ACADEMIC FREEDOM AND TENURE

Yeshiva University1

Immediately prior to the commence- leagues, professors active in the Faculty Steering ment of the 1978-79 academic year, the administra- Committee of the Faculty of Arts and Sciences, and tion of Yeshiva University sent letters to five leaders of the organization which had been elected tenured faculty members notifying them that their to represent the faculty for purposes of collective appointments were to be terminated immediately. bargaining, the Yeshiva University Faculty Associ- The faculty members were told that they would ation.2 In addition, the investigating committee receive severance pay for the forthcoming year but listened to recorded hearings on the cases held by would not have any academic responsibilities. Two an ad hoc committee of the Faculty of Arts and of the notices were subsequently rescinded. The Sciences in September, 1978, and it examined the three remaining affected faculty members—Profes- extensive file on the cases that had been compiled sors Shelly Koenigsberg, Charles Patt, and Dorothy by the Association's staff. Sievers—asked the Association for advice and assis- Yeshiva University is a private university located tance. After discussions between the Association's in New York City. Its origins are in a day school, staff and the administration of Yeshiva University founded in 1886, offering instruction in Jewish and failed to achieve a resolution, the undersigned ad General Studies. Ten years later, a theological hoc committee was appointed to investigate the seminary was established. Yeshiva College was cases of concern. established in 1928 and awarded its first baccalaure- The members of the ad hoc investigating commit- ate degrees in 1932. The name Yeshiva University tee visited Yeshiva University on January 16-17, was adopted in 1945, and the Middle States Associ- 1980. Vice President for Academic Affairs Blanche ation of Colleges and Secondary Schools first ac- D. Blank and members of her staff conferred with credited the University in 1948. Yeshiva University the committee and answered a limited range of retains strong ties to the Orthodox Jewish commu- questions. The committee interviewed the three nity although it is considered nonsectarian and as faculty members whose appointments were termi- such became eligible for New York State aid to nated, two former deans, the faculty members' departmental chairmen and other faculty col- 2 In February, 1980, the U.S. Supreme Court decided that the provisions of the National Labor Relations Act 1 The text of this report was written in the first for collective bargaining were inapplicable to the Yeshi- instance by the members of the investigating committee. va University faculty (see Academe, May, 1980, pp. 188- In accordance with Association practice, the text was sent 197). The election for collective bargaining and the to the Association's Committee A on Academic Freedom subsequent litigation have no particular relationship to and Tenure, to the teachers at whose request the investi- the cases that are the subject of this report. It will be gation was conducted, to the administration of Yeshiva recalled, however, that the Court based its decision on University, and to other persons directely concerned in findings that the faculty of Yeshiva University had such the report. In the light of the suggestions received, and substantial roles in academic governance that they must with the editorial assistance of the Association's staff, the be considered managers and they are ineligible for report has been revised for publication. protection under the National Labor Relations Act.

186 / ACADEME August 1981 independent secular institutions (commonly called organization of the University would be by disci- "Bundy money") in 1970. pline, although the separation of the University The University enrolls approximately 7000 stu- into various colleges would remain, and faculty dents in four basic academic centers. The main members who previously had taught exclusively at campus, in the Washington Heights section of the graduate level could therefore be expected to Manhattan, includes the men's undergraduate divi- teach at Yeshiva College or Stern College. In each sion, Yeshiva College, the Erna Michael College of of the cases to be discussed, the stated reason for Hebraic Studies, and the James Striar School of releasing the faculty members was academic reor- General Jewish Studies. This campus also houses ganization. the Rabbi Isaac Elchanan Theological Seminary, the Bernard Revel Graduate School, the Harry Fischel Belfer Graduate School—The Termination of the School for Higher Jewish Studies, and the site of Appointment of Professor Charles Patt the former Belfer Graduate School of Science (to be The Belfer Graduate School of Science offered discussed below.) A midtown center, on Lexington degrees in physics, chemistry, and mathematics. On Avenue and 36th Street, is the site for Stern June 27, 1977, President Lamm sent a letter to each College for Women and the Teachers Institute for member of the Belfer faculty announcing his deci- Women. The Graduate Center, on lower Fifth sion to close the Graduate School in light of the Avenue, houses the Ferkauf Graduate School of financial needs of the University, declining enroll- Humanities and Social Science, the Wurzweiler ments, and the high costs of operation. Present School of Social Work, and the recently established graduate students were to be afforded the opportu- Cardozo School of Law. Finally, the Albert Einstein nity to complete their studies, but new admissions College of Medicine and the Sue Golding Graduate were suspended. The president indicated that some Division of Medical Sciences are located at the faculty members would be reassigned to under- University's Bronx Center. graduate teaching but that the appointments of The president of Yeshiva University is Dr. Nor- others would be terminated under procedures con- man Lamm; he assumed his office in August, 1976, sistent with the January 14, 1974, Statement of following the thirty-three-year presidential term of Tenure and Appointment Policy of Yeshiva Uni- the late Rabbi Samuel Belkin. At the time of his versity. He stated that it was the University's appointment, President Lamm was professor of intention to complete the reassignment or termina- Jewish philosophy at the University and also rabbi tion of appointments of faculty by June 30, 1978. of a prominent Orthodox Jewish congregation in As far as the undersigned investigating commit- Manhattan. A year later, he announced a reorgani- tee can determine, the basic decision to close the zation of the administrative structure by discipline Belfer Graduate School was made by the president instead of by individual schools, and he named a and his vice presidents; the long-time dean of Bel- number of new administrative officers. Dr. Blanche fer, Dr. Arthur Komar, was not consulted in all D. Blank became vice president for academic af- details, and the Belfer Faculty Welfare Committee fairs. Dr. Morton Berger became dean of the Fer- was not consulted at all. kauf Graduate School and university dean for the Pursuant to the decision, Dean Komar made behavioral and social sciences. In January, 1978, Dr. plans to transfer some graduate faculty members in Arthur Komar was succeeded as dean of the Belfer mathematics to undergraduate mathematics teach- Graduate School of Science by Dr. David Finkel- ing, utilizing them to expand undergraduate com- stein, who left the University one year later to puter science courses. He expected that most of the accept a deanship elsewhere. Dr. Finkelstein's re- affected faculty members who wished to remain at sponsibilities were then assumed by Dr. Karen the University could do so, since he anticipated the Bacon. resignation of a number of senior faculty members who would seek graduate teaching positions at THE CASES OF THE THREE FACULTY MEMBERS other universities. The structural reorganization of Yeshiva University In January, 1978, Dean Komar was replaced by that had been announced by President Lamm was Dr. David Finkelstein. One of Dean Finkelstein's the subject of extensive discussions during the first acts, on January 19, was to remove Dr. Charles course of the 1977-78 academic year. Its effect on Patt, a tenured associate professor of mathematics, members of the faculty was that, with the excep- from his part-time administrative position as assis- tion of the professional schools, the academic tant dean of the Belfer Graduate School. Professor

ACADEME August 1981 / 187 Patts affiliation with Yeshiva University was of order of seniority prescribed by the Yeshiva Uni- long standing. He did his undergraduate work versity regulations. At the same time, at the hear- there, received his Ph.D. from the University in ings which were held in September, 1978, the dean 1962, then served as a research associate for three stated that he thought it in the interests of the years and then was appointed as an assistant University to terminate the appointments of these professor. Tenure was granted in 1972, and he was particular tenured faculty members. According to promoted to associate professor in 1976. He had the tape recording of the hearings, the dean stated served on a part-time basis as an administrator in that Yeshiva University required individuals who the Belfer School from 1962 to 1970 as assistant to were more research-oriented than the terminated the dean and after that as assistant dean. Dean faculty. Finkelstein stated that it was his desire, for reasons The letters of notification were dated August 29, of efficiency, to discontinue using faculty members but the recipients were to be personally notified by for administrative tasks. Professor Patt's administra- Academic Vice President Blank, and difficulty in tive duties were assumed by someone who was not locating persons over the holiday period delayed a member of the faculty. the actual receipt of notice for several days. Consis- Dean Finkelstein also moved to reduce the num- tent with Yeshiva University policy, the faculty ber of faculty positions. Several senior faculty members were considered on leave of absence with members who were on leave were sent inquiries as pay for the 1978-79 academic year and without pay to whether they planned to return to Yeshiva for an additional year. University for the fall semester of the 1978-79 The opening of the semester was a period of academic year. In several cases no answer was confusion for the mathematics program because of received. The reticence in responding may in part the failure of senior faculty members to return have stemmed from the provision in Yeshiva Uni- from leave and the pressure of student enrollments. versity's Faculty Handbook that faculty members One of the three faculty members, who had not yet whose appointments were terminated would re- received written notice, was reinstated immedi- ceive one year's salary as separation pay, while ately. A second, while being paid his regular salary those who resigned would not. Despite informal as separation pay, was engaged as an adjunct to assurances from the mathematics chairman that the teach fifteen hours on overload pay. In November, individuals would not return, the dean acted on 1978, the termination of his appointment was the supposition that they would, thereby eliminat- rescinded and he was returned to his full-time ing positions for less senior faculty. In the absence tenured position at the University. The third, of resignations, he proceeded over the summer of Professor Patt, was appointed to an adjunct position 1978 to revise the schedules for undergraduate teaching computer science during the fall semester. courses in mathematics and computer science The laboratory for which he was originally to have which had been drawn up in June by the depart- been responsible was monitored by two advanced ment chairman. In the chairman's schedules, undergraduates. Denied a full-time position at Ye- courses had been provided for Professor Patt and shiva University, he obtained employment with a two other mathematics professors who were subse- firm in the computer industry. Despite the addi- quently to receive notices of termination of ap- tional experience he thus acquired and a continu- pointment. Professor Patt was scheduled to teach ing need for courses in computer science, he was Information Science I, Introduction to Computer orally offered a full-time position for academic year Languages; and Information Science 5 and 5 L, 1979-80 only on a one-year temporary basis, with- Introduction to Computer Science, with laboratory. out restoration of tenure. He concluded that he Dean Finkelstein decided over the summer to could not return to Yeshiva University for only a revise the program in computer science and ap- temporary position. The Yeshiva University admin- point a new faculty member with that specialty. istration has not offered to restore him. to his Courses originally scheduled were rearranged, so tenured position. that a senior professor was assigned to teach the courses planned for Professor Patt and other Ferkauf Graduate School—The Termination of the courses in computer science were to be taught by Appointments of Professors Shelly Koenigsberg the new person. The total number of positions in and Dorothy Sievers mathematics was cut by three, effective August 29. In addition to the actions at the Belfer Graduate The affected faculty members were released in the School, the appointments of two tenured faculty

188 / ACADEME August 1981 members were terminated following changes at the education courses meant that a more senior tenured Ferkauf Graduate School of Humanities and Social professor had to be moved to undergraduate Science. The actions at Ferkauf were apparently courses at Stern College and that there were not motivated by the administration's efforts to reduce enough remaining courses to make up a program costs in the face of declining student enrollments for Professor Koenigsberg. Her courses had been and a decline of support through outside grants. combined with courses taught by another faculty During the academic year 1977-78, Dr. Morton member, nontenured according to Professor Koe- Berger assumed the position of dean of the Ferkauf nigsberg, to fill out a program for this individual. School and university dean for the behavioral and The investigating committee gained the under- social sciences. He received a mandate from Presi- standing that the administration considers Profes- dent Lamm to effect the reductions necessary to sor Koenigsberg not to be qualified for certain of save Ferkauf from the fate of Belfer. By the end of the course offerings because of state certification the spring semester of that academic year, the dean requirements. The administrative responsibilities had informed departmental chairmen that there which Professor Koenigsberg held prior to her two would be some reductions in program with a years on leave were not returned to her, and she, possible loss of positions. By the end of the like the others who received the August 29 notices, semester final plans had not been formulated. was placed on a year's leave with pay and an Nonetheless, letters from President Lamm dated additional year without pay. August 29 were sent to two tenured faculty mem- Professor Koenigsberg conferred with Academic bers in education notifying them of the termina- Vice President Blank and asked whether some tion of their appointments. combination of undergraduate teaching and an Under the structural reorganization that had administrative assignment could be arranged for occurred, Dean Berger was responsible for pro- her. She also offered to do administrative work grams in the behavioral and social sciences not exclusively. The vice president told her that no only at Ferkauf but at Yeshiva College and Stern suitable administrative position was available, that College. Associate Professor of Education Shelly there was no teaching for her to do since her Koenigsberg had been appointed initially to the courses had been reassigned to someone senior to faculty of Stern College in 1966, and received her, and that therefore no restoration was possible. tenure in 1973. In addition to teaching undergrad- The Yeshiva University administration has not uate education courses, she served for ten years as made any subsequent offers to place Professor the administrator of the education program at Stern Koenigsberg in any type of position. College. During the 1976-77 academic year she was Professor Dorothy Sievers was associate professor on sabbatical leave. She spent the 1977-78 academic in the Department of Special Education of Fer- year on unpaid leave to complete a book. In the kauf Graduate School. She was first appointed to spring and summer of 1978 she made repeated the Yeshiva University faculty in 1965 and received efforts to learn her course assignments from the tenure in 1972. Professor Sievers has New York education chairman, from Vice President Blank, State certification in psychology and extensive and from Dean Berger in order to plan her pro- previous experience in psychology on a teaching gram. The dean advised her in May, 1978, that and clinical level, in addition to her specialty reorganization of Ferkauf was under way and that involving special educational programs for the the number of faculty might have to be reduced, handicapped. She taught courses in human devel- but that no final decision had been made as to opment as well as special education. In the summer which faculty members would be affected. In mid- of 1978, she was responsible for chairing the July, he again informed her that no decision had supervision of three doctoral dissertations and was yet been made. on the committee for four others. President Lamm's August 29 letter of notification As part of the reorganization of the Ferkauf to Professor Koenigsberg stated that the reorganiza- Graduate School that summer, the Departments of tion of the Ferkauf Graduate School resulted in the Special Education and Psychology were consoli- consolidation of four department units in education dated, and it was announced that the doctoral into two and the phasing out of a doctoral pro- program in special education was being phased out. gram. Professor Koenigsberg's immediate inquiries Warned by her department chairman of possible elicited the information from her chairman that staff reductions, Professor Sievers conferred on reorganization and curtailment of certain graduate June 20 with Dean Berger. He told her then that he

ACADEME August 1981 / 189 was unable to say whether a position would be at the October 6 meeting approved the following available for her in September. As with the other resolution: faculty who were given notice, she received a letter (1) The faculty endorses the findings of the ad hoc dated August 29 from President Lamm informing committee to investigate the firings of five tenured her of the termination of her appointment with a faculty members. year of paid leave and another year of unpaid (2) The faculty censures the administration for the firing, leave. The letter was postmarked September 6, and without academic due process and without inescap- on that same day she was informed of her situation able and compelling reasons, of the five tenured by telephone by Dean Berger. According to Profes- faculty. sor Sievers, he told her that her appointment had (3) The faculty demands the immediate reinstatement of been terminated because declining student enroll- these five faculty members with their tenure unbro- ments had necessitated retrenchment and the ken. merger of the two departments, and that she was (4) The faculty directs that this resolution be forwarded the least senior tenured faculty member in the to the Board of Trustees and other interested parties. Department of Special Education. A senior col- During the course of the 1977-78 academic year, league in special education was, however, sched- members of the Yeshiva University faculty, and uled for retirement after one more year. In a particularly faculty members from the Belfer Grad- subsequent discussion with the dean on September uate School, had kept the Association's staff in- 12 the possibility of a future administrative posi- formed of developments. After notice was issued to tion was suggested, but nothing ever materialized. five faculty members, three of them met promptly Students who would have been in Professor with the staff of the Association's Northeast Re- Sievers's courses in human development in the gional Office.3 Shortly after the October 6 meeting Department of Special Education were placed in and the adoption of the faculty resolution, the staff developmental courses in the Department of Psy- discussed the matter on the telephone with Vice chology. At the time that notice was given to President for Academic Affairs Blank. This was Professor Sievers, there were nontenured faculty followed by a detailed letter, dated October 31, members in the Department of Psychology who 1978, presenting the staff's basic understanding of were retained in the merged new department. the situation and discussing it in the context of applicable standards supported by the Association, Subsequent Developments and suggesting departures from these standards in Shortly after the issuance of the letters notifying the administration's actions. the faculty members of termination of their ap- The staff's October 31 letter led to a meeting pointment, a review was conducted by the ad hoc between the staff and Vice President Blank, with committee from the Faculty of Arts and Sciences. the University's counsel present for a portion of it. The ad hoc committee held hearings in which The position of the administration conveyed to the representatives of the administration participated staff was that extensive consultation with the fac- and submitted a report at a meeting of the Faculty ulty had occurred through the various deans and of Arts and Sciences on October 6. Faculty members that the administration acted consistently with from all components of Yeshiva University were Yeshiva University's own policies, policies which invited except for the schools of law, medicine, and the administration depicted as in some respects social work. The committee's basic findings were as better than the Association's. The staff subse- follows: quently discussed the cases of concern respectively with Dean Finkelstein and with Dean Berger. The The University did not follow the generally accepted staff then wrote to President Lamm, emphasizing guidelines on tenure as formulated by the AAUP nor, even more narrowly, its own promulgated rules of that "the fundamental catalyst for the Association's tenure as stated in the Faculty Handbook of 1974. inquiry to the administration remains unresolved." (a) Neither the fauclty as a whole nor its elected repre- The letter reviewed the issue, discussed in the sentatives were engaged in any way in arriving at meetings with the vice president and the deans, as these decisions. to whether the administration had followed the (b) No evidence can be found that any serious attempts on the part of the university were made to find 3 alternate solutions to breaking tenure. In the case of one of these three, and of one other among the five, the notices were not implemented and Following discussion, the faculty members present they remain on the Yeshiva University faculty.

190 / ACADEME August 1981 University's own regulations (which were acknowl- is that the terminations were carried out in accor- edged as varying significantly from the Associ- dance with the University's 1974 Statement on ation's recommended standards). The letter went Tenure and Appointment Policy. There has, how- on to state that ever, been some dispute between faculty represen- The letters of termination which were sent to the two tatives and administrators as to exactly what sec- faculty members in Education, Professors Koenigsberg tions of the policy were applicable and what these and Sievers, rely primarily on departmental reorganiza- sections meant. Neither an earlier version of the tion as the basis for termination. Professor Patt's letter of policy, dated 1962, nor the revised 1974 version termination speaks to "consolidation" and "reorganiza- had been approved by the faculty or its representa- tion." The faculty has, of course, questioned both the tives, although texts formulated and approved by extent of the consultations and the extent of the effort to the administration and Board of Trustees had been find other positions within the University. shown to the Faculty Welfare Committee for com- In his response, dated January 15,1979, President ment. Lamm wrote that the University scrupulously ad- The 1974 provisions dealing with termination of hered to its tenure policy. He added: the appointments of tenured faculty for reasons of financial exigency require substantiation of the It is painful indeed to lose any deserving member of exigency. They also require the president to "con- our staff, tenured or otherwise, and whenever such steps are taken it is only after a long and thorough investiga- fer with the dean and the Welfare Committee ... tion of our problems. Our study of such problems always regarding the policy to be followed in the reduc- includes faculty consultation. tion of staff before such action is taken." A pre- The decisions to terminate faculty were not easy to ferred eligibility list for recall during a two-year make, and were not undertaken lightly. I believe that period after termination is also provided. Unlike any unprejudiced and objective study of the situation the provisions on financial exigency, which require will confirm that the University conducted itself with consultation with the Faculty Welfare Committee, fairness and probity. the provisions on departmental reorganization Several additional conversations occurred be- make no reference to faculty consultation. They do tween the Association's staff and the Yeshiva ad- provide for an order of termination in the event ministration, but the dimensions of the differences that departmental or program reorganization per- did not change appreciably. The staff inquired as to manently eliminates a position. Nontenured faculty the possibility of reinstatements of the released members were to be released before any tenured faculty members for the 1979-80 academic year, and faculty member's position was affected; tenured it asked several questions about the funding of faculty members were to be released in inverse Professor Sievers's position. In reply, Vice Presi- order of their rank. If practicable in the opinion of dent Blank reiterated the administration's position the president, tenured faculty members were first that the University's regulations had been fol- to be reassigned to new duties. lowed. She stated in conclusion: "Since we have In the event of termination of appointment already discussed all the issues in great detail and because of financial exigency or department reorga- shared all relevant facts and exchanged points of nization, the University's policy provides that "a view, there is really nothing more that I can say." tenured faculty member who suffers a nondiscrim- The General Secretary then authorized this investi- inatory discontinuance of his tenured position shall gation. be considered to be on leave with pay for one year from termination of the position and without pay THE ISSUES for one additional year." This discussion of the issues involved in the The administration has stated that it was working termination of the three appointments will first under the provisions on departmental reorganiza- address the actions in light of Yeshiva University's tion in the 1974 text. A chairman of the Ad Hoc stated policies and then in terms of the standards Faculty Steering Committee and former member of set forth in the 1940 Statement of Principles on the Belfer School Welfare Committee has asserted Academic Freedom and Tenure, the 1958 Statement on that the applicable text might be that in the 1962 Procedural Standards in Faculty Dismissal Proceedings, document (in effect at the time tenure was granted and the Association's Recommended Institutional Regu- to the facility members whose appointments were lations on Academic Freedom and Tenure. terminated) which provided that in the event of The Yeshiva University administration's position departmental reorganization "a tenured faculty

ACADEME August 1981 / 191 member shall first be reassigned to a new set of 4(c) of the Recommended Institutional Regulations as duties whenever the same is possible, and such "an imminent financial crisis which threatens the faculty member who has reason to believe that he survival of the institution as a whole and which has been improperly reassigned may have the cannot be alleviated by less drastic means." action reviewed by the faculty review committee There remains under the standards supported by which shall make its recommendations to the the Association one basis for terminating tenure, president for final decision." that set forth in Regulation 4(d) of the Recommended The investigating committee has reviewed a Institutional Regulations, "Discontinuance of Program number of documents relating to the financial or Department Not Mandated by Financial Ex- condition of the University. As revealed in public igency." This provision includes the following statements, at times the condition appeared precar- essential points, none of which was met by the ious. The doctoral programs in mathematics and Yeshiva University administration in its actions physics at Belfer Graduate School and in education against the three faculty members. at Ferkauf Graduate School did have declining First, "The decision to discontinue formally a enrollments. It is significant, however, that the program or department of instruction will be based administration of the University did not claim a essentially upon educational considerations, as de- state of financial exigency. It attributed its actions termined primarily by the faculty as a whole or an against the tenured faculty members not to finan- appropriate committee thereof." During the critical cial exigency but to departmental reorganization, period when the reorganization was being planned although it may well have moved to consolidate and implemented by the Yeshiva University ad- certain programs as a prudent financial measure. ministration, faculty participation in the academic The representatives of the faculty, however, re- government of the University was in a weak state. sponded to the administration's actions with a Faculty-administration relations were affected ad- sharply different focus. To them, the actions were versely by the struggle over the potential unioniza- taken "... without academic due process and with- tion of the faculty. After the arrival of President out inescapable and compelling reasons." If noth- Lamm, the representative faculty bodies of former ing else, this difference indicates a failure by the times, the School Welfare Committees, ceased to be administration adequately to convey to the faculty active. Vice President Blank stated in the hearings its sense of the situation facing the University. on the cases of concern held in September, 1978, The concerns raised by the Yeshiva University that she felt it was not required to consult with administration's actions are exacerbated when the these committees, and she did not consult with actions are measured against the standards enunci- them. At the same time, the full-time Arts and ated in the 1940 Statement of Principles on Academic Sciences faculty throughout the University orga- Freedom and Tenure and the Association's derivative nized itself into a committee of the whole. Neither Recommended Institutional Regulations on Academic Free- that body nor its steering committee was consulted dom and Tenure. by the administration. Deans did talk with depart- Under the 1940 Statement of Principles, tenure mental chairmen about impending changes, and continues until retirement for age unless it is some of this discussion appears to have found its terminated for adequate cause or as the result of a way back to departmental faculty meetings. In no financial exigency that is demonstrably bona fide. sense, however, was the faculty asked to study the The Association's Recommended Institutional Regula- financial situation or the administration's propos- tions also recognize, as a basis for termination of als, nor was it requested to make recommendations or express its view in any comprehensive fashion tenure, discontinuance of a program or a depart- 4 ment of instruction not mandated by financial on the administration's course of action. exigency and medical reasons. Adequate cause for dismissal, retirement for age, and medical problems 4 are clearly not germane in these three cases. Al- Vice President Blank, commenting on a draft of this report sent to the administration prior to publication, though administrators did cite financial consider- stated that Dean Berger had met extensively with faculty ations as a factor contributing to their actions, they members in the Ferkauf School to discuss the educational specified to the investigating committee, referring and economic issues facing the School. According to Dr. to the University's stated policies, that they acted Blank, "It was the faculty of the School that developed on the basis of "Departmental Reorganization" and the reorganization plan that was adopted. Indeed, it was not "Financial Exigency," defined in Regulation the faculty that determined the particular programs that

192 / ACADEME August 1981 Early in September, 1978, the faculty of Arts and indicated to him that reassignment to a teaching Sciences selected an ad hoc committee to hold position in computer science courses was a possibil- hearings on the terminations of tenured appoint- ity. Professor Patt had already taught some courses ments. Vice President Blank and Deans Berger and in that area, and in June, 1978, he was scheduled to Finkelstein, as well as members of the faculty, teach a full load of such courses in the fall semester testified at these proceedings. The ad hoc commit- of the 1978-79 academic year. The courses, how- tee's conclusions, which were endorsed by the ever, were assigned to a newly engaged nonten- faculty as a whole at an October meeting, included ured faculty member. The possibility of a part- findings that the faculty members being released administrative/part-teaching position also existed were denied academic due process, that their rights for Professor Part, and he had in fact held such a under principles of academic freedom and tenure position up to January, 1978, when he was removed were violated, that no effort was being made by the from his administrative post by Dean Finkelstein. administration to reassign them to other teaching Instead of seeking to continue Professor Part in a or administrative duties, and that neither the fac- suitable position, which in the investigating com- ulty as a whole nor its elected representatives had mittee's view would have been quite possible, the had the opportunity to participate in the decisions. administration acted so as to eliminate any possi- A faculty of Arts and Sciences vote to censure the bilities. If he was considered to have been less than administration resulted. On July 11, 1979, the fully qualified in computer science, he was not Faculty Senate of Yeshiva University's Albert Ein- offered additional training to strengthen his capa- stein College of Medicine also passed a resolution bilities. Professor Part certainly acquired additional censuring the administration for its actions. On knowledge and experience in computer science February 7, 1980, the faculty of Arts and Sciences during the 1978-79 academic year through the again voted to condemn the administration for its position he held in industry, but the administration actions in the cases of concern and for its failure to nonetheless was unwilling to reinstate him to a reinstate the released faculty members. permanent position.5 A second essential provision in Regulation 4(d) For ten years prior to her being away on leave of of the Recommended Institutional Regulations is that the absence for the academic years 1976-77 and 1977- institution is required, before notice of termination 78, Professor Koenigsberg held a position at Stern of appointment is issued, to College comprised partly of teaching undergrad- uate education courses and partly of administering ... make every effort to place the faculty member concerned in another suitable position. If placement in the education program. No discernible effort was another position would be facilitated by a reasonable made by the Yeshiva University administration period of training, financial and other support for such either to reassign or retrain her. When she was left training will be proffered. If no position is available without a full load of courses in the undergraduate within the institution, with or without retraining, the division, her request for some combination of faculty member's appointment then may be terminated, teaching and administrative work or even a full- but only with provision for severance salary equitably time administrative position was not accepted by adjusted to the faculty member's length of past and the Yeshiva administration. The investigating com- potential service. mittee, while taking note of her background and In Professor Part's case, both Dr. Komar, the dean experience, did not identify a specific suitable who was in office at the time the reorganization was announced, and his department chairman had 5 Commenting on the prepublication draft of the re- port, Vice President Blank stated that "... the committee were to be discontinued. In view of the fact that the seems to wish to brush aside what it could not help in faculty was not merely consulted but given a determina- recognizing was the real reason for Dr. Patt's choice not tive role, the accusation of a lack of adequate consulta- to continue with the position offered him by the Univer- tion seems totally unfounded." Dr. Blank also stated that sity, namely, that Dr. Patt ... left to accept an offer of an- at the Belfer School there was consultation through the other position. ..." The investigating committee believes participation of some Belfer faculty members on various that the offer to Professor Patt would have been much advisory committees. "The difficulty, however," accord- more appropriate if the administration had informed him ing to Dr. Blank, "was that in this instance, consultation that the new position was viewed as reinstatement, and did not produce consensus. Consensus, however, is not that as a tenured faculty member he could expect to the requirement of the rules." continue at Yeshiva University.

ACADEME August 1981 / 193 alternative position for which she would have been such provision, and the administration did not eligible. offer to arrange for hearings. The faculty did Professor Sievers's background in psychology provide for ad hoc proceedings, through the creat- and special education would appear to have pro- ing of an Ad Hoc Committee To Investigate the vided a number of possibilities for reassignment Firings of Five Tenured Faculty Members. The within the University, but neither reassignment proceedings were tape recorded and members of nor retraining was offered by the administration. the administration participated. The administration, Professor Sievers, who had tenure, was told that however, offered no direct response to the findings the consolidation of the Departments of Special of the committee that the actions against the faculty Education and Psychology rendered her position as members were improper or to the resolution ap- a faculty member superfluous, while nontenured proved by the Faculty of Arts and Sciences that faculty members in psychology were retained. In demanded their immediate reinstatement. the opinion of the investigating committee, she As has been noted earlier, the three faculty could have taught courses in psychology and might members whose appointments were terminated have been retrained to do other work in that field, were denied the opportunity to teach during the but the administration made no discernible efforts 1978-79 academic year and thus were involuntarily 6 toward finding a suitable position for her. suspended upon being issued notice of termination. A third essential provision of Regulation 4(d) is The 1970 Interpretive Comments on the 1940 State- that a "... faculty member may appeal a proposed ment of Principles caution that "A suspension which relocation or termination resulting from a discon- is not followed by either reinstatement or the tinuance and has a right to a full hearing before a opportunity for a hearing is in effect a summary faculty committee ...." Yeshiva University's 1974 dismissal in violation of academic due process," policy (in contrast with the 1962 policy) has no and the Recommended Institutional Regulations empha- size that "suspension which is intended to be final 6 Vice President Blank, in her comments on the draft is a dismissal, and will be treated as such." report, asserted that any course in psychology which The Yeshiva University administration con- Professor Sievers was qualified to teach was taught by a tended to the investigating committee that the more senior tenured faculty member, and that other University's policy of paying faculty members for a suitable teaching opportunities did not exist even with a year, while assigning them no institutional respon- reasonable amount of retraining. She stated that sibilities, is an advance over the Association's ... the undergraduate courses in psychology were taught by recommended policy. The investigating committee more senior tenured faculty (apart from introductory courses does not concur. The denial of the right to teach taught by adjuncts involving three or [fewer] credits per year). can be an inherent commentary, intended or not, As for graduate courses, Professor Sievers has never taught on a graduate level, and had no background whatsoever in graduate on the affected faculty member's competence. Un- psychology. Indeed, Professor Sievers had not taught any der the provisions of the joint 1958 Statement on psychology course at any level for at least fifteen years and had Procedural Standards in Faculty Dismissal Proceedings, it had even previously no regular teaching experience.. .." is appropriate to suspend a faculty member while dismissal charges are pending only if the faculty The investigating committee does not accept the sugges- tions that introductory courses are the preserve of ad- member's continuation in the classroom presents a junct faculty and that introductory courses should not be threat of immediate harm to himself or others. The assigned to full-time tenured faculty members. The Yeshiva University administration has not sug- committee suspects that an undergraduate program also gested that any such threat existed in the cases of might have been made available to Professor Sievers Professors Patt, Sievers, or Koenigsberg. Payment with some rearrangement of the schedules of more of salary for at least a year in lieu of a year of senior faculty members. In addition, the committee notification may in certain circumstances be the wishes to note that Professor Sievers's doctorate, earned preferred choice of faculty members who are com- at Northwestern University in 1955, is in psychology, pelled to seek new positions, but the choice of and that for the ten years after earning her degree and before becoming a faculty member at Yeshiva University maintaining continuity of professional life should she served as a diagnostic and clinical psychologist at rest with them. A release from duties that is three institutions. At the time her appointment was unilaterally imposed by the administration suggests terminated, Professor Sievers was the chairwoman of a dismissal for cause which, when unaccompanied four doctoral dissertation committees and served on three by the procedural safeguards of academic due other dissertation committees. process, raises basic concerns for academic freedom

194 / ACADEME August 1981 and tenure under the 1940 Statement of Principles. bers although such assignments appear to have Finally, the payment of one year of terminal salary been possible in two cases. The administration did to tenured faculty members released because of little to seek suitable alternate positions for the discontinuance of program is of questionable ade- faculty members elsewhere within the institution, quacy under Regulation 4(d) of the Association's particularly in the face of apparent opportunities Recommended Institutional Regulations. The Regulation for relocation. The Yeshiva University administra- provides, in cases where a tenured faculty member tion's failures in this regard indicate a lack of cannot be reassigned after a program is discontin- commitment to the rights which the three faculty ued, that "... the faculty member's appointment members possessed under generally accepted prin- then may be terminated, but only with provision ciples of academic tenure. for severance salary equitably adjusted to the fac- ulty member's length of past and potential service." Roger Wines (History) Fordham University, The investigating committee questions the ade- Chairman quacy of one year of severance salary in the cases Alvin M. Halpern (Physics), Brooklyn College of concern. Investigating Committee CONCLUSION Committee A on Academic Freedom and Tenure has by vote authorized publication of this report in The administration of Yeshiva University, in termi- Academe: Bulletin of the AA UP. nating the tenured appointments of Professors Charles Patt, Shelly Koenigsberg, and Dorothy Matthew W. Finkin (Law), Southern Methodist Sievers, acted contrary to the applicable provisions University, Chairman. of the 1940 Statement of Principles on Academic Freedom and Tenure and the Association's Recommended Insti- Members: Jesse H. Choper (Law), University of tutional Regulations on Academic Freedom and Tenure. California, Berkeley; Bertram H. Davis (English), The administration terminated the appointments Florida State University; Mary W. Gray (Mathemat- of the three faculty members, and suspended them ics), American University; Walter P. Metzger (His- from further teaching responsibilities upon issu- tory), Columbia University; Peter O. Steiner (Law), ance of notice to them, without having afforded University of Michigan; Victor J. Stone (Law), them the safeguards of academic due process as set University of Illinois; Mary K. Bonsteel Tachau forth in the 1940 Statement of Principles on Academic (History), University of Louisville; Judith J. Thom- Freedom and Tenure. The lack of opportunity for a son (Philosophy), Massachusetts Institute of Tech- meaningful faculty role in the decisions to consoli- nology; Julius G. Getman (Law), Yale University, ex date programs and of procedures to release tenured officio; Jordan E. Kurland (History and Russian), faculty members is inconsistent with the provisions Washington Office, ex officio; Irving J. Spitzberg , Jr. of Regulation 4(d) ("Discontinuance of Program or (Education and Policy Studies), Washington Office, Department Not Mandated by Financial Exigency") ex officio; Henry T. Yost, Jr. (Biology), Amherst of the Association's Recommended Institutional Regula- College, ex officio; Ralph S. Brown, Jr. (Law), Yale tions on Academic Freedom and Tenure, as is the failure University, Consultant; Clark Byse (Law), Harvard of the administration to assume responsibility for University, Consultant; Carol Simpson Stern (Inter- demonstrating its case at an appropriate hearing. pretation), Northwestern University, Consultant; The administration did not arrange suitable con- William W. Van Alstyne (Law), Duke University, tinuing assignments for the affected faculty mem- Consultant.

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