking about the Dear Colleague letter, we're talking about, the Department of Education, which sent a Dear Colleague letter to educational institutions that receive federal funds, saying, according to them, they must cease using race preferences and stereotypes.

Types as a factor in admissions, hiring, promotion, compensation, scholarship, prizes, administrative support, sanctions, discipline, and beyond. 

Hank: the statement goes on to say that colleges and university leaders may even welcome another Trump administration as offering an opportunity to implement quote unquote reforms they have long sought.

Mariah: What does that look like for faculty and higher education? 

Hank: Well, let me [00:09:00] say one thing is that. I hope there are very few college and university leaders who are welcoming the Trump administration outside of, uh, some ideologically conservative, uh, institutions. Um, the statement, of course, was written before.

Trump took office and came out, the week of the inauguration. So we're not yet clear how sweeping some of his efforts, and I stress their efforts, not necessarily going to succeed, would be, uh, that said. I think the Trump administration comes at higher education in the context of a number of very important internal tensions, arguably internal crises to higher education, shared governance, for instance, has been under assault for quite some time, both by, state governments in the public sector, but in both the public and private [00:10:00] sector by boards of trustees, uh, administrations.

Um, yeah. And I think, you know, we saw in particular during the COVID crisis, how the excuse of the COVID crisis was used in so many institutions, to, uh, erode and in some cases, just simply eliminate. The faculty's voice in governance of the institution, uh, to ride roughshod even over, uh, faculty handbooks, even over collective bargaining agreements.

Um, well, in a certain sense, the Trump administration's attack poses another such crisis that can be used in the same way the COVID crisis was. Nobody denied that COVID was a real challenge to the university administrators and nobody in his right mind would want to be in the place. Of presidents having to make some of those very difficult decisions.

 similarly now, nobody would say, [00:11:00] Oh boy, let's, you know, you know, let's be in this difficult position dealing with the Trump administration. That said, it can become an excuse for saying, look, it's a crisis. We're under assault. We have to do these things. Uh, and we can't wait around for, you know, the slow wheels of governance or union consultation, et cetera, to, to do them.

And of course, what would happen in that case is once the crisis is gone. They're reluctant to go back to the, to what they've assaulted.

Mariah: And let's look at the history a little bit. Uh, this statement touches on the AAUP's work during the Red Scare in the 1950s, quoting the AAUP's 1956 special investigative report on the anti communist scare, which says, and I quote, the temptation to yield a little in order to preserve a great deal is strong.

Yet to yield a [00:12:00] little is, in such matters, to run the risk of sacrificing all. That's so well written. What does the history of political interference and attacks on academic freedom tell us about this moment? What can we learn? 

Hank: Well, I, I think the big lesson is exactly what's in that, that line. And, and I agree with you, it, it was so eloquently written writing this, this statement, I felt we have to have that, that quote in there.

 And I think the big lesson to be learned from the history as you address the question you ask is that we need to heed that advice that we need.

And frankly, I think it's important to recognize that that statement, that report that the quote comes from came pretty late in the McCarthyite assault, and we call it McCarthyite, but it really precursors McCarthy, assault on, uh, on academic freedom and free [00:13:00] speech, arguably too late in the crisis. I'm glad they did it and it's eloquent, but So I think that the main advice is, is This time, let's not wait.

Let's take that stance I'm sure we're going to hear it many times of well, we'll get rid of this program because if we do that, that will appease them and appeasement didn't work at Munich and work in higher education either. I think we need to stand up, stand up intelligently.

And stand up in a way that is effective The other thing, a lesson I would, I would say from the past is that unity is important. This is not the time to engage in disputes with allies. There are real issues to be debated.

There are real differences that we have, even within the AAUP, and that's healthy, but I think we all need to [00:14:00] recognize that this is a time that the higher ed sector needs to come together, uh, and we need to do it in a way that shows backbone, and if our administrators are not willing to show that back, backbone, we don't have to waste time whining about them.

We'll just, we should just do it for them and push them. to do it. But I think that, you know, the main lesson here is not to retreat and not to attack allies.

 one final thing, of course, to organize. 

Mariah: so speaking of standing up and organizing, the statement lays out a series of actions that AAUP chapters and conferences, unions, and faculty senates across the nation should take. We will get into the nitty gritty of how to do that in the second part of this podcast, where we talk about ways that faculty can codify the Red Book into CBAs and handbooks.

But can you briefly walk us through some of those recommended actions? 

Hank: Well, I basically there, you know, we really called on everybody [00:15:00] to take the opportunity now before the crisis. shall we say, uh, to review their handbooks and contracts, see where they can be strengthened, do what they can to strengthen them.

And frankly, also to educate themselves. What are their own policies at their institution? anything that can strengthen faculty oversight and faculty participation. And then they need to, we need to recommend organizing locally, regionally, nationally. strengthening our capacity to protect tenure.

We suggest that local chapters form, uh, their own versions of Committee A, although Committee A is a policy, a policy body for the AAUP, not an enforcement body, but still something like that. Uh, I think in union chapters, linking it to, grievance procedures and to the grievance officers, et cetera, for the chapter.

Um, But I want to say one thing about about all this is that, you know, we talk [00:16:00] about shared governance and we talk about unionization as the two main mechanisms that faculty have to enforce our principles around academic freedom around faculty rights in general, around diversity, equity and conclusion, inclusion for that matter.

 and, and of course, those are the two mechanisms. And, and, uh, well, Unionization may not be available to all faculty members, shared governance is, but even where both are available, the two can work hand in hand. But, both a faculty senate and a collective bargaining agreement are only as strong as the faculty who work to implement them.

I think,the key thing in all of this is for faculty for more faculty to involve themselves And one final point I think to [00:17:00] recognize around this is that we're educators and organizing in a certain sense is first and foremost educating.

If a union organizer goes into a workplace, not a higher ed workplace, a factory, what's the first thing they do? They start educating their co workers about what is a union. What is the boss doing? What is the national situation? What are you? All sorts of things. And once they get a union, they continue.

Educate. Because organize is to educate. And as educators, we should be natural organizers. But we have to take it on and understand it. And that's what I think is the, is going to be the key. And, uh, hopefully These assaults will wake people up and [00:18:00] instead of, as our opponents hope, demoralizing us, give us a bit more of a backbone.

Mariah: And you've talked a little bit about what people can do, but this is a scary moment, I think, and it can feel overwhelming for faculty and people in higher ed with all the attacks coming so fast. What advice would you personally give to faculty at this moment as a scholar of academic freedom and someone who's been in the academic labor movement for a long time?

Hank: Well, it's, it's hard for me to tell people what to do from my position. I'm retired. I haven't taught now for 10 years. Um, uh, not been on a campus for 10 years, uh, well at least full time teaching. So, uh, you know, I don't want to tell people what to do for a position of comfort, but I think the main lesson is that, well, it's twofold.

One is. [00:19:00] There is a tendency among so many faculty members, I've seen it over the years, to want to just retreat into their own work. And I it's become increasingly clear that that's often no longer possible. And where it is, it's more difficult because their own work is precisely what is now being under attack.

And so I think the main lesson is, is you have to come out of your shell, but the good news and coming out of your shell is others will be doing it too. 

I think People have to get involved on some level, but when they do their other colleagues will be there with them. So I think the main lesson is to stand firm, but also to stand together. And finally, take care of each other.

Mariah: 

[00:20:00] Now let's turn to the nuts and bolts of what faculty can do to strengthen their handbooks and contracts to better protect faculty rights in the areas of curriculum and course approval, academic program, discontinuance and faculty appointments, reappointments promotions, and dismissals. My guests in this segment are Mark Crowley, a senior program officer in the Department of Academic Freedom Tenure and Governance,And Monica Owens, a senior program officer and field service representative in the Department of organizing.

We are gonna jump right in.So in this statement on anticipatory obedience, it urges faculty unions and governing bodies to review institutional policies to safeguard academic rights and governance. So what are the main policies that should be included in handbooks and CBAs? Mark, do you wanna take that first?

Mark (2): I would say the typical thing that we would call the attention of faculty members to in our, in our department are four [00:21:00] core documents that come up regularly.

In our work, the first of which is, uh, perhaps the, most fundamental a up document. The 

1940 statement of principles and academic freedom and tenure. We'll talk about that in some more detail. The statement on government of colleges and universities, which is our primary document concerning, um, the governance of the institution by the different components.

 Um, the statement on procedural standards and renewal and non renewal of faculty appointments is an essential one. Um, and then lastly, a really useful document. Um, is the recommended institutional regulations on academic freedom and tenure, which is really nice it's a set of model policies, 

 the most current version of that is always available on our website, and it contains 16 model policies [00:22:00] concerning lots of the issues that we're going to talk about today.

