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To: the University of Arkansas Board of Trustees and President Donald R

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To: the University of Arkansas Board of Trustees and President Donald R To: The University of Arkansas Board of Trustees and President Donald R. Bobbitt From: Professors Joshua M. Silverstein and Robert E. Steinbuch Cc: The University of Arkansas Office of General Counsel The University of Arkansas Faculty Re: Response to the Office of General Counsel’s FAQ Concerning the Proposed Revisions to Board Policy 405.1 Introduction. In November of 2017, the University of Arkansas Office of General Counsel (“Counsel’s Office”) posted an FAQ concerning the proposed changes to Board Policy 405.1. The FAQ contains numerous false or misleading claims. This memorandum corrects the record. Before we turn to substance, we offer three preliminary notes. First, this memo focuses solely on responding to various problematic claims in the FAQ. It is not intended to constitute a comprehensive case against the proposed revisions to 405.1. Second, for reasons of length and time, we have not addressed every problematic statement in the FAQ. Third, given the exceptional time pressure that we have been forced to work under, we alert you to the possibility that we might amend this document in the future. FAQ § I, p. 1. Counsel’s Office claims: “Some faculty members and administrators have expressed support for the proposed change while some faculty have shared concerns.” Response: This language suggests that there is a division among the faculty on the proposal. That is false. Faculty are almost universally opposed to the suggested amendments. For example, the faculty governing bodies of virtually every UA System campus have formally expressly their opposition to the proposed changes—on both substantive and procedural grounds. In addition, the feedback email address—[email protected]—had received only one comment in favor of the revisions as of December 9, 2017. Faculties’ outcries slow UA System’s tenure- policy redo, Ark. Dem. Gaz., Dec. 10, 2017 (“Of the comments the system received through [email protected], only one was in support of the changes.”). FAQ § I, p. 1. Counsel’s Office claims: “[S]ince the last update of these policies, the University of Arkansas System and our campuses have changed significantly. In addition to the changes with our campuses, there have been legal developments impacting these policies. Further, experience in applying the existing policies over time has revealed areas where clarification or revision would benefit meeting the underlying purposes of the policies.” Response: The Counsel’s Office has not identified any legal developments that require changing the standard for dismissal for cause. And, as law professors, we know of no such developments. Likewise, the Counsel’s Office has not identified how “experience in applying the existing policies” reveals “areas where clarification or revisions” would be helpful. The Counsel’s Office serves in an advocacy capacity representing the University against faculty during termination proceedings. They are far from an unbiased party in this debate. We would, nonetheless, welcome their full explanation of the alleged basis for the claims here. Again, the 1 University attorneys have offered no explanation at all to date. FAQ § II, pp. 2-3 & Page 6. The Counsel’s Office asserts on pages 2-3 that the proposed changes to 405.1 are designed “to add precision and specificity, thereby providing more explicit guidance to faculty and removing ambiguity as to the requirements of the policy.” Then, on page 6, they contend that the “proposed amendment merely provides greater clarity on what constitutes ‘cause’ rather than leaving the matter to inference.” (Emphasis added.) In other words, the Counsel’s Office maintains that the proposal does not actually expand the grounds for termination. The primary basis for this assertion is presented on page 2 of the FAQ: “It is important to note that under the current policy only a few examples of conduct constituting ‘cause’ are provided, but the policy very specifically states that the conduct is not limited to those specific examples.” (Emphasis added.) Response: The Counsel’s Office’s analysis here reflects a critical misunderstanding of how statutory rules and contractual language are interpreted in the American legal system. Both the current and proposed versions of 405.1 set forth the same general standard for cause. The current policy states that cause is “conduct which demonstrates that the faculty member lacks the ability or willingness to perform his or her duties or to fulfill his or her responsibilities to the University.” The proposal states that cause is “conduct that demonstrates the faculty member lacks the willingness or ability to perform duties or responsibilities to the university.” Those are identical in every substantive respect. The current policy then offers a non-exclusive list of four examples. The proposal, by contrast, offers a non-exclusive list of at least sixteen examples. Moreover, the four examples in the current policy all reflect extreme problems—e.g., “incompetence” and “moral turpitude.” By contrast, several of the examples in the proposed version fall well short of constituting extreme problems—e.g., “unsatisfactory performance” and “unwillingness to work productively with colleagues.” It is a fundamental principle of interpretation that when a general term is coupled with specific examples, the specific examples play a central role in defining the scope of the general term. This principle is so well-established that it is often referred to by its Latin description: Ejusdem generis. See Edwards v. Campbell, 2010 Ark. 398, *5, 370 S.W.3d 250, 253 (Ark. 2010) (“[W]e recognized in Oldner the doctrine of ejusdem generis, which provides that when general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.) (internal quotation marks omitted). This means that a general word or phrase changes meaning depending on the specific examples included with the general word or phrase. The proposal makes quantitative changes to the definition of cause by dramatically expanding the list of examples that justify termination. It also makes qualitative changes by including new types of examples that constitute less serious grounds for dismissal. Accordingly, the general cause standard—“lacks the willingness or ability to perform duties or responsibilities”—plainly has a much broader meaning under the proposal than under the current rule. This analysis demonstrates that even if the proposal adds clarity—which is dubious—it unquestionably expands greatly the grounds over which a tenured member of the faculty can be fired. This helps to explain why faculty within the UA System are all but unanimous in their opposition to the 2 Counsel’s Office’s recommended changes to 405.1. Further, the proposed revisions do not in fact increase clarity. The Counsel’s Office’s principle example of ambiguity in the current policy is the phrase “moral turpitude,” which it asserts is “amorphous.” But there is a long tradition in American law of judging conduct via that standard. See, e.g., Henry v. Goodwin, 266 Ark. 95, 99, 583 S.W.2d 29, 31 (Ark. 1979); Supreme Court Committee on Professional Conduct v. Jones, 256 Ark. 1106, 1107, 509 S.W.2d 294, 295 (Ark. 1974); 21 Am. Jur. 2d Criminal Law § 22 (“Crimes involving moral turpitude”). Indeed, numerous Arkansas statutes use the locution. See, e.g., A.C.A. § 6-51-606(h)(3)(B) (governing school licenses); A.C.A. § 16-10-409(a)(1)(A) (governing the suspension of judges). And the same is true at the federal level. See, e.g., 8 U.S.C. § 1227(a)(2)(A)(i) (articulating the standard for deporting aliens). The United States Supreme Court even ruled that the phrase “moral turpitude” is not unconstitutionally vague in Jordan v. De George, 341 U.S. 223 (1951). There are authorities contending that the locution “moral turpitude” is problematic. And we have some sympathy for this position. But given the Counsel’s Office’s alleged concern with ambiguity, it is more than a little ironic that they have included collegiality as a ground for termination (“unwillingness to work productively with colleagues”). Collegiality is one of the most ambiguous concepts in all of higher education, and its use in evaluating faculty is expressly disapproved of by the AAUP, as we have explained in other submissions. In short, whatever vagueness problems there might be with “moral turpitude,” they pale in comparison to the vagueness problems with the language added in proposed 405.1. FAQ § II, p. 3. This page contains an example of a cause policy from the University of Florida (UF), with the implication that UF’s policy was employed in the drafting of proposed 405.1. Response: Counsel’s Office’s reliance on UF’s cause policy in the FAQ is highly misleading. First, the policy does not apply to numerous tenured faculty at UF. Florida has a statewide faculty union called United Faculty of Florida, which represents over 20,000 faculty members at various universities and colleges across the state, including UF. See here (setting forth basic information about the union). Critically, when there is a conflict between a UF board of trustees policy and the collective bargaining agreement between UF and the union, the collective bargaining agreement controls. See UF Collective Bargaining Agreement § 8.3 (“No existing, new or amended University regulation, policy, or resolution shall apply to bargaining unit faculty members if it conflicts with an express term of the Agreement.”), available here (this link contains the entire agreement). The definition of cause in the collective bargaining agreement is different from that contained in the University rules. The agreement thus governs the termination of any union member, not the board rule cited by the Counsel’s Office. And the agreement provides as follows: “Just cause shall be defined as misconduct or incompetency.” UF Collective Bargaining Agreement § 27.1(a) (emphasis added).
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