Against Approving Faculty Handbook Changes
October 17, 2018

For reasons of substance, procedures, and employment rights, the President and Secretary of NU's Chapter of the American Association of University Professors urge you to vote NO on the proposed amendments to the NU Faculty Handbook.

"Dear colleagues,

Yesterday, I received the most recent revisions to the Faculty Handbook and learned that they will be voted on today at 5pm. A moment ago, I wrote my senator concerning one alarming point which has persisted, despite requests for changes, from previous versions. At issue is how the FH defines harassment and its impact— in my view, detrimental— on academic freedom and inquiry.  Please see my message from this morning below.

I have not had the time to review the entire document and can’t as of yet speak to other points.

Please, if you have similar concerns, express them to your faculty senator and chair. Feel free to use any information I have provided below.

best,

Jorge

Jorge Coronado
President, NU-AAUP
Professor, Department of Spanish & Portuguese
Director, Program in Latin American & Caribbean Studies
Co-Director, Andean Cultures and Histories, Buffett Institute for Global Studies
Comparative Literary Studies Program
Northwestern University


Begin forwarded message:


Dear Sue,

I’m writing to you in your capacity as faculty senator for SpPo. Yesterday, I received the most recent version of the Faculty Handbook which I was surprised to learn is on the slate to be voted on today at the Faculty Senate meeting at 5pm. Thank you for sending along my comments below from June to the committee overseeing changes to the FH.

From my review this morning, I understand that in both the June and current version of the FH, the “reasonable person” standard has been used in order to communicate what constitutes harassment. Under this standard, any language that an individual or group perceives subjectively as offensive or insulting would be considered harassment. I hope it is clear why I am staunchly opposed to the adoption of such rules to govern faculty. As I indicated in June, this language poses serious threats to faculty’s academic freedom and inquiry. I include my previous email below.

Other institutions have adopted standards that offer greater protections. For example, compare the Northwestern FH proposed language to the University of Chicago’s policy on harassment: "A person's subjective belief that behavior is intimidating, hostile, or offensive does not make that behavior harassment. The behavior must be objectively unreasonable. Expression occurring in an academic, educational or research context is considered a special case and is broadly protected by academic freedom. Such expression will not constitute harassment unless (in addition to satisfying the above definition) it is targeted at a specific person or persons, is abusive, and serves no bona fide academic purpose." http://harassmentpolicy.uchicago.edu/page/policy#III.%20Unlawful%20Harassment%20and%20Discrimination

I urge you to vote against the proposed revisions, should a vote take place today.

I am cc’ing our departmental colleagues, in the hopes that they express any views to you.

best
Jorge

Jorge Coronado

THE WEEDS - 
Jacqueline Stevens, Professor Political Science
Director, Deportation Research Clinic, Buffett Institute for Global Studies
Northwestern University
Secretary NU-AAUP.

I.  Substantive - proposed changes weaken NU Faculty governance rights, academic freedom, and employment rights. 

    A.   Governance/Academic freedom. 

        Changes give authority to the administration to assess "harassment" based on subjective feelings and not objective evidence.  This enhancement of administrative authority further increases the levers of patronage and cronyism for which this administration and University are well-known.  

        Here is the NU Faculty Handbook proposed language on harassment:

Discrimination and Harassment

Northwestern does not discriminate or permit discrimination by any member of its community against any individual on the basis of race, color, religion, national origin, sex, pregnancy, sexual orientation, gender identity, gender expression, parental status, marital status, age, disability, citizenship status, veteran status, genetic information, or any other classification protected by law in matters of admissions, employment, housing, services, or in the educational programs or activities it operates. Further prohibited by law is discrimination against any employee or job applicant who chooses to inquire about, discuss, or disclose his or her own compensation or the compensation of another employee or applicant.

Harassment, whether verbal, physical, or through written communication, that is based on any of these characteristics is a form of discrimination. This includes harassing conduct affecting tangible job benefits, interfering unreasonably with an individual's academic or work performance, or creating what a reasonable person would perceive to be an intimidating, hostile, or offensive environment.

All members of the Northwestern community – faculty, staff (including postdoctoral fellows), undergraduate and graduate students, and contracted vendors – share a collective responsibility for creating a discrimination-free and harassment-free environment.

The University is firmly committed to free expression and academic freedom. However, discrimination, harassment, and retaliation, through speech or otherwise, are not protected expression nor the proper exercise of academic freedom.

        Here is the University of Chicago Harassment Policy:


Discrimination based on factors irrelevant to admission, employment, or program participation violates the University’s principles. In keeping with its long-standing traditions and policies, the University of Chicago considers students, employees, applicants for admission or employment, and those seeking access to programs on the basis of individual merit. The University does not discriminate on the basis of race, color, religion, sex, sