Report of an AAUP Special Committee - DU Portfolio

Hurricane Katrinaand New Orleans

Universities

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R e p o r t o f a n A A U PS p e c i a l C o m m i t t e e

WWW.AAUP.ORG MAY–JUNE 2007

CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

II. Louisiana State University Health Sciences Center . . . . . . . . . . . . . . . . . . . . . . . . 66

III. University of New Orleans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

IV. Southern University at New Orleans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

V. Loyola University New Orleans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

VI. Tulane University . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

VII. Overall Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

VIII. Overall Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

IX. Addendum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 124

Special Committee on Hurricane Katrina and New Orleans Universities

ROBERT M. O’NEIL, chair(Law), University of Virginia

NORMA C. COOK(Speech Communication), University of Tennessee

MATTHEW W. FINKIN(Law), University of Illinois

MYRON S. HENRY(Mathematics), University of Southern Mississippi

HIRSCHEL KASPER(Economics), Oberlin College

LORENZO MORRIS(Political Science), Howard University

LAWRENCE S. POSTON(English), University of Illinois, Chicago

PETER O. STEINER(Economics and Law), University of Michigan

JORDAN E. KURLANDPrincipal Staff Officer

NANETTE R. CRISOLOGOStaff Associate

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S p e c i a l R e p o r t

WWW.AAUP.ORGMAY–JUNE 2007

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I. Introduction

The devastation that Hurricane Katrina inflicted on theuniversities of New Orleans in late August 2005 is un-doubtedly the most serious disruption of American highereducation in the nation’s history.1 This was hardly the firsttime that collegiate facilities had been destroyed and aca-demic programs halted; one need only recall the savagetornadoes that leveled buildings at Central State University(Ohio) and Gustavus Adolphus College (Minnesota), orthe earthquake that destroyed much of California StateUniversity, Northridge, or the effect of the September 11,2001, attacks on lower Manhattan campuses such as PaceUniversity and Borough of Manhattan Community College.

Yet Hurricane Katrina was different in far more thansheer magnitude of damage, although that measurealone would distinguish it from any previous calamities.No earlier disaster destroyed virtually an entire commu-nity, not only depriving affected institutions of usablefacilities, but also depleting severely the student popula-tion, leaving faculty and staff without homes, teachinghospitals without patients, and so on through anunprecedented litany of woes. One could not in goodconscience undertake such an inquiry as this one with-out acknowledging the uniqueness of the experiencefrom which New Orleans’s universities are only nowbeginning to recover.

Part of what made Katrina so disruptive to highereducation was the impossibility of anticipating its forceand effect. Since intense storms are all too familiaralong the Gulf Coast, the community was theoreticallyprepared even for a Category Five hurricane, includingwater that might breach the levees—but not for thecomplete destruction of critical sections of those levees.Although most New Orleans universities had adoptedand disseminated plans for closure by the eve of the

storm’s landfall, and some had even begun to evacuatestudents to higher ground, the worst that seemed likelywas a brief period of disruption. Tulane University, forexample, announced the weekend before the hurricanethat it would be closed through the following Thursday,apparently planning a return to normal operations with-in the week. Even the day after the storm had hit andsevere initial damage was manifest, Tulane continued toexpress publicly the hope that classes could resume bySeptember 7.

What actually befell New Orleans higher education onAugust 29 far exceeded even the worst fears. While facili-ties at the two “uptown” private institutions (TulaneUniversity and Loyola University New Orleans) sufferedless physical damage than did the inundated buildingsat Southern University at New Orleans, the LouisianaState University Health Sciences Center, the University ofNew Orleans, Xavier University, and Dillard University,electricity and communications were down throughoutthe city. Although most of the universities had madesome provision for remote backup of electronic data sys-tems, gaining access to those records and files proved adaunting task well after the water had subsided.

Gradually it became clear that the affected campuseswould have great difficulty reopening in the near future.By the end of the first week of September, both Tulaneand Loyola (the two most nearly intact campuses)announced that they would not reopen for any part ofthe fall semester. Students were encouraged to enrollelsewhere, if possible; dozens of campuses in adjacentstates and much farther afield did find places for NewOrleans students—though usually on the understand-ing that when their home institutions reopened theywould return. Roughly a month after Katrina, the GulfCoast prepared for another disaster as Hurricane Ritaneared shore, but this time the New Orleans area wasmercifully spared; major damage was confined to thecoastal region of western Louisiana and east Texas,notably the several campuses of Lamar University.

The impact and cost of Katrina can be quantified,although numbers fail to capture the many otherdimensions of devastation. Louisiana’s Commissionerof Higher Education, Dr. E. Joseph Savoie, reports that84,000 students and 15,000 faculty members were ini-tially displaced by the hurricane. The state’s publicinstitutions of higher learning suffered between $500 and$600 million in damage, lost more than $150 millionin revenue and tuition, and suffered $75 million inimmediate budget cuts. Another assessment reported atotal direct revenue loss of $229 million by Louisiana’s

1. The text of this report was written in the first instance bymembers of the Special Committee and approved by thatbody for submission to Committee A on Academic Freedomand Tenure. With the approval of Committee A, the reportin draft form was subsequently sent to the chief adminis-trative officers of the universities at which investigationshad been authorized, to the chief officers of the AAUPchapters and of the senates and other relevant faculty bod-ies, to faculty members who sought the Association’s assis-tance, and to other persons directly concerned in thereport. In light of the responses received, and with the edi-torial assistance of the Association’s staff (which assistedthe Special Committee throughout the process), this finalreport has been prepared for publication.

of the governing board, senior administrators, and fac-ulty and student leaders.

Second, the development of such plans should pro-vide an occasion for renewal of the institution’s, theboard’s, and the administration’s commitment to aca-demic freedom and due process, including a recogni-tion of the stresses and pressures upon those abidingvalues that may result from a major disaster or emer-gency. Thus the reaffirmation should include a“notwithstanding” or “no matter what” corollary.

Third, the disaster plan should specify the steps thatmight become prudent or unavoidable in the event of aprolonged inability of the institution to function. Thecircumstances that might occasion major changes inprograms or personnel should be anticipated and poten-tial changes should be examined in the context of exist-ing university policies—thus reducing the need that, aswill be seen, some of the New Orleans administrationsapparently felt to abandon preexisting policies withoutindicating why they could not adhere to emergency pro-cedures that were already on the books. Wherever theexisting policy fails to provide adequate guidance toaddress a major crisis, revision should be undertaken inmore tranquil times.

Fourth, simulated previews of emergency conditionsmight be undertaken, perhaps on an annual basis. Thegoverning board should participate in reviewing andresponding to plausible case studies of such eventuali-ties, thus preparing for the real challenge they wouldvery much hope to avoid. The administration and theessential faculty consultative bodies should preview theirrespective roles in coping with such a challenge, antici-pating how they would interact in the event that suchconsultation might be needed under the worst imagina-ble conditions. While one cannot doubt the need forprompt and decisive action by the New Orleans universi-ties in the days after Katrina, the course actually fol-lowed in each case will be seen as having had a regret-tably hit-or-miss quality that might have been avoidedby such simulation.

Fifth, emergency communications and informationsystems should be in place ahead of any critical needfor their use. The Special Committee was favorablyimpressed with Loyola’s electronic database backup inChicago, while noting the unexpected difficulty ofaccessing that resource with telephone lines and othercommunication systems so gravely disrupted byKatrina. Whether the solution is satellite-based com-munications or generator-driven support systems, eachinstitution should have an emergency alternative inreadiness.62


public colleges and universities, virtually all of it inthe immediate New Orleans area. Although the mone-tary losses of the private institutions are harder toquantify, comparable estimates emerged in the ensu-ing months.

The far deeper harm defies quantification or physicaldescription. For faculty and staff who lacked not onlytelephone and Internet access but also places to liveafter their homes had been destroyed, the measure ofloss seems incalculable. For scientists who eventuallyreturned to their flooded laboratories only to find thatyears—even decades—of research had been destroyed,the impact of the storm is well beyond even the mostsympathetic conjecture. Throughout the first year fol-lowing the hurricane, a brave hope that as many as 60percent of former residents of the city had remained orreturned eventually yielded to the grim reality that onlytwo-fifths were present. And for those who had remainedor returned, much of the city still lacked electricity andeven water, making survival a challenge and postponingindefinitely any prospect of a return to normal, pre-storm conditions.

Nothing approaching the magnitude of HurricaneKatrina may ever have affected American higher educa-tion, and the Special Committee fervently hopes therewill never again be a comparable challenge. Still, disas-ter and devastation can hardly be dismissed from theplanning process. Whether it is tornadoes in Ohio andMinnesota, earthquakes and fires in California, hijackedaircraft destroying buildings in New York, or floodsalong the Gulf Coast and in Florida, the threat is inex-orable. Many institutions of higher learning have takennote of these disasters, and have undertaken some formof emergency planning. Typically such plans focuschiefly on the physical and financial effects of naturalor man-made catastrophes. The Special Committee’sconcern, however, is more with the academic and per-sonnel consequences to which substantially less atten-tion seems to have been devoted. In that spirit, and withthe benefit of what the committee has learned about theexperiences of the New Orleans institutions, at the outsetit offers a few suggestions that may be helpful to othercolleges and universities as they prepare for contingen-cies one hopes they will never face.

First, each institution of higher learning—whetheror not it could be termed “disaster prone”—shoulddevelop and periodically review an emergency plan.Such a plan should presuppose the total breakdown ofall traditional communications and information sys-tems, as well as mandatory evacuation of campus facili-ties. Copies of the plan should be retained by members


Sixth, the Special Committee would urge colleaguesacross the country to study carefully the experiences of theNew Orleans universities as they will be recounted here,and consider how each of our own institutions wouldrespond, could respond, and should respond to a compa-rable challenge. Faculty consultative committees, for ex-ample, should review their assigned roles in exigent times,including emergency communication channels throughwhich to reach the chief academic officer and other uni-versity officials with whom contact would be vital.

The foregoing suggestions look to the future and tosteps that colleges and universities could take inadvance of a calamitous event. The central concerns ofthis report, however, relate to the actions taken by thegoverning authorities of New Orleans universities inresponse to Hurricane Katrina. The Special Committeerecognizes and acknowledges that the unique and cata-strophic circumstances brought about by the hurricanerequired immediate, drastic, and far-reaching actions. Atthe same time, there were choices to be made and alter-native ways to proceed. The choices actually made arenot immune from examination, evaluation, and criti-cism. The Special Committee does not accept the viewstated or implied by various administrators that, giventhe crisis, they were justified in everything they did, andthat to question any of their actions is to fail to observethe best interests of the institutions and higher educa-tion in New Orleans. As will be seen in each of the indi-vidual reports that follow, there is much to examine,question, and criticize.

* * * * *

Faculty members at New Orleans institutions initiatedcontact with the Association very soon after the hurri-cane. General Secretary Roger Bowen made two trips tothe area and met during the fall and winter withgroups of affected professors. In March 2006, CommitteeA chair David Hollinger authorized appointment of thisSpecial Committee to address both the particularresponses of each of the affected universities (mostespecially the impact of those responses on facultyrights and interests) and broader issues that had arisenin the storm’s aftermath. The goal of such an inquirywould include gaining a better understanding of whathad been a traumatic experience for the New Orleansacademic community, recommending potentially ame-liorative and preventive measures, and assessing theextent to which the responses of the universitiesadhered to the values and standards of the academicprofession. A broader hope was to offer to the American

academic community useful guidelines for preservingacademic freedom and due process under the mostadverse conditions.

The Special Committee first met in Washington,D.C., on May 24, 2006, to review the scope of its daunt-ing task and to assign responsibility for specific activi-ties. In the ensuing weeks, a large and growing quan-tity of information was analyzed. Arrangements weremade for committee members to go to New Orleans inmid-August, two or three at a time and accompaniedby staff, to hold more than fifty interviews with facultymembers from the various universities. Informationgleaned from the interviews, added to previously avail-able documentation, correspondence with administra-tive officers, and other written accounts, presentedconcerns relating to academic freedom and tenure ofsufficient magnitude to warrant authorization by theAssociation’s general secretary of formal investiga-tions. He authorized investigation, with members ofthe Special Committee serving as the investigators, inthe cases of the Louisiana State University HealthSciences Center, the University of New Orleans,Southern University at New Orleans, Loyola UniversityNew Orleans, and Tulane University.2 Specific investiga-tions were not undertaken either at Xavier University orat Dillard University, although at both institutions cata-strophic damage occurred and a significant portion offaculty and staff lost their positions. At Xavier, whereAAUP inquiries revealed that after the hurricane the presi-dent took the extraordinary action of releasing allmembers of the faculty and then reinstating those whomthe administration wished to retain, and where theSpecial Committee became aware of deficiencies in appealprocedures and in shared governance that precededKatrina and have been allowed to continue, no specificcase emerged that could be pursued to investigation. Noone at Dillard sought the Association’s assistance.

The full Special Committee met in New Orleans dur-ing the final week in August, as that community markedthe first anniversary of Katrina. It began its stay with alengthy tour, arranged by Commissioner Savoie andconducted by the Louisiana National Guard, of the most

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2. A parallel investigation, of issues raised in the dismissal ofa single faculty member at Our Lady of Holy Cross College,proceeded separately from the Special Committee’s under-taking because the dismissal at this New Orleans institu-tion, across the Mississippi River from the others, sufferedno flooding and the dismissal was not a direct consequenceof the hurricane. The report of the investigation was pub-lished in the January–February 2007 issue of Academe.

severely devastated areas of the region. This experiencewas deeply sobering for those of us who were able toparticipate. Over the course of two days, the committeeassessed the results provided by its individual membersand staff of their interviews with faculty members fromthe city’s universities, and the committee spent a mostproductive evening hearing from the leaders of theLouisiana AAUP state conference and of the AAUPchapters in New Orleans and nearby about what theregion’s universities and their faculties had endured.Through the good offices of Commissioner Savoie, theSpecial Committee on its final day met with the chan-cellors of the University of New Orleans, the LSU HealthSciences Center, and Southern University at New Orleans,along with attorneys and several other officials of thestatewide Board of Regents, of the LSU System, and ofthe Southern University System, as well as one com-munity college representative. The presidents of thetwo private universities authorized for investigation,Loyola New Orleans and Tulane, declined proposedmeetings with the Special Committee before receivingthe committee’s report.

* * * * *

Following the Special Committee’s New Orleans meet-ings, subgroups prepared separate reports on issues andfindings at the five universities where investigations hadbeen authorized. The five included the city’s three pub-lic universities: the LSU Health Sciences Center, theUniversity of New Orleans, and Southern University atNew Orleans.

The statewide coordinating body for public highereducation is the Louisiana Board of Regents, withCommissioner of Higher Education Savoie as its chiefexecutive officer. The board of regents oversees foursystems, each governed by its own board of supervi-sors: Louisiana State University (which includes itsflagship component in Baton Rouge and its two NewOrleans components, the LSU Health Sciences Centerand UNO); Southern University (the historically blacksystem, which includes its flagship component, also inBaton Rouge, and its New Orleans component, SUNO);the University of Louisiana (consisting of eight insti-tutions at various Louisiana locations); and theLouisiana Community and Technical College System.The current president of the Louisiana State UniversitySystem is William L. Jenkins, and Ralph Slaughtercurrently serves as the Southern University System’spresident.

The chief administrative officer at the LSU HealthSciences Center at the time of Hurricane Katrina was

Chancellor John Rock. Shortly thereafter he was suc-ceeded in that office by Chancellor Larry H. Hollier, whoalso continued to serve as dean of the School ofMedicine. Chancellor Timothy P. Ryan, who previouslyhad been dean of the College of Business, has headedthe UNO administration since October 2003. The SUNOadministration when Katrina struck was headed byInterim Chancellor Robert B. Gex. He was followed inJanuary 2006 by Chancellor Victor Ukpolo, who hadbeen the Southern University System’s vice president foracademic and student affairs.

As will be seen in the chapters that follow, the LSUHealth Sciences Center, UNO, and SUNO all had institu-tional regulations governing financial exigency and theresulting termination or interruption of faculty appoint-ments that provided many, though by no means all, ofthe procedural safeguards called for in applicable AAUP-recommended standards. Common to all three was theabandonment following Katrina of the existing finan-cial exigency regulations in favor of new regulationsunder which procedural protections were sharplyreduced. In the cases of the LSU Health Sciences Centerand SUNO, this was done through adoption by theirrespective boards of supervisors on the same day(November 18, 2005) of virtually identical declarationsof “force majeure” (to be discussed in detail in thechapter on the LSU Health Sciences Center that imme-diately follows), with implementing regulations super-seding what were in existing board bylaws and facultyhandbooks. In the case of UNO, the regulations werechanged five months later, when on April 21, 2006, theLSU System’s board of supervisors, rather than declare“force majeure” for that institution, adopted a“Declaration of Financial Exigency” with implementingprocedures that superseded the existing financial exi-gency provisions. Whether under the rubric of “forcemajeure” or financial exigency, a faculty appointmentcould be disrupted through “termination” (permanentseparation), “layoff” (termination pending potentialrecall), or “furlough” (temporary unpaid leave that,however, as with “layoff,” could become permanent). Atall three of these public universities, the involuntaryseparations were implemented through placement on“furlough,” which at least at the LSU Health SciencesCenter and SUNO are apparently destined in significantnumber to be permanent. A more detailed treatment ofthese general terms will be found below in chapter IIIon the University of New Orleans.

The two private New Orleans institutions where inves-tigations were authorized are the Jesuit Roman CatholicLoyola University New Orleans with the Reverend Kevin64



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W. Wildes serving as its president and the nonsectarianTulane University under the presidency of Scott S.Cowen. A prominent feature first at Tulane and then atLoyola (and also at UNO in the public sector) was anadministration-sponsored master plan for renewal andlong-range development. Common to Loyola andTulane was the retention of existing faculty regulationsrather than their replacement as was done at the threepublic-sector institutions. As will be seen in the follow-ing reports, the Tulane regulations largely but notentirely track AAUP-recommended standards in keyrespects, and the Loyola regulations adhere fully tothese standards. The differences between the Tulane andthe Loyola situations are considerable, however. AtLoyola, unlike Tulane, financial exigency was notdeclared or seriously argued, and appointments weresubjected to termination on grounds of discontinuanceof programs because of educational considerations. Howclosely the Tulane administration has adhered to theinstitution’s own regulations is an issue occasioningdebate, while the Loyola administration has providedscant evidence or argument in support of its assertionsthat it has abided by the applicable university regula-tions. Another noticeable difference is in the faculty’sattitude toward the administration. While the SpecialCommittee did not discern widespread faculty supportfor the actions of the Cowen administration at Tulane, itwas struck by the massive faculty opposition at Loyola,punctuated by successive “no confidence” votes, regard-ing the administration of President Wildes.

Each of the report’s chapters on the individual insti-tutions includes available information on the numbersof full-time faculty subjected to layoff or furlough. Withisolated exceptions, information on the numbers of ad-versely affected part-time faculty has been elusive to ob-tain, and the Association has not been advised of anyspecific New Orleans cases involving a part-time appoint-ment and potential AAUP concern. The Special Commit-tee is well aware, however, that the damage to academiccareers resulting from Katrina extended in no small mea-sure to part-time faculty members and indeed to academ-ic staff members in positions not carrying faculty status.

The five chapters, which now follow, begin with thethree public universities (the LSU Health Sciences Center,UNO, and SUNO) and end with the two in the private sec-tor (Loyola and Tulane). They have been reviewed andapproved for publication by the Special Committee andby Committee A, which under its regular procedures willin turn report on them to the Association’s next annualmeeting in June 2007. They form the core of this generalreport.

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A. BackgroundThe Louisiana State University Health Sciences Centerin New Orleans houses the medical school and otherhealth-related programs of the state’s flagship publicuniversity. Its oldest and by far its largest component,the School of Medicine, was founded in 1931. The pres-ent organizational structure of the Health SciencesCenter, which dates to 1965, consists of five additionalschools—Dentistry, Nursing, Allied Health Professions,Graduate Studies, and Public Health—and nine Centersof Excellence, including centers for neuroscience, aging,and molecular and human genetics. According to theinstitution’s mission statement, the Health SciencesCenter’s purpose is “to provide education, research, andpublic service through direct patient care and commu-nity outreach,” which includes the provision of medicalservices to “the indigent and uninsured,” particularlythrough the operation of several public hospitalsthroughout Louisiana. Prior to the late August 2005onslaught of Hurricane Katrina, student enrollment wasapproximately 2,800. Data provided the SpecialCommittee by the chancellor’s office indicate that atthat time the full-time Health Sciences Center facultynumbered approximately 1,000, of whom 678 heldappointments in the School of Medicine. The full-timemedical school faculty, which will be the focus of thischapter, consists of both scientific personnel and thosewith primarily clinical responsibilities, with categoriesof appointment including non-tenure-track, tenure-eli-gible, and tenured positions.

Funding for the LSU Health Sciences Center has comefrom multiple sources. State of Louisiana appropriationshave accounted for approximately 40 percent of income,while a significant portion has come from patient feesgenerated by the faculty for the university through workin New Orleans hospitals. Other funds have come fromtuition, from research contracts, and from gifts andgrants.

B. The Impact of the HurricaneAlong with virtually everything else in New Orleans, theLSU Health Sciences Center was forced to suspend itsoperations in the aftermath of Hurricane Katrina. Thestorm forced students and faculty to abandon their homesand offices. The basements of all the Health SciencesCenter’s buildings and all first floors were flooded fol-lowing the storm, causing severe damage to electrical,mechanical, and communications equipment, and thelack of air conditioning and refrigeration that resultedfrom this damage ruined perishable and other sensitive

items. Of New Orleans’s nine hospitals, Charity andUniversity Hospitals, which served as the main traininggrounds for medical school residents, closed as a resultof the hurricane’s effects. Three others closed temporari-ly, and two more operated on a reduced schedule. Themassive exodus of the city’s population following thestorm dispersed students, staff, and faculty over a largearea and led to a sharp decline in the patient pool thatrequired the Health Sciences Center’s services, with anattendant, immediate, and sharp loss of revenue.Despite these obstacles and harsh realities, theCommission on Colleges of the Southern Association ofColleges and Schools, the regional accrediting body,renewed the LSU Health Sciences Center’s accredited sta-tus for the ensuing ten years after receiving an updatedreport.

Within four weeks of Katrina, many of the instruc-tional activities of the Health Sciences Center were backin operation in Baton Rouge and in hospitals elsewherein Louisiana. Faculty were instructed to be available forwork and, when necessary, to be prepared to commuteto Baton Rouge or other worksites. Faculty who did notreturn when instructed to do so were warned that theyfaced the prospect of being discharged, but those whodid return were not assured of being retained. (As wasthe case at other New Orleans universities, communica-tion with the dispersed faculty took place through e-mail announcements, an emergency Web site, and thecooperation of outside organizations.) The majority ofthe Health Sciences Center’s schools resumed classes inNew Orleans within six months, and after one year, allbut the School of Dentistry, which suffered the mostsevere damage from the storm, were operating again,though at lower levels than before the hurricane. Withthe continuing closure of Charity and UniversityHospitals, medical school residents had been training ata variety of clinical locations throughout Louisiana, butthe partial reopening of University Hospital at the end ofNovember 2006 promised, according to media reports,the return of students and medical residents to NewOrleans. The administration estimated that at least 90percent of the students returned or were expected toreturn to the Health Sciences Center.

C. Declaring “Force Majeure” and PlacingFaculty on FurloughSalaries and benefits continued to be paid to all faculty inthe wake of the hurricane while the university was closedand when it was only partially reopened in September,October, and into November 2005. On November 22, how-66



II. Louisiana State University Health Sciences Center

ever, three months after Katrina, the LSU Board ofSupervisors approved a “force-majeure exigency plan”for the Health Sciences Center to address “circumstancesarising directly or indirectly as a result of those hurri-canes [Katrina and Rita].” Citing the disruption of “rev-enue streams which no longer exist because they weregenerated by hospitals and clinical practices in NewOrleans which have been destroyed, closed, or are non-operational,” the plan declared the administration’s rightin an emergency situation to abrogate the protectionsassociated with tenure and the institution’s own regula-tions regarding standards for notice of termination ofappointment and of nonreappointment.

According to the board’s “findings”:

The Regulations previously adopted by the Boardand upon which all related employment contractsare predicated recognize that the time periods fornotice of termination or non-re-appointment arepredicated upon ordinary circumstances(“ordinarily”) and are not controlling during acircumstance such as that in which [the HealthSciences Center] finds itself as a result of the effectsof Hurricanes Katrina and Rita [emphasis added].

The plan described the “procedure for program modi-fication”: “The Chancellor shall determine how manyand what type of positions are currently needed, can befunded, and have work to be done”; in making thesedecisions, he “shall consult with the deans, departmentheads and, as reasonable under the circumstances inhis determination, faculty members.” In large part,these determinations meant deciding which facultymembers would be placed on “furlough” status, definedas “temporary leave without pay” that “may lead toeventual termination.”

The administration proceeded to place on furloughstatus members of the Health Sciences Center’s Schoolof Medicine faculty, some tenured and some nontenuredbut all prior to the expiration of their existing appoint-ments, removing them from the payroll as of December1, 2005.3 The placements on furlough were confined to

the School of Medicine. The numbers the SpecialCommittee has received from the chancellor’s officereveal that fifty-one full-time medical faculty (andanother thirty-four part-time) were furloughed as ofDecember 1, 2005, and an additional ten (plus two part-time) were furloughed subsequently.

Faculty members report having received written noti-fication of their furloughs only days before, and some-times on or after, the effective date of December 1, pro-viding them with virtually no notice of the impendingtermination of their positions, salaries, and health bene-fit payments by the university. The letters notifying fac-ulty members that they were to be furloughed wereworded alike:

Dear __________,As you well know, these are challenging times

for the School of Medicine. Hurricane Katrina hashad a devastating effect on our New Orleans cam-pus and operations. Moreover, the financialimpact of the storm and lost revenues with theclosure of many school and clinical facilities andprograms in the metropolitan area and with theeconomic downturn in the entire state ofLouisiana is unparalleled in the history of theschool. As a consequence, each department hasworked with the school leadership to develop aplan for financial remediation.

You will be placed in a furlough status effec-tive December 1, 2005; it is not clear at thistime how long you might remain in this statusor if you will eventually be terminated. Wemade the decision to place you on furloughafter careful deliberation. The reason that youwill be furloughed is due to the absence of theexistence of a revenue stream dedicated to orbased on your work, and also from the loss ofrevenue from both clinical and residency super-vision funding.

You do have the right to have this decisionreviewed. The review process is outlined in detailin the Force Majeure Exigency Plan approved bythe LSU Board of Supervisors on November 18,2005, and is posted on the [Health SciencesCenter] Emergency Website. There are deadlinesto observe for both levels of potential review, soplease note the date that you received this com-munication. You will also need to make yourrequest for review in writing to the Vice-Chancellor for Academic Affairs, Joseph M.Moerschbaecher, PhD. Mail your request to his 67

L o u i s i a n a S t a t e U n i v e r s i t y H e a l t h S c i e n c e s c e n t e r

3. The “force-majeure” plan offered an additional justifi-cation for not paying salaries to furloughed faculty mem-bers: such payment would contravene Article VII, Section14 of the Louisiana constitution, which prohibits “thedonation of public funds.” The plan interprets the provi-sion as prohibiting payment of salary to employees forwhom no work is available. This is a legal assertion onwhich the Special Committee takes no position.


attention at [Health Sciences Center], 2323Kenilworth Parkway, Baton Rouge, LA 70808.

Additionally, as furlough status will likelyaffect your benefits, you should contact HumanResource Management at 225-334-1614 or 225-334-1622; in particular, you should pay attentionto the circumstances that may arise relative toyour health insurance coverage. You will receivean individualized benefits summary from HRMunder separate cover.

As these letters implied, the “force-majeure” planallowed for brief windows of appeal to the chancellorand then to the system president, whose decision wouldbe final. A faculty member put on furlough status whowished to contest the decision had only five workingdays from the receipt of notice to request a review of thedecision by the vice chancellor for academic affairs andthe appropriate dean. The vice chancellor would reviewthe appeal and make a recommendation to the chan-cellor, who would decide either to uphold the furloughor rescind it. If the faculty member wished to appeal thewritten decision of the chancellor, he or she had threeworking days to apply for a review by the LSU Systempresident. Even under the limited appeals procedureprovided by the administration’s plan, faculty membersreport what appeared to them to have been perfunctoryaction in upholding of furlough decisions by ChancellorHollier (who was also, previously, the dean who hadissued many of the furlough notices). Five of the fur-loughed professors provided the Association with copiesof letters of intent to appeal that they went on to addressto LSU System president Jenkins.

In addition to the short or nonexistent notice and theabsence of severance pay in lieu of notice, furloughedfaculty were told, effective immediately, to give up theiroffices, their access to e-mail accounts, their parkingpermits, and indeed the right to unescorted access totheir previous office space. The administration has stat-ed that the advantage to faculty members of furloughwas that they could continue health benefits, by payingboth the employee’s and the university’s shares of pre-miums due. The apparent advantage to the employerwas the relief from the obligation to pay its share of thebenefits without having to issue notice of termination.

Faculty members had been called upon to defendtheir programs to an accrediting team from theAccreditation Council for Graduate Medical Educationvisiting the university in mid-November. They did sosuccessfully, and were nonetheless given furloughnotices within days thereafter. No programs were elimi-

nated. Affected faculty members called on only shortlybeforehand to speak on behalf of their programs statethat they had no reason to believe that their jobs werein jeopardy.

The furloughed medical school professors who com-municated with the AAUP, some through theAssociation’s statewide Louisiana Conference and othersby calling on the national staff directly, provided thestaff with accounts of their own cases and a good dealof written material about the events at the HealthSciences Center and the administration’s actions.Subsequently the staff engaged in extensive correspon-dence with the administration.

The Special Committee has had access to all of thesecommunications. Members of the committee met inNew Orleans with approximately a dozen members ofthe Health Sciences Center’s faculty, including officers ofthe local AAUP chapter and both furloughed andretained individuals, and a fortnight later the commit-tee met with Chancellor Hollier.

D. A Benchmark for Evaluating thePlacements on FurloughPrior to the devastating events of August 2005, the LSUHealth Sciences Center had rules and procedures con-cerning faculty obligations and rights that were set forthin detail in the faculty handbook. Key provisions for thepresent discussion are those concerning termination orreduction of the appointment rights of faculty membersin the face of financial exigency and program modifica-tion or discontinuance. These are the provisions ren-dered inoperative by the invocation of “force majeure,”and they merit close reading:

CRITERIA[The Health Sciences Center] may terminate orreduce the contractual rights of faculty memberswhen the Chancellor, upon authority of thePresident and Board of Supervisors, determinesthat it is necessary (1) to alleviate a financial exi-gency within the Health Sciences Center or sub-unit thereof, or (2) to effect a reorganization orelimination of an academic program of the insti-tution. Financial exigency is defined as thecritical, pressing, or urgent need on the partof the University to reorder its monetaryexpenditures in such a way as to remedyand relieve the state of urgency within theUniversity [emphasis added].68



Center] faculty position for which he is qualified,subject to the terms and conditions of employ-ment attendant to that position. A faculty mem-ber’s qualification for a vacant position shall bedetermined by the Dean of the appropriate school,after consultation with the Department Headinvolved, and approved by the Chancellor. A facul-ty member who exercises the rights accordedunder this section and who is determined by theDean of the school to be qualified for a vacantposition will have a preemptive right to the posi-tion consistent with the retrenchment plan.

RECALL If vacancies become available, faculty terminatedunder the retrenchment plan will be recalled inthe reverse order of dismissal. Faculty will be eli-gible for recall up to one year after dismissal.Exceptions to this order can be appealed by theDepartment Head to the Dean of the appropriateschool, who will act upon a recommendationmade by an ad hoc committee of faculty mem-bers appointed by the Dean of the school.

The “force-majeure” plan, as noted above, declaredthat the university’s financial exigency regulations“are predicated upon ordinary circumstances,” but theclear language of those regulations belies that declara-tion. They state that a “financial exigency is defined asthe critical, pressing, or urgent need on the part of theuniversity to reorder its monetary expenditures in sucha way as to remedy and relieve the state of urgencywithin the university.” Plainly this text does notdescribe “ordinary circumstances,” and just as plainlythe effects and impact of the hurricanes fit withinthese “criteria,” placing the university as they did in a“state of urgency.”

The Special Committee notes that the university’sexisting financial exigency policy already limited therights of faculty when compared to applicable AAUP-supported standards. Regulation 4c of the Association’sRecommended Institutional Regulations onAcademic Freedom and Tenure provides proceduressupplementing the provision in the 1940 Statementof Principles on Academic Freedom and Tenurethat termination of an appointment because of finan-cial exigency should be demonstrably bona fide.Regulation 4c calls for the meaningful participation offaculty in the declaration of a financial emergency, forthe right of a faculty member notified of terminationto a full hearing before a faculty committee, for the

RETRENCHMENT PLAN In the event of financial exigency or the need toreorganize or eliminate an academic program, theChancellor of [the Health Sciences Center] willappoint an ad hoc committee of faculty andadministrators to institute an orderly and consis-tent plan of retrenchment. Dismissal of facultywill only be initiated after all alternative means ofalleviating the financial crisis have been exhaust-ed or deemed inadequate. This retrenchment planmay be administered on a school-wide, depart-mental or program basis.

Termination of faculty members in order toalleviate a financial exigency shall be in the fol-lowing order:

.. Faculty on term appointments, starting withthe most recently appointed and then proceedingin reverse order of seniority.

.. Tenured faculty on continuous appoint-ments, starting with the most recently appointed,and then proceeding in reverse order of seniority.

For the purposes of this retrenchment plan,seniority shall mean total years of service at [theHealth Sciences Center] as determined by theretirement system.

EXCEPTIONS TO THE RETRENCHMENT PLAN Department Heads or other administrators whowish to make specific exceptions to theRetrenchment Plan can appeal to the Dean of theappropriate school, who will act upon a recom-mendation made by an ad hoc committee of facul-ty members appointed by the Dean of the School.

NOTICE [The Health Sciences Center] shall provide writtennotice no fewer than thirty (30) calendar daysprior to the intended date of termination. Thiswritten notice shall specify the cause of the termi-nation, or reduction of time, provide a summarydescription of the facts relied on by the HealthSciences Center to make the decision, and a refer-ence to the faculty member’s rights to file anappeal pursuant to Handbook Section 10.10.Written notice shall be sent by certified U.S. mail,return receipt requested.

ALTERNATIVE POSITIONS Faculty members whose employment time is ter-minated or reduced due to retrenchment will beeligible to transfer to any vacant [Health Sciences 69



right of first refusal of a suitable new position for aperiod of three years, and for severance pay or noticebased on length of service, from a minimum of threemonths for a first-year faculty member to at least oneyear following eighteen months of service. But whyeven the procedures and protections already providedin the institution’s regulations for alleviating a finan-cial crisis were completely bypassed in favor of a decla-ration of “force majeure” has not been explained bythe administration and is not apparent to the SpecialCommittee.

E. The “Force-Majeure” PolicyA first major consequence of the “force-majeure” provi-sions put in place in November 2005 was the replace-ment of the long-established and mandated role of fac-ulty in decisions regarding educational policy and fac-ulty competence with the virtually total discretion ofdeans and the chancellor to decide which members ofthe faculty and what academic programs to retain inthe reemergent Health Sciences Center.

These new procedures gave no heed to key aspects ofthe institution’s own regulations in the followingrespects:

1. Essentially no consultation with the faculty aboutthe nature and extent of the financial crisis

2. Furlough decisions, potentially leading in someinstances to de facto termination, made withoutfaculty consultation and apparently without def-erence to length of service and tenure

3. Decisions made without acknowledgment of eli-gibility of potentially furloughed faculty to apreemptive right to transfer to other positions forwhich they were qualified

4. Decisions made without acknowledgment ofrights of furloughed faculty to be recalled aspositions became available in the next year

Under the “force-majeure” provisions, assuming thattermination of faculty appointments was required, howshould the deans and chancellor have decided who wasto be furloughed and who retained? The “force-majeure” document specifies two unassailable generalcriteria: the needs and requirements of the institutionand the value an individual provides toward meetingthese. Presumably these have traditionally been thebases for recruiting, promoting, and, where appropri-ate, granting tenure to individuals, as well as for identi-fying and developing programs and curricula. Not rely-ing on these, the “force-majeure” document addedseven other criteria (here stated in somewhat abbreviat-ed form):

1. The existence of a revenue stream dedicated toor based on the work of the particular individual

2. The individual’s specific clinical, research, orteaching skills

3. The individual’s recent performance andproductivity

4. The individual’s history of productivity5. The individual’s long-standing commitment

and contributions to the institution6. Evidence of the individual’s “outstanding” serv-

ice in the immediate aftermath of the hurricane7. Other relevant and compelling considerations The Special Committee was subsequently informed by

the chancellor’s office that additional criteria consideredincluded the individual’s ability to contribute to the re-covery of the LSU Health Sciences Center and his or hergeographic location (in-state or out-of-state) afterKatrina.

Here the devil is in the details. Because no weightsare assigned to the criteria, which replaced the pre-sumptions based on tenure and seniority, the discretionof the administrator is, in fact, unlimited: anyone withless than perfect performance on any one of these crite-ria could be furloughed or, alternatively, have that defi-ciency overlooked in favor of other criteria.

The criteria themselves are suspect. Some introduceconsiderations, such as past and recent performanceand productivity, that call for judgment about the rela-tive merit of faculty members, thereby raising theprospect of furloughing professors on the grounds of fit-ness of performance and thus their release for cause.Others seem to allude to considerations that defy specifi-cation (for example, one’s “long-standing commitmentto the institution”), while one criterion—evidence of“outstanding” service after the hurricane struck—seems to be wholly impressionistic.

It is perhaps not surprising that Dr. Hollier, whoseems to have had major responsibility for most of thefurlough decisions in his roles as dean of the School ofMedicine and then as acting chancellor, referred to adifferent formulation. He told the Special Committeethat his decisions about who was to be furloughed werebased on three considerations:

1. If a faculty member did not want to come backto work (this apparently was inferred if the fac-ulty member did not show up when instructed tobe available for assignment)

2. If there was no longer work for the faculty mem-ber to do, owing to the decreased demand causedby the closing of hospitals

3. If there was work, but no funding


70WWW.AAUP.ORGMAY–JUNE 2007


While here nominally relying on financial considera-tions, the dean still had considerable discretion regard-ing who could be designated for furlough. For example,if the Health Sciences Center had the need and sufficientfunds to support six faculty members with given skills,and ten fully qualified individuals were available, anyfour of the ten could be designated as redundant.

The Special Committee is unable to determine theactual bases for the furlough decisions that were madebecause it does not have a full list of those furloughedand because no specific reasons were given to the indi-viduals furloughed at the time of their notice. The lackof stated reasons for the furloughs seriously complicatedthe task of anyone contesting the decision in his or hercase.

The individual professors who met with committeemembers offered a variety of speculations about thereasons for the decisions. In the limited number ofcases about which the Special Committee has specificinformation, no single consistent pattern is discernible.Faculty speculations, untested in any hearing proce-dure, do little more than testify to the overall unsatis-factory nature of the process employed. The unfettereddiscretion of a few administrators in a matter of daysreplaced the years of considered decision-making inshaping the nature of the university’s faculty and cur-riculum.

F. The Necessity and Propriety of Invoking“Force Majeure”Beyond the issue of the effect of the “force-majeure”policy on faculty appointments is the issue of whetherinvoking the policy was at all necessary, an issue towhich the Special Committee now turns.

The “force-majeure” policy, emanating from theoffice of the LSU System’s general counsel, employs alegal term derived from French contract law but whichhas close counterparts in the United States and inother developed legal systems. In brief, “forcemajeure” refers to a doctrine that releases a party froma contractual obligation when an unforeseen eventrenders a contract impossible to perform. As one com-mentator explains,

little, if anything, is abstractly unforeseeable …[a fire, a hurricane, a strike, legislation]… . The

test which is applied is that the event must havebeen unforeseeable by a reasonable person at thetime of the contract and in the circumstances inwhich it was made.4

As a result, contracts often contain “force-majeure”clauses to deal with such contingencies.

The LSU Health Sciences Center policy rested uponthe principle that employment contracts, includingcontracts of tenure, are “predicated upon ordinary cir-cumstances.” Even though hurricanes and floods are aforeseeable occurrence in New Orleans—witness theseveral institutions that had purchased insuranceagainst those contingencies—the impact of Katrinawas physically to disable the university’s medical facili-ties and significantly to depopulate the city. Conse-quently, instruction in neither the basic sciences nor inclinical practice could proceed in those facilities nor, tothe extent that the medical faculty were compensatedout of patient fees, were adequate funds being generat-ed. The performance of many of the faculty’s contrac-tual obligations had been rendered largely impossibleby this event.

The LSU System, as has been noted, did have in placea policy designed to deal with financial exigency. Itsprovisions, like the “force-majeure” policy, allowed forfurloughs and layoffs as well as termination and, alsolike the “force-majeure” policy, gave the administrationconsiderable discretion in deciding whom to separate.Moreover, adopting a concept deeply rooted in the 1940Statement of Principles, the invocation of financialexigency would have brought in its train such commonunderstandings as a requirement that there be no lessdrastic alternative to separation, a significant role forthe faculty in adopting and applying criteria governingseparation, a strong presumption in favor of the tenuredfaculty in deciding whom to retain, full due process toensure the fairness of the decisions, and significantpost-termination economic protections. The effect of the“force-majeure” policy was to obviate the applicabilityof these common understandings and of parallel uni-versity policies. Thus the question is not whetherKatrina rendered some contracts for professorial serviceimpossible to perform, but whether it rendered impossi-ble the observance of existing rules that would seem toapply to just such a situation.

The legality of reliance on a “force-majeure” decla-ration is of course a matter for judicial determination.Whatever the outcome of any litigation, however, it isunlikely to undo the damage to the status and thecareers of many of those faculty members most directly 71

4. Barry Nicholas, “Force Majeure in French Law,” inForce Majeure and Frustration of Contract, ed. EwanMcKendrick, 2d ed. (London: Lloyds of London Press,1995), 21, 24.


there simply was not enough money to continue thesame levels of employment as before the storms; therewas not employment which produced the funds. Muchof the faculty of [the Health Sciences Center] is devot-ed primarily to clinical duties, or to research whichinvolves the treatment of patients in clinical settings.The patients were largely gone from New Orleans formonths after the storms, and they still have not, andmay never, return in the same numbers as before.LSU did not need, and could not afford to maintain, afaculty large enough to service a city of almost half amillion people after the population dropped to some-thing much less than that. Without work for them todo or money with which to pay them, LSU had nochoice but to issue the furloughs it did.

affected. Necessarily, the Special Committee is calledupon to address this question not as a matter of law butfrom the perspective of academic policy and soundpractice.

Under the 1940 Statement, a bona fide financial exi-gency allows for the termination of faculty appoint-ments during their term under “extraordinary circum-stances” where no less drastic action will suffice. Simi-larly, under the LSU financial exigency policy, “fur-lough, layoff, or termination of tenured faculty, non-tenured faculty [or others] before the end of their con-tract term will be handled in accordance” with thispolicy. (Emphasis added.) The text would seem ratherplainly to apply to post-Katrina action.

Further, financial exigency is defined by LSU’s policyas the lack of the resources necessary to support the“existing programs and personnel ... without substantialimpairment” of the campus’s ability to maintain thequality of its programs. This may be the consequence oflack of funds or “the substantial threat of deteriorationof faculties due to a lack of resources,” among otherthings. The list of conditions that might result in theinadequacy of facilities and the lack of funds does notmention natural disaster; but, obviously, the list of thereasons for a financial exigency is not exhaustive, norcould it be. The policy merely supplies some possiblereasons why there might be such lack of work or lack offunds as to allow terminations without being preclusiveof others. It is the critical lack of work or funds that thefinancial exigency policy addresses. In essence, the uni-versity’s provision for financial exigency is a “force-majeure” policy.5

At the time the “force-majeure” announcement wascirculated for consideration and approval, ChancellorRock, in a November 14, 2005, memorandum to ViceChancellor for Academic Affairs Joseph Moerschbaecher,expressed his strong disapproval of the furlough oftenured faculty without pay. He recognized that fur-

72


5. LSU System general counsel P. Raymond Lamonica,responding to a draft text of the Special Committee’s report,stated that

LSU has amply and repeatedly explained why thenormal provisions of financial exigency were inade-quate fully to respond to ... the unique and, as thereport itself admits, unprecedented destructioncaused by hurricanes Katrina and Rita.

6. Asserting the lack of an alternative to the prompt place-ment of scores of faculty on furlough, General CounselLamonica wrote that at the Health Sciences Center


loughs would likely lead to ultimate separation, and hesuggested the availability of alternative ways to compen-sate for the losses in revenue. He further emphasized theneed for transparency and due process in an effort tomaintain a scholarly environment.

The Special Committee does not find that the formerchancellor’s views have been persuasively refuted, orthat the wholesale bypassing of the existing rules hasbeen justified. The crisis, to the university and to NewOrleans and its population, was indeed devastating, andit required an orderly and adequate response. But therewere available alternatives, and the administrationseems to have chosen one that was antithetical to theinstitution’s own rules and the traditions of facultyinvolvement in university governance and decision-making. Indeed, this committee cannot discount theview, expressed by a number of Health Sciences Centerfaculty, that the “force-majeure” plan seems to haveprovided the opportunity to use the genuine need forprompt action as an excuse to restructure and reconfig-ure the university and its faculty in ways that weredesired by the small number of administrators with thenewly conferred authority to do so.6

G. Steps toward RecoveryAs hospitals reopen, as students return, and as outsidegroups respond to the disasters of the hurricane with gifts,grants, and other assistance, a situation that once, per-haps, threatened the continuing viability of the LSUHealth Sciences Center now seems much more hopeful.This is reflected in news stories about the university, inthe statements made by the administration in its inter-nal publications and announcements, and in formalactions. General Counsel Lamonica has informed the


Association of an announcement at the final board ofsupervisors meeting for 2006 that, while the “force-majeure” exigency plan remains in effect, no more fur-loughs under the plan will be imposed. The HealthSciences Center administration has notified the Associa-tion that, despite a faculty sharply reduced from its pre-Katrina size (as of early January 2007, a total of 752 full-time faculty and 218 part-time), nine furloughed Schoolof Medicine professors have been reinstated to active fac-ulty service, a tenth has been brought back to a nonfac-ulty position, and discussions on reinstating seven to tenadditional furloughed professors are proceeding orplanned. Others who were furloughed have retired orresigned. Remaining on involuntary furlough as of earlyJanuary 2007, however, were twenty-two full-time (andtwenty-four part-time) members of the faculty.

H. Conclusions1. The administration of the Louisiana State

University Health Sciences Center discarded theinstitution’s existing financial exigency proce-dures, without adequately explaining why itdeemed them inadequate, in favor of a new“force-majeure” plan. It thereby set aside stan-dards in closer conformity with those set forth inthe 1940 Statement of Principles onAcademic Freedom and Tenure. It did sowithout having consulted with the faculty, thusdepriving the faculty of its appropriate role ascalled for in the Association’s Statement onGovernment of Colleges and Universitiesand in Regulation 4c of its RecommendedInstitutional Regulations on AcademicFreedom and Tenure.

2. The administration proceeded under the “force-majeure” plan to place a large number of pro-fessors on furlough with virtually no notice. Inselecting those to be furloughed and in imple-menting the furloughs, the administration actedat odds not only with applicable Association-supported standards but also with the existingLouisiana State University procedures on finan-cial exigency: it unilaterally decided whom tofurlough; it paid scant if any deference to tenurerights and length of service; and it paid no dis-cernible heed to rights to relocation in an alter-native suitable position.

3. Some amelioration of the damage inflicted by thefurloughs has been achieved through instancesof reinstatement. In those cases where theactions are likely to be permanent, however, the

administration has effectively terminated theappointments of the furloughed professors with-out having respected tenure rights and affordedacademic due process as called for in the 1940Statement of Principles on AcademicFreedom and Tenure and the Association’sderivative Regulation 4c.


A. BackgroundFounded by the Louisiana legislature as a branch ofLouisiana State University with a liberal arts programfor commuting undergraduates, the institution thatrapidly became the University of New Orleans opened itsdoors in 1958 on an abandoned U.S. Navy air station onthe shore of Lake Pontchartrain. By the eve of the eventsto be discussed, UNO had grown into a comprehensivemetropolitan university, the largest campus after BatonRouge in the LSU System. It enrolled 17,250 studentsand had a full-time faculty numbering 560 members.

Hurricane Katrina’s damage to campus buildings wassubstantial, estimated at more than $100 million, butnot nearly as severe as the devastation in the immedi-ately adjacent areas where students, faculty, and staffresided. The Federal Emergency Management Agencyhad promised to have 489 trailers available for housingby late January 2006, when the main campus reopened,but it took until the end of the spring before most ofthem were in place and functioning. Despite theseadverse conditions, UNO managed to organize andoperate some classes during that fall 2005 term, offeringonline courses as early as October and using facilitiesjust outside the city together with space on the BatonRouge campus, thereby continuing the education ofapproximately 7,000 students. In contrast to the paylessfurloughs imposed that fall at the other public NewOrleans universities, all full-time UNO faculty memberscontinued to be paid, regardless of the closing down ofclassrooms and laboratories.

The administration’s ability and willingness to keepsalary commitments was apparently not an indicationof financial health, however. UNO’s income from statefunding was considerably less than that received byother Louisiana public universities. In dollar terms,according to one estimate, UNO was slated for 2006 toreceive $21.5 million less than the average amount fora university under the statewide formula funding level.UNO had barely reopened on its main campus inJanuary, with a student enrollment of 11,600 ratherthan the 16,000 who would normally have enrolled forthe spring semester, when its administrative officers,while anticipating a balanced budget for the 2005–06academic year, warned of the need for drastic reductionsfor 2006–07.

Long-range planning for UNO, dating back to 2004,gave way to the administration’s University of NewOrleans Restructuring Plan 2006–07. A draft textdated February 27, 2006, gained wide circulationamong the faculty. It called for specific cuts in programs



III. University of New Orleans

and particular sums to be saved through resulting per-sonnel cuts. Many professors could see from the draftthat they were destined for release, and indeed adminis-trative superiors told them so. Accompanying theRestructuring Plan was another document, UNOExigency Guidelines for Hurricane KatrinaDisaster. The LSU Board of Supervisors would have todeclare a state of financial exigency and approve rec-ommended changes in academic programs before thedocuments would become operative.

Several UNO faculty members sent copies of the doc-uments to the Association, seeking advice and assis-tance. After discussing aspects of the documents withthose who provided them, the staff on March 31 wrote atlength to Chancellor Ryan to convey a number of con-cerns. The concerns included a criterion for decidingwho was to be released of “meritorious performance, ofwhich tenure may be an indicator,” thus allowingrelease to be determined through a perception of rela-tive merit and assigning to tenure the weight of onlyone among a number of factors to be considered. Otherconcerns were silence in the documents regardingnotice or severance salary in terminating appointmentsand a review procedure with no provision for a hearingbefore a faculty committee but only for a meeting withthe administrators who contributed to the decision andwith the burden resting on the notified faculty memberto convince those administrators that their decision wasinappropriate.

The administration invited comments from the facul-ty and others on the documents, and a somewhatrevised draft of the Restructuring Plan was issued onApril 25. The review panel in a contested case of releasewould no longer be confined to administrators butwould now consist of two faculty members together withthe provost, the dean, and the department chair.

B. Declaring Financial Exigency andImposing FurloughsOn April 21, on the recommendation of ChancellorRyan, the LSU Board of Supervisors approved a“Declaration of Financial Exigency” at the University ofNew Orleans, stating that “the financial resources of theUNO campus are not sufficient to support the existingprograms and personnel of the campus without sub-stantial impairment of the ability of the campus tomaintain the quality of its programs and services.” Thedeclaration projected that UNO would lose about $10million in tuition revenue from reduced enrollment(estimated at under 15,000) for the fall 2006 semester,

U n i v e r s i t y o f N e w O r l e a n s

and it noted that the state of Louisiana in December2005 had permanently reduced its annual operatingbudget for UNO by $6.47 million. The combined losses,according to the declaration, meant a total reduction ofapproximately $16.5 million in the university’s finan-cial resources, representing a loss of 12.8 percent of pre-Katrina revenues.

Chancellor Ryan provided the board of supervisorswith the Restructuring Plan on May 3, and on orabout May 16 the administration issued notificationsof placement on furlough to selected members of thefaculty, the large majority of them with tenuredappointments, who served in programs “slated forelimination or modification.”

As to defining the actions as a “furlough,” the April21 Declaration of Financial Exigency provided that fac-ulty and staff members in a program being modified ordiscontinued could be “furloughed, laid off, or termi-nated.” As stated in the declaration,

1. “Furloughed” means the employee is placed ontemporary leave without pay status before theend of the employee’s contract term.

2. “Layoff” means the employee is temporarily dis-missed before the end of the employee’s contractterm.

3. “Terminate” means the employee is permanentlyseparated from the institution. Both furloughsand layoffs may lead to eventual termination.

“Termination” differs from the first two categories inrequiring action by the LSU Board of Supervisors underestablished procedures before it can be implemented,while the final authority in implementing a furloughor layoff rests with the LSU System president. Under theDeclaration of Financial Exigency at UNO, furloughsand layoffs both required three months of notice beforegoing into effect (the mid-May notifications of place-ment on furlough led to removal from the payroll inmid-August, or in late September for those who pursuedthe appeal process to the LSU System president), andthe procedures for appeal were identical. Any practicaldifference between furlough (“temporary leave withoutpay”) and layoff (“temporarily dismissed”), at least atUNO, is not apparent to the Special Committee.7

As to the number notified of placement on furlough,an initial estimate attributed to the administration, basedon the cuts specified in the draft Reconstruction Plandated February 27, had been a reduction by eighty-threepositions from the 560 full-time pre-Katrina faculty posi-tions. Chancellor Ryan was quoted in the April 20, 2006,Times-Picayune as stating that seventy-eight professorswould have to be laid off and that thus far twenty-ninehad left voluntarily. An unexpectedly large number offaculty resignations and retirements occur-red that springand into the summer, leading to advertising in severalinstances for new faculty appointments. The SpecialCommittee appreciates that the random nature of thosevoluntary departures could have decimated some aca-demic areas and thus necessitated new appointments.Still, one would have thought the unexpected departureswould be grounds for reconsideration in many instancesof intended notifications of placement on furlough. Theadministration submitted recommendations for theauthorization of specific furloughs to the board ofsupervisors on May 3, followed by supplementary rec-ommendations on May 24. The mid-May notificationswere widely reported as having been issued to thirty-five to forty members of the faculty, but it is known thatseveral of the recipients had already arranged to resignor retire. On the eve of final action by the board ofsupervisors on June 1 and 2 to approve the furloughs,Provost Fredrick Barton reported the number as six-teen, but he called it a “flexible” number because yetmore faculty members might still decide to leave UNOon their own.

The letters of notification, identical in all cases so faras the Special Committee can determine, stated that thefurloughs were the result of downsizing and restruc-turing through “the elimination and/or modificationof academic programs” that were identified in an en-closed copy of the board’s Declaration of FinancialExigency.8 The notifications identified seven criteriaused in evaluating the academic programs. Five crite-ria were then listed for identifying faculty members not

757. For discussion of furloughing as a means of reducingfaculty positions at the other New Orleans public universi-ties, see chapter II of this report, on the LSU HealthSciences Center, and chapter IV, on Southern University atNew Orleans.

8. The downsizing included the elimination of variousdegree programs in Economics; Human Performance andHealth Promotion; Film, Theater, and CommunicationsArts; Mathematics; Music; and English. Additionally,“reduced instruction” was to occur in Education,Engineering Management, Anthropology, EnglishComposition and Literature, Fine Arts, Foreign Languages,Philosophy, Sociology, Biology, Computer Science, Earthand Environmental Sciences, Physics, Psychology,Mathematics, and Public Administration.


in programs slated for elimination as subject to fur-lough. These, which in broad intent resemble the sevencriteria invoked at the LSU Health Sciences Center, were

1. being the source of “a revenue stream”;2. having skills that “would be difficult to replace”;3. having a record of “past performance and

productivity”;4. fitness for retention in an alternative UNO posi-

tion; and5. “other relevant and compelling institutional

considerations.” The notifications, however, did not include the identi-

fication of specific shortcomings that led to the recipi-ent’s having been selected for furlough while other fac-ulty members within their programs were being retained.Individuals who wished to contest being furloughedcomplained that they were handicapped in preparing anappeal if the reasons for their having been singled outwere withheld from them. The presidents of the AAUPchapter and of the UNO Federation of Teachers sent ajoint letter to Chancellor Ryan urging that the affectedprofessors be provided, prior to an appeals hearing, withwritten specific reasons for having been selected for fur-lough. Those notified received no further explanation,however, before hearings were held.

Responding to a letter informing him of the composi-tion of the AAUP Special Committee and its plans formeetings, Chancellor Ryan wrote to the Association’sstaff on May 29. He reviewed the devastation wrought byHurricane Katrina on New Orleans in general and thephysical, financial, and academic damage suffered byUNO in particular. Discussing the restructuring that wasin process, he asserted that the faculty had beeninvolved “in every stage” of the decision making, thatevidence of a bona fide financial exigency requiring thefurloughs could be demonstrated, that “eliminatingweaker programs in order to sustain and eventuallyenhance stronger programs” was necessary for “UNO’sfinancial and academic viability,” and that UNO’s focusmust be on its programs that are most vital to the taskof rebuilding New Orleans, which “has become a criticalpart of the university’s mission.” As to the adverselyaffected faculty members, the chancellor wrote, they arereceiving “adequate notice and an opportunity torespond,” but “protracted appeal procedures” wouldhave a negative impact on the university. Quoting the1940 Statement’s precept that “institutions of highereducation are conducted for the common good,”Chancellor Ryan concluded with the hope that theSpecial Committee would see its charge as an opportu-nity to assist UNO and the other universities affected by

Katrina, because “it would be truly unfortunate if AAUPchose this difficult time to advance the cause of a fewover the common good of our community as a whole.”

Responding to the chancellor on June 12, the staffquestioned whether “the common good” (which theAAUP certainly joins in supporting) is truly affectedadversely by upholding the rights of the “few.” Withthose facing furlough having become fewer and fewer,the staff expressed hope that the administration mightsucceed over the ensuing weeks in reducing the relativehandful of prospective involuntary terminations stillfurther, or indeed in eliminating the category altogether.

C. Appealing the FurloughsThe chancellor’s office has not stated how many of thosenotified of placement on furlough submitted an appeal,but faculty sources have indicated that at least ten did so.Hearings were held during the course of June by a panelof three administrators (the provost, the cognizantdean, and the cognizant chair, or their designees) andtwo members of the faculty’s elected Policy Committee.The minutes of a June 27 meeting of the PolicyCommittee summarize reports from those attending thehearings that the environment was cordial or civil, thatdeans were supposed to have told those notified specifi-cally why they had been selected for furlough and thatsome deans had done so but others had not, and thatmembers of the hearing panel had been informed abouthow the hearings would be conducted but that thisinformation had not been shared with the appealingfaculty members. Hearing panels were reported as hav-ing discussed statements made by the appellant after heor she had left the room and could no longer refutewhat a dean or chair had said. Appellants complainedabout faculty peers being a minority on the panels, butthere was no record of dissenting votes, which wouldsuggest that a different composition of the panel mighthave led to a different outcome. Despite these seriousconcerns, the chair of the Policy Committee stated inconclusion that “the process was less unpleasant thanexpected and as good a process as we could have.”

By letters of July 7, 2006, Chancellor Ryan informedeach of those who had appealed that he was adopting arecommendation by the hearing panel and thereby sus-taining the decision to place the faculty member on fur-lough. He recounted the appellant’s objections to thedecision and provided a brief reason for disregardingthem, and he stated that transfer to an alternative UNOposition had been considered but that a suitable posi-tion could not be identified. He concluded by remindingthe recipient of opportunity within the next twenty days76




to submit a request for review of the decision to the LSUSystem president and by offering assurance that everypossibility short of reducing faculty and staff had beenthoroughly considered but that unfortunately the finan-cial situation did not allow another choice.

As confirmed by LSU System general counselLamonica, seven of the UNO professors notified of place-ment on furlough pursued their appeals to the nextlevel by writing to the system office to request a review.Acknowledgments of receipt of the request were sentupon their arrival, followed by almost identical letterssigned by LSU System president Jenkins and datedSeptember 20, notifying them (without a specific expla-nation) that he had found no basis for reversing thechancellor’s decision and that their furloughs wouldcommence on September 22. An exception was made inthe letter to one of the professors, who in her appeal hadexpressed fear of being placed on furlough just a littlebefore her sixtieth birthday on October 8, when shewould become eligible for retirement and thereby forcontinued participation in UNO’s joint health benefitsplan with a large potential savings in costs for her overthe years ahead. President Jenkins accommodated hersituation by commencing her furlough on October 9.

The system president concluded his September 20 let-ters by pointing out that under the existing declarationof financial exigency the authorized furloughs wouldexpire, if no further actions are taken, not later thanJuly 1, 2007, and that any steps to terminate a tenuredfaculty member’s appointment, which would requireapproval by the board of supervisors, would have tocomport with the stated procedures for termination.

D. The Special Committee’s InterviewsBetween August 7 and 17, Special Committee membersconducted face-to-face individual interviews with five ofthe UNO professors who were appealing notification ofplacement on furlough, and they interviewed by tele-phone three additional professors being furloughed.Others from UNO who were interviewed included officersof the faculty senate, of the AAUP chapter, and of theUNO Federation of Teachers, various faculty memberswho were resigning, retiring, or remaining, and a grad-uate student who had urged the Special Committee togive him an opportunity to argue on behalf of his fur-loughed adviser.

The Special Committee was mindful of the stronglikelihood that it would be meeting preponderantly withfaculty members who were displeased with the UNOadministration in the aftermath of Katrina. What thecommittee heard was not entirely negative: some good

things were said about the chancellor’s efforts, andcomments about the actions and attitudes of variousdeans and chairs were not uniformly unfavorable. Still,the Special Committee was struck by the virtual una-nimity of opinion, and the intensity with which it wasconveyed, that at bottom the involuntary furloughsbrought unnecessary harm to members of UNO’s aca-demic community whose performance had been judgedpositively, who had been granted continuous tenure,and whom the administration had not now demonstrat-ed to be unfit to continue. The furloughs were imposed,so the argument of those interviewed went, despite thevoluntary exodus of UNO faculty in unexpectedly largenumbers through resignations and retirements, achiev-ing all the downsizing in faculty positions and personnelcosts that the administration had sought and leading tothe recruitment of new faculty members for tenure-eligible positions and the engagement of part-timeinstructors to teach courses that had to be offered whiletenured faculty members were kept from their class-rooms and laboratories and removed from the payroll.

Accounts of individual instances of alleged unfairnessand abuse heard by the Special Committee, many ofwhose members have had significant experience asadministrative officers during their careers, left the com-mittee with the impression that these were not occasion-al lapses, perhaps inevitable when large-scale restructur-ing is effected. Rather, a disturbing abundance of casessuggested a propensity to take advantage of the down-sizing by removing someone who was simply no longerwanted, whatever the personal reason and no matter theacademic merits and needs. A few examples follow.

The reason given to a tenured professor, the only PhDin her department, for furloughing her was a belief thattoo few students were completing her program. Thenumber came from a count taken early in the semester,however, and had she known this, the professor states,she could have shown to the hearing panel that it was aserious undercount.9

Another professor was eventually informed that hishaving been selected for furlough was based on a lowrating in a March evaluation. The initial RestructuringPlan that was circulated in February already had thisprofessor slated for release, however, a fact that castdoubt on the stated reason for furloughing him.

779. Chancellor Ryan, responding to a prepublication draft ofthis report, stated that the program in question had beenidentified as a “low completer” prior to Katrina and thatthere were not enough students to warrant its retention ina condition of financial exigency.


A third professor, who had received positive evalua-tions of her academic performance year after year, wasinformed when her appeal was rejected that the deci-sion was based on evidence presented by her depart-ment chair “of a persistent and longstanding perform-ance deficiency with respect to scholarly research.”The professor stated to the Special Committee thatnow having “performance deficiency with respect toscholarly research” on her official record impliesincompetence or even something unethical, when infact in a department with a focus on teaching she hasauthored seven publications, none previously criti-cized for absence of quality.

President Jenkins and Chancellor Ryan had assuredthe Special Committee that they would cooperate withits inquiries. When the committee met in New Orleanson August 30 with the public-sector administrative offi-cers, Chancellor Ryan was asked why, with the smallnumber of tenured faculty being furloughed and thestill smaller number pursuing appeals, efforts were notbeing made to work out a mutually acceptable partingof the ways with those whom the administrationbelieved it truly could not retain. LSU System generalcounsel Lamonica, with the submissions from the sevenwho were pursuing their appeals presumably then inthe system office, immediately responded to the effectthat something extra cannot be provided to one withoutproviding it to all. Asked if he were averse to exploringpossibilities of settling the cases, Mr. Lamonica repliedthat some of the appellants had engaged lawyers andthat he objected to any discussion with the AAUP aboutongoing cases.

E. Issues1. CRITERIA AND PROCEDURES REGARDING PLACEMENTON FURLOUGH

Clearly the criteria and procedures called for in UNO’sDeclaration of Financial Exigency, Restructuring Plan,and supplementary documents, and those that havebeen employed in the furloughing, depart sharply fromapplicable AAUP-supported standards as provided inRegulation 4c of the Association’s RecommendedInstitutional Regulations on Academic Freedomand Tenure. Regulation 4c calls for faculty participa-tion in the various steps leading to the temporary orpermanent termination of faculty appointments: deter-mination of the existence of a state of financial exi-gency requiring termination, of the needed number ofterminations, of the guidelines for selecting those to bereleased, of where within the university the releases wereto occur, and of who specifically would be selected for

release. Assessments of the degree of faculty participa-tion in these matters differ widely. Chancellor Ryan hasasserted that the faculty was kept abreast and consultedthroughout, saying so on numerous occasions on cam-pus, in correspondence with the Association’s staff, andorally at the meeting with the Special Committee onAugust 30. Some faculty members acknowledged amodest degree of involvement, while others character-ized it as scant and meaningless. Members of the electedFaculty Planning Committee are reported as havingbeen shown a draft of the Restructuring Plan at a stagebefore it was circulated but having said nothing about itthen because they assumed it was confidential. The par-lous financial situation of UNO was certainly not keptsecret and was not seriously disputed, and it was knownthat a declaration of financial exigency was forthcom-ing long before the board of supervisors acted on it. Thedrafts of the Restructuring Plan pretty well laid outwhere cuts were to occur, and there apparently was noserious faculty challenge beyond those who stood to beadversely affected. Decisions on who specifically was tobe released were in most cases made in the particularcolleges and departments, with faculty involvementvarying from unit to unit but with the actual decisionsleft largely to the deans and the department chairs.

The Special Committee believes a fair assessment ofthe degree of faculty involvement would be that, whilethe administration did not resist it, the facultythrough its elected bodies, whether because it believedchallenging what was in process would be futile orwhether it viewed the decisions as the administration’sresponsibility and prerogative, was not as aggressiveas it might have been in insisting on exercising itsown prerogatives under principles of shared academicgovernance.

On matters of academic due process for those noti-fied of placement on furlough, contrary to therequirements of Regulation 4c they were not providedupon notification with a written (or in some caseseven an oral) explanation of why they in particularwere selected: the burden in contesting the notifica-tion fell upon them rather than on the administra-tion; their appeals were heard not by a committee offaculty peers but by a panel with the majority of itsmembers the administrators who were responsible forthe notification; and they received three months ofnotification of removal from the payroll rather thanthe twelve months that are required underAssociation-supported standards. The investigatingcommittee accordingly finds that the UNO adminis-tration, in furloughing members of the faculty pur-




Financial Exigency with its procedures for releasing fac-ulty members remains in effect.

3. THE NECESSITY OF INVOLUNTARY FURLOUGHS

As discussed earlier in this report, at most sixteen pro-fessors who had not already agreed to resign or retirewere notified of placement on furlough. The saving ofcosts through the reduction of faculty positions that wasa target of the Restructuring Plan had been essentiallymet by the voluntary (or semivoluntary) departuresfrom the faculty that had occurred or were still expect-ed. Several departments were advertising for multipleregular faculty positions to fill newly created vacancies.Based on this evidence and absent any contrary evi-dence from the administration, the Special Committeestrongly doubts that any involuntary furloughs werenecessary. The committee strongly suspects, if there werea small handful of remaining cases in which retentionwas not feasible, that these cases could likely have beenresolved on mutually acceptable terms had the adminis-tration pursued this course.10

4. USING A CRISIS AS AN OPPORTUNITY FORRESTRUCTURING

As have other chief officers of New Orleans universities,Chancellor Ryan has acknowledged that the post-Katrina crisis, with its immediate need to repair dam-age and the need in the broader sense to construct anew and changed city with a university restructured to

79

10. Chancellor Ryan commented on this paragraph asfollows:

The contention that furloughs were unnecessarybecause of the high number of retirements andresignations evidences a fundamental misunder-standing of the underlying facts. At the time the UNORestructuring Plan was developed, the University pro-jected a total loss of revenues of $16.5 million. Thisfigure was based on a $6.5 million reduction in staterevenues and a projected loss of $10 million intuition revenues. Enrollment before the storm was17,250. The Restructuring Plan budget was based onprojected enrollment of 14,600. Actual enrollment forFall ‘06 was 11,700—fully 25 percent less than theprojected figure upon which the Restructuring Planbudget was calculated. The estimated $16.5 million inrestructuring savings included $1 million in retire-ment and resignations forthcoming after the Boarddeclared financial exigency. ... Thus, the notion thatretirements and resignations produced revenue thatmade the furloughs unnecessary is simply mistaken.


suant to a declaration of financial exigency, deniedthem safeguards of academic due process as called forunder Association-recommended standards.

Were there factors that prevented the administrationfrom acting in closer conformity with these standards?When the Association’s staff conveyed concerns aboutshortcomings in due process, Chancellor Ryan statedin his response that “protracted appeal procedures”would have a negative effect on the university and thecommunity. The Special Committee might see somejustification for this response if a massive number offurloughs had been in prospect, but only a small frac-tion of the initially contemplated eighty or morereceived notice of placement on furlough and only afraction of these contested the notification. The com-mittee rejects the implication that affordance of ade-quate safeguards of academic due process would havebeen overly burdensome.

2. FACULTY TENURE AT THE UNIVERSITY OF NEW ORLEANS

Tenure has existed at UNO from the institution’s outset.The criteria that were adopted for furloughing faculty,however, refer to having tenure only as one of many fac-tors that can be considered because it might be evidenceof a faculty member’s competence. From the availableinformation on the notifications of furlough, theSpecial Committee is aware of cases of furloughingtenured faculty members while retaining junior mem-bers of the faculty or engaging part-timers to do similarwork and indeed recruiting for someone new as areplacement. It is apparent that a disproportionatenumber of tenured faculty has left UNO, voluntarily orinvoluntarily. Chancellor Ryan is reported as havingbeen hard pressed, when questioned at faculty meetings,to say anything positive about a need to respect tenurecommitments. The procedures governing release of fac-ulty that were adopted at UNO in connection with thefinancial exigency declaration and the restructuringplan do indeed allow opportunity for releasing tenuredfaculty that did not exist while the previous policies withtheir safeguards for tenure were in place.

The Special Committee finds that the UNO adminis-tration, in several cases placing tenured faculty mem-bers on furlough while retaining nontenured faculty forsimilar work, disregarded the protections for tenure setforth in the joint 1940 Statement of Principles onAcademic Freedom and Tenure and the Association’sderivative Recommended Institutional Regulations.The committee finds further that tenure at theUniversity of New Orleans is currently insecure and willremain so as long as the current Declaration of

serve and to lead the future New Orleans with maxi-mum effectiveness, brought about a sense of urgencyand a receptiveness to change that are lacking in moretranquil times. The Special Committee cannot faultthe chancellor for seeing this opportunity and endeav-oring to use it. Whether these endeavors required theabandonment of existing faculty policies, and particu-larly the safeguards of faculty tenure, is quite anotherquestion. The Special Committee finds that these poli-cies did not need to be disregarded in order to achievethe envisioned restructuring. Making changes withouthaving to adhere to certain policies may be more con-venient, but the countervailing inconvenience is asmall price to pay for the maintenance of policies thatensure principles of academic freedom and tenure atan institution of higher learning.

F. Conclusions1. The administration of the University of New

Orleans, in placing members of the faculty onfurlough pursuant to a declaration of financialexigency, denied those faculty members safe-guards of academic due process as set forth inthe Association’s Recommended InstitutionalRegulations on Academic Freedom andTenure.

2. The administration, in selecting faculty membersfor furlough, paid insufficient heed to the pro-tections of tenure as enunciated in the 1940Statement of Principles on AcademicFreedom and Tenure and derivativeAssociation policy documents.

3. Tenure at the University of New Orleans is cur-rently insecure and is likely to remain so as longas the current Declaration of Financial Exigencywith its procedures for releasing faculty remainsin effect.

4. The administration has not demonstrated need forthe continuation on furlough of any members ofthe University of New Orleans faculty.



S o u t h e r n U n i v e r s i t y A t N e w O r l e a n s

A. IntroductionSouthern University at New Orleans was founded in1956 as a branch of Louisiana’s flagship historicallyblack Southern University in Baton Rouge. SUNO’smanagement was transferred in 1975 from the StateBoard of Education to the newly established Board ofSupervisors for the Southern University System.

The flooding caused by Hurricane Katrina took anextremely heavy toll on SUNO. All eleven buildings onSUNO’s main campus, located in eastern New Orleansjust south of Lake Pontchartrain, were extensively dam-aged by flood waters that rose more than ten feet.During fall 2005, when the university was closed, theuniversity administration was headquartered on theBaton Rouge campus of Southern University and someclasses were held there. When the university reopened inNew Orleans in January 2006, it was forced to operateout of trailers throughout the spring semester and intothe 2006–07 academic year for most academic andadministrative functions as well as for student and somefaculty and staff residences. Before the hurricane struckNew Orleans in late August 2005, the university enrolledapproximately 3,700 students taught by some 160 full-time faculty members. Enrollments for the spring 2006semester fell precipitously to 2,037 students butincreased to about 2,300 students for the fall 2006semester. At the beginning of the spring 2006 semester,ninety-one faculty members returned to the university.Those with approved work assignments had receivedtheir full salaries from August through December. Of theseventy or so faculty members no longer at the institu-tion, the administration had notified fifty-five of themnear the end of the fall 2005 semester that they hadbeen placed on furlough. These furloughs are the cen-tral focus of this report.

B. BackgroundIn a memorandum dated November 21, 2005, SUNO’sinterim chancellor, Robert B. Gex, notified some universityfaculty and staff members that they had been placed onfurlough. The chancellor said the furloughs were a “lay-off avoidance measure,” that “we hope by adopting thismeasure we will avert the need for layoffs,” and that theuniversity “will develop and implement a recall proce-dure.” Shortly thereafter, in a December 12 memoran-dum, the chancellor informed all other faculty and staffthat additional notifications of furlough would be issued“to further trim the University’s budget and workforce inthe aftermath of Hurricane Katrina and because the serv-ices of all SUNO employees may not be needed in the

Spring of 2006.” “Some” classified and unclassified em-ployees had already been furloughed, the chancellor stat-ed, and the administration “will determine which em-ployees will be needed in the short- and long-term to pro-vide academic and support services at SUNO for spring2006 and thereafter.” Faculty and staff were told to expectto be notified about their status by the university’s Officeof Human Resources “as soon as we complete the assess-ment of the University’s academic and service needs.”

The assessment referred to by Dr. Gex was apparentlycompleted in the next day or two, for letters datedDecember 16 signed by the director of human resourceswere sent to the fifty-five professors, thirteen withtenure, informing them that they were being furloughedwithout pay effective December 31. The reason given forthe furlough in each case was much the same asdescribed in Dr. Gex’s December 12 memorandum,though stated with greater emphasis: this action “isnecessary to further reduce the university’s budget andworkforce ... and based on projected student enrollmentfor the spring 2006 semester.” The letters did not sayhow long the furloughs would last, but held out anexpectation of eventual return to the university:

If it is determined that your services are needed,you will receive written notification of your recallfor work from me; in which case, you must respondpromptly. It is requested that you keep the Officeof Human Resources informed of your continuedavailability for work, your current address andtelephone number and provide other contactinformation so that written notices affecting youremployment at SUNO can be timely delivered. TheSUNO website will post important notices and in-formation for the benefit of furloughed employees.

Some of those furloughed were indeed recalled.Chancellor Ukpolo informed the Special Committee inearly February 2007 that twelve of the fifty-five had beenreinstated, four turned down an offer of recall, nineresigned, and nine retired. Of the twenty-one remaining,seven had temporary appointments that were notrenewed, and fourteen have not been recalled because ofprogram elimination. The continuing tenure of one ofthe professors brought back has thus far been unrecog-nized by the administration. For the fourteen whoremain on furlough, the prospect of their being recalledseems increasingly unlikely.

The December 16 letters concluded by informing thefurloughed faculty members of their eligibility for medical 81


IV. Southern University at New Orleans

benefits: “Please be advised that if you participate in thegroup insurance program through State Group benefits,your insurance will expire on December 31, 2005,unless you pay your portion of the January 2006 premi-um that is due on or before December 23, 2005.”

On the same day, December 12, that Dr. Gex distrib-uted his “notice of pending furlough,” he wrote toJohnny G. Anderson, chair of the Southern UniversitySystem’s Board of Supervisors, resigning his positioneffective December 31. Dr. Gex had served as SUNO’schancellor from 1989 to 1997, and he had agreed toreturn to the university in June 2005 for no more thanone year while the board of supervisors conducted asearch to replace retiring chancellor Press Robinson, Jr.The reasons for Dr. Gex’s resignation are discussed laterin this chapter, but here the Special Committee notesthat the resignation was triggered by the board’s deci-sion to appoint Dr. Victor Ukpolo, the Southern System’svice president for academic and student affairs, as SUNO’schancellor. Dr. Ukpolo took office on January 7, 2006.

Along with the decision to furlough numerous facultymembers, the SUNO administration announced far-reaching changes in the university’s academic programsthat had been approved by the system’s board of super-visors at its meeting on December 8, 2005. The new aca-demic plan eliminated nineteen degree programs,including undergraduate programs in English, mathe-matics, biology education, physics, political science, andhistory, and it added seven new programs, among themmedical records administration, business entrepreneur-ship, and human development and family services.Described as an academic plan with a “community-based emphasis,” the plan’s stated objective was to makeSUNO “relevant to the rebuilding of the city of NewOrleans and its surrounding communities.”

The December 8 changes called for a pervasive shift inthe nature and mission of SUNO, from a largely liberalarts curriculum to a community-based one. The SpecialCommittee cannot assess whether the sweeping subtrac-tions and additions of programs were sensible or prudent,but the committee does express alarm that such funda-mental changes in the educational program were enactedwithout faculty involvement and consultation. Indeed,the plan’s release sparked immediate criticism frommembers of the faculty about how it had been formulat-ed. The president of the SUNO faculty senate was reportedin the local press as saying that “[n]obody can deny thefact that no faculty input went into the development ofthat plan.” The same article quoted the chair of theboard of supervisors as having said that he “was shockedto hear SUNO vice chancellors had not met with campus

academics,” reporting that he planned to have a meetingwith the vice chancellors.11

While the December furlough letters notified facultymembers about their status after December 31, theywere silent about the right of appeal under a declara-tion of “force majeure” approved by the Southern sys-tem’s board of supervisors on November 18. The decla-ration, identical in every key respect to the declarationof “force majeure” approved by the Louisiana StateUniversity Board of Supervisors for the LSU HealthSciences Center on the same day, superseded the univer-sity’s faculty handbook and the board of supervisorsbylaws and provided for an appeal procedure onlythrough administrative channels.12 In brief, affected fac-ulty had five working days from their receipt of the fur-lough notice to appeal to administrative superiors, whowere to make a recommendation to the chancellor. Thechancellor’s decision could be appealed to the SouthernUniversity System president, whose decision was final.13

Several faculty members filed appeals, all of which wererejected.

Criticism by faculty officers that the administrationhad not included them in the development of the new



11. Commenting on the prepublication draft of this report,Chancellor Ukpolo wrote that the statewide coordinatingbody for higher education, the Louisiana Board of Regents,“invited a small committee ... of the Southern UniversitySystem’s Board of Supervisors ... to announce that, giventhe storm’s impact on the university, drastic measureswould have to be taken to stabilize the institution and planfor the immediate and long term future of SUNO. ... Allfaculty members had an opportunity to attend regularmeetings called by SUNO and System administrators whereissues were discussed regarding the options faced of closingSUNO or drastically reducing the number of programs.”

12. For a discussion of various features of the “force-majeure” declaration, see this report’s chapter II on theLouisiana State University Health Sciences Center. Withregard to the silence of the furlough letters about possibleappeal, the declaration stated that “SUNO shall notify eachaffected employee of the proposed disaster-caused employ-ment action in writing. ... The notice shall include a sum-mary of the proposed action, the reasons therefor, and theavailable review procedures.”

13. Chair Anderson of the Southern University SystemBoard of Supervisors, commenting on the draft text of thisreport, wrote that authority rests with the board for “finalinternal review.”


academic plan was followed by a series of faculty senatememoranda addressed to Chancellor Ukpolo on“Reductions in Faculty Ranks and UniversityReorganization” ( January 23, 2006), “Furloughs andAppeals Hearings” (March 9), “Teaching Loads” (March20), and “Repeal of ‘Force Majeure’” (April 5). Eachmemorandum sharply faulted the administration foractions taken or issues left unaddressed, and each pro-posed specific remedies. The April 5 memorandum, theshortest of the lot, merits full citation:

“Force majeure” is a legal concept protecting aperson or organization from being forced tohonor a contract when an act of God makes per-formance impossible. As such it is limited in bothscope and duration. Once the disaster passes,“force majeure” expires. “Force majeure” coversthe impossibility of performance, not convenienceof performance.

Katrina is over. The event that makes perfor-mance impossible has passed. While the physi-cal devastation lingers, the university took stepsto reorganize and reduce expenses and thesehave left us in a stable posture. Further, springenrollments provide a basis to make knowledge-able projections for summer and fall enroll-ments. There is no need to continue “forcemajeure” and its legal strength at this point isquestionable.

The Faculty Senate at Southern University atNew Orleans urges that, as chief officers of thisinstitution, you either declare “force majeure”over or request the Board to take such action sothat the university can resume using the FacultyHandbook as the guiding reference in makingteaching-load and faculty-employment decisions.It is no longer acceptable to fail to fulfill all con-tractual obligations.

Responding on April 18 to the senate’s memoran-dum, Chancellor Ukpolo said that the “force-majeure”policy “is still relevant to deal with the uncertain futureconfronting SUNO. However, once we know our enroll-ment numbers for the Fall Semester 2006, we should re-visit the necessity of the ‘force majeure.’” In October2006, at a meeting of the faculty senate, he stated thathe would reexamine the need for the policy and recom-mend its revocation to the Southern University presidentif enrollment for the next semester increased by 10 per-cent. The Special Committee understands that the dec-laration is still in force.

The Association’s staff, having reviewed documenta-tion provided by SUNO faculty members and officers ofthe AAUP’s Louisiana state conference, wrote toChancellor Ukpolo, initially in February 2006, to conveythe Association’s concerns about issues of tenure, aca-demic due process, and academic governance posed bythe furlough decisions. The staff later provided informa-tion to the chancellor about the establishment of thisSpecial Committee and its plans for visiting New Orleansin August to meet with university administrative officersand concerned faculty members.

In a letter dated June 12, 2006, the chancellorresponded at length to these letters. With respect tofurloughed faculty, he stated that “those remaining infurlough status could maintain their [health-insurance] coverage by paying the premiums them-selves. In the face of state-mandated cuts in SUNO’sbudget and reduced student enrollment, there was noother alternative to this action.” Furloughed facultywere to be recalled “as circumstances dictated and, ofnecessity [we] eliminated low completer programs andreorganized curricula to meet our immediate academ-ic needs based upon the programs maintained andprojected and actual student enrollment.” These fac-ulty had “the right to appeal,” but “we set no dead-lines by which any faculty member could appeal.”

With regard to the faculty’s role in the furloughdecisions and the decision to adopt a new academicprogram, the chancellor distinguished between thefaculty senate, on the one hand, and the faculty as awhole, on the other:

While it is recognized that there is an elected facultybody of faculty representatives, SUNO does not oper-ate on the premise that the faculty as a whole isincapable of participating in the decision-makingprocess except as directed by that body. As SUNO’sbusiness unfolded, the entire faculty was given theopportunity to participate in the information gath-ering and disseminating process and to have directinput into matters that were affecting them.

Selected members of the Special Committee met onAugust 18 with furloughed SUNO faculty members,continuing officers of the SUNO faculty senate, andDr. Joseph Bouie, who served as chancellor of the uni-versity for the period 2000–02. At the August 30 meet-ing attended by senior administrative officers of thethree New Orleans public universities, committeemembers had the opportunity to hear directly fromChancellor Ukpolo. 83


C. Issues1. FURLOUGHS AND FINANCIAL EXIGENCY

The American Association of University Professors haslong recognized that a college or university can legiti-mately terminate faculty appointments, includingappointments with tenure, on grounds of financial exi-gency, but that much can be done to avoid the necessityof this extreme step. Furloughs without pay, a familiarmeasure in industry and government, are one such step,which the AAUP has identified, along with numerousother steps, as a way for institutions to deal with press-ing financial problems.14

Payless furloughs are a mixed blessing, however, forfaculty members. On the one hand, a furlough impliesthe possibility of returning to the campus and a paidposition, and, as described earlier in this report, theDecember 2005 notices issued to SUNO faculty membersannouncing the furloughs explicitly referred to this pos-sibility. On the other hand, the financial burden on theindividual is no different from what it would be if theappointment had actually been terminated: in eithercircumstance, no salary is paid. It would therefore notbe surprising to learn that faculty members placed onfurlough will consider positions elsewhere as a hedgeagainst furloughs that go on too long. An administra-tion, for its part, if it is concerned that furloughed facul-ty members not leave for other positions, will try to limitthe duration of the furloughs.

There is no question that SUNO’s financial conditionin the aftermath of Katrina was grave, and that it facedthe daunting tasks of rebuilding its physical infrastruc-ture and its academic programs. Because a significantportion of the university’s operating expenses are linkedto salaries and benefits, these were a prime target forreduction. SUNO’s faculty handbook and the SouthernUniversity System’s bylaws are silent with regard to fur-loughs, but the declaration of “force majeure” identifiedfurloughs, defined as a “temporary leave without paystatus before the end of the employee’s contract term,”as one of three “Disaster-caused Employment Actions.”The other two were, like those noted in this report’s pre-ceding chapters on the LSU Health Sciences Center andUNO, layoff (“the employee is temporarily dismissed

before the end of the employee’s contract term”) andtermination (“the employee is permanently separatedfrom the institution”). The declaration stated that “bothfurloughs and layoffs may lead to eventual termina-tion,” and it called for actions taken against facultymembers to respect the “needs and rights of the affectedemployees to the fullest extent possible under theseextraordinary circumstances.”

Despite the characterization of furlough (and evenlayoff) as temporary, some of the SUNO faculty mem-bers placed on furlough would seem to have had goodreason to think that their professional futures lay else-where. The furlough notices made no reference to anexpiration date or to a date by when the furloughswould be reassessed. They identified no criteria accord-ing to which the administration would determine ifsomeone’s services were needed again, and they weresilent about any plans for protecting faculty salaries andhence faculty positions in the future. Moreover, theapproval by the board of supervisors of a new academicplan a few days before the furlough notices were issuedhad direct and far-reaching implications not only forthe curriculum and students but also for facultyappointments. A furloughed faculty member couldunderstandably conclude that his or her furlough was,or would very soon become, tantamount to termination.

In his November 21, 2005, memorandum that pre-ceded the issuance of the December 16 furlough notices,Dr. Gex described furloughs as a “measure that willavert the need for layoffs.” With another academic yearapproaching completion, however, the result in thefourteen cases of furloughed faculty members, includ-ing some with tenure, who have not been recalled hasnot been merely layoff but, it is increasingly apparent,permanent termination of appointment.

2. THE REVIEW PROCEEDINGS

The Special Committee turns next to the issue of theprocedures available to those tenured faculty memberswho sought to contest the notifications of placement onfurlough. As noted above, the university’s policies ineffect before the declaration of “force majeure” makeno reference to furloughs, but afford to faculty memberssubject to termination of appointment because of finan-cial exigency or “matters directly related” to such termi-nation the opportunity for a full on-the-record hearingbefore an appropriate faculty committee. The elementsof the SUNO hearing procedure are drawn verbatimfrom Regulation 4 of the Association’s RecommendedInstitutional Regulations on Academic Freedomand Tenure, derived from the 1940 Statement of



14. “Financial Exigency, Academic Governance, andRelated Matters,” Academe 90 (March–April 2004): 112.For an account of a university that utilized payless fur-loughs, which were then followed by appointment termi-nations, see “University of the District of Columbia:Massive Terminations of Faculty Appointments,” Academe84 (May–June 1998): 46–55.


Principles on Academic Freedom and Tenure,including the right of the faculty member to cross-examine adverse witnesses and to be provided with arecord of the hearing. The burden of proof rests with theadministration.

By contrast, the declaration of “force majeure” calledfor any hearing to involve only the administration andindeed those same administrative officers who issuedthe notices of furloughs being contested. The declara-tion provided no information about how the hearingshould be conducted other than to say that the vicechancellor and the cognizant dean (or designee) “shalllisten to and consider any facts and contentions by theemployee and review the initial recommendation as tothat employee.” In short, as in the LSU Health SciencesCenter case, the declaration of “force majeure” at SUNOserved to short-circuit the institution’s existing procedur-al protections against involuntary termination of facultyappointments. The declaration of “force majeure” andthe ensuing terminations were unaccompanied byexplanation of why existing procedural protectionsrelating to financial exigency were being bypassed.15

A few tenured faculty members promptly filedappeals. Among their various claims, they alleged thatthe administration had retained nontenured facultymembers or engaged new contingent faculty to teachcourses that they were qualified to teach. There weredelays in the administration’s processing of appeals, butChancellor Ukpolo’s eventual May 25 response to one ofthem appears to have been typical:

Please be informed that I have received the docu-mentation from your Furlough Appeal Hearing.After my review of the documentation you sub-mitted, I concur with the recommendation of theVice Chancellor of Academic Affairs that the deci-sion for furlough remains unchanged.

The chancellor thus did not provide the affected profes-sors with any reasons for his decision, thereby offeringthem no indication of the grounds on which furtherappeal could be mounted.

The five-day filing deadline prescribed in the “force-majeure” declaration perhaps reflected concern thatinvolvement of a faculty committee would have delayeddecisions that needed to be made quickly. But there isno reason to believe that a faculty hearing committee

could not have finished its work within at least thenearly six-month period that the SUNO administrationtook to complete its task. Neither the board of supervi-sors nor the SUNO administration explained why it wasconsidered necessary to bypass the university’s existinghearing procedure and replace it with a procedure thaton its face, and as it operated in these cases, was seri-ously deficient. Under it, the SUNO administrationdetermined that faculty members should be furloughed,announced that furloughs were forthcoming, andissued letters to faculty members notifying them thatthey had been furloughed. In their appeals, tenured fac-ulty members questioned the legitimacy of these deci-sions as applied to them and the process by which theyhad been made. The administration was thus in theposition of adjudicating its own contested decisions. Thefailure of the board of supervisors and the SUNOadministration to afford to furloughed faculty membersthe opportunity for a faculty hearing represents, in thejudgment of the Special Committee, a flagrant deficien-cy in academic due process.

3. THE ROLE OF THE FACULTY IN THE FURLOUGHDECISIONS

The official role of the SUNO faculty in financial exi-gency decisions was well established before HurricaneKatrina struck New Orleans. The university’s policiesprovided that a university committee, with at least halfof its members appointed by the elected faculty senate,would determine whether a financial exigency exists.Department chairs, in consultation with a faculty com-mittee elected by members of the department, would“determine the individuals whose services are to be ter-minated.” Lastly, “any proposed termination of tenuredfaculty based on financial exigency” would “be reviewedby a committee of tenured faculty before a course ofaction is decided.” Consistent with standards set forth inRegulation 4c of the AAUP’s RecommendedInstitutional Regulations on Academic Freedomand Tenure, these SUNO policies conferred uponthe faculty a significant role in financial exigencydecisions.

The “force-majeure” declaration addressed the facul-ty’s role only as follows: “Prior to making a determina-tion to discontinue a program [as a result of the univer-sity’s lack of funds], the Chancellor shall take reason-able steps under the circumstances to consult withdeans, department heads, and faculty representatives.”

Faculty members at SUNO, furloughed and nonfur-loughed alike, have justifiably complained about theabsence of meaningful faculty involvement in any 85


15. See section F, “The Necessity and Propriety of Invoking‘Force Majeure,’” in chapter II of this report.

aspect of the furlough decisions—from the determina-tion to issue a declaration of “force majeure,” to thedetermination of which academic programs were to bediscontinued and which were to be added, to the deter-mination of the criteria for selecting particular individ-uals to be furloughed, and to the identification of thefaculty members to be furloughed.16

Indeed, the SUNO administration itself complainedabout the role of the board of supervisors and theLouisiana Board of Regents in SUNO’s affairs. In his let-ter of resignation following the announcement ofChancellor Ukpolo’s appointment as chancellor, Dr. Gexcriticized the treatment of the SUNO administration bythe two boards:

For me, I have felt disrespected since I arrived onthe Baton Rouge campus. System and BatonRouge personnel were assigned to attend SUNO’smeetings so that the [System] administrationknew what we were doing almost before we knew.SUNO was micromanaged from the beginning.And the worst indignity occurred when a delega-tion of System persons went to the Board ofRegents to discuss SUNO’s future with no repre-sentation from SUNO on that delegation.

Dr. Joseph Bouie, the former chancellor who met withthe Special Committeeon its visit to New Orleans, voicedsimilar concerns.

As noted earlier, Chancellor Ukpolo, in his June 12 let-ter to the Association’s staff, drew a distinction betweenthe faculty as a whole and the faculty senate, suggestingthat the administration’s communications with the for-mer could substitute for dealing with the official agencyfor faculty participation in the governance of the univer-sity. Even if the severity of the university’s financial crisisand the need for prompt action explained why there wasless than full consultation with the faculty senate, thefaculty’s role seems to have been limited to reacting todecisions already made by the board of supervisors andthe administration. This was notably true with regard to

the issuance of the declaration of “force majeure,” theannouncement of the new academic plan, and the is-suance of furlough notices. All these decisions bore di-rectly on the faculty’s responsibility for the teaching andresearch done at the university, and therefore the facultyshould have had an important role in the decision-making process. Instead, the evidence is persuasive thatthese decisions were made entirely within the confines ofthe board of regents, the board of supervisors, and insmaller part the SUNO administration, and that the fac-ulty was thus left without an effective voice in matterssignificantly affecting faculty status.

In not submitting proposed program changes to thefaculty senate and instead reporting on them in a moreinclusive but more amorphous manner to the faculty asa whole, the SUNO administration effectively denied thefaculty an opportunity to respond expeditiously throughits formal governance structure.

D. ConclusionsThe Special Committee, throughout its inquiries, wascontinually reminded that the damage inflicted onSouthern University at New Orleans and other universi-ties in the city by Hurricane Katrina was unparalleledin the history of higher education in the United States.In the face of these extraordinarily difficult circum-stances, particularly in losing the use of its campusbuildings for an indefinite future, the SUNO academiccommunity has undoubtedly made progress towardrestoring the university’s operations. This achievement,however, has come at a high and unnecessary cost tofaculty rights and particularly to principles of due pro-cess and academic governance. The Special Committeeconcludes that :

1. The furloughed Southern University at NewOrleans faculty members were denied the aca-demic due process to which they were entitledunder the university’s own policies before “forcemajeure” was declared, under the 1940Statement of Principles on AcademicFreedom and Tenure, and under theAssociation’s derivative RecommendedInstitutional Regulations on AcademicFreedom and Tenure.

2. Actions of the Louisiana Board of Regents, theSouthern University System Board ofSupervisors, and the SUNO administration,taken singly or in some combination in mattersfundamentally affecting the university’s aca-demic programs and the status of its faculty,manifested disregard for the faculty’s appropri-



16. Chancellor Ukpolo, expressing doubt that this state-ment can be substantiated, wrote in response to it that“deans, chairs, and faculty were briefed at regular meet-ings to explain the compelling circumstances leading tothe decision to furlough faculty ... . In fact, departmentchairs and deans, in conjunction with the faculty, recom-mended to the administration the names of faculty to befurloughed based on the prevailing circumstances in eachdepartment.”



17. Southern University System Board of Supervisors chairJohnny Anderson, in his comments on the prepublicationtext of this report, maintained that “academic freedomand due process safeguards were preserved for all SUNOfaculty members during the implementation and enforce-ment of the Declaration of Force Majeure.”

System president Ralph Slaughter wrote as follows:While we reaffirm our appreciation to the AAUP and

the Special Committee for the attention that your visit... and the report have drawn to the continuing plightof SUNO and other New Orleans area higher educationinstitutions, we must respectfully disagree with yourfindings. We could not and cannot have tunnel visionin planning and executing recovery activities while wecontinue our efforts to attract students to return to ourcampus in New Orleans. Our administrators must seeand consider the entire picture, the whole institution,and not just how the landscape relates to faculty. Asadvocates for faculty and faculty issues, AAUP and theSpecial Committee can adopt this narrow viewpoint,our university administration cannot. As our studentscome, they will require not just faculty’s services, but afull complement of staff and administrative servicesthat will contribute to their successful matriculation atthe university.

ate role in academic governance as enunciatedin the Statement on Government of Collegesand Universities.17

desire to take up the future of the university—its mis-sion, programs, academic structure, and staffing. In2004–05, the president appointed a University StrategicTask Force and charged it with developing a plan to bepresented to the board of trustees at its first meeting of2005–06. Katrina cut short that effort but, in PresidentWildes’s words, “provided us the opportunity to take aneven closer look at our offerings and operations.”

Before this report examines how the administrationproceeded, key elements of the institutional governancestructure and its specific rules on making decisions todiscontinue departments or programs of instructionneed to be identified. Regarding structure, the universi-ty’s rules provide for a University Senate as “an advisorybody whose function is to assist the University in mat-ters that the Senate deems appropriate concerning thewhole University.” It consists of the president of the uni-versity and the provost and vice president for academicaffairs, both ex officio, and faculty members selected byschool, department, and college. There is also provisionfor a Standing Council for Academic Planning (SCAP).It is chaired by the provost and vice president for aca-demic affairs and consists of fourteen elected facultymembers and two students. Among its responsibilities,SCAP is charged with this:

It shall review proposals for program inaugura-tions and discontinuances and evaluate such pro-posals on the basis of criteria proposed by SCAPand agreed to by the University Senate and thePresident regarding these proposals.

Chapter 9 of the Loyola University Faculty Handbookdeals in detail with the subject of program discontinu-ance. The key provisions are set out below:

A. Specific Causes for Termination9. Discontinuance of a program or department of

instruction. If a decision is made to discon-tinue formally a program or department ofinstruction, this decision will be based essen-tially upon educational considerations,which may involve financial matters. Educa-tional considerations and financial mattersdo not include cyclical or temporary varia-tions in enrollments but must reflect thelong-range judgment that the educationalmission of the University as a whole will bemaintained or enhanced by discontinuance. . . .



V. Loyola University New Orleans

A. IntroductionLoyola University New Orleans was founded in 1912.Its pre-Katrina enrollment was about 5,600, with acomplement of more than 300 full-time faculty mem-bers organized into several schools and colleges.

The university suffered significantly from wind andwater intrusion as a result of the hurricane, althoughdamage was modest compared to other New Orleansuniversities. According to President Kevin Wildes, theuniversity claimed $4.8 million in property and con-tent losses: $3 million was paid out by its insurancecarrier and the remaining $1.8 million constituted itsdeductible under that policy. President Wildes estimat-ed the university’s revenue shortfall attributable toKatrina to be about $25 million; the university hasclaimed $15 million against its carrier of business-interruption insurance and an additional $5 millionin other claims, resulting in a $5-million shortfallunder that head. Total losses for 2005–06 of $14.5 mil-lion were offset by $8.2 million in federal supplemen-tal aid, $.4 million from the Bush-Clinton fund, and a$1 million business interruption insurance advance.The university’s unrestricted endowment is about $250million, and its operating budget for academic year2005–06 was about $125 million.

In consequence of the disaster, the university closedfor fall 2005. When it reopened in January, more than90 percent of its students returned. All faculty and staffmembers were paid during the period of closure. Forfall 2006, the university enrolled 527 new first-yearstudents; the previous year it had enrolled more than900 first-year students and had anticipated a first-yearenrollment in 2006–07 of 630. Total fall 2006 enroll-ment of about 4,700 students represents a 16 percentdecline from the previous year. According to PresidentWildes, the operating deficit for 2005–06 was $12.9million and for 2006–07, without budget cuts, a deficitof about $12 million was anticipated.

The following sections will recount the events afterthe university’s reopening that drew the Association’sconcern. They will next briefly outline the Association’sinvolvement leading up to the appointment of theSpecial Committee. They will then measure the admin-istration’s pattern of decisions against the university’srules, rules that fully embrace Association-supportedstandards. A final observation and the SpecialCommittee’s conclusions will be offered at the close.

B. The Pathways Plan: A ChronologyEven before Katrina, President Wildes announced his

L o y o l a U n i v e r s i t y N e w O r l e a n s

E. Procedures for Termination Because ofDiscontinuances1. A proposal to discontinue a program or depart-

ment of instruction will be evaluated by theStanding Council for Academic Planning,which will apply the criteria established by theUniversity Senate. The Standing Council forAcademic Planning will advise, in writing, theBoard of Trustees, the President, and theUniversity Senate concerning the proposed dis-continuance.

2. [Section 2 on placement and severance obliga-tions toward affected faculty is discussed insection D.2 of this chapter.]

3. A faculty member may appeal a proposed relo-cation or termination resulting from a discon-tinuance and has the right to a full hearingbefore the University Rank and TenureCommittee in which the essentials of an on-the-record adjudicative hearing are observed.The issues in this hearing will include thequestion of the University’s failure to satisfyany of the conditions for this section. In such ahearing the determination by the StandingCouncil for Academic Planning that a pro-gram or department is to be discontinued willbe considered presumptively valid, but the bur-den of proof on the other issues will rest on theadministration.

A report prepared by a committee of the UniversitySenate in June 2006, reflecting back upon the events tobe discussed below, noted that the president’s StrategicTask Force had met on only three occasions, shared nosubstantive data or ideas, and responded only to broadstatements of goals. It further noted that SCAP, chargedwith evaluating programs under criteria adopted by thesenate, worked from January through March to producea set of criteria, which it forwarded to the senate butwhich that body declined to approve. The matter of cri-teria was thus returned to SCAP, and on April 5, 2006,that body issued a four-page report setting out criteriafor program evaluation. As the introduction to thatreport observed, a program review could be undertakenwith an eye as much on the enhancement of a pro-gram’s quality as on its discontinuance, consolidation,or suspension. The report set out six broad heads, eachenumerating further nonexhaustive criteria elaboratingthe particular category of evaluation. The criteria laiddown were: (1) centrality to the university’s mission;(2) program reputation and quality; (3) service to

other programs or the common curriculum; (4) demand;(5) impact on the community; and (6) revenues andexpenses.

On April 5, the date SCAP’s report was issued,President Wildes e-mailed the Loyola faculty that onApril 7 the data relied upon for program review wouldbe posted on the provost’s Web site and that the fulldetails of a plan for reorganization would be releasedthree days after that, on April 10, in anticipation of finalaction by the board of trustees a month later, on May 19.The president stated:

As we move forward, we will continue to followthe process as outlined in the Faculty Handbook.Already, SCAP has unanimously recommended tothe University Senate a set of criteria, unweightedso that no program is unfairly disadvantaged, foruse in decisions about program terminations.SCAP will have the opportunity to continue fulfill-ing its responsibilities, as stipulated in theHandbook, by advising the Senate, the Board ofTrustees, and myself in writing about the plan.

The president noted that the initiation of a compre-hensive blueprint for Loyola’s future antedated the hur-ricane and that Katrina “may have forced us to accom-plish this undertaking earlier than anticipated.” No rea-son was given for so foreshortened a process. The monthallowed by the president included the Easter recess. Thetimetable provided little opportunity for senate reflec-tion on the proposed criteria. In actuality, only dayswould be available for SCAP to review any proposal,assuming senate approval of the criteria to be applied.18

On April 10, the president released a six-page, single-spaced document, “Pathways: Toward Our SecondCentury”—the product, it stated, of “consultation andevaluation.” The president did not state with whom thatconsultation had occurred. The report of a senate sub-committee issued in June asserted that the various fac-ulties or representative faculty bodies, department chairs,and even deans were not consulted in the process.19


18. Commenting on a prepublication draft of this report,President Wildes stated that the timetable was establishedby the board of trustees and that he was able to get an ear-lier deadline extended until May.

19. President Wildes stated that “deans were briefed on theentire proposal before it was released,” and that “somedepartmental chairs were contacted regarding questionson programs and enrollments.”

(This complaint has been ongoing in the faculty’s reac-tion to the plan. It was reiterated in explanation of avote of “no confidence” in the administration by thefaculty of the College of Humanities and NaturalSciences, the university’s largest, in September 2006.)The plan was developed by Provost Walter Harris,Assistant Provost John Cornwell, and Assistant ProvostBrenda Joyner.

The Pathways plan proposed to restructure severalschools and colleges, eliminate City College (Loyola’sevening division), consolidate some programs, sus-pend undergraduate majors and minors in seven dis-ciplines, suspend master’s degree programs in four,and discontinue majors, minors, and graduate studiesas follows:

• Bachelor of ArtsCommunication sequences in Broadcast

Journalism, Broadcast Production,Communication Studies, and Film Studies(Photo Journalism will be combined withPrint to form Journalism)

• Bachelor of ScienceCommunication Information SystemsComputer ScienceElementary Education (and Minor in Secondary

Education)• Bachelors

Computer Information ScienceComputer Information Systems ApplicationsHuman and Organizational Development

• MastersCommunicationsCommunications/Juris DoctorComputer Information ScienceElementary EducationReadingSecondary Education

The Pathways plan called for the termination of theappointments of seventeen faculty members, who wereostensibly rendered redundant by these discontinu-ances and consolidations. Of these, eleven held tenure,most of them with long institutional service, and theremaining six were probationary faculty memberswho had already been reappointed for the 2006–07academic year.

As noted previously, the university’s rules governingprogram discontinuance require that the criteria toguide the decision be established by the UniversitySenate and that a specific proposal to discontinue a

program first be evaluated by SCAP in light of thosecriteria. The specific programmatic proposalsannounced to the Loyola faculty on April 10—forgeneral discussion and comment in anticipation ofboard action only a few weeks later—had not beenthe product of any evaluation by SCAP. In the admin-istration’s view, as announced on April 10, SCAP wasas free to comment as a body as any individual mem-ber of the faculty, its institutional standing in theprocess being otherwise undifferentiated.20

As it had promised, the administration posted thedata relied upon in preparing the Pathways recommen-dations. These consisted of four tables setting out: (1)student applicants, admits, and acceptances (“yield”)by major for four academic years, 2002–05; (2) a head-count of majors and minors as of February 23, 2006 (asprovided by the Office of Student Records); (3) allundergraduate degrees awarded from 1994–95 through2004–05; and (4) graduate degrees awarded over thesame period of time. No explanation was provided ofwhat these data meant, how they were used, or how theywere related to the qualitative criteria set out in theApril 5 statement. Even so, and despite the time allowed,a subcommittee of SCAP undertook to evaluate thePathways plan in light of the data supplied.

On April 17, the SCAP subcommittee issued a prelimi-nary report. It drew four conclusions: (1) the data sup-plied were incomplete and did not address all the crite-ria set out in the April 5 SCAP report; (2) the lack ofreasoned explanation made it difficult if not impossibleto draw any connection between the criteria and theprogrammatic proposals; (3) the absence of crucialinformation could suggest that other criteria or factorshad been applied; and (4) the data suggested that, tothe extent the decisions were financially driven, reduc-tions in other areas might obviate the need for any pro-grammatic elimination.

On May 10, after further deliberation, SCAP submit-ted a more extensive supplement and corrective to theadministration, faculty, and governing board. It set forthwhat it took to be serious flaws in the data provided bythe administration, which it detailed in two attach-ments. Even as it called for a total reevaluation, thereport concluded:



20. In his response to the draft text of this report, PresidentWildes stated that “providing the proposal first to SCAPwithout sharing it with the entire campus seemed naivegiven the importance of the plan and the tendency forconfidential reports and proposals to be widely shared.”


Members of SCAP are well aware of the challengesof the post-Katrina world and the need to makechanges in the university. Though it is too soon toknow exactly how drastic those changes will haveto be, it is clear that fiscal demands may wellnecessitate elimination or cutting back certainprograms to deal with reduced revenue. Loyolawill be a different university. The concern of SCAPis that changes will be made without completeand reliably analyzed data, and without any artic-ulated rationale for the changes. In the end, thiswill be harmful not only to individual faculty, stu-dents, and staff and to historic programs at theuniversity, but also to the viability and growth ofthe university and to its mission.

Assistant Provost Cornwell, one of the drafters of thePathways plan, later posted more data in response to thesenate’s request; but these, too, were found significantlywanting by the senate.

Meanwhile, in April, the faculty of what was thennamed the College of Arts and Sciences and theUniversity Senate respectively voted “no confidence” inthe process that produced the Pathways plan. The facul-ty’s disagreement went further. On May 11, the senatetook a “straw vote” of no confidence in the provost’soffice—nineteen for the motion, four against, and twoabstentions. On May 12, the faculty of the College of Artsand Sciences voted “no confidence” specifically inProvost Harris and in Assistant Provosts Cornwell andJoyner—seventy-one voting for the motion, two against,and four abstentions. It further urged the board oftrustees to table the plan until November 2006, provid-ing a number of grounds for so urging.21 Interestingly,

these motions did not address the faculty’s confidence inthe president. From what the Special Committee wasgiven to understand, the faculty leaders hoped, perhapsnaively, that the president might take the faculty’sexclusion of him from its vote as an overture to mendfences. If so, the attempt failed. A week later, on May 19,the board of trustees adopted the Pathways plan.

On May 22, President Wildes sent an e-mail to thefaculty addressing the board’s action. He discussed theneed for the institution “to make choices about ourfuture in this new environment and how Loyola couldbecome a stronger community,” stating that “‘num-bers’ were not the only factor to drive the decisions.”Although several suggestions were made in the “feed-back” the administration received, he concluded thatnone provided “alternative ways to close the budgetgap,” and that time was short given the deadline laiddown by the board. On the process of arriving at theplan, President Wildes stated:

I developed ideas that shape the vision of thisplan in conversations with the vice presidents,deans, and representatives from the UniversitySenate, Administrative Staff Senate, and Stu-dent Government Association. I also built thevision upon all the work on planning that hasbeen done in recent years. The vision providesa framework for the strategic goals and formy recommendations to the board on exist-ing programs. I asked the provost, WalterHarris, and his staff to conduct a programreview to analyze how we allocate our resources.The allocation of resources is a question ofstewardship. In a finite world, we need to makechoices about how we will use the resources wehave.

I know that a number of people haveexpressed concerns about the program review.After reviewing everything, I am confident inthe analysis and the work that Dr. Harris andhis staff did in this area. As the board hasexpressed confidence in my administration,


21. The more salient are:3. Criteria for restructuring have not been approved by

SCAP or by the University Senate. There has been novision put forward to guide any sort of wise restruc-turing plan. There has been no clear rationale putforward to justify the proposed cuts.

4. The current plan was not received by the deans or thefaculty before it was put forward on April 10, 2006,therefore we have not had sufficient time, or access tocomplete data, to allow for reasonable deliberationand joint planning among administrators and faculty.

5. Severe and serious cuts to departmental majors andof tenured faculty members as proposed by thePathways Plan should not be chosen as the best strat-egy to ensure the future health of our university,especially when these recommendations are based

on inaccurate compilations and misinterpretations ofdata from just the 04-05 fiscal year.

6. The attrition of both students and faculty that hasbeen caused by the mere announcement of the planhas not been assessed.

7. Alternative cost-cutting measures have not beenproposed and explored by the whole universitycommunity.

ing it. No suggestions were forthcoming. At one point,a couple of SCAP members argued for weighting thecriteria. In the end, SCAP roundly rejected that notionand opted instead to have the criteria prioritized.

After several discussions and further development,SCAP developed criteria which it submitted to the Senateat its April 6 meeting. The Senate subsequently formeda subcommittee to review the criteria and submitted areport to the Senate on April 20, which expressed con-cern about some of the data relating to the criteria. Theplan was also made public on April 10 followed by aperiod in which the campus community as a wholewas invited to give its input, which it did. SCAP’s crite-ria, the Senate subcommittee report, and the campuscommunity’s input all figured into the decisions andrecommendations, which were ultimately made to theBoard of Trustees.

Although the review was done in a compressed timeframe, the appropriate committees were consulted, andthere were other forms of faculty consultation as well.The special committee of the Board of Trustees, advis-ing the administration, met with the leadership of theUniversity Senate to listen to their views and concerns.One consistent piece of advice from faculty bodies wasto make no changes and wait. The board judged thatsuch inactivity would violate its fiduciary responsibility.

What this draft report does not acknowledge is,according to the Handbook, [that] the ultimate respon-sibility for program discontinuance rests with the Boardof Trustees. SCAP’s role is to advise. No faculty bodyultimately decides whether to discontinue programs.

I want to express my clear confidence in Pro-vost Harris and his staff for the work theyhave done.

No notice was taken, nor mention made, of the for-mal faculty protests: of their criticism of the datarelied upon by the administration, of the administra-tion’s failure to engage with that criticism, and of thelack of any reasoned explanation by the administrationfor the choices made.22 Instead, the president closedhis communication with what a reader could only takeas an oblique reference to the faculty’s collective con-sternation: “I think that one can argue that a universityis a constellation of communities: faculty, staff, students,alumni and administration. Each is an important con-stitutive element of the university. No one element com-prises the whole of the university but every element isnecessary for the life of the university.”23

On June 8, a subcommittee of the senate distributeda detailed report, “A Call for Conversation and aCritique of Pathways.” The chair of the senate pref-aced it by noting that he had asked that it be circulat-ed to each member of the board. “I plainly stated,”the chair wrote, “that the senate had not endorsed oradvised the president on any discontinuance or elimi-nation. Moreover, the senate is of the opinion thatSCAP had virtually no time to react to Pathways andthe faculty has been virtually excluded from the wholeprocess.”

The report asserted that the administration’s actionbelied the claim of the university as a “constellation ofcommunities,” adverting to the failure to build supportfor a shared vision of the institution’s mission and thelack of collegiality and of meaningful community inputinto the process. It alleged a lack of competence by theadministration in its disregard of SCAP’s role under the



22. The president in his subsequent comments to the Associ-ation stated that “data alone did not drive the program dis-continuance decisions. First and foremost was centrality tomission. While data played a role, and some data were openlyacknowledged to be flawed and thus were corrected or notused, considerations of the shape of the university in thefuture were paramount.”

23. In his response to the draft text of this report, PresidentWildes provided an expanded interpretation of the develop-ment of the Pathways plan and the faculty’s role in theprocess:

Given the fact that the Board of Trustees mandated theuniversity to move quickly, the provost, a member ofthe university SCAP, drafted an initial set of programreview criteria based largely on the work of [an outsideconsultant]. This initial set of criteria was discussedwith the Council of Deans and then presented to SCAPat its first regular meeting on January 17, 2006.

SCAP was asked to take the criteria and shape[them] into whatever form seemed most appropriatefor Loyola. At each of the succeeding regular meetingsof SCAP, the provost sought input from the group forimprovement of the criteria. At one point, he askedmembers to put in writing the precise wording theywould suggest for improving the criteria and submitthat to him for incorporation into the document. Onlytwo faculty members eventually submitted written sug-gestions. In the meantime, the set of criteria wasshared with the University Planning Team, again withthe Council of Deans, and with the President’s Cabinetfor whatever suggestions could be garnered for improv-


institution’s governing rules, its reliance on invaliddata, and its failure to provide any rationale for theplan. The latter two were singled out in particular for amore extended discussion. The senate approved thereport on June 21, and forwarded it to the president andthe governing board.

Meanwhile, on or about June 14, letters of termina-tion were sent to the seventeen professors affected by theprogram discontinuances. These letters cited chapter 9of the Faculty Handbook as allowing for that action.The affected faculty members were placed on leave with-out teaching assignments but with severance pay for aone-year period. They were ordered to relinquish theiroffices in two weeks. No mention was made of the avail-ability of the hearing procedure set out in chapter 9.Most of the eleven tenured professors notified of termi-nation have initiated these proceedings, however. Thehearing on the first case (to be discussed later) was heldon November 13, 2006. The second and third hearingstook place in December, the fourth and fifth occurred inJanuary 2007, and others as of this writing were still tobe scheduled.

With the beginning of the 2006–07 academic year,President Wildes sent a twelve-page memorandum viae-mail to the Loyola community. In it he discussed theinstitution’s current and projected situation vis-à-vis

enrollment and finances and the institution’s “strategicgoals”—the latter summarized in terms of resurrec-tion. One strategic goal called for a revision in the uni-versity’s “governance process to promote shared deci-sion-making in line with new academic structure.” Thepresident explained:

[I]n light of all that happened last year, I wouldlike to invite the university community to a re-view of university governance. At the end of lastyear, I received, and sent to the Board of Trustees,a document from the University Senate entitled“A Call for Conversation.” I think the title is righton target. I will work with faculty, staff, andstudent leadership, as well as the Board of Trustees,to develop a process for the review of governancefor the entire university. I would like to invite theentire university to participate in this review.

On September 26, the faculty of what is now theCollege of Humanities and Natural Sciences voted toreaffirm the vote of “no confidence” in Provost Harristaken previously by the faculty of what was then calledthe College of Arts and Sciences—this time by vote ofseventy to ten. On this occasion, the college facultywent on to vote “no confidence” in President Wildes—sixty-one to nineteen. The motions were prefaced by arecapitulation of what the faculty believed to have beenthe fundamental deficiencies in the process leading tothe adoption and implementation of the Pathwaysplan.

Using the questions raised by the senate’s June “Callfor Conversation” as “a frame of reference,” PresidentWildes on December 6, 2006, sent the senate’s executivecommittee a nineteen-page memorandum that he char-acterized as his contribution to a potential “ongoingconversation” between the senate’s committee and acommittee of the board of trustees. The senate was torespond to this document on February 8, 2007, as willbe seen in the epilogue to this chapter.

C. The Association’s InvolvementIn March 2006, the Association’s chapter at Loyolaalerted the Washington office staff to the prospect of aplan to discontinue programs. Shortly thereafterPresident Wildes called Jordan Kurland, AAUP associ-ate general secretary, to inform the Association of theformulation of a plan and to solicit the Association’sreaction. A few weeks later, after the Pathways planhad been released, the staff wrote to President Wildes.It noted that the university’s governing instrument, 93


Contrary to the findings in the Special Committeedraft, Loyola did in fact involve the faculty in the pro-gram discontinuance decision-making process ascalled for in the Faculty Handbook. Unfortunately,although the faculty-dominated SCAP had the opportu-nity to develop program discontinuance criteria, it didnot act at all until pushed by the provost. As the reportacknowledges, SCAP worked for three months ( Januaryto April) to develop criteria. Whether the criteria devel-oped with SCAP required Senate approval is a matter ofdisputed interpretation of the Handbook, but regardless,the Senate did not undertake to develop criteria. Inother words the two faculty bodies with the greatestopportunity (and obligation) to shape the process choseinaction, explained by complaining they needed moretime, better data, and so on. ... While the authors of thedraft are seemingly unimpressed that Loyola solicitedinput from other than official faculty bodies, the fact isthat large and small meetings of faculty were held, aswere individual conversations beyond the requirementsof the Handbook. These other means of soliciting inputdid not take the place of formal consultation with thefaculty but instead supplemented it.

chapter 9 of the faculty handbook, closely tracksAssociation-recommended standards and proceduresfor program discontinuance and the consequent ter-mination of the services of faculty members duringthe terms of their appointments. The letter questionedthe administration’s adherence to the university’srules in detailed respects. These concerns were reiter-ated in a letter of June 12 expressing surprise that theboard of trustees would have acted in the face of an“evident lack of faculty support.” The letter urged thatthe administration not proceed and, should it chooseto do so, that no tenured faculty appointment be ter-minated without adherence to Association-supportedstandards embraced in Loyola’s own rules. Uponlearning of the issuance of the letters of termination,the staff wrote on June 20 to convey the Association’scontinuing concern.

President Wildes replied on June 26. He stressed thedifficulties of recruiting students in a post-Katrinaworld, the need to adapt to tough circumstances inorder to thrive, and the availability of due process forfaculty members adversely affected by programmaticdecisions. On the question of process, the president tookissue with the staff’s assessment. He acknowledged thatLoyola’s rules “virtually track” Association standards,but he asserted that these were followed to the letter andexceeded in spirit:

Not only did we faithfully follow our proceduresbut, as part of the planning process that includ-ed examination of programs, we went further,by opening up a comment period and holding atown meeting open to all. Furthermore, indeveloping Pathways, I and members of ouradministration spent countless hours in one-on-one and small group meetings with faculty.We went way beyond both your guidelines orour mandated procedures to obtain input intoplanning our recovery from the most devastat-ing event in the history of our city and thisuniversity. . . .

[T]o suggest that we ignored faculty input indevising Pathways, much less that we failed toadhere to our internal procedures on programdiscontinuance as mandated by our FacultyHandbook, is wrong in fact and unfair inimpugning the integrity of this institution andthe people who serve it.

Strong words. The Special Committee will haverecourse to them at the close of this chapter.

D. IssuesTwo sets of issues arising under principles of academicdue process are presented in these events. The first con-cerns the adequacy of the process leading to the termi-nation of the appointments of faculty members, mostlytenured, and of the prospect of their being heard intra-murally in review of the actions. The second concernsthe treatment afforded the notified faculty in the imme-diate aftermath of those decisions.

1. “PATHWAYS” AND PROGRAM DISCONTINUANCE

As President Wildes acknowledged, the university rules,embodied in chapter 9 of the Faculty Handbook, “virtu-ally track” Association-supported standards governingthe termination of faculty appointments on grounds ofprogram discontinuance. This is not a situation wherethe professoriate is summoned to persuade an adminis-tration or governing board of the soundness of thesestandards, instrumentally or ethically. The question iswhether the institution abided by its own rules, and thatquestion encompasses whether the institution comport-ed with Association-recommended standards; the twoare coterminous.

Under Loyola’s rules, decisions to discontinue anacademic program may involve, indeed can be inextri-cably linked to, financial considerations; such deci-sions are, however, distinct from decisions driven byfinancial exigency. Neither the administration nor theboard of trustees of Loyola relied upon financial exi-gency as a ground of action, nor, despite the accumu-lation of significant deficits, was the institution in sodire a situation.

Because program decisions are, at their core, educa-tional, however they may be connected to long-termtrends in enrollment, tuition, and curricular interests,24

Loyola’s rules assign a major role to the faculty in thedecision-making process, premised primarily on thefaculty’s educational expertise and secondarily on theneed to maintain the faculty’s commitment to theinstitution in a stressful period of curricular change.The rules are fashioned to build trust in a process thatmay result in the termination of the appointments ofcolleagues of long and exemplary service—to assurenot only those adversely affected but the faculty as a



24. Recall that Loyola’s rules require that program discon-tinuance must be “based essentially upon educationalconsiderations, which may involve finances,” and thatfinancial matters do not include cyclical or temporaryvariations in contrast to long-range judgments.


whole and the larger community as well that the deci-sions were soundly deliberated, educationally justified,and fundamentally fair. Loyola’s rules do this in twoways. First, they require that SCAP, a representativebody of the faculty specially chosen for the task, “eval-uate a proposal to discontinue a program or depart-ment of instruction,” under senate-approved criteria:as a precondition, SCAP must advise the senate, thepresident, and the board of trustees, in writing, con-cerning a “proposed discontinuance.” Second, thosefaculty notified of termination in consequence of pro-grammatic change have recourse to a hearing beforethe University Rank and Tenure Committee. In thatevent, SCAP’s determination—that a proposed discon-tinuance is or is not warranted under the applicablecriteria—is considered “presumptively valid.” Thus,the burden rests on the affected faculty member chal-lenging the decision to show that the discontinuance,if SCAP-approved, is nevertheless arbitrary, discrimina-tory, or otherwise unwarranted; by contrast, the burdenrests upon the administration to show that the discon-tinuance, if SCAP-disapproved, is nevertheless justifiedand that the action taken is appropriate.

Despite the administration’s protestations to thecontrary, the Special Committee finds sufficient evi-dence that the administration of Loyola Universityfailed to comply in significant respect with the institu-tion’s own rules governing the manner in which deci-sions to discontinue programs are to be made. First, aset of criteria was developed by SCAP as a template orguide for programmatic evaluation, but the senate didnot adopt those criteria. Inasmuch as the rules requireSCAP programmatic review under senate-adopted stan-dards, just what these standards were had first to beresolved. Second, and perhaps more important, therules require SCAP, in the first instance, to evaluate anyproposal for program discontinuance. President Wildeshas insisted that the dissemination of the Pathwaysplan on April 10 conformed to and even exceeded thatrequirement. The faculty’s representative bodies dis-agreed. So does the Special Committee.

The rules contemplate an exacting deliberativeprocess. If one assumes the April 5 SCAP recommenda-tions to have been operative, they lay out a set of vari-able or unspecified weights. A 1993 AAUP ad hoc com-mittee investigating the proposed reduction and aboli-tion of programs of instruction at San Diego StateUniversity commented on a similar situation. Therethe administration took upon itself the role of desig-nating departments for reduction and discontinuancebased upon criteria established by the San Diego State

faculty senate that are almost identical with those setout by the April 5 SCAP report, that is, quality, centrali-ty, curricular and community need, diversity, programsize, and cost (and resource generation) when all elseis equal. “These criteria,” the AAUP investigating com-mittee observed,

might have provided an adequate frame-work for a rigorous, systematic process ofprogrammatic review by the San Diego Statefaculty. Their all-embracing character, however,allowed the freest play to justify almost any depart-mental termination decision. That is, unless onecould find departments that fall afoul of virtuallyall of them ... any one criterion could be pointedto as justifying a decision, the others to the con-trary notwithstanding, even as the same factor isdiscounted in a determination in another case.25

At Loyola no rigorous, systematic process was conduct-ed by the faculty body expressly charged under the insti-tution’s rules to do so. Instead of performing that primaryrole as called for under the university’s own procedures,SCAP was placed in the peripheral position of critic: nopre-decisional documents or analyses were shared withSCAP (or the senate or the faculty as a whole) addressingwhy any of these programmatic decisions were made. Thedata relied upon were posted—as available to SCAP’smembership as to anyone else—but these were neverconnected to any particular decision, and no reasonedexplanation for the decisions was given. Importantly,much that was relied upon was deemed by the faculty tobe inexplicable because of the very absence of such con-nective analyses and explanation. The senate’s June 21“Critique of the Pathways Plan” summarized what thesenate believed were errors and lacunae in the data: onlya one-year snapshot was relied upon; revenue for oneyear was compared with enrollment from another year;subspecialties were wrongly treated as majors; and more.26

A later senate critique of the data and methodologywas even more pointed. It adverted, for example, to the


25. “San Diego State University: An Administration’sResponse to Financial Stress,” Academe 79 (1993): 94.

26. For example, of the Department of Communications,one of the hardest hit, the senate observed that foursequences were eliminated based on the seventy-eight stu-dents enrolled as of a snapshot date:

All of Communications = 442 students as ofFebruary 23, 2006

following in the administration’s methodology in ananalysis done after the development of the Pathwaysplan: “[A]n instructional program at Loyola, on aver-age, generates net tuition revenue equal to 2.28 timesthe instructional cost of salaries associated with thatprogram. Programs that generate more than thisamount are, in effect, subsidizing programs that gener-ate less than this.” This, the senate report argued, was anon sequitur:

[C]ertainly any program or department that canclaim a large number of students as majors con-tributes substantially to the overall ratio just byvirtue of the fact that those students are on cam-pus, they take classes at the university, and theypay tuition. No matter what department or pro-gram those classes are in, the numerator of theoverall university ratio is increased if there are

more students paying tuition at the university.But without breaking down the data furtherand looking more closely at all sorts of factorsincluding majors, minors, electives, and CommonCurriculum requirements, it is not possible to saywhich programs contribute more or less to theoverall ratio of 2.28 just by looking at depart-mental or program ratios. There is a complexinterplay between attracting students to the uni-versity in the first place, retaining them, and dis-tributing their academic credits across coursesand departments.

Let it be conceded straightaway that SCAP’s and thesenate’s critiques might themselves be flawed and that acogent and coherent rationale actually did underlie theadministration’s actions. The insuperable obstacle tomaking any judgment in the matter is the stark factthat a mass of data—some only a snapshot at amoment in time or over a short period of time—doesnot drive inexorably toward any obvious programmaticdecision. This obstacle is heightened by the ostensibleapplication of criteria of variable weight coupled to theabsence of any effort to relate the data to the criteria,that is, of any written, detailed explanation of how thesedecisions will lead the university in a better direction.27

In sum, the rules call for an exacting deliberation inwhich these very issues, including the probing of thedata and of the methodology and attendant assump-tions undergirding their use, would be addressed andresolved by SCAP. This entails a sharing of comprehen-sive data, a candid joint exploration between the com-mittee members and the administration of preciselywhat they mean, a discussion of the benefits and draw-backs of each discrete proposal in light of long-termtrends and needs, and the fashioning of a coherentrationale. Such is the assumption upon which the exer-cise of the faculty’s educational judgment rests; indeed,the presumption in favor of SCAP’s recommendation inany subsequent hearing challenging the decision simplymakes no sense otherwise. But the time allowed by theadministration—from the promulgation of the plan,April 10, to the date set for board action, May 19—alone would have precluded the possibility of any



27. Upon examining the data relied upon by Loyola’s pro-vost, the Special Committee is as much at a loss to discerna rationale for the Pathways plan as is the Loyola faculty.Both these data and the faculty’s critique of them are avail-able on the provost’s and senate’s Web sites, respectively.

All of Communications = 442 students as ofFebruary 23,

2006

Broadcast Journalism = 27 studentsBroadcast Production = 21 studentsCommunications Studies = 18 studentsFilm Studies = 12 students Total = 78 students

Advertising = 49 studentsPhoto Journalism = 10 studentsPrint Journalism = 18 studentsPublic Relations = 66 studentsTotal = 143 students

But the Senate report proceeded to add the following:Note that: 78 + 143 = 221 studentsAnd: 442 - 221 = 221 students who have

not declared a specialty

As students need not declare a specialty until theygraduate, the report concluded that the administra-tion neglected to count 221 students, or 50 percent ofcommunications students. This could have been clar-ified, the senate’s “Critique” observed, had theadministration asked the faculty to make sure each oftheir advisees had declared a major. “Notice thatPhoto Journalism has 10 students, lower than any ofthe specialties that were eliminated. Print Journalismhas 18 students as did Communications Studies, butCommunications Studies was eliminated.” No expla-nation of these and kindred inconsistencies has beensupplied by the administration.


meaningful deliberation. The faculty responded by call-ing for an extension to November—an altogether rea-sonable request. But no justification was offered for thebrevity of the comment period, no demonstrable needhas been shown for the board to have acted so swiftly,and, it suffices to say, the administration declined toengage any more with the urging for more time than ithad with the specific criticism leveled at the data sup-plied and the total want of analyses.28

President Wildes insists that the administration fol-lowed the rules and more, “by opening up a commentperiod and holding a town meeting open to all.”Contrary to the president’s words, neither a suggestionbox nor a town meeting is an adequate substitute forthe kind of thoughtful faculty deliberation the rulesrequire. For reasons that remain unexplained, this theadministration assiduously strove to avoid.

The majority of the tenured professors with appoint-ments to be terminated as a result of these decisionsrequested a hearing before the University Rank andTenure Committee as provided for in chapter 9 of theinstitution’s rules. As previously stated, the first of thehearings was held on November 13. A stenographicrecord was kept, Provost Harris served as the administra-tion’s main representative, and attorneys for both sidesparticipated. Two additional hearings were held inDecember, a fourth and fifth occurred in January, andothers, as of this writing, were still to be scheduled.

2. THE TERMINATIONS

Part of Loyola’s rules adverted to but omitted in therecitation set out earlier provides:

2. Before the administration issues notice to afaculty member of its intention to terminatean appointment because of formal discontin-uance of a program or department of instruc-tion, the University will make every effort toplace the faculty member concerned inanother suitable position. If placement inanother position would be facilitated by a rea-sonable period of training, financial andother support for such training will be prof-fered. If no position is available within theUniversity, with or without retraining, the fac-ulty member’s appointment may then be ter-

minated, but only with the provision for sever-ance salary equitably adjusted to the facultymember’s length of past and potential service.

The rules require the exhaustion of these obligationsas a condition precedent to the issuance of a notice oftermination. The administration made no discernibleeffort to comply with these rules before issuing the ter-mination notices. But there is more at work here thanthe administration’s willful neglect of its obligations.The administration removed the notified professorsfrom the classroom, denying them access to their stu-dents, even as in some instances it made new facultyappointments to teach offerings the displaced professorswere listed to teach, had taught, or were competent toteach; and it abruptly removed these faculty membersfrom their offices and denied them further computer,library, and parking privileges.

The Association has long regarded a removal fromteaching as a suspension, a denial of the freedom toteach, permissible only in conjunction with an impend-ing dismissal proceeding and even then only when con-tinuance would present an immediate threat of harm tothe individual or to others.29 These Loyola terminationswere predicated on programmatic change, not miscon-duct. The university did not benefit from paying a sec-ond instructor to teach the classes of one whom theadministration has placed on a “paid [compulsory]leave.” Nor would there seem to be any purpose servedby the eviction of faculty, many with decades of service,from their offices and the denial to them of commonhospitality. The Special Committee can conceive of nojustifiable reason for such abusive and humiliatingtreatment—and the administration has offered none.30

E. A Concluding ObservationWell before Katrina, the administration of LoyolaUniversity had set its sights on a major assessment ofthe institution’s academic programs, finances, anddirection. Given the shifting landscape of private highereducation today, the Loyola faculty like others has notdisputed that such was a prudent decision. Nor did theLoyola faculty doubt that Katrina made that assessmentat once more pressing and more complex: the area


29. For example, “Academic Freedom and Tenure: CityUniversity of New York,” Academe 90 (2004): 43.

30. The president in his subsequent comments on the draftreport called this treatment a “gesture” intended to “freethem to secure other employment.”

28. President Wildes later stated to the Association that thefaculty’s call for an extension until November was out ofthe question because of the need to develop a balancedbudget for the next academic year.

from which the institution drew a significant cohort ofits students had been depopulated by half, and nonecould say how many would return; nor, to the extentthat the university drew students from a distance, was itpossible to predict how many prospective students wouldin future be chary of attending college in New Orleans.

The need to chart a course was clear. To do so theuniversity was fortunate in having a set of institutionalrules in place that, consistent with the best standards ofAmerican higher education, ensured that the review ofits programs would be undertaken by the faculty in amanner calculated to ventilate all educational optionsin the light of data—the content, assumptions, method-ology, and implications of which would be fully explored—and in the light of agreed-upon criteria. Moreover,those whose positions might be at risk were fortunatebecause the rules assured them of humane treatment—by placement in a suitable alternative position, if avail-able; by retraining, if possible; and, if necessary, by sev-erance pay adequately adjusted in consideration of theiryears of service. They were further fortunate in that therules assured them a hearing process expressly geared totest whether the decisions were procedurally rigorous,educationally justified, and fair. Finally, the university asa whole was fortunate in having an active faculty com-mitted to the institution’s well being and to the perform-ance of its responsibilities in the process.

For reasons neither explained to the Loyola facultynor obvious to this Special Committee, the administra-tion chose to act in disregard of the rules. Instead,President Wildes has rested content to maintain thatthose who concur in this observation unfairly impugnthe university and those who serve it.31

F. Conclusions1. The administration of Loyola University New

Orleans, in acting to terminate the appoint-ments of seventeen members of the faculty on

stated grounds of program discontinuance,proceeded in gross disregard of its own appli-cable policies and of the Association-recommended standards with which thosepolicies comport.

2. The administration, in rescinding teachingassignments that had been made for some ofthese faculty members for their terminal yearand in barring them from campus access andfacilities, effectively subjected them to summarydismissal in violation of the 1940 Statementof Principles on Academic Freedom andTenure and the university’s own officialtenure policies.

3. In ignoring prerogatives and official actions ofduly constituted faculty bodies and in being un-responsive to faculty calls for a collaborativerelationship following successive faculty votes ofno confidence in the administration, the LoyolaUniversity New Orleans administration has heldto a position inimical to principles of sharedgovernance as enunciated in the Statement onGovernment of Colleges and Universities.

G. EpilogueBy date of January 10, 2007, a draft copy of this report,with an invitation for corrections and comments, wassent to President Wildes and other administrative offi-cers, to chairs of university and faculty bodies cited inthe report, to officers of the AAUP chapter, and to indi-vidual faculty members who had sought the Associa-tion’s assistance.

On February 1, the AAUP chapter sent a letter toeach member of the Loyola Board of Trustees dis-cussing the prospect and potential ramifications ofpossible AAUP censure if the findings and conclusionsin the Special Committee’s report do not lead to promptcorrective action. The chapter asked the trustees “toacknowledge that wrongs have been committed, and toundertake, with the greatest possible urgency, whateversteps are necessary to demonstrate the institution’s firmcommitment to righting those wrongs.”

Taking note of the draft report in a February 9 bi-weekly update on university affairs for faculty and staff,President Wildes stated that the national AAUP and thelocal chapter want “a restoration of the status quobefore we went through the reorganization last spring.”He referred to this as the national AAUP’s position despitethe Special Committee’s statements, in its “ConcludingObservation” on Loyola, that the soundness of under-taking “a major assessment of the institution’s aca-



31. President Wildes concluded his comments on the draftreport by stating that

the draft focuses only on faculty rights and does notaddress at all the common good, indeed the very sur-vival of the university. The cost to delay in decisionmaking would have been high, as our enrollmentnumbers for this year show, and would have profound-ly impacted the university for years to come. The Boardof Trustees has a fiduciary obligation to protect theuniversity, and the board acted to fulfill its duty. We didfollow the advisory process outlined in our Handbookin the midst of extraordinary circumstances.


demic programs, finances, and direction” was notdisputed by the faculty, that the assessment has become“at once more pressing and more complex” as a resultof Katrina, and that the “need to chart a course wasclear.” As to the AAUP chapter’s position, its officerschallenged President Wildes to provide evidence thatanyone representing the chapter had advocated areturn to the pre-spring status quo. Absent such evi-dence, the chapter officers called upon him to publisha retraction of the statement he had made.

Following a meeting of the University Senate onFebruary 8, that body’s executive committee sent a letterto each of the trustees conveying the Special Committee’sconclusions and, like the AAUP chapter’s letter, encour-aging board members to take steps to correct wrongfulactions and avoid prospective AAUP censure. At itsFebruary 8 meeting, the University Senate approved a“Call for Action,” intended as an update of the senate’sJune 2006 “Call for Conversation” and a response to theDecember 2006 “ongoing conversation” memorandumfrom President Wildes and to the Special Committee’sdraft report. Its full text follows.

The University Senate’s Call for ActionThe American Association of University Professorsdraft report from the Special Committee onHurricane Katrina and New Orleans Universitiesconfirms the concerns outlined in “A Call forConversation and Critique of Pathways.” The uni-versity’s senior administrators have placed them-selves at serious risk of AAUP censure and theirpost-Katrina actions are likely to result in censureof the administration. Our collective interests areto avoid censure for the sake of the long-termhealth and vitality of our Loyola University.

The University Senate feels strongly that theonly way to proceed at this point is to focus onaddressing the mistakes made: the lack of process,inadequate communication and consultation withthe faculty, faulty data and analysis used in deci-sion making, and the lack of a shared vision forthe future of the university. We must move with alldeliberate speed to ameliorate the negative impactof ill-informed decisions on faculty and staff col-leagues. The single most important way to avoidAAUP censure is to focus on the core issue ofimproving the relationship between faculty andadministration by restoring shared governance aswritten in the Faculty Handbook. Therefore, we callon our president, provost, and the Board of Trusteesto implement immediately the following points:

1. The president must immediately acknowledgethat the Faculty Handbook is the equivalent ofour Constitution whose primacy must be de-fended and maintained at all cost. Given this,he must also accept the Standing Council forAcademic Planning (SCAP) Pathways report as“presumptively valid.” If all of the SCAP recom-mendations cannot be implemented at thistime, the university should make every effort toplace terminated tenured or tenure-track fac-ulty in other appropriate university positions.If this is not possible, then the administrationshould begin negotiating fair agreements withall terminated faculty members “equitablyadjusted to the faculty member’s length of pastand potential service” (see the next point).

2. The administration (working with legal coun-sel) should negotiate fair and equitable sepa-ration packages with all terminated facultymembers who cannot be placed in other uni-versity positions. Packages must be judged asreasonable based on the Faculty Handbook(see Chapter 9.E.2) which states that, in suchmatters, years of past and potential service befactored into such decisions. In fact, the uni-versity administration should seek guidancefrom the AAUP to help develop these packages.After all, the university will have to settle withfaculty members eventually and most Loyolacommunity members would like to see thedollars go to our terminated colleagues ratherthan to legal representatives. The universityadministration should move quickly on thisitem so that we can salvage as much good willand hope for our community as possible.

3. The administration should meet with representa-tives from the AAUP immediately and demon-strate progress being made in effectively work-ing with the faculty (especially on items 1 and2). We need to engage in appropriate processesbecause the outcomes will impact adversely thelife of this institution for many years to come.The university must avoid AAUP censure if atall possible.

4. All committees that are part of our universitygovernance structure should begin regularlyscheduled meetings immediately and do thework described in the Faculty Handbook.Further, the administration has to work col-laboratively with the faculty representatives toestablish the agendas for these meetings to 99


ensure that faculty time is well spent workingon substantive issues versus busy work designedto give the appearance of shared governance.This is especially critical for university commit-tees, specifically the Standing Council for Aca-demic Planning (SCAP), the University Plan-ning Team (UPT), and the University BudgetCommittee (UBC). Faculty representativesshould be provided with detailed agendas andsupport information in a timely manner to en-sure informed discussion and participation. Itis only through such a process that our claimsto the Southern Association of Colleges andSchools that we operate under a system ofshared governance and that we have a rationalapproach to planning and budgeting can besubstantiated.

5. Suspended programs must have the opportunityto appeal their suspension immediately toavoid irreparable damage to those programs.Each suspended program shall submit a pro-posal justifying reinstatement to the appropri-ate academic dean. Upon approval by thedean, the proposal will be forwarded to theprovost to be placed on the agenda of the nextregularly scheduled SCAP meeting, where thedean and respective department chair willargue the merits of reinstatement.

6. The process for program review must follow theguidelines as specified in the Faculty Handbook.Thus, in October 2006, the University Senatecharged a Senate subcommittee to review pro-gram criteria proposed by SCAP. The subcom-mittee presented its draft to the Senate inDecember 2006, and the criteria [wereapproved] by the full Senate in the February2007 meeting [and] returned to SCAP for pro-gram review. It is important to note that anyprogram review and any criteria developed forthe review process must be dynamic and everchanging. Approval must involve the Senateand SCAP as the Faculty Handbook requires.

7. During the 2006–07 academic year, theUniversity Rank and Tenure Committee(URTC) has been meeting to hear appealsbrought forth by Pathways-terminated faculty.To restore open communication and informa-tion dissemination, the University Senaterequests from the URTC a summary of theappeal decisions along with their specificrationale. The Senate further requests a sum-

mary of the president’s reply to the URTC onthe matter.

8. The University Senate in cooperation with theadministration will formulate criteria for iden-tifying a bona fide state of financial exigencyand for determining proper institutionalresponses to such a condition (Faculty Hand-book 9.F.). This proactive planning approachshould be a part of our emergency planningefforts in the event of another disaster.

By letter of March 8, 2007, the University Rank andTenure Committee provided the university president andthe subject professors with letters conveying its findingsin the five cases it had heard on appointment termina-tions resulting from the Pathways plan.

The hearing committee in each letter defined itscharge as consideration of whether the administrationadhered to the provisions of section E of the facultyhandbook’s chapter 9 that the administration hadinvoked in effecting the termination. The committeereported that it had considered three points: (a)whether the provisions regarding the process for pro-gram discontinuance had been followed; (b) whetherevery effort had been made “to place or retrain theindividual in/for a suitable position elsewhere in theuniversity”; and (c) whether the professor had beenoffered “severance salary equitably adjusted to the fac-ulty member’s length of past and potential service.” Onall three points in all five cases, the University Rankand Tenure Committee determined by vote of 10–0 thatthe administration had violated the faculty handbook.

On point (a), the committee found in the five casesthat the administration—rather than base its actionon the Faculty Handbook’s provisions for evaluation bythe Standing Council for Academic Planning accordingto criteria established by the University Senate—createdits own process and proceeded accordingly. On point(b), the committee found that the administration“made virtually no attempt” to “consider suitable oravailable positions or retraining possibilities for any ofthe faculty members terminated,” referring in each let-ter to available teaching responsibilities that the partic-ular professor could assume. On point (c), the commit-tee found that the one year of severance salary beingpaid to each of the tenured professors selected for termi-nation of appointment did not “represent an attempt toadjust the severance for either past or potential service.”

On the basis of the foregoing findings, the commit-tee in all five cases recommended the professor’sreinstatement.


1 0 0WWW.AAUP.ORGMAY–JUNE 2007

T u l a n e U n i v e r s i t y

A. BackgroundTulane University was founded in 1834 as a medicalcollege and reorganized in 1884 as a comprehensive pri-vate university with its current name. The majority of itsschools and colleges are on the institution’s uptown NewOrleans campus, while the medical school and universityhospital are located downtown. The pre-Katrina uptownenrollment was 10,715 full-time and 2,499 part-timestudents. When the campus reopened in January 2006, thestudent enrollment was 9,480 full time and 1,827 parttime. The total full-time pre-Katrina Tulane faculty num-bered 1,166, a number as of January 2006 considerablyreduced by resignations, retirements, and layoffs, withadditional layoffs to follow suit effective June 30, 2007.

The president of Tulane University, Scott S. Cowen,has served in that capacity since 1998. Prior to that timehe was dean of the School of Management at CaseWestern Reserve University. The governing board ofTulane University is formally titled the Administrators ofthe Tulane Educational Fund, but in daily parlance it isgenerally referred to as the Board of Administrators. Atthe time of Katrina and its immediate aftermath theboard chair was Catherine D. Pierson, since succeededby Philip Greer. Provost and senior vice president foracademic affairs Lester A. Lefton took office in 2001 andheld it until July 1, 2006, when he became president ofKent State University. He was replaced by an interimappointee, Professor Paul L. Barron of the School ofLaw. Dr. Ian Taylor was dean of the School of Medicineuntil he resigned in December 2005, and he wasreplaced by Dr. Paul K. Whelton, who also retained hisexisting appointment as senior vice president for thehealth sciences. He resigned from Tulane, effectiveJanuary 31, 2007, to assume the presidency of LoyolaUniversity Health System in Chicago.

The degree of flood damage to Tulane’s uptowncampus was substantial, but not nearly as severe asthat suffered by the medical school and universityhospital. President Cowen initially estimated propertydamage and operating losses for the 2005–06 fiscalyear as exceeding $300 million, and he subsequentlyreported an actual amount in excess of $450 million.While the uptown campus reopened in January, thereopening of the medical school, many of whosestaff, students, and educational functions had beenshifted to the Baylor School of Medicine in Houstonfor the fall 2005 semester, was not completed until fall2006.

Full-time faculty members received their salariesand benefits during the four months that the universi-

ty was closed. In the wake of a decision by the boardof administrators on December 8, 2005, to declarefinancial exigency, however, at least 160 members ofthe faculty, with some estimates ranging upwards of210, received notifications of release that were sent thenext day. In the days that followed approximatelyninety additional faculty members resigned or tookretirement. Most of the releases were in the School ofMedicine, where the Tulane University Hospital staffwas cut by half and clinical faculty accounted forabout 120 of the total number who were released. Thetenured Tulane faculty members who were releasedincluded thirty-four in the School of Medicine (thirtyclinical and four basic science), in addition to six inthe Freeman School of Business and eighteen in theSchool of Engineering, for a total of fifty-eight.32

Tenured medical faculty received twelve months’ sev-erance pay, and nontenured clinical faculty three totwelve months. In the case of tenured engineering andbusiness faculty notified of release, their contracts wereset to expire as late as June 2007. What is less clear isthe basis for many of these decisions (especially since anumber of units reported that nontenured faculty mem-bers had been retained while tenured faculty werereleased) and the process that led up to such decisions.33

Likewise, less than transparent are the reasons for thediscontinuance of three departments in the School ofEngineering (Mechanical Engineering, Civil and


32. Figures on the number of released faculty and the cate-gories varied somewhat over the period, but some exampleswill give an idea of the scale. According to Yvette Jones, theuniversity’s chief operating officer and senior vice presidentfor external affairs, 132 faculty members out of 550 in theSchool of Medicine were separated (American PsychologicalAssociation, Monitor on Psychology, March 3, 2006).According to a draft Strategic Plan for the medical schoolissued by the Tulane administration in spring 2006, “wewere forced to separate 122 faculty members in December2005 that, when combined with 89 additional resignations,caused an unprecedented 33% reduction of our facultycount.” The situation is somewhat complicated by the ques-tion of how and when the number of voluntary resignationsand retirements was taken into account.

33. President Cowen, commenting on the prepublicationdraft of this report, stated that in many cases nontenuredfaculty members were doing work critical to the universi-ty’s mission while tenured faculty members were not doingsuch work.

VI. Tulane University

Environmental Engineering, and Electrical Engineeringand Computer Science) and two programs in the Schoolof Business. Also at issue is the role of faculty not onlyin these decisions but also in the adoption of an ambi-tious “Plan for Renewal” unveiled before the universityreopened. Placing these matters in context requiresgoing back to the weeks and months of fall 2005, in thewake of Hurricane Katrina’s damage.

B. Events during Fall 2005After Hurricane Katrina struck and fall classes were can-celled, Tulane faculty members, like colleagues at otherNew Orleans institutions, took various courses of action.Some were able to conduct university business in othersettings (in the case of the medical school, as has beennoted, in Houston). Some, faced with damaged homesto which they could not return in a city in which evacu-ation orders had been given, joined professors in otherparts of the country or found temporary professionalquarters at other institutions where they had contacts.The administration and displaced professors both madeefforts to maintain contact during the fall. PresidentCowen periodically sent messages to staff and faculty onan e-mail list, “Tulane Talk”; the university server,whose cable had been subject to repeated flooding, wasback on line although periodically overloaded. In someinstances department chairs or higher-level administra-tors encouraged uptown faculty to return to classes inJanuary, and in no case known to the Special Committeewas any professor discouraged from returning—especially since, as will be shown below, additionalteaching was necessary to make up for the lost semester.

Some time in the second or third week of September2005, Provost Lefton asked deans to communicate totheir respective faculties that all tenure clocks had beenfrozen for 2005–06 “as a result of the catastrophic dis-ruptions caused by Hurricane Katrina to our personal andacademic lives.”34 With the approval of the President’sFaculty Advisory Committee, mid-probationary reviews,promotion and tenure reviews, and reviews for promo-tion to full professor were cancelled for that year, aswere “hearings of requests for reconsideration of lastyear’s unsuccessful third-year reviews and/or promo-tion and tenure cases.” The effect of stopping thetenure clock was to provide all tenure-eligible faculty

with an additional year in their probationary period,while those faculty members seeking promotion to therank of full professor were asked to “wait for a morepropitious time to seek promotion.” External evalua-tors and schools where promotion and tenure commit-tees had already convened were to be notified of thepostponement.

As reported in a communication of Dean Angelo DeNisito the business school faculty, the Tulane administra-tion proceeded to take some additional steps in the faceof the disaster, including the centralization of the uni-versity’s budgeting system, the elimination of discre-tionary funds for travel or research and of overload(that is, additionally compensated) teaching, and thestipulation that everyone could be “asked to take onwhatever duties seem appropriate.” According to thedean, “The President has said that anyone who refusesto carry out such an assignment will be fired or (in thecase of tenured faculty members) they will no longer bepaid until we return in January.” Programmatically,Tulane undergraduates would be offered courses in afifteen-week session beginning in January and a nine-week session that would end in June, to ensure that stu-dents did not fall behind. “We are working on schedulesright now. This is usually something that would involvea great deal of faculty consultation, but we need to getthis done RIGHT NOW, and we have had a number offaculty and administrators working on this [emphasisin the original].” With respect to teaching appoint-ments, however, “we may not be able to afford the luxu-ry of all the adjunct faculty we have employed in thepast.” Except for the threat to suspend the pay of nonco-operating tenured faculty, no indication of larger layoffsor terminations appears in this statement.

As return to New Orleans became possible, PresidentCowen convened several meetings of the President’sFaculty Advisory Committee, a body elected by theTulane University Senate for the purpose of serving as aconsultative instrument and a sounding board for bothfaculty and administrative concerns. During the fall theadvisory committee met four times (the first time inHouston on October 19) at approximately two- to three-week intervals, until the Plan for Renewal (to be dis-cussed below) was issued in December. The record of thisbody’s relationship with the president has been reported,even by his critics, as generally good. According to per-sons who had served on it at different times underPresident Cowen, there was a sense that the views of thecommittee were generally listened to and taken intoaccount. As one former member of the committee put it,the president not only asked for such input and advice


1 02WWW.AAUP.ORGMAY–JUNE 2007

34. The Special Committee derived its copy of the refer-enced statement from a hard copy of the Web site of theSchool of Business, “last updated 9/21/05,” and hence itsestimate of the date of notice.


but also attempted at all times not to prejudice the com-mittee’s deliberations with statements reflecting his per-sonal position. Under more normal circumstances, thegeneral understanding of the advisory committee’s rolewas that it never acted as a substitute body for the senate,but rather as a conduit to and from that body, followingwhich, on any issue of gravity, the senate would be con-sulted. It should also be noted, however, that the senateconstitution describes the committee as elected specifi-cally for advising the president “where subjects of greaturgency or delicacy require immediate consultation.”

On November 11, President Cowen devoted “TulaneTalk” to a message to faculty subtitled “The Future ofOur University.” He alluded in general terms to “conver-sations about the university’s future,” involving “anumber of external advisors from such institutions asHarvard, Johns Hopkins, University of Michigan, Riceand Princeton” and consultation “on a regular basiswith members of the President’s Faculty AdvisoryCommittee. ...” The letter cautioned that, while Tulanewould ensure its commitment to academic excellence inbalance with its “long-term financial viability,” a num-ber of “difficult decisions” would be taken in the nextmonths, “but the result will be a stronger, vibrant andmore focused university prepared for the extraordinarychallenges of the 21st century.” Listing several goals,President Cowen stated that “the center of the renewedTulane should be an exceptional undergraduate pro-gram ... strengthened and surrounded by a limitednumber of graduate, professional and research pro-grams,” thus tipping the administration’s hand withrespect to the forthcoming Plan for Renewal.

President Cowen felt, the Special Committee believeswith some justification, that the extraordinary eventsof 2005 placed the relationship of the advisory com-mittee and the president on the kind of emergencyfooting envisioned in the senate constitution. The pres-ident informed the advisory committee of the need todeclare financial exigency and, judging by the out-come, his explanation was persuasive. The committeeas a whole, according to members who met with theSpecial Committee, did feel that based on the evidencepresented, which included some preliminary disclosureof plans for cutbacks in the schools of engineering,business, and medicine, there was no alternative to thedeclaration, which the advisory committee was specifi-cally asked to endorse and did in the event endorse,signing a statement to that effect. Members stated tothe Special Committee that they believed their endorse-ment of the financial exigency declaration was condi-tioned on the basis of the information provided by the 103WWW.AAUP.ORG MAY–JUNE 2007

administration as of December 3, 2005, and that thedeclaration did not necessarily represent the last wordon conditions that the advisory committee understoodto be still evolving.

After the events of that December, however, somemembers of the committee expressed concerns as towhether they had been encouraged in any meaningfulway to canvass alternatives either to a declaration offinancial exigency or to a shutdown, such as anacross-the-board reduction of salaries. One member ofthe advisory committee told the Special Committeethat the consultation seemed to be “form, not sub-stance. ... We were basically told this is the way itwould be.” An additional and important complicationin the events of this period involving the advisorycommittee was the confidentiality surrounding itspro-ceedings. As one example, when the chair of theDepartment of Mechanical Engineering called the fac-ulty senator from the School of Engineering who wasserving on the committee to find out if there was any-thing in the deliberations he should be informedabout, he said he was told that members had beeninstructed to remain silent on all issues. Had the dis-cussions at the committee actually revolved aroundthe fate of individual faculty members, the injunctionmight have been understandable. Given the fact thatwhat was at stake was the future of the department,however, the exclusion of a broader faculty voiceseems to the Special Committee to stem from a deter-mination that it was a fait accompli not subject todiscussion.

The Tulane “Plan for Renewal” was also presented tothe advisory committee in December. The plan, statingthat “survival and recovery were not the finishing line”but rather a starting point for long-range restructuring,put forward a proposal for a significant refocusing onthe undergraduate experience. The Faculty of LiberalArts and Sciences and the School of Engineering wouldbe reorganized into the School of Liberal Arts and theSchool of Science and Engineering as part of a signifi-cant de-emphasis and reorientation of the existing engi-neering programs, with the number of accredited pro-grams in the present engineering school being reducedfrom nine to two. The plan announced the indefinitesuspension of numerous PhD programs in the socialsciences, humanities and fine arts, sciences (with someregrouping of degree programs), engineering, socialwork, and law. It proposed what was described as high-quality doctoral programs in the professions, as rede-fined and regrouped. As part of an effort to offer under-graduates more instruction by full-time faculty, the

existing faculty would be supplemented with “professorsof the practice” who would be full-time, non-tenure-track faculty members not expected to undertakeregular research or service responsibilities.35 Other newinitiatives, such as a Center for Public Service maximiz-ing possibilities for student outreach in New Orleans,were also set forth in the plan. Newcomb College, along-standing undergraduate college for women, andPaul Tulane College would be “suspended” (in effect,would cease to exist) as of fall 2006, while a board ofadministrators task force would examine how bothnames and endowments would be used to support a newundergraduate college.

So far-reaching a reorganization obviously had directimplications for Tulane’s curriculum and for facultystatus, which under widely accepted national norms aswell as AAUP-supported policy are the primary responsi-bility of the faculty.36 The reaction of the advisory com-mittee to the plan was mixed. Though it neitherendorsed nor rejected the plan, it did succeed in block-ing some changes set forth in the initial proposal.Procedural questions turned on whether the implemen-tation of the plan, without further faculty discussion,was governed by quite the same considerations ofurgency as the declaration of financial exigency. Was itreally necessary to press forward with the implementa-tion of the plan before faculty had the opportunity toreturn in January and discuss it? Might general assentto its overall direction have been sought while givingthe faculty opportunity to review it in the course ofimplementing the undergraduate curriculum necessaryto carry it out? The argument was also advanced thatrestructuring should have been delayed until later inthe spring when the university knew how many studentshad returned for the second semester and had a better

handle on likely first-year enrollments. To this, theadministration responded that delay would have exacer-bated the university’s already dire financial situation.37

At a more fundamental and more disturbing level,members of the Association’s Special Committee hearda reiterated claim by Tulane faculty members that theplan was in effect an “opportunistic” attempt to imple-ment failed pre-Katrina proposals, several of which hadbeen previously sought by the administration and resis-ted by the faculty. According to this line of argument,Katrina had provided the opportunity for change thatnormal organs of faculty governance had resisted. Theadministration has vigorously contested this allegation,arguing that some components of the plan, includingthe hiring of “professors of the practice,” had been pre-viously debated and approved by various segments ofthe faculty.

On the other hand, some of President Cowen’s state-ments as reported in the press suggest a point of viewvery close to faculty perception. In remarks quoted inthe Chronicle of Higher Education (December 9,2005), he said that “we basically cut the programs thatwere not the strongest. ... Under the current way univer-sities operate, you can’t make those decisions undernormal circumstances. It takes an event like this.”Another report stated, “Using the powers granted him asa result of the school’s financial emergency, [PresidentCowen] has enacted a bold, controversial, and wrench-ing ‘renewal plan,’ with which he hopes to remakeTulane from a very competitive school into a truly eliteone. ‘I wouldn’t wish this on anybody,’ he says. ‘But outof every [disaster] comes an opportunity. We might aswell take the opportunity to reinvent ourselves.’”38 TheSpecial Committee sees very little daylight between suchreported statements and the view of dissenting facultymembers on the matter.

C. The Appointment Terminations ofDecember 2005: The Medical SchoolDuring fall 2005 some thirty-five faculty members fromthe School of Medicine went to Houston at their own



37. Adding to this response, President Cowen in comment-ing on the draft report stated that no designated facultymember contended at the time that action could be post-poned without imperiling the financial situation and thatthe report provides no basis for questioning the board’sjudgment on the matter.

38. Jennifer Reingold, “The Storm after the Storm,” FastCompany 104 (April 2006): 88.

35. The proposal for “professors of the practice” had beenunder discussion at Tulane and though it was, in theevent, approved by the University Senate in March 2006,disagreement exists between the administration and somemembers of the faculty as to whether in fact the provosthad been correct in his report to the senate that the vari-ous schools and colleges had concurred in the proposal.Proponents of the appointment category defended it on thegrounds that it represented a welcome move to reducedependence on part-time faculty members; opponents sawit as another attempt on the part of the administration toweaken tenure in the post-Katrina environment.

36. See, for example, the Association’s Statement onGovernment of Colleges and Universities.


cost and began to develop a program for medical stu-dents, assuming various new responsibilities. One ofthese individuals, a professor of fifteen years’ standingwho was subsequently to receive notice of termination,acted as interim clinical clerkship director and handledother assignments that needed to be carried out inanticipation of previously scheduled visits of accredita-tion bodies. Upon their return to New Orleans, manysuch faculty had to try to restart their laboratories andresearch programs in anticipation of the return of stu-dents. Several medical school professors told the SpecialCommittee that they attempted frequent and regularcontacts with their chairs for directions and volunteeredfor numerous duties on their return to a city wheremuch, programmatically, remained to be salvaged.

Even as professors planned and executed their returnsto New Orleans, discussions were already under way asearly as September 20 in the medical school regardingthe identification of “mission-critical faculty” and thesorting-out of “nonessential” faculty whose funding(through research or patient income) or role in train-ing clinicians was not deemed adequate to justify theircontinuance. A thirty-four-page matrix identifying allfaculty members by name, degree, rank, and depart-ment was used to enter such factors as their tenured sta-tus, their clinical and research contributions, and,where deemed appropriate, a date of termination, retire-ment, or departure, or a decision to retain. A number ofprofessors who spoke to members of the SpecialCommittee were unfamiliar with the matrix and ques-tioned its use and the accuracy of the data it contained.Inasmuch as the Special Committee does not haveaccess to the data that may have figured in many of theindividual cases, it suffices for the time being simply tosay that, aside from a general evaluation of the profes-sor’s funding record and programmatic usefulness (andit is not clear that in all cases even this was instrumen-tal in the decision on retention), the lack of clarity inthe decision-making process itself caused considerableanxiety and aroused resentment, according to facultymembers with whom the committee met. Further com-plicating the picture was that in the medical school,where no program in its entirety as such was explicitlytargeted for discontinuance, the termination of specifictenured faculty appointments often left untenured pro-fessors untouched.

On December 7 and 8, 2005, the board of administra-tors met to discuss the criteria for retention and dis-missal of faculty members. The available evidence indi-cates that no faculty body was consulted in the develop-ment of these criteria. On December 9, following the

board’s declaration of financial exigency the previousday, termination notices were sent to more than 120faculty members in the School of Medicine (see com-ments earlier for variations in the reported figures).Some professors reported that they were called by theirchairs at the last moment. (The suddenness of thisnotice was not confined to the medical school: one pro-fessor in engineering told the Special Committee that hehad learned about the discontinuance of his particularprogram half an hour before the university announce-ment from a reporter who called him for his reactions.)

At a meeting that same December 9, departmentchairs in the medical school were handed brownenvelopes containing the names of persons in theirunits whose appointments were to be terminated, whichin some cases included the chairs themselves. In anumber of cases, the Special Committee was informed,there was no necessary connection between the lists thechairs had been invited to submit earlier and those thatwere returned to them in the brown envelopes ofDecember 9. Whether all chairs were equally in the darkcannot be ascertained, but the facts indicate thatresponsibility for the decisions rested essentially in thehands of Senior Vice President Whelton, following thedeliberations of the administrative group that haddefined the category of “mission-critical faculty.” Inaddition to the December 9 notifications, terminationnotices signed by Dr. Whelton went out to medicalschool professors, many of whom were still scatteredacross the country, in the next several days. The criticalparagraph of the particular letter to which the SpecialCommittee has had access reads, “I regret to inform youthat as part of the university’s response to the financialexigency, the Health Sciences Center and the School ofMedicine will be restructured in a manner that involvesa reduction in size of the faculty. As part of this reorgan-ization, your position will be eliminated and youremployment with the University will end effectiveJanuary 31, 2006.” The next paragraph stipulated thatas a result of termination, the professor would receive amonthly severance payment in an amount equal to theprofessor’s monthly base salary plus 50 percent of thecurrent supplemental salary, excluding employee bene-fits, for three months. No mention was made of anyright of appeal under the Tulane statutes.

Members of the Special Committee and the staffspoke either in person or by telephone with twelve pro-fessors from the medical school, nine of whom hadbeen directly affected by the cutbacks. Of these twelve,nine were tenured and three were nontenured clinicalfaculty, one of whom had voluntarily left the tenure 105


track several years before to help meet pressing clinicalneeds. Those who were tenured had been awardedtenure between 1969 and 1998. Four held endowedchairs. One of these was reinstated under pressure fromthe primary donors, but at a salary based entirely ondollars generated by the endowment with no additionalfinancial support from Tulane, while another, who hadbeen at Tulane for twenty-two years, stated that none ofhis salary was paid by the university but rather generat-ed through patient fees and endowment money. Stillanother endowed chairholder had also served as depart-ment chair until the preceding summer, when he vol-untarily stepped down to resume an active research pro-gram. One clinician stated that seven-eighths of hisincome came from the Veterans Administration hospi-tal, with the remaining eighth supplied by Tulane. Ofthe two other nontenured clinicians, one stated that hehad been in patient care for twenty-eight years and gen-erated three-quarters of his own salary through theTulane clinic and the Veterans Administration hospital,while the other estimated that his patient-care incomejust about covered his own salary.39

At least two of the professors had directed large andwell-funded training programs in their discipline. In theDepartment of Psychiatry and Neurology, with approxi-mately fifty faculty, half were released, including all butone of the tenured psychologists, thus decimating a psy-chology internship program whose continued accredita-tion by the American Psychological Association was thuscast in doubt. Elsewhere in the School of Medicine, abasic scientist and the most recently tenured professoramong those with whom the Special Committee spoke,carried a full-time teaching load, was active in gettinggrants, and had been active as well in faculty gover-nance; at the president’s request she had attended, as arepresentative of the President’s Faculty AdvisoryCommittee, the meeting of the board of administratorsat which the issue of financial exigency was discussed.In one case, the department chair of the tenured profes-sor being dismissed had asked that the latter be retainedon funds currently available in the department’s masteraccount; the chair was informed that the money could

not be used in that manner, and that the program wasto be discontinued. Several of the professors had activelinks in the New Orleans medical community, not onlywith the Veterans Administration hospital but also withthe LSU Health Sciences Center.

In some, though not all, of the foregoing cases, theaffected professors contended that previous disagree-ments with the administration, especially the adminis-tration of the medical school, played a role in theirrelease; others had no such record and therefore, weigh-ing their own performance, found the decision puzzling.Reasons for the terminations were repeatedly describedas having been based on unclear criteria and carriedout secretively. This need not mean that all termina-tions must be presumed to be without justification, butthe question of consistency in the application of stan-dards remains very much open. While the SpecialCommittee has no doubt that income generation playeda key role in many if not most termination decisions inthe medical school, it noted exceptions made for coursecoordinators in some areas, while in other cases itfound no clear evidence of how much money theTulane administration believed it was effectively savingin such terminations.40 In a number of instances it wasalleged that tenured faculty members with no recenthistory of grants and no critical functions in either edu-cation or clinical training were retained.

On a purely programmatic basis, it was difficult forthe affected faculty to discern the operative principles ofselection regarding who should go and who should stay.Tenure did not seem to offer any additional protectionto those who held it, other than more adequate notice oftermination and/or severance pay. The SpecialCommittee heard reports that nontenured professorswere retained, some of them having been trained bytenured professors who had been let go. In theDepartment of Ophthalmology, the committee wasinformed, six of thirteen full-time faculty members weretenured, and four were let go, of whom one was tenured.One professor stated he had been told by an administra-tor that “tenure was not considered.” At last report, thatdepartment had appointed part-time faculty to teach thepathology course formerly taught by the released



40. The Special Committee acknowledges, of course, thatsalary lines may not tell the whole story, and that over-head costs must be factored in as well. But since no disclo-sure of figures, either aggregate or broken down, is knownto have been made by the Tulane University administra-tion, this committee has no way of ascertaining how suchconsiderations played out.

39. President Cowen, commenting on this paragraph inthe draft report, noted “the sharp reduction in patient feesoccasioned by closure of hospitals and de-population ofNew Orleans following Katrina.” He also noted that incomefrom an endowed chair ordinarily does not cover the pro-fessor’s total compensation and that reassignment of thechair to another professor can result in savings in theother professor’s salary.


tenured professor in order to satisfy accreditationrequirements. The perception that the process leading tothe termination of an appointment had been anythingbut transparent was matched by uncertainty as to justwhat was happening after December; several facultymembers reported that they had heard of some rein-statements but had no more sense of what principlesgoverned reinstatements than they did of those that haddictated termination decisions.

D. Faculty Appeals in the School ofMedicineOf four tenured professors in the School of Medicinewho contacted the Association, only one pressed hisappeal through the grievance committee of the schoolto the Senate Committee on Faculty Tenure, Freedom,and Responsibility (FTFR Committee), an elected bodythat is normally the next and final stage of appeal atthe faculty level. The FTFR Committee has institutional-level jurisdiction over all appeals involving terminationof appointment. To judge from the school grievancecommittee’s handling of that case (for reasons that willbe explained shortly), it would in fact have been idle forothers to present their own grievances, and by the timethe single appeal reached the FTFR Committee, whicheventually upheld the school grievance committee’sfindings, it was summer and the committee was inprocess of reconstitution. The professor in question sub-sequently took a position at another university, and hiscase warrants brief comment mainly to dramatize theappellate problems under applicable AAUP-supportedstandards as they existed generally; they were equallyapplicable in the case of program discontinuance.

This professor was one of the endowed chairholders,in his fourth year of service, with an extensive teachingrecord (which the administration disputed), little or norecord of external funding (his area of research was themedical humanities, in which such funding is sparse),and no expectation of clinical service connected withhis initial appointment (although the administrationcited that as a reason for the determination that he wasnonessential). Reporting on the matter on May 3, 2006,after separate presentations (the administration declinedto make an appearance, providing only a writtenresponse and no opportunity for cross-examination),the medical school grievance committee supported theadministration’s contention that a condition of finan-cial exigency existed, that Regulation 4c of theAssociation’s Recommended InstitutionalRegulations on Academic Freedom and Tenure(which the complainant had adduced in support of his

case) was not binding on the Tulane administration,and that it was “beyond the scope of an Article V review[under the Tulane faculty handbook] to evaluate theestablishment and implementation of criteria for dis-missal of programs or faculty.” It added that the admin-istration had the authority to redirect endowed funds(which had provided a portion of the salary in thiscase) to other retained faculty with appropriate qualifi-cations, assuming that the donors were notified of theintent to redirect, and that “because so many otherpositions were terminated post-Katrina, there were noother ‘suitable positions’” to which the faculty membercould be reassigned. The report concluded that the dis-missal was carried out in accordance with handbookguidelines, though in what might be termed a slap onthe wrist it did state that its assessment of the case“would have been expedited by the presence of anAdministrative representation” at the hearing, and itsuggested that the appeal would be best served by theFTFR Committee, which could ensure uniformity in theapplication of termination standards.

Regulation 4c of the Association’s RecommendedInstitutional Regulations speaks to procedural stan-dards in the termination of faculty appointments forreasons of financial exigency. In asserting a right onbehalf of the faculty member for a full hearing, it statesthat such a hearing “need not conform in all respectswith a proceeding conducted pursuant to Regulation 5[which governs dismissal for cause], but [that] theessentials of an on-the-record adjudicative hearing willbe observed.” By contrast, Article V of Tulane’s facultyhandbook states only that the faculty member has theright to have the issues reviewed by the divisional facul-ty and the FTFR Committee. The Special Committeebelieves that the right of each party to cross-examinethe other at a hearing, and the provision of the sameevidence to the complainant that is given to the hearingcommittee, are essential components of a hearing ontermination of appointment and that their absence con-stituted a serious departure from AAUP-supported stan-dards of academic due process.

E. The Appointment Terminations ofDecember 2005: The School of BusinessOn December 9, 2005, the provost sent out terminationnotices to several tenured members of the School ofBusiness faculty similar in wording to those received bytenured faculty members in the medical school. Thebusiness school professors were issued contracts expir-ing June 30, 2007. On December 23, Dean DeNisi noti-fied his faculty that as a result of the financial straits in107


which the university found itself, the school would haveto share in the burden of reducing faculty costs.

The School of Business is organized not by depart-ments but by programs, each with a coordinator.According to the dean’s memorandum, two programswere now scheduled for elimination and replacement bya differently named entity. One was Marketing, to bereplaced by a new unit called Consumer Behavior/Marketing, and the other was Operations Management/Information Systems, or as it is also referenced in thematerial, Information and Operations Management.According to the dean, each area would be staffed byfaculty members with expertise specific to the newnomenclature, supplemented by one or two otherswhose versatility would make them logical additions.The result of this restructuring, not previously discussedby the general faculty of the school, was the appoint-ment terminations of two of the three tenured professorsin information and operations management and four ofthe six tenured professors in the marketing program.Two of the three nontenured, tenure-eligible professorswere retained in the first unit, and both of the non-tenured, tenure-eligible in the second, so that the weightof the terminations fell most heavily on the tenured,and older, professors, several of whom had two or moredecades of service to the university—two as tenured fullprofessors after thirty and twenty-nine years respectivelyand two others as tenured associate professors after thir-ty-four and seventeen years respectively.

In the marketing program, one of the four releasedprofessors took a position elsewhere and the othersretired; as of the date of preparation of this report, onlyone case of involuntary termination of tenure in thebusiness school, that of a more recently tenured facultymember in information and operations management,remains unresolved. While tenure, as in the School ofMedicine, has been acknowledged in notice and sever-ance arrangements, the Special Committee was told thatthree of the tenured professors over sixty-five years ofage were offered a one-year buyout to leave July 1, 2006,with a 17 percent bonus if they relinquished any furtherclaims against the university. A similar offer was report-ed in information and operations management.

F. Program Terminations in the School ofEngineeringAs reported above, the Plan for Renewal envisioned thedissolution of the School of Engineering as a separateentity and its absorption, with a considerably reducedfaculty, into a newly constituted School of Science andEngineering. On December 10, 2005, Dean Nicholas

Altiero of the engineering school sent an e-mail mes-sage to Tulane engineering students expressing his dis-appointment that the board of administrators haddecided to discontinue the departments of Civil andEnvironmental Engineering, Electrical Engineering andComputer Science, and Mechanical Engineering, andthat he had opposed the move. “President Cowen agreedthat I presented a very strong case but he said that thisis a strategic decision and that, in his view and that ofthe Board, the three affected engineering departmentsare far too small relative to their counterparts to effec-tively compete for national prominence,” Dean Altierowrote. The existing departments of BiomedicalEngineering and Chemical Engineering would bemerged into the new School of Science and Engineeringas of July 1, 2006, while the degree programs offered bythe other three departments would not end until June30, 2007, so that all current juniors and seniors in thosemajors could complete their degrees. With additionaladjustments contemplated for sophomores, only first-year students, according to the administration, would beaffected and would have to transfer to another major ifthey remained at Tulane. Dean Altiero wrote withrespect to the affected professors that “President Cowen,Provost Lefton, and I have all offered our assistance inhelping them secure positions elsewhere and I am cer-tain that there will be many universities around thecountry eager to recruit such talented colleagues.”

The dean stated that he had been offered, and accept-ed, the new position of dean of science and engineeringbecause he was “intrigued by the new model that will beimplemented at Tulane and would very much like toplay a part in its implementation.” He argued that thenew model would make cooperation between scienceand engineering, and between both areas and the med-ical school downtown, more effective.

G. Faculty Appeals in the School ofEngineeringThe three affected departments decided to press theirappeals separately and sequentially. The first in line wasthe Department of Mechanical Engineering, whosechair, Professor Monte Mehrabadi, and his colleaguesaddressed an appeal to President Cowen complainingthat the department’s fate had been decided withoutconsultation with them. In this, its first documentedprotest, the department rested the case for its continu-ance on arguments that continued to be mainstays ofits case over the next several months: (1) that thedepartment was financially independent, with twoendowed chairs, a named professorship, a named




undergraduate scholarship, and a high undergraduateenrollment, ranking fourth among all uptown pro-grams; (2) that the department was nationally competi-tive as gauged by the employment record of its gradu-ates and their recruitment by top graduate programs, itsability to attract high-performing undergraduates, itsability to attract highly qualified junior and senior fac-ulty, and its record of external funding; and (3) that thediscontinuance of mechanical engineering wasunsound because it served as “the foundation forBiomedical Engineering and provide[d] crucial supportfor Chemical Engineering.”

As the following narrative illustrates, the processfollowed in mechanical engineering’s appeal wasanalogous to that in the single medical school caseexamined by the Special Committee: the departmentprepared a careful statement of its case, the adminis-tration responded in terms that were at best obliquelyrelated to the matters at hand and in some casesinconsistent with the understanding that the com-plaining person or body had brought to the table, andin neither case did both parties have opportunity toquestion the other in an adjudicative proceeding ascalled for in the Association’s RecommendedInstitutional Regulations.

In a letter of March 7, 2006, the department took itsappeal to the FTFR Committee, asking for a hearing todetermine first, whether a state of financial exigencyexisted at Tulane and had been determined with ade-quate faculty participation, and second, whether theextent of the exigency and the plan to resolve it involvedappropriate faculty participation. Third, it askedwhether the process by which the department was beingeliminated was consistent either with “principles of fac-ulty governance of Tulane University or with AAUPguidelines,” and fourth, whether every effort had beenmade to place the department’s faculty members inother suitable positions as called for in the Tulane fac-ulty handbook.

The initiation of proceedings by the FTFR Committeewas marked by extended procedural wrangling. Whenthe committee outlined a procedure under Article V inthe handbook that would request written testimony inadvance of the hearing, a presentation by both parties,and the right of each side to pose questions to theother if such questions were also submitted in writingto the committee, the provost objected that the FTFRCommittee seemed to have in mind the more formalprovisions of Article VI governing the dismissal of fac-ulty. Article V, under which program terminations werediscussed, stipulated only a general right of the faculty

“to have the issues reviewed.” According to the provost,the administration, under this reading, was obligatedonly to submit written statements in advance. ProvostLefton suggested that the FTFR Committee have a sep-arate one-time session in private with Yvette Jones,senior vice president for external affairs and chiefoperating officer, and Anthony Lorino, senior vicepresident for operations and chief financial officer, “toexplore and respond to questions about the issue offinancial exigency.” Such a private session couldthen serve as a source of information for any futurechallenges to the programmatic decisions, on whichthe two administrators would provide no specificinformation.41

The department protested what it thought was anunnecessarily restrictive reading of Article V (which,while it did not require, also did not prohibit additionalprocedural guarantees). It objected also to what it con-tended were the inadequacies of a procedure based sole-ly on an oral interview of two senior vice presidents,without any obligation to produce documented evidencefor the decision and without permitting the departmentto cross-examine. The administration’s position, however,ultimately prevailed. On May 11, when the mechanicalengineering chair and two of his colleagues were per-mitted to meet with the FTFR Committee, the adminis-tration sent no representatives. The committee’s meet-ing with vice presidents Jones and Lorino took place onJune 8 with two professors from the department presentas observers. They provided the FTFR Committee with alist of nine questions that they requested to be asked ofthe vice presidents, and eight of them were asked andanswered in the presence of the observers. Before dis-cussing the findings of the FTFR Committee, this reportmoves now to the substantive, as opposed to the proce-dural, matters in dispute.

To read the exchange of documents that set forth thegrounds of the dispute, both procedural and substantive,between the two parties is to experience a mountingsense of the surreal. On April 28, still in advance of theproceeding, the administration provided a general state-


41. Professor Edward C. Strong, chair of the FTFR Com-mittee, to Provost Lefton and Professor Mehrabadi, April 11,2006; Lefton to Strong, April 25, 2006, and to Strong andthe other committee members, May 2, 2006. In his first let-ter, the provost additionally requested that a member of theFTFR Committee who was also a member of the depart-ment be disqualified from participation in the proceedings.That individual recused himself from participating.

ment on the discontinuance of this and the other twodepartments in the engineering school and attached aconfidential second statement—to which neither thedepartment nor this Special Committee, as a result ofthat provision, has had access—on the state of finan-cial exigency confronting the university.42

The statement to which this Special Committee doeshave access proceeds with what might be described asan air of serene imperturbability. In fact, it providesnothing more than a restatement of the original deci-sion, which was by this time a matter of public record:

In deciding which programs to retain, which todiscontinue, and which to reorganize, the admin-istration took into account, for example, such fac-tors about the University’s academic programs as:past and projected ability to meet enrollmentgoals; revenue generation, including the extent oftuition discounting in the program, and whethertuition from students in the program may bereplaced by enrolling additional students in otherprograms at little or no incremental cost; reputa-tion and ranking in national surveys; quality andextent of competitive research funding per facultymember compared with other institutions; exter-nal support for the program, including restrictedand unrestricted gifts; costs associated with oper-ating, improving and expanding the program;program size compared to other programs aroundthe country; and external reviews. Application ofthese considerations resulted in the decision toeliminate the Departments of Civil & Environ-mental Engineering, Electrical Engineering &Computer Science, and Mechanical Engineering.

Such a statement provided neither the FTFRCommittee nor the department with any new informa-tion. If more powerful reasons specific to the disman-tling of the department were expressed in the confiden-tial financial statement, then the requirement of confi-dentiality blocked the department from access to pre-cisely the information that it needed to contest the deci-sion in the first place.

In a document of the same date (April 28), and in asubsequent document dated May 10, 2006, that providedtabular evidence of its contentions, mechanical engi-neering offered the FTFR Committee extensive evidencein support of its view that, far from representing a fiscaldrain on the university incommensurate with itsachievements, the department had been highly success-ful in developing endowment and alumni giving; that itbore its share of indirect-cost recovery funds for the col-lege, outstripping its two nearest competitors in 2004and 2005; and that it served the fourth largest enroll-ment of all departments on the uptown campus andranked fifth place in all aggregate undergraduateenrollments. The April 28 document, which gave muchof the May 10 data in a preliminary form, questionedthe “existence and severity of a state of financial exi-gency at the University.” It presented a defense of the fis-cal role of the department in the school, and it ques-tioned “the nature and extent of faculty participation inthe decision to terminate the Mechanical EngineeringDepartment,” challenging the adequacy of the discus-sions within the President’s Faculty Advisory Committee.A final section dealt with the efforts made, or not made,to find other suitable positions for the affected faculty.Since the new School of Science and Engineering con-tained a Physical and Material Sciences Division, thedepartment argued, its faculty would provide crucialsupport for both biomedical and chemical engineering.

The April 28 document also raised questions aboutthe bona fides of the university’s declaration of financialexigency, inasmuch as new programs were being putforward, open positions in some fields were being filled,and several new commitments were made, notably thereinstatement of several athletic programs and a recent-ly announced $20-million Research EnhancementFund from which faculty could apply for researchexpenses.

Provost Lefton replied in a letter of May 10 that, sinceengineering faculty who had received notices of termi-nation were being retained and given their full salariesuntil June 2007, it was not yet known what positionsmight become available before then. Any faculty mem-ber notified of termination of appointment was at liber-ty to express an interest in any open position and wouldbe considered. “I note,” added the provost, “that theFaculty Handbook does not require the university toattempt to place faculty terminated by reason of finan-cial exigency in other available positions.” As for thequestion of participation in decision making, theprovost responded, “President Cowen and the Tulaneboard made the decision to eliminate the Mechanical



42. President Cowen in his response to the draft reportstated that the department was provided with detailedinformation, including “confidential financial informa-tion and personnel information on termination decisionsthat the parties had an opportunity to review although itwas not copied for confidentiality reasons.”


Engineering Department. As described in prior commu-nications, President Cowen consulted [his FacultyAdvisory Committee] extensively during the process offormulating the Renewal Plan, during a time whenother faculty members were scattered across the coun-try.” Once more, the provost’s letter of May 10 did not gobeyond a recounting of familiar events consequentupon the decision. It did not discuss the grounds forthat decision.

Finally, with respect to how the elimination of thedepartment would contribute to the alleviation of thecondition of financial exigency, Provost Lefton wrote asfollows:

Professor Mehrabadi’s assertions, that there can-not be financial exigency because the Universityhas invested in new and existing programs, filledopen positions, and was able to reopen this year,are unsound. The University was not required torun other programs into the ground in order tosave the discontinued programs. To the contrary,strategic investment and revitalization are neces-sary measures to position the University for sur-vival and success in the future. Further, to theextent that the University’s financial positionappears stronger today than it did last Fall, that isa result of the Renewal Plan; it does not indicatethat the Plan was not needed. As we have notedpreviously, the success of the Plan to date cannotbe cited to argue that it should not have beenimplemented. We will not know for some yearswhether the Plan, taken as a whole, has succeed-ed in positioning the University for success in thepost-Katrina environment. To unwind premature-ly elements of the Renewal Plan would have dis-astrous consequences. Moreover, ProfessorMehrabadi’s argument that financial exigencyshould not take into account projections aboutthe future is unrealistic and illogical. Fundamen-tal management principles required theUniversity to gauge the financial condition of theUniversity going forward, based on availableinformation.

Under Association-recommended policy, “bona fidefinancial exigency” is defined as “an imminent finan-cial crisis that threatens the survival of the institution asa whole and that cannot be alleviated by less drasticmeans [than termination of continuous facultyappointments].” By January 2006, with the Plan forRenewal unveiled, the Tulane administration apparently

saw the university as remaining in a state of financialexigency but able to make decisions in the direction of“strategic investment and revitalization.” Since the dis-continuance of the mechanical engineering departmentand the release of the faculty members in that depart-ment could not take place until the end of June 2007, itis not clear on what other grounds than the launchingof new investment the Plan for Renewal could be con-sidered to have succeeded as early as May 2006.

Given the difficulties under which both the depart-ment and the FTFR Committee may be said to havelabored as a result of the administration’s insistence ona narrow interpretation of Article V and its refusal toenter into any direct discussion with the department, itis notable that the report of the committee, issued onJune 12, amounted to a comprehensive repudiation ofthe grounds adduced by the administration for closingthe department. It found that the vice presidents whohad appeared before the committee “did make a plau-sible case that the University was facing a severe finan-cial problem in the form of a likely large recurringoperating deficit,” but that there was a gap between thegeneral statement presented to the FTFR Committeeand the specific decisions leading to the elimination ofparticular units. It stated that extraordinary actionstaken to relieve the state of financial exigency should belinked specifically to the reduction of financial stress.“This is essentially a conservator’s approach, aimed atpreserving those parts of the institution that are viable,while eliminating those that cannot support themselvesand/or are not central to the institution’s financial mis-sion,” the committee stated. Absent such a link, “finan-cial exigency could be invoked to circumvent funda-mental university principles that are articulated in itsconstitution and faculty handbook.”43

The FTFR Committee observed that, on the basis ofmaterial submitted, mechanical engineering had madea substantial net contribution to the financial health ofthe school, and that the department met its budgetarygoals while “adding to its endowment, enrollment, andindirect cost recovery.” It noted the absence of anycountervailing data from the administration. Given


43. President Cowen, rejecting the “conservator’s approach”in his comments on the draft report, stated that “a para-mount fiduciary duty of those responsible, including facul-ty as well as administrators, for the institution is to pre-serve its mission. Selecting units to close based solely onfinancial condition would be inconsistent with missionpreservation.”

these facts, the FTFR Committee concluded “that theMechanical Engineering Department was terminated forreasons other than its financial performance and that,in effect, its elimination worsened rather than improvedany exigent financial condition that may have existed.”

On the question of faculty consultation, the FTFRCommittee further found no evidence that the advisorycommittee had provided specific advice on the discon-tinuance of the department, and it noted that broaderconsultation was not impossible in an era in which theadministration routinely used e-mail, telephone, andvideo-conferencing to contact faculty. It recalled the factthat the advisory committee had been restricted by con-fidentiality, thus reducing whatever channels for consul-tation might otherwise have existed. It quoted the facul-ty handbook on the obligation of the administration tomake affirmative attempts to place terminated tenuredfaculty in other suitable positions, and recommended,finally, that the decision be evaluated by the SenateCommittee on Educational Policy, that the departmentbe retained within the new School of Science andEngineering pending the evaluation results, and thatthe administration comply with the handbook require-ment “concerning placement of faculty terminatedbecause of abandonment of a department or program ofinstruction.”

On July 13, Professor Mehrabadi sought a meeting ofrepresentatives of the department with President Cowenon the grounds that in January the president had statedhis willingness to be available for discussions arisingout of the events of the preceding fall. The next dayPresident Cowen replied by stating that, inasmuch asthe administration was “in the midst of a formal griev-ance process,” such a meeting would not be appropriate“at this time.” Faculty members concerned about theirparticular status (a question not raised in the depart-ment’s request) could consult Dean Altiero or PaulBarron, who had by this time succeeded Provost Leftonas interim provost and senior vice president for academ-ic affairs. It should be noted that the grievance wasregarded as ongoing because the administration itselfhad decided to pursue the matter to the next stage, anappeal to the board challenging the FTFR Committee’sreport. The administration rejected the reviewing body’sdefense of a “conservator’s approach,” arguing that “thelaw on point does not limit faculty terminations basedon financial exigency to financially troubled units.”Nonetheless, the administration was prepared to assertthat “the decision to discontinue MechanicalEngineering would pass even [this] unrealistic test as anet contributor to the university’s financial losses.” The

only point at which the administration directlyaddressed the department’s tabular data, however, wasin its observations that the tables

generally purport to show only that theMechanical Engineering department met finan-cial targets—without showing that the targetswere sound; the endowment level associated withthe department—although the University canapply much of the endowment to other programsand is working to ensure productive use of all therelated, and undergraduate [mechanical engi-neering] enrollment—without showing associat-ed expenses or effect on the University’s financialcondition. None of the cited data refute that dis-continuance of the School of Engineeringstrengthened the University and was a key ele-ment of the Renewal Plan.

On September 13, the department submitted its ownresponse to the administration’s most recent statement.In a closely reasoned thirteen-page document, it point-ed out, among other things, that the targets were set bythe administration itself, not the department, and thatthe discontinuance of the school was not the focus ofthe grievance, but rather the status of the department asthe chief source of contribution to the material sciencecurriculum in the proposed new School of Science andEngineering. To this the Special Committee would addthat the administration’s reference to endowmentswould appear to concede that the department’s endow-ment offered an attractive target of opportunity for rede-ployment, whether or not on terms that might havebeen acceptable to the original donors. Perhaps themost striking feature of the administration’s responsewas its demand that the department be held to a stan-dard of financial proof that was not in any respect metby the administration itself in its rebuttal. Indeed, it canhardly be said that its rebuttal met the standard alreadyset by the department.

On September 21, 2006, the governing board’s attor-ney notified President Cowen and Professor Mehrabadiof a hearing scheduled for October 26, at which theadministration and faculty would each be allowed amaximum of three representatives plus counsel, a max-imum of twenty-five minutes per side to present theirrespective arguments, and ten minutes on each side forrebuttal. Whatever the constraints of the format, themeeting on October 26 was the first occasion, and thenonly at the behest of the board, on which the two partiesactually spoke with each other in a hearing.




By letter of December 8, 2006, Chair Greer of theboard of administrators informed Professor Mehrabadiand President Cowen that the board had adopted rec-ommendations from a subcommittee relating to the ter-mination of the department. The board thereby deter-mined that a state of financial exigency existed at thetime the decision to discontinue the department wasmade and that it continues to exist; that Tulane hand-book provisions regarding the termination were followed;that faculty participation in the decision on financial exi-gency was not a handbook requirement (although con-sultation with the faculty did in fact occur); that, in thecontext of financial exigency and a reasonable recoveryplan, a department can be discontinued based on factorsother than past financial performance; and that placingtenured mechanical engineering faculty in available newpositions is not a handbook requirement.

The outcome of the mechanical engineering appealbrought no immediate word from the two other engi-neering departments being discontinued regarding theirpreviously expressed intent to follow with their ownappeals.

Meeting on December 27, the officers of the TulaneAAUP chapter adopted the following statement forappearance on the chapter’s Web site and transmissionto the president of the university, the vice chair of thesenate, the chair of the FTFR Committee, and theAssociation’s national office:

The recent action of the Board of Administratorsin denying the appeal of the Department ofMechanical Engineering confirms a dismayingcurrent pattern at Tulane: an utter refusal to giveeither financial or academic reasons for abolish-ing a particular program or department; a simi-larly pointblank refusal to respond to the detailedcase that the department put forward for its con-tinuance and the FTFR Committee firmly sup-ported; and a basic disregard for the university’sobligations to its tenured faculty members. More-over, new programs, e.g., Materials Science andEngineering and Engineering Physics, are beingproposed in the School of Science and Engineer-ing for the Physics Department without referenceto the faculty in the Department of MechanicalEngineering whose professional expertise falls inthis area ... . Neither faculty tenure nor academicgovernance at Tulane University will be secureuntil the administration acknowledges the keyrole of professional expertise in programmaticdecisions and the need to demonstrate why it

believes such expertise should be overridden byother considerations in a specific case.

H. Major IssuesThe Association’s Washington office was in touch on amonthly, and sometimes more frequent, basis with theTulane University administration beginning in January2006 and continuing as more information and addi-tional faculty complaints, whether about terminationsof appointments or closing of programs, reached theoffice. A recurring theme of administrative communi-cations to the faculty at Tulane, as well as in PresidentCowen’s correspondence with Association staff mem-bers, is the premise that Tulane is obligated to observeonly the procedural standards set forth in the facultyhandbook, not those standards (except where they con-form with Tulane’s) promulgated by the Association.Accepting for the moment the president’s view of thematter, the Special Committee will confine itself in thissection of the report to asking how faithfully theTulane administration adhered to the provisions thatare set forth in Tulane’s own faculty handbook. TheSpecial Committee notes, however, not only the broadacceptance of AAUP-recommended policies and princi-ples across the academic community, but also the flexi-bility that an institution of higher learning enjoys inexceeding its own minimal standards in furtherance ofacademic freedom and due process.

1. TERMINATION OF TENURED APPOINTMENTS

Article IV of the Tulane Faculty Handbook sets forththree grounds for the termination of a tenured appoint-ment: (a) dismissal for adequate cause, (b) “extraordi-nary circumstances caused by financial exigency or bybona fide discontinuance of a program or a departmentof instruction,” and (c) demonstrated medical reasonsthat render the faculty member incapacitated fromperforming his or her duties. Article V, Section 1,“Termination of Tenure,” refers to the specific procedur-al standards of Article VI (“Dismissal Procedure”) to beexercised in cases where adequate cause has beenalleged. Section 2 of Article V states that where the ter-mination of a faculty appointment

is based on financial exigency or bona fide dis-continuance of a program or department ofinstruction, Article VI shall not apply, but facultymembers shall be able to have the issues reviewedby the faculty of the division in which they holdappointment, then by the Senate Committee onFaculty Tenure, Freedom and Responsibility, with 113


ultimate review of all controverted issues by theTulane Board of Administrators. In every case offinancial exigency or discontinuance of a pro-gram or department of instruction, the facultymembers concerned shall be given notice as soonas possible and never less than twelve monthsnotice, or in lieu thereof they shall be given sever-ance salary for twelve months. Before terminatingan appointment because of the abandonment of aprogram or department of instruction, the institu-tion shall make every effort to place affected fac-ulty members in other suitable positions. If anappointment is terminated before the end of theappointment period because of financial exigencyor because of the discontinuance of a program ofinstruction, the terminated faculty member’splace shall not be filled by a replacement within aperiod of two years following the effective date oftermination, unless the terminated faculty mem-ber has been offered reappointment and a reason-able time within which to accept or decline it.

As has been seen, although the School of EngineeringGrievance Committee recused itself from a division-level review of the closing of the mechanical engineer-ing department, review by the FTFR Committee andultimate review by the board did take place under theterms of this provision. The administration also pointsout, correctly, that it gave notice not only in accordancewith, but also in excess of, the faculty handbook’stwelve-month notice requirement, and, in the case oftenured medical school faculty whose services were ter-minated immediately, twelve months of severance pay.

With respect to the obligation of the institution to“make every effort to place affected faculty members inother suitable positions,” the Tulane administration hasbeen less forthcoming. In response to a staff letter ofMay 10, 2006, President Cowen and Board Chair Piersonwrote that “the Faculty Handbook does not require theuniversity to attempt to place faculty terminated by rea-son of financial exigency in other available positions. Asentence in the Handbook regarding placement of fac-ulty, cited by some faculty members, when read in thecontext of the several sentences that precede it, does notapply under financial exigency.” This reading of ArticleV, which figures in subsequent correspondence and dec-larations made intramurally, strikes the SpecialCommittee as strained and illogical. If the discontinu-ance flows from an assertion of financial exigency, asoccurred at Tulane late in 2005, then the administra-tion is making a distinction without a difference, in

curious contrast to the president’s widely reportedimpatience with normal bureaucratic processes underextraordinary circumstances. Indeed, it is conjecturalat best whether, but for the extraordinary fiscal conse-quences of Hurricane Katrina as they were perceived byTulane’s administration, efforts to close or eliminatethe mechanical engineering department would haveproceeded in the precipitate manner in which they did.

The May 10 letter to the staff from President Cowenand Chair Pierson continues, “Nonetheless, the univer-sity intends to consider terminated faculty members forany open positions in which they express interest if theyare qualified.” Given the June 2007 notice, “it is not yetfully known what positions may become availablebefore then or in what positions terminated facultymembers may be interested.”

In the case of mechanical engineering, the adminis-tration had already made plans for material sciencecourses in the new school, and a proffer of appointmentto affected faculty would appear to be a logical conse-quence that, whatever the fate of the department as aunit, need not have been deferred until June 2007. But astill more fundamental point lurks behind the adminis-tration’s reply and has implications beyond the status ofthe department. Instead of making every effort of its own,the administration has placed the burden on the dis-missed (tenured) faculty—the “talented colleagues” ofDean Altiero’s letter—both to apply for such positionsand to shoulder the evidentiary burden for being restoredto the Tulane faculty. In effect this places the affectedprofessors in the same position as candidates for juniorpositions. The Special Committee regards this as an un-acceptably insensitive way of proceeding in the case oftenured faculty members, all of whom had been grant-ed security of position by the university after rigorousassessment, and some of whom have given a career ofservice to the institution. The Tulane administrationappears to have lost sight of the fact that it was obligeditself to make every effort to place affected tenured pro-fessors in suitable positions elsewhere in the universitybefore acting to terminate their appointments.

The final sentence of the handbook’s Section 2, quot-ed above, spells out a different consequence in the caseof terminated tenured appointments in the School ofMedicine, where notice under the twelve-month stan-dard did not apply because of immediate drops in rev-enue. As has already been stated, the Special Committeereceived disquieting reports that in some cases non-tenured faculty were retained to teach courses thattenured faculty had taught and in some cases trainedthem to teach. The Association’s staff raised this ques-




tion on several occasions with the Tulane administra-tion, but its only response turned on the earlier decisionof the medical school’s grievance committee (in thatcommittee’s own words) not to “evaluate the establish-ment and implementation of criteria for dismissal ofprograms and/or faculty,” including dismissal oftenured as opposed to nontenured faculty. The adminis-tration argued that that committee had concluded inregard to such matters that (again in its words) “dueprocess had been initiated and is being carried out in amanner consistent with the Faculty Handbook.”

But even if, as in this case, the administration’s posi-tion is that the scale of dismissals in the School ofMedicine did not permit the relocation of affected facul-ty in other departments, the faculty handbook does stip-ulate that “the terminated faculty member’s place shallnot be filled by a replacement within a period of twoyears following the effective date of termination, unlessthe terminated faculty member has been offered reap-pointment and a reasonable time within which toaccept it or decline it.” The AAUP’s own principles donot preclude the retention of nontenured over tenuredfaculty, but they permit such an action only if a seriousdistortion of the academic program would otherwiseresult.44 While new faculty members have been appoint-ed in the School of Medicine, the Special Committee isunaware of the administration’s first having offeredappointment to any displaced tenured professor whoseteaching responsibilities had been thus reassigned.45 Ineffect, some of the proceedings overseen and approvedby the administration provided no greater obstacle tothe termination of a tenured than that of a nontenured

appointment, even where some deference was paid totenure by the terms of the notice or severance pay.

2. ACADEMIC GOVERNANCE AND THE BONA FIDES OFTHE DECLARATION OF FINANCIAL EXIGENCY

As the foregoing discussion indicates, the only facultycommittee to play a role in the decision to declare astate of financial exigency was the President’s FacultyAdvisory Committee, which acted to endorse the state-ment on what appears to have been a multitude of con-siderations: the recognition that the fiscal situation atTulane did seem to be very serious, the need to showsome degree of unanimity at a moment of crisis, and,less positively, the sense that, as one person put it, “thetrain had left the station.” While the advisory committeeis a creature of the senate and therefore presumably hassome reporting obligations to that body, it seems also tohave been the case that, on occasions in the past, thenature of its exchanges with the president had beentreated as confidential. Nonetheless, the repeatedly recit-ed view of the administration, that consultation with thecommittee represented all that was possible or indeednecessary under the circumstances of looming fiscalcrisis and a faculty scattered in all directions, warrantssome additional analysis.

While communications with the faculty were nodoubt difficult in the first few weeks following Katrina,they were not impossible, and technological difficultiesappear to have been alleviated well prior to the reopen-ing of the uptown campus. Certainly at the school level,where communications among smaller groups of peersfacilitated exchanges, academic decision making con-tinued. Thus the dean of the business school, who wasin touch with most if not all of his faculty, had formed afaculty task force to redesign the MBA curriculum, atask completed before the campus opened in January.

Once the advisory committee had begun its meetingsprior to the declaration of financial exigency, the stipu-lation of confidentiality made it impossible for facultymembers not on that committee to ascertain the courseof events. Even assuming, however, that the committeeitself was given only an overview of the facts and, inbroad outline, their implications, individual facultymembers facing termination of their appointments, andfaculty representatives of programs threatened by dis-continuance, could and should have had access tosomething more than a blanket statement of criteriathat are far from self-explanatory in their application toindividual cases. At a certain juncture in circumstancessuch as Tulane faced, therefore, the Special Committeewould argue, if suspicion about the administration’s 115


44. Recommended Institutional Regulations onAcademic Freedom and Tenure, Regulation 4c(3). Inlight of the Special Committee’s decision to restrict thediscussion in this section to Tulane’s compliance with itsown regulations, it does not adduce this reference to arguethat under Tulane policy it should have been applied, butonly to dispel the frequent misunderstanding that theAssociation under all conditions, without respect to thefacts of a given case, favors the retention of tenured facultyover nontenured faculty. That is a guiding presumption,indeed, but it is not without exceptions.

45. President Cowen, commenting on this paragraph in thedraft text, stated that it “is inaccurate to the extent that itimplies that positions of terminated faculty members in themedical school have been filled. Their critical duties havebeen taken over by other faculty members or in some casespart-time faculty retained to fill a particular limited need.”

motives was to have been either forestalled or dispelled,that openness and candor rather than a continuedadherence to confidentiality would have been in theadministration’s own best interest.

Much of the effective power in Tulane’s system of fac-ulty governance rests, the Special Committee isinformed, at the school level. The Faculty of Liberal Artsand Sciences, however, contrary to its own bylaws,played no part in recommending its own division into aSchool of Liberal Arts and a new School of Science andEngineering, the creation of a category of “professors ofthe practice”, or the elimination of Sophie NewcombCollege and Paul Tulane College as separate entities.46

Similar reports, documented in varying degrees, havereached the Special Committee from faculty representa-tives of other schools. The role of department chairsseems equally unclear, with some of them claiming thatthe personnel decisions reached by senior administra-tors and reported to them, particularly in the School ofMedicine, bore little or no resemblance to the recom-mendations they had made. The Special Committee hasalso noted several instances in which deans made simi-lar disclaimers to their faculties and stressed their ownresistance to the plans finally implemented. This patternof decision making does not augur well either for thefaculty as a whole, deprived as it was during this criticalperiod of a strong central body to press its needs andinterests, or for spirited and independent administrators.

I. Concluding RemarksThe bona fides of the declared state of financial exi-gency and its continuance—which the administration

has argued (in letters to the Association) must for now beseen as indefinite—need also to be weighed. The SpecialCommittee takes no position regarding the likelihood ofadequate financial recovery through insurance, a pointstill unsettled (and indeed, the committee is informed, inat least one case in litigation). Neither does the committeeobject that more attention was not given to across-the-board salary cuts, briefly canvassed by the advisory com-mittee but not endorsed by the administration, since aplausible argument can be made that a proper response tofinancial exigency does not necessarily include an actionthat might have in fact precipitated resignations in theunits that were singled out for survival and long-termstrengthening, as well as among faculty members whomthe institution might be most eager to keep. Nor wouldthe Special Committee presume to second-guess decisionsregarding the possible use of the Tulane endowment foroperating expenses; indeed, the administration’s decisionnot to draw down the endowment in such a manner haspowerful arguments in its favor. As matters presentedthemselves in December 2005, the committee wouldacknowledge further that the administration may havehad strong prudential grounds for fearing a more sub-stantial loss of returning students and tuition income.

Since December 2005, however, the administration haspublicly announced a recovery of more than $200 millionfrom a variety of insurance, federal, and private sources. Itdid not freeze hiring, and according to press reports it pur-chased an apartment building from an investor who soldit to the university within a week after his own purchase atan estimated 30 percent above the market price. It hasalso made advances on a new stadium. (Possibly in boththese instances it drew upon auxiliary fund sources notavailable for instructional purposes.) The repeated decla-rations of President Cowen that the public has reason totrust in a revitalized Tulane sit oddly with the continuedarguments directed internally at the faculty for the dra-conian cuts of the fall 2005 semester and the continuedrefusal to entertain arguments that some of the cuts havein fact adversely affected the university’s income prospects.

In the meantime, the School of Medicine has re-leased a draft of its 2007 strategic plan, which setsforth the next stage of the “remarkable recoveryefforts following Hurricane Katrina,” including thehiring of “additional research-active faculty” and,perhaps ominously if imprecisely, a removal of “theinstitutional barriers that currently exist.”47 A keyparagraph under “Overarching Goals,” entitled



47. Tulane University School of Medicine, 2007 StrategicPlan, Draft for Review, n.d., 10.

46. The language of the constitution of the Faculty ofLiberal Arts and Sciences, Section II (“Responsibilities ofthe Faculty”), reads in part that the faculty has primaryresponsibility for “(1) Formulation and implementationof academic plans and policies; (2) Its own governance;(3) Election of faculty representatives to advisory anddecision-making bodies at the University-wide level;(4) Discharging the following responsibilities ... (d) Establishment and maintenance of educational andinstructional standards and policies and the recom-mending of procedures and decisions governing facultystatus ... ; (5) Formation, elimination, division, andmerger of academic departments.”

President Cowen in his comments on the draft reportstated that the constitution’s assigning to the faculty pri-mary responsibility for its “own governance,” “whatever itsimport in times of financial normalcy, does not apply intimes of financial exigency.”


“Retention and Recruitment of Faculty,” reads:

The loss of faculty within the School of Medicinewill have a significant impact on the number offaculty available to teach medical students, grad-uate students and residents; to practice medicine;and to conduct basic, translational, and clinicalresearch. It will be important for us to focus onretaining the remaining faculty and recruitingadditional strategically-targeted faculty to helpsupport the education, research, and clinicalmissions.

With this kind of public language, it is difficult toaccept President Cowen’s representations to the Associa-tion that a state of financial exigency continues to existat Tulane. Indeed, the conclusion seems inescapable thatthe administration of Tulane University and its medicalschool used the declaration of financial exigency toenable it to undertake a major reshaping of the existingbody of faculty and a new set of commitments.

The Tulane administration appears to have used thedeclaration of financial exigency to justify decisions andactions that, as the Special Committee has seen in anumber of cases, do not provide any obvious relief fromfinancially exigent circumstances. Thus the FTFRCommittee pointed out, correctly, that except when sucha link is shown, financial exigency may simply be ameans of circumventing “fundamental university prin-ciples that are articulated in its constitution and FacultyHandbook.”

The apparent alternation between an overly literalreading of certain rules and a dispensing of others,depending on whether or not they support the adminis-tration’s position, may derive in part from the role ofPresident Cowen as an energetic administrator, impa-tient with precedent and eager to shape and implementa new vision for the university. His own field is manage-ment, and he is a well-published writer on managementissues. Revealing, perhaps, is a comment attributed toPresident Cowen in the online Times-Picayune, whichinterviewed him in his capacity as a member of themayor’s Bring New Orleans Back Commission with spe-cial responsibility for public education reform. Citingthe need to move more quickly in that area, he is quot-ed as saying, “We’re moving at what I call bureaucratictime, rather than entrepreneurial time, where you real-ize speed is of the essence.” He reports, when informedthat his idea for running the city’s schools with a boardof business and community leaders would violate theLouisiana state constitution, that “my view was I’d find

a way around it, because these are strange times. We’reat a tipping point with the school system, and one wayto proceed is to throw out the old rule book, which wedidn’t do. Instead people said, ‘We’ve still got the oldrule book out there and we’ll do the best we can with it,’but unfortunately that always leads to suboptimalresults.”48

Equally disturbing to the Special Committee was thegeneral sense of betrayal that some faculty memberssaid they initially felt, and continued to feel, because ofthe termination of their appointments. The chief har-vest of the events of fall 2005, not only in the School ofMedicine but also on the uptown campus, seems to be apervasive mistrust. President Cowen and Board ChairPierson, in their correspondence with the Association,repeatedly and correctly pointed to the unprecedenteddisaster Hurricane Katrina represented for the entire cityof New Orleans. It is not clear, however, that an appro-priate response was to bring about an equally unprece-dented disaster in terms of what was among the highestnumbers of tenured faculty terminations, at a singleblow, in the history of American higher education.Those professional institutions of academic freedom,tenure, and governance all derive ultimately from theclassic formula of the 1940 Statement of Principleson Academic Freedom and Tenure, which describesfaculty members not as employees but as officers oftheir college or university, and the 1966 Statement onGovernment of Colleges and Universities, whichassigns to the faculty the primary responsibility for“such fundamental issues as curriculum, subject matterand methods of instruction” as well as “faculty status.”The great public and private universities with whichTulane is properly compared are those where, overmany years, these standards have been upheld andwhere, as a result, faculty quality as well as facultymorale has flourished.

J. Conclusions1. The Tulane University administration’s failure

to provide any but the most generic evidencewith respect to the declared state of financialexigency, as well as its refusal to elaborate onits reasons or in at least one major case to par-ticipate directly in the hearing process, effec-tively deprived individual faculty members,whether tenured or nontenured, of the ability


48. Steve Ritea, “Bell’s about to Ring,” Times-Picayune,July 3, 2006, http://nola.com.

to assess the bona fides of the declaration andits application to their particular case. Theadministration’s actions thereby disregardedthe applicable provisions of the 1940Statement of Principles on AcademicFreedom and Tenure and the Association’sderivative Recommended InstitutionalRegulations on Academic Freedom andTenure.

2. In declining to seek to relocate affected tenuredfaculty members in other suitable positions,the administration of Tulane University actedat sharp variance with the procedural stan-dards of the Association set forth in Regulation4c(4) of the Recommended InstitutionalRegulations.

3. In reorganizing the Faculty of Liberal Arts andSciences into separate schools of liberal artsand sciences and engineering without facultyconsultation, the administration also acted indisregard of the Statement on Governmentof Colleges and Universities as well as thatfaculty’s bylaws with respect to its right todetermine its own organization.

4. In decisions to terminate more than two hun-dred faculty appointments on the grounds offinancial exigency, the Tulane Universityadministration made no meaningful distinc-tion between tenured and nontenured facultymembers except in the terms of notice and/orseverance pay. Coupled with recent and ambi-tious plans for rebuilding, the administrationhas not only undercut its own claims of con-tinuing financial exigency but has alsodemonstrated a view fundamentally inimical tothe system of academic tenure.49



49. President Cowen in his response to the prepublicationdraft of this report described his general reaction to it asfollows:

Throughout, the report conflates two roles: advocacyand adjudication. Fairness requires that the distinctdifferences between those roles be articulated andspecified, and that those differences not be obscuredby rhetorical flourishes, speculation, insinuation,implication, and analytical ellipsis. Tulane’s faculty—members of the professoriate whose interests AAUPpurports to advance and who have been through anextraordinarily challenging time—deserves a clearand accurate exposition of what happened, an exposi-

tion that illuminates and does not obscure. Accuracyand fairness of a report on so weighty a matter isimportant, coming as the report does from thenational professoriate’s main associational voice,involving as the report acknowledges a disaster ofunprecedented scope, severity, and public concern,and purporting as the report purports to be objective.Readers will be unsure, given the language used,whether the report is in the nature of a lawyer’s advo-cacy brief or a judge’s decision. Because AAUP’s role isnot made clear, and can be perceived as both advo-cate and judge, conflation of these roles in the reportis problematic and misleading.

O v e r a l l O b s e r v a t i o n s

From the investigations and the resulting findings andconclusions, several overall observations emerge as prel-ude to general conclusions.

First, none of the authors of the applicable existingpersonnel or other policies could possibly have imag-ined conditions approaching the gravity of those thatthe New Orleans universities faced in the days followingHurricane Katrina. Such policies were framed in thecontext of fathomable, if not familiar, challenges, andcould not have anticipated the inconceivable.

Second, however, the relevant AAUP-supportedpolicies—most notably those that recognize the specialchallenge of “financial exigency”—are sufficientlybroad and flexible to accommodate even the inconceiv-able disaster. These policies have, in fact, been success-fully invoked (as documented through AAUP experi-ence) by institutions in situations that, while perhapsnot matching the gravity of those in New Orleans in fall2005, surpassed in severity those imagined.

Third, applicable AAUP policies that address finan-cial exigency might—but should not—be confusedwith other policies that permit termination of continu-ing appointments because of the bona fide discontinu-ance of an academic program or department essentiallyfor educational reasons. There are situations in whichfinancial considerations lead to program discontinu-ance. Whether financial exigency mandates the dis-continuance is crucially important in determiningwhich procedures are followed.

Fourth, the AAUP’s recognition that a condition offinancial exigency may justify termination of tenuredand continuing appointments presupposes extensivefaculty consultation both in the making of such a dec-laration and in its implementation, as well as rigorousprocedural safeguards to protect affected faculty mem-bers. However grave the institution’s fiscal situation maybe, and however clearly a lay observer might assumethat a state of fiscal exigency does exist, adverse person-nel judgments are permissible only if the attendant pro-cedures have been scrupulously observed.

Fifth, however cumbersome faculty consultation mayat times be, the importance and value of such participa-tion become even greater in exigent times than in moretranquil times. The imperative that affected faculties beconsulted and assume a meaningful role in making crit-ical judgments reflects more than the values of collegial-ity; given the centrality of university faculties in the mis-sion of their institutions, their meaningful involvementin reviewing and approving measures that vitally affectthe welfare of the institution (as well as their own) be-

comes truly essential at such times. The SpecialCommittee has been impressed with how deeply devotedthe vast majority of faculty appeared to be to their insti-tutions at a time of stress and, often, of significant per-sonal economic loss. Administrators were able effectivelyto draw from that wellspring in dealing with the imme-diate aftermath of the disaster, in pulling their institu-tions together. But an institution cannot be rebuilt onmistrust or worse on a broadly shared sense of betrayal.Action that manifests regard for the faculty’s collectiverole is essential in order to rebuild commitment andtrust.

Sixth, the Special Committee is unaware of evidencethat the faculties of the New Orleans universities failedto appreciate the gravity of the post-Katrina environ-ment and the severe consequences of drasticallychanged conditions. Indeed, it is evident to the commit-tee that the faculties by and large understood the criti-cal challenge their institutions faced and were preparedto share in the sacrifices that would be required in therebuilding process.

Seventh, the central issue before the SpecialCommittee has not been whether, given the benefit ofhindsight and time for reflection, it might haveaddressed the post-Katrina situation at the particularinstitution differently. Rather, the committee believes thefair and proper issue to be whether key actions that weretaken at the five investigated institutions departed sig-nificantly and detrimentally from their own and AAUP-recommended policies designed to protect academicfreedom and due process.

Eighth, the Special Committee learned of examplesof commendable practice on the part of several of thebeleaguered institutions, and appropriate note has beentaken in the preceding chapters. The laudable incidentsdo not, however, mitigate or diminish the SpecialCommittee’s deep concerns about reprehensible actions,nor do they excuse lapses in other areas.


VII. Overall Observations

The wide variations in both practice and policy makegeneralization in this concluding section difficult. Yetthe Special Committee has identified several areas ofoverarching concern and importance, affecting (albeitdifferently) the faculties of all five of the institutions ithas studied. Recognizing the limits of aggregationunder such circumstances, the committee offers theassessments that follow.

1. Pre-Katrina Policies Pre-Katrina faculty policies, though reflecting varyingdegrees of commitment to academic freedom and dueprocess, provided templates that, if scrupulously followed,would likely have averted many of the harmful results. Although the relevant policies to be found in the pre-Katrina faculty policies of some of the New Orleans uni-versities conformed more closely to AAUP recommenda-tions than did others, rigorous adherence to those pre-existing policies would almost certainly have donemuch to ensure due process and fairness even in theface of catastrophe. As the preceding reports have noted,significant departures from or complete abandonmentof the established procedures cannot easily be explained,since it appears to the Special Committee that compli-ance was by no means impossible. Specific areas of suchdeviation will be noted in the paragraphs that follow;suffice it to say that the established rules, had they beenfollowed, would probably have prevented most of theproblems noted in these reports.

2. Disaster PreparationDisaster preparation was also uneven, and might well haveincluded keener anticipation of problems in communicat-ing with faculty and obtaining information. Although the Special Committee does not have fullinformation about the degree of disaster preparedness,its members were not surprised to learn that majorflooding and storm damage had been widely anticipat-ed, as one would have expected in a community soprone to such natural occurrences. At least one of theNew Orleans universities had an information technolo-gy and electronic data backup immediately available athousand miles to the north, while another had detailedevacuation plans that made possible prompt relocationto Houston of vital programs and activities. The gravityof Katrina did, however, severely impede physical reloca-tion, and for a time precluded access to theoreticallyavailable backup systems. Thus, while the affected insti-tutions were certainly prepared for an imaginable disas-ter, they could not have anticipated the systemic disrup-tion that actually occurred.

3. Adherence to PolicyWidespread failure to adhere to stated policy almost uni-versally created serious, sometimes inexplicable, lapses inprotecting academic freedom and due process.In only one of the five investigated cases did the insti-tution invoke a preexisting basis for termination ofcontinuing faculty appointments. The governing boardof Tulane University initially declared financial exigencyin a manner that drew minor Special Committee con-cerns, but was basically consistent with handbook provi-sions. The boards of two public institutions, however,the LSU Health Sciences Center and Southern Universityat New Orleans, reverted to the concept of “forcemajeure,” nowhere recognized or defined in prior per-sonnel policies, and accordingly bypassed or preemptedpolicies that, if conscientiously applied under the drasticconditions of post-Katrina New Orleans, might well havewarranted a prompt and faculty-endorsed declaration offinancial exigency. Several months later, financial exi-gency rather than “force majeure” was declared for thethird public institution, the University of New Orleans,but the declaration was accompanied by procedures forimplementation that discarded essential safeguards ofacademic due process for tenured faculty that the exist-ing financial exigency policies had clearly mandated.The board and administration of Loyola, the fifth insti-tution, made no attempt to invoke the financial exi-gency provisions in the faculty handbook (which appar-ently were seen as not justifying a consequent declara-tion at a campus that suffered much less physical dev-astation than the three publics). Instead, the Loyola ad-ministration invoked established provisions for programdiscontinuance that (as the Special Committee has rec-ognized) virtually track the AAUP-recommended policies—but then proceeded to disregard attendant proceduralsafeguards that are vital in order to terminate continu-ing faculty appointments when programs are closed outeven for the soundest of educational reasons.

4. Rationale for Extraordinary ActionThe rationale for extraordinary action not only variedwidely but also in several cases failed to invoke conditionsthat might have warranted draconian steps, albeit withinprocedures that were seldom actually observed.Here, too, the response to the Katrina disaster variedwidely. Although the Special Committee is not suffi-ciently informed to make an independent appraisal ofthe financial condition of any of the five institutions, itnotes that the extent of reliance on what were sharpdeclines in income reflected no consistent pattern acrossthe city.



VIII. Overall Conclusions

O v e r a l l C o n c l u s i o n s

A highly sensitive issue should be addressed here. TheSpecial Committee heard statements to the effect thatseveral of the New Orleans universities took advantageof Katrina and its aftermath to effect major changes—both programmatic and personnel—that would other-wise have been impossible or difficult and time con-suming to accomplish. At least three of the institutions,before Katrina, had considered plans for significantchange along lines that actually were initiated after thestorm. Such a concordance would not, by itself, neces-sarily taint the eventual response. Indeed, it would haveseemed unwise to disregard such prior plans in therebuilding process. There is surely no imperative that aninstitution suffering such devastation must recreate itsformer self without modification. A question that hastroubled the Special Committee, however, is whetherKatrina created an opportunity to make major changes—specifically, to terminate the appointments of certaintenured faculty members—that could not have beenmade in the absence of such devastation. The SpecialCommittee has been made aware of allegations in a fewinstances that the Katrina emergency was used as a sub-terfuge to rid the institution of faculty troublemakers orcritics of the administration, but the committee has notbeen provided with requisite evidence that would war-rant pursuing these complaints. The concerns here aresubtler, and simply prompt the committee to questionwhether Katrina provided a convenient occasion foreffecting major programmatic and personnel changeswithout following procedures that would have beenunavoidable in the absence of a natural disaster.

5. Quantity of TerminationsThe numbers of persons affected also varied widely, thoughat all institutions the number who were initially notifiedof adverse personnel action exceeded the inescapable orminimal needs of the institution, sometimes substantially. It is too early as of this writing to prepare a reliable tallyof the number of persons whose teaching careers wereseverely disrupted or terminated by Katrina-relatedactions. The scale of announced involuntary temporaryor permanent release of faculty members varied widely—from well over two hundred at Tulane to much smal-ler numbers at the University of New Orleans and Loyola.There also remains a substantial discrepancy betweengross and net figures. Some persons who had initiallybeen targeted for furlough or termination have been re-instated, and some still may be. Others simply resigned,retired, or took jobs elsewhere, and thus might not becounted as Katrina victims in a final tally—even thoughthe adverse effects on many of them may have been al-

most as harsh as on those who did not leave on their own.In a few cases, internal review procedures have not yetrun their course, and in others litigation is in prospect.

6. Faculty ConsultationFaculty consultation in most cases not only fell far belowminimal AAUP standards but also below the level of con-sultation that could have been achieved. The actual extent of faculty consultation, a vital ele-ment in declaring financial exigency or discontinuingacademic programs, varied widely. At Tulane, theadministration did seek and obtain the concurrence ofthe designated faculty committee before seeking such adeclaration, though members of that committee wereuncertain whether less drastic alternatives had beenfully canvassed. Consultation with respect to the imple-mentation of the declared state of exigency—Tulane’sPlan for Renewal—was less extensive. At the Universityof New Orleans, the faculty, its representative bodies, orboth were kept informed of the Restructuring Plan atvarious stages, but how much actual consultationoccurred is uncertain. At the other end of the scale, con-sultation was virtually nonexistent at the three otherinvestigated institutions. (Apparently this was also thecase at Xavier University, whose president, NormanFrancis, stated in response to the Association’s concernsthat “it was totally unrealistic to suggest that we hadtime to consult with faculty regarding our reductiondecisions.”) Consultation with the faculty was not evenattempted in two cases, and sought in so perfunctory afashion at Loyola as to be almost meaningless. Loyola’spresident has insisted that he spent “countless hours inone-on-one and small group meetings with faculty,” butthere is no record of actual consultation with the mostappropriate faculty bodies or indeed of recognizing theofficial role of these bodies under Loyola policies in thedecisions that were reached.

The distinction between “knowledge” and “notice” iscrucial; though some, even many, professors may havebeen aware of the administration’s planned course ofaction, and may even have had an opportunity to speakwith the president, there simply is no substitute for ascheduled meeting with the duly constituted facultycommittee, affording it an opportunity to review andappraise all relevant data. Indeed, the data componentidentifies one other failing of consultation. Even atTulane, where data sharing seems to have been by farthe most extensive, faculty committee members wereenjoined to silence, while the administration’s posteddata at Loyola were so incomplete and inaccurate thateven their systematic review availed a faculty committee 121


little. As for Tulane’s medical school, there does notseem to have been any consultation in shaping thecriteria that drove the massive number of facultyterminations.

One final comment about the perplexing paucity ofconsultation seems in order. The avoidance of any fac-ulty review at some campuses and its limited use at oth-ers seem to reflect an administration view that profes-sors could not be trusted to assess the perilous conditionof their institution or to advise on appropriate responses—a disheartening inference at best.

7. Notice The notification and timing of personnel actions at mostinstitutions also failed to meet AAUP standards and creat-ed needless, even at times unconscionable, uncertainty. In this regard the variation among the universities wasperhaps most pronounced. Tulane, most conscientiousin this respect (as chapter VI on Tulane recognizes),gave notice to tenured faculty “not only in accordancewith, but exceeding, the [AAUP] twelve-month noticerequirement, and in the case of the medical school fac-ulty whose services were terminated immediately, twelvemonths’ severance.” The same could not be said of theother New Orleans universities. Loyola did provide ayear of severance payment for laid-off faculty but other-wise severed the targeted professors from campusresponsibilities and privileges within a brutally brieftime period. Teaching by some of the professors that hadalready been scheduled for the next semester was imme-diately reassigned to others, thus disregarding a basicAAUP premise that removing a faculty member fromassigned teaching responsibilities is tantamount tosummary dismissal unless that person is the subject of acurrent dismissal proceeding and his or her continuedpresence poses an immediate threat of harm. Moreover,the affected Loyola professors were deprived of theiroffices, computer access, and library and parking privi-leges. No reasons were given for such peremptory andsummary eviction. Nor was any cogent explanationgiven for similarly abrupt displacement of most of thefurloughed faculty at the two public campuses followingthe “force-majeure” declarations. Although arguablythe concept of “furlough” implies immediacy in imple-mentation, the absence of preexisting policy left mattersof timing, as well as the selection of the faculty mem-bers to be furloughed, to the unfettered discretion of theadministration.

8. Alternative PlacementAlternative placement of affected faculty universally fellbelow AAUP standards but also fell short of the institu-

tions’ apparent capacity to mitigate the harshest effects ofinevitable personnel reductions.It was in the area of placement and help in finding suit-able alternative positions that all the investigated NewOrleans universities may have failed most seriously. Atthe LSU Health Sciences Center, faculty furloughs seemto have been made (quoting from this report’s chapterII on the LSU Health Sciences Center) “withoutacknowledgment or apparent recognition of eligibilityof potentially furloughed faculty to a preemptive rightto transfer to other positions for which they were quali-fied.” While furloughed faculty have apparently beenconsidered for reinstatement as positions reopened atthe Health Sciences Center, and some have been rein-stated, tenured furloughed professors have apparentlynot been recognized as having the right to be recalledthat AAUP’s Regulation 4c requires. The situation atLoyola was most puzzling; although the official univer-sity policy on program discontinuance expresslyimposed a pretermination obligation to “make everyeffort to place the faculty member concerned in anothersuitable position” and, failing such a placement, onlywith “severance salary equitably adjusted to the facultymember’s length of past and potential service,” theredoes not seem to have been even cursory compliancewith the placement provision. Finally, the Tulane expe-rience is uniquely complex. Although a fair reading ofthe financial exigency provisions—adapted almost ver-batim from AAUP-recommended policy—seems unam-biguously to create a duty of alternative placement, theuniversity’s administration drew no such inference. Inwhat this report’s Tulane chapter terms a “tortuous”exercise in close reading, the university administrationinsisted that the placement duty applied only to pro-gram discontinuance and not to the effects of financialexigency—a curious irony for an administration thathad generously construed the timing and notice provi-sion in the affected professors’ favor.

9. Internal ReviewOpportunity for internal review of adverse judgmentsfailed to meet most accepted standards of due processas well as the institutions’ own established reviewprocedures.In no case did the opportunity for internal review of anadverse decision match the expectation that AAUP-supported policies or the institution’s own pre-Katrinaprocedures would have sustained. Nor did any of the fiveinstitutions adequately explain the need for such adeparture. Loyola, for example, provided in its AAUP-based policy on program discontinuance for substantialhearings of record, yet layoffs were implemented before



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the scheduling of hearings in which the administrationis required to demonstrate the need for the layoffs.Tulane’s financial exigency policies also provided forsubstantial hearings on the record; there were problemswith the administration’s cooperation, and in the onecompleted case the administration and then the govern-ing board rejected the findings and recommendations ofthe faculty hearing body that strongly supported the fac-ulty complainants. The public institutions that operatedunder the “force-majeure” declaration had effectivelyreplaced the substantial existing official procedures witha manifestly inadequate substitute—a five-day windowwithin which to seek review by the very campus admin-istrators who had made the adverse judgment, followedby an even briefer period within which to seek review bythe system’s chief executive. The Special Committeenotes that the procedure actually offered to these affect-ed faculty members fell far short of AAUP-recommendedstandards or of the institution’s previously existing poli-cies for any adverse personnel action with such graveconsequences.

10. TenureFaculty tenure, previously recognized and generallyrespected by all the institutions, received far less deferencethan AAUP policy and prior practice of these institutionswould have required. The pervasive and troubling conclusion from the sepa-rate reports is that faculty tenure received little if any ofthe deference that both institutional tradition and AAUPpolicy would compel. Each of the New Orleans universi-ties had long accepted the institution of tenure and hadconferred that status upon postprobationary members ofits faculty. Pre-Katrina policies uniformly recognized thespecial status of tenured faculty. Yet in the application ofthe storm-driven policies, that distinction seems to havebeen all but obliterated in several ways. In the process ofselecting faculty for termination of appointment or fur-lough, the most that could be said is that tenured statusappears to have been one among myriad relevant fac-tors. Even where affected faculty members applied foralternative positions within the institution, the burdenfell upon them in ways that strike the Special Committeeas quite inconsistent with traditions of tenure. Particu-larly outrageous to the committee were reports itreceived of situations in which tenured professors werereplaced by—or at least their teaching tasks wereassigned to—nontenured persons whom in severalcases the released senior person had actually trained forthat task. The distressing conclusion from such data isthat faculty tenure, contrary to AAUP policy and the

institutions’ own historic commitment, made far lessdifference than it should have made, and received sub-stantially less deference than it deserved.

11. Prospects for Academic FreedomThe condition of academic freedom in the investigatedNew Orleans universities remains alarmingly uncertain.A recurring theme echoed at all the institutions investi-gated was the concern that Katrina provided the occa-sion to single out faculty for separation who were dis-liked by those in authority for having previously opposedor criticized their actions or who were seen as expendable.The Special Committee has not attempted to assessthese charges, nor could it. Given the manner in whichthese decisions were made—the malleability of stan-dards, the absence of meaningful faculty involvement,the disregard for tenure, and, often, the inadequacy ofreview—it is almost inevitable that such would be acommon perception. This leaves all the affected institu-tions under a cloud of suspicion that cannot be dis-pelled and that augurs ill for the future absent effectiveremedial action.


A Response to the Draft Report fromLouisiana’s Commissioner of HigherEducation On August 29, 2005, the State of Louisiana and all of itsgovernmental entities were confronted with unprece-dented challenges that changed our state. The cata-strophic impact of Hurricane Katrina cannot be over-stated. The operations of every campus in the impactedarea was totally disrupted. The colleges and universitiesthat were intact after Hurricane Katrina were convertedinto medical triage centers, evacuee shelters, and sup-port facilities for first responders and military personnel.Just as flood waters were receding, our state was hit byanother enormous storm, Hurricane Rita, expandingthe number of colleges and universities disrupted andinflicting additional damages to the Katrina-affectedcampuses.

While reading the first few pages of the draft report, Ibelieved that our efforts to convey the enormity and ur-gency of the moments, days, weeks and months follow-ing Louisiana’s nightmare were understood. Upon read-ing the conclusions drawn by the Special Committee, Irealized that we had failed.

The combination of two major hurricanes hitting ourcoast within thirty days and the collapse of the levee sys-tem in New Orleans caused the entire coast of Louisianato be placed on life support. When I convened our sys-tem presidents for our initial meeting immediately fol-lowing Hurricane Katrina, the first concerns expressedregarded students, faculty, and staff.

You correctly describe that communications weredown and that documents were lost. Day-to-day deci-sions had to be made without the benefit of knowing ifthe physical structure of institutions still existed. It wasnearly two weeks before special permission was grantedby federal authorities to even access these damagedcampuses in Black Hawk helicopters with militaryescorts due to looting and security concerns.

Just as the state, our institutions, students, and facultymembers began to assess the damage from HurricaneKatrina and achieve some calm, Hurricane Rita hit.Weary first responders and campus administrators hadto re-evacuate the little occupancy they had and securetheir physical premises once again.

At the same time, there were discussions of what theloss of 35 percent of the state’s revenue base woulddo to Louisiana. There were discussions of bank-ruptcy and mass layoffs of public workers and closureof some regional offices, including colleges anduniversities.

During all of this and even knowing that they wouldhave to answer to legislators concerned about the drain-ing of existing state revenue, our postsecondary educa-tion leaders were steadfast in their commitment to keepfaculty fully paid for as long as possible. We creativelytook advantage of policies developed by the Civil ServiceCommission for state employees to retain faculty andstaff through the months of September, October, andNovember 2005. Constitutionally, it is an unlawfuldonation to pay someone who is not performing duties.However, using the aforementioned strategy, we wereable to justify paying faculty and staff if they madethemselves available if needed.

Our colleagues from across the nation providedassistance to our faculty and students. Our regionalaccreditor, the Southern Association of Colleges andSchools, agreed to several accommodations for ourinstitutions in the process of accreditation as well asworking through multiple other problems presented bythe crisis. The Southern Regional Education Boardhelped us to establish an online registry so studentscould continue to take classes and faculty could per-form work to develop online courses. We established aregistry for faculty members to teach at other institu-tions, especially those taking in a significant numberof displaced students. The U.S. Department ofEducation provided multiple waivers and accommo-dations for student financial aid.

Unfortunately, the Civil Service Commission could nolonger justify its leave policy after December 1, 2005,and universities were unable to continue paying facultywho had no classes, no labs, and no campus. The statecut $75 million from higher education budgets, andtuition income took a dramatic downward turn. Projec-tions of future student enrollment were best guesses.

No one laments the actions made necessary by theseevents more than those of us in Louisiana’s post-secondary education system. It is an understatement tosay that we agonized over each and every decision thatadversely affected a student or faculty member. In addi-tion to faculty and students, our state lost millions ofdollars in assets and years of positive momentum. Whilereading the report, I could not help but feel as I didwhen dealing with some of the federal agencies guidingus through the disaster and now through recovery. Inour initial meetings, one representative said that theyhad been instructed to “not only think outside of thebox but to get rid of the box.” In the next breath, hebegan to describe all of the rules and regulations weneeded to follow.



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IX. Addendum

A d d e n d u m


This report does much of the same. It eloquentlydescribes that “(w)hat actually befell New Orleanshigher education on August 29 far exceeded even theworst fears” and then concludes that actions taken byLouisiana did not follow established policies andprocedures.

The chair of the Louisiana Recovery Authority, Dr.Norman Francis, often answers claims that somethingwas not done fast enough or well enough in the hurri-cane response with “As compared to what?” There areno comparables. Standards developed to guide singleinstitutions in a well defined circumstance barely apply.

It is clear that great effort went into your investiga-tion and report. I know that your mission is to protectfaculty. During these difficult times this has been ourmission as well, and we have taken extraordinary meas-ure and advantage of every creative avenue available tokeep our faculty whole for as long as possible. Notbecause of policies and procedures but because it wasthe right thing to do.

Thank you for providing me an opportunity torespond.

E. Joseph SavoieCommissioner of Higher Education

State of Louisiana

A Postscript from the Special Committee’sChairThe Special Committee recognized that in manyrespects this document is not a final report. More than ayear and a half after Katrina, the outcome of the casesof many affected faculty members is still to be deter-mined. Hearings and appeals are still to be held, recallsfrom furlough still occur, and litigation in some casesmay prolong the process further. Important institutionalplans and decisions, moreover, are still to be fullyimplemented and remain subject to modification. Wehope, as conditions on New Orleans university campusesimprove (often slowly and painfully, to be sure), moreof the harshest of the post-Katrina personnel actionsmay be mitigated. Although some of those draconiandecisions and their effects have become permanent bydefault—as faculty members simply departed or ceasedresisting, or programs were irretrievably recast—wenote more optimistic prospects in other areas. We takecomfort from the degree to which faculty leaders at thefive institutions we studied have been resilient in theiradvocacy of professional interests on their campusesand throughout the region. We have also been heart-ened by an apparent commitment—not only by theaffected New Orleans institutions but also by many col-

leges and universities across the country—to heed thelessons of Katrina, and to prepare far more thoroughlyfor future calamities and disasters.

The president or chancellor at all five of the investi-gated New Orleans universities reviewed and comment-ed in detail upon a draft of this report, as did the gener-al counsel of one of the cognizant university systemsand the president of another, and we would be remiss ifwe did not convey our appreciation for their thoughtfuland informative responses. We believe we have improvedthe report by taking these comments into account, oftensimply by changing or elaborating the text, and occa-sionally by adding footnotes that convey the writer’sconcern.

The above-printed response to this report fromLouisiana’s commissioner of higher education,Dr. E. Joseph Savoie, bears special note. As stated in thereport’s introductory chapter, during the SpecialCommittee’s late August 2006 visit to New OrleansCommissioner Savoie not only devoted a half day tomeeting with us, ensuring the presence at that meetingof several other key officials. He also arranged a lengthytour of the heavily affected parts of the city, providing uswith a profound impression of the devastation that thehurricane had wrought.

The commissioner’s comments poignantly remind usof the gravity of the natural forces that traumatized NewOrleans and its universities, and continue to make liv-ing and working there so difficult. Moreover, his letterreminds us of the common values and interests weshare—those who are charged with leading NewOrleans institutions, and those whose task it is toappraise the stewardship of those leaders. Where wediverge—and inevitably, on certain issues, we dodiverge quite substantially—I trust that it is not somuch because we have incompatible values or interests,as because we differ on the appropriate and permissibleresponse to the calamity brought by Katrina.

Robert M. O’Neil

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Committee A on Academic Freedom and Tenure has byvote authorized publication of this report in Academe:Bulletin of the AAUP.

Chair: DAVID M. RABBAN (Law), University of Texas

Members: RONALD M. ATLAS (Chemistry), University ofLouisville; LINDA COLLINS (Sociology), Los MedanosCollege; SHELDON KRIMSKY (Biomedical Ethics andScience Policy), Tufts University; SUSAN E. MEISEN-HELDER (English), California State University, SanBernardino; DAVID MONTGOMERY (History), YaleUniversity; ROBERT C. POST (Law), Yale University;ADOLPH L. REED (Political Science), University ofPennsylvania; ANDREW T. ROSS (American Studies),New York University; CHRISTOPHER M. STORER(Philosophy), DeAnza College; MARY L. HEEN (Law),University of Richmond, ex officio; CARY NELSON(English), University of Illinois at Urbana-Champaign,ex officio; ERNST BENJAMIN (Political Science),Washington, D.C., consultant; JOAN E. BERTIN (PublicHealth), Columbia University, consultant; MATTHEWW. FINKIN (Law), University of Illinois, consultant;ROBERT A. GORMAN (Law), University of Pennsylvania,consultant; JEFFREY R. HALPERN (Anthropology),Rider University, consultant; LAWRENCE S. POSTON(English), University of Illinois at Chicago, consultant;MARTHA McCAUGHEY (Interdisciplinary Studies),Appalachian State University, liaison from Assembly ofState Conferences.



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Report of an AAUP Special Committee - DU Portfolio

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