So that's the one of the first places I would recommend that people go take a look to see the issues that are addressed there. And to take a look at the way that the AUP recommends they be included in your institutional regulations.

Mariah (3): And we will link to those documents in the show notes where we can. And why is it advantageous for handbooks and CBAs to specifically cite AAUP policy statements? And what we're talking about applies to both faculty with collective bargaining contracts and those without. Is that correct, Mark?

Mark (2): That's exactly right, one of the chief reasons is because these policies have been developed over the course of 110 years. Uh, and so experience has sort of shaped them and shorn off the rough edges and anticipated, you know, different kinds of, problems and issues.

So it anticipates them in ways that individual faculty members might not be, if they sit down to try to reinvent. The wheel. Um, [00:23:00] the other thing is that, the AUP has, you know, a reputation and authority that can be appealed to. and. When you incorporate,our documents explicitly, you can kind of tap into, the kind of, informally speaking, case law that has developed over the decades, connected to, case work and investigation and so on, and, uh, use those principles and, and, guiding the interpretation of your policies, and, The other thing is that if you get core documents in there, and they are, you know, credited to the AUP, cited, incorporated by reference, then there are a number of, of derivative documents, that, that explain and apply those policies, and If you've got our policies in there, then you can argue that they [00:24:00] should be interpreted in light of these other kinds of, of specific policies.

Mariah (3): let's delve into specific documents a bit. you mentioned the 1940 Statement of Principles on Academic Freedom and Tenure. There's a lot there, but can you walk us through some of the core concepts in that and how it relates to strengthening faculty handbooks and CBAs? 

Mark (2): Sure. So the 1940 Statement, as I said, is probably the AEP's most fundamental document.

Um, and it was developed, um, it's a joint document with what is now the American Association of Colleges and Universities. what's really I think makes it essential is that it represents as close as you're going to get to a consensus in American higher education about the meaning and purpose of academic freedom and tenure.

And a number of, of common features of both of those notions, are incorporated, [00:25:00] across the, um, the nation, as a result of, of the form that they take in that 1940 statement. and a survey in 2020 showed that, roughly 75 percent of all four year institutions, uh, in the United States,incorporate language from the 1940 Statement.

Um, so it's really, quite prevalent. and it lays out three different components, freedom in research and publication, freedom in the classroom, freedom in teaching, um, and also freedom of extramural utterances.

Uh, which is really relevant in today's climate, um, given the sorts of actions we're seeing taken against, um, faculty members for, comments on social media, um, for remarks, about the war in Gaza and so on. and then the fourth component, which [00:26:00] isn't specifically enumerated in the 1940 Statement, but, it seems to be implied by it and it's developed in other kinds of documents, is freedom and Intramural utterances of faculty members speech about, the governance of their institution about its policies and actions.

Um, and, um, so as developed in that, uh, in that statement. the freedom of extramural utterances, as I said, is, is quite important. part of, part of what's distinctive about American approach to, academic freedom.

 it involves the faculty members freedom. quote, to address the larger community with regard to any matter of social, political, economic, or other interest without institutional discipline or restraint. 

 the key idea here is that, um, faculty members speech, on extramural matters, their speech [00:27:00] or their speech outside of their role.

as faculty members, their opinions as citizens and so on, can't count as grounds for dismissal unless they clearly demonstrate That the faculty member is unfit for their position, and, that is their position as teachers and scholars, not their position as, you know, sometimes, um, administrators or board, board members like to think of things in this way as an ambassador for the institution, or somebody who has a responsibility to keep donors and alumni placated or avoid political, you know, morasses and so on. 

 Mariah: Monica, let's get into the nuts and bolts a little bit. What would a sample article on academic freedom in a CBA or a faculty handbook include? 

Monica: First, if you can, copy and paste the 1940s statement [00:28:00] into your handbook or, union contracts. Nearly about 80 percent of higher ed institutions have the 1940s statement in their handbook or their faculty union contract.

So, you would be in good company to do that. and that will cover basically everything that Mark just outlined for us. but let me get into kind of what those sort of core components would look like in your handbook or your union contract. so. You will want, a clear statement about what academic freedom means, right?

Academic freedom means freedom of teaching, research, intramural, and extramural speech. it can be useful to define a little bit what intra and extramural speech are. to kind of elaborate on, you know, why those [00:29:00] matter and why they need to be protected. so faculty members are entitled to the academic freedom to speak out about the governance of their institution, which would be sort of more intramural speech.

They're talking about the way that their institution is being run by their board of trustees or whatever governance body. And then. Faculty members are also entitled to the freedom to speak out as citizens about important issues. I think having language that emphasizes that faculty are citizens and they may speak out as such, and that free inquiry includes pertinent controversy. So, faculty Are entitled to speak out as citizens about issues happening in the city of the state or the country but at the same time they are Not [00:30:00] representatives of the institution when they're doing that. They're just speaking as citizens So making that clear and then that last bit that I just said free inquiry includes pertinent controversy.

This is taken from an AAUP faculty union contract this Sentence I think is really useful, and they've included it after, a section in their, uh, academic freedom article that says essentially faculty are welcome to discuss, anything relevant to their course and what they're teaching in their classroom, but if, but they should be careful to bring up anything that is not, um, relevant to the course, right?

Or relevant to their expertise. And at the same time, if they can make sure that what they're saying is in some way connected to the course or their work, then that's absolutely a legitimate thing to bring up. [00:31:00] Um, and that free inquiry includes pertinent controversy. So, current events.

controversial or not can absolutely be relevant to the discussion in the classroom. 

 So the last thing that I would highlight is that adding an extra sentence that really lays out faculty's ability to exercise their intramural and extramural speech by saying, and I'll just read now an example from a union contract that I think does a good job of this. No arbitrary, capricious, or discriminatory restriction or reprisal shall be imposed on any faculty member for participation or non participation in a non university activity, whether as a service to the general public or for private remuneration.

 so that was a mouthful, but the point of that really [00:32:00] is to lay out how free the faculty member is to sort of, exercise. Their opinions as citizens.

Mariah (3): let's turn to the issue of dismissals and suspensions. Mark, can you walk us through some of the AEP statements and policy around those issues? 

Mark (2): Sure. 

Um, we're seeing, I think anecdotally, at least a serious uptick in suspensions. of faculty members. So we'll start with dismissal. You want to make sure that academic freedom is secured by having strong protections against arbitrary dismissal. That's a theme that goes back to the 1915 founding Of the AUP and carries through all the way up to, the most sort of detailed statement, of our, our recommended guidelines on that topic, [00:33:00] which are found in.

Um, that document the recommended, institutional regulations on academic freedom and tenure that I mentioned. and so regulation five of that lays out in a great deal of detail. the sort of procedural protections that should be in place for faculty members before, before they're dismissed.

Um, and dismissal needs to be for, and this applies to all faculty members, regardless of their status, uh, if their, appointments are to be terminated. 

one of the essential notions is that the dismissal needs to be for adequate cause.

And, the AUP doesn't define adequate cause, even in regulation five, which is otherwise really very specific. 

but Regulation 5 does, constrain what kinds of things should count as adequate cause. Uh, and so whatever [00:34:00] individual institutions do to, to define what might count as, might qualify as a reason for, termination of appointment, regulation five taps into that same notion that we talked about with extramural speech, that adequate cause for dismissal Will be related directly and substantially to the fitness of faculty members in their professional capacities as teachers or researchers.

 so some examples. of, the kinds of things that might count, um, demonstrated incompetency, or dishonesty in teaching plagiarism or what have you, substantial or manifest neglect of duty, personal conduct, which substantially impairs, the faculty members ability to perform their institutional duties.

Before dismissal, a faculty member should be afforded a hearing, an adjudicative hearing before an elected body of their peers. [00:35:00] Um, and that's essential in order to ensure that the standards by which the faculty member is being judged are going to be the standards of their profession.

 and the ones who are qualified to apply that, who should hold primary responsibility for determination along those lines, are elected faculty representatives, not the administration.

So that I think is one of the first things that if you were a faculty member wondering what, what you might do that would make an impact on your campus really quickly would be to go and check out your, procedural protections, in cases of dismissal to make sure that there is this kind of adjudicative hearing in place.

 and it's also essential Given the severity of dismissal, that the burden of proof has to rest with the administration. The administration must make the case to that elected body of, uh, faculty representatives, [00:36:00] preferably by a standard of clear and convincing evidence that they are not fit for their position.

 the same kinds of procedural standards apply for major sanctions, like suspension as, for dismissal. That is, the faculty members should be afforded, uh, a prior hearing, and at that hearing, the administration needs to make the case that, there's adequate cause, they need to bear the burden of proof, and they need to make it to court.

A, an elected committee of faculty representatives.

Mariah (3): So let's turn from policy to practice.Monica, what are the elements of a strong disciplinary article in a contractor handbook based on, what Mark said? 

Monica: your handbook or union contract should contain, language that lays six items. So [00:37:00] in your disciplinary article, having language that says all discipline, including suspension or termination, can only be for adequate cause or just cause.

So, having that, that phrase of just cause or adequate cause. Why is that important? Well, that's in contrast to the phrase at will employment, right, which does not require a legitimate and verifiable reason for dismissal. So, you want to have that phrase adequate or, or just cause to kind of hold the employer to that higher standard of discipline or dismissal.

So that's the first item. the second item would be notification of. Union officers about disciplinary meetings, if you have a union contract, if you're working with a handbook, think about who faculty representatives could be that [00:38:00] could be notified about all disciplinary meetings. some institutions have, you know, an ombuds program or, a faculty representative program within their shared governance body that can help sort of accompany faculty to disciplinary meetings and things like that.

Almost like a steward in the union, but it would be sort of just with your, out of a union context with your faculty. So requiring that other, colleagues are notified so that they can support you. That's really important. the next thing is progressive discipline should follow very clear steps.

Um, usually there, you know, is a sort of a first, first warning or a first step and a second, and, those would need to come before some kind of, you know, suspension or dismissal. like Mark was saying, due [00:39:00] process is hugely important to the functioning of Just Cause, right? So having a hearing before a panel of colleagues.

Having that item specified in your handbook or union contract is essential. Um, an arbitration provision. Following the hearing, is the next step in sort of decision making about this disciplinary issue. 

the arbitrator decision is, usually the last step in a disciplinary process like this. So you do want to make sure that they have some sense of what your workplace is like.

and then the last item that I would say is,really important is just exactly what Mark has been telling us is, uh, a statement that says except in cases of egregious actions such as theft, assault or other severe misconduct, first and [00:40:00] second steps of progressive discipline should proceed at disciplinary suspension.

So. again, this is just pointing to the importance of having clear, defined, progressive disciplinary steps laid out so that the employer is not going from zero to ten when, trying to, discipline the faculty. And the last thing I'll add is keep in mind that sort of the theory of discipline is really to improve behavior and change behavior.

Not to punish or shame or embarrass, right? So the discipline should be aimed at ameliorating the faculty members behavior, helping them not do that again. not, immediately go to the kind of the worst possible,punishment or discipline. So, so that, that kind of theory should be informing how.

How you're writing your, your articles and how the employer is following [00:41:00] them.

Mariah (3): let's touch briefly on financial exigency and program discontinuance. How should faculty be thinking about preparing for those situations? 

Mark (2): Right, and they definitely, they definitely should be thinking about it, uh, and thinking about it in advance, because we're seeing more and more of it as, uh, universities claim, in many cases, you know, with, with good reason that they're experiencing financial difficulties and so on, um, and, , we're also seeing, um, program discontinuance that isn't proceeding, under, under, the, the banner of financial exigency.

 I think you want to go to your institutional regulations and take a look at what they say. What does your handbook, what does your CBA say about, these conditions under which a faculty member might be terminated? Because there are only three reasons under AAUP principles and standards, why a faculty appointment.

Uh, might be terminated. The first one is dismissal for cause. [00:42:00] The second one is a bonafide financial exigency. And the third is program discontinuance for essentially educational reasons. and, I think one thing to do is to make sure that your, your handbook or CBA restricts dismissal to those three kinds of reasons and understands them in the same way that, the AAUP does.

 the policy guidance that we have, now is once again coming from the recommended institutional regulations, and, uh, Regulation 4C deals with financial exigency and terminations that might be related to that, and Regulation 4D deals with program discontinuance.

So those are the two places that you would want to look. And again, the staff of the AUP can help you with this task of assessing. How well your rules match up with our [00:43:00] recommendations. That's something that we're, we're eager to do to help people make sure in advance they've got these protections in place.

 so one of the essential things, uh, with financial exigency to do is to make sure that you have a robust, uh, definition of it. The AUP's definition of it, the one that we, recommend and hold out for is, as a definition. that financial exigency is a severe financial crisis that fundamentally compromises the academic integrity of the institution as a whole, and that cannot be alleviated by less drastic means than terminating appointments.

So we're not talking about an underperforming division or something like that. We're taking a look at the, financial condition of the university, or college, um, as a whole rather than proceeding through it, piecemeal, [00:44:00] and. the other, essential thing is that the faculty under these conditions of emergency need to be involved in the determination that, a genuine bonafide financial exigency of that kind that's described, exists 

 and then program discontinuance, right? Again, the thing I would emphasize here, this is regulation 4D again.and, it contains the same kinds of provisions as regulation 4C does. it, Ensures that, uh, there are conditions that ensure that the faculty collectively, play an appropriate and meaningful role in all of the decision making.

And again, since we're talking here about program discontinuance for essentially educational reasons, as determined by the faculty who have primary responsibility for the curriculum, And for the academic mission of the institution, um, the [00:45:00] faculty should be given primary authority in making these kinds of determinations about whether a program should be, should be discontinued.

Let's turn to intellectual property. what constitutes faculty intellectual property? And what is some sample language that faculty could consider when trying to protect the future use modification and distribution of course, material Monica? Do you want to take that? 

Monica: Sure. So the AAP put out a statement on intellectual property in 2013 that lays this out very clearly.

So I'll quote faculty lectures or original audio visual materials. unless specifically and voluntarily created as works made for hire constitute faculty intellectual property. End quote. So I encourage folks to go read the full statement. but right there [00:46:00] in black and white, it says all faculty lectures, audio visual materials, all of your course materials are The property of faculty, unless they sign a work for hire agreement with the employer and the statement, goes sort of into more detail about, not being pressured into doing work for hire agreements and, , also the status of syllabi, which are considered sort of public, materials that, Okay, Should be shared with, the faculty body 

 to show each other sort of what you're working on and to, to learn from each other and, and see what's happening in the, courses at the institution. But let's go specifically into kind of what sample language for intellectual property in your union contract or in your handbook would cover.

So, first it would very [00:47:00] much stay directly what I read. A moment ago that, all lectures and audio visual materials are the property of the faculty. Um, let me read you an example of a union contract, a sentence that I think really well carries that message. So copyright of all course material, including but not limited to recordings of courses, course presentations, computer assisted instructional content.

Course content developed and other digital or physical materials created by the faculty member shall be owned by the faculty member. here I want to point out that writing something like including but not limited to is a really useful turn of phrase to make sure that you have a very expansive list that you are trying to include in article.

 So everything belongs to the faculty member that they have produced unless they've, entered into a work [00:48:00] for hire agreement. Also, I would say it can be really useful for the intellectual property article to have some guardrails against the employer entering your core shell without your consent.

So including something about the university administration not being allowed to go in there without written consent from the faculty member. And then also, permission about sort of, um, assigning the teaching of your course to another faculty member should be, protected against. So I'll read one example.

If the administration assigns a faculty member to teach a course through the learning management system that contains another university faculty member's material, the administration must obtain written permission from said university faculty member. Request for permission shall state that refusal to grant permission for use of the material has no penalty, financial or [00:49:00] otherwise.

So those are some useful things to protect your work in your handbook or contract. 

Mariah (3): Intellectual property provisions and the financial exigency provisions that Mark laid out, I think, and the disciplinary provisions are hugely important, I think, for this moment. So I would encourage folks to just go back and look at their handbook or their union contract and just verify, are these hitting the sort of criteria that we were laying out?

Monica: Because now, I think it's a time when we will see employers attempt to try to manipulate. The situation in order to let go of faculty who are rocking the boat a little bit. and, you know, the financial exigency piece in particular, can be something that the employer uses as a way to sidestep disciplinary procedures.

Right? by trying to retrench faculty by claiming financial exigency, but if you don't have a clear policy in place for a [00:50:00] clear definition of what financial exigency is, or a statement of the word financial exigency is hugely important, right? Um, and also a clear set of sort of processes for the faculty to kind of.

 check and balance against the employer's declaration of financial exigency. Those, those are just super important right now. So I encourage folks to go and look at them. And, yeah, I wish that I had a little bit more of like a sunny, happy, success story to share. But I will say that, like, I think in my work, the successes that I've seen are when we win those.

articles at the table or when we strengthen those provisions. So, that's my parting advice, 

Mark (2): Thanks to Hank, Monica and Mark for appearing on A A UP presents. You can find links to the statement on anticipatory obedience, the 1940 statement of Principles on Academic Freedom, and the [00:51:00] recommended institutional regulations on academic freedom and tenure, and all the other statements we discussed in the show notes and on our website, aaup.org.

Stay tuned for new episodes soon, especially our upcoming series, academic Freedom on the Line, hosted by Venita Singh, a fellow in an AAUP’s Center for the Defense of Academic Freedom. Thanks for listening. This is a AAUP Presents. I'm Mariah Quinn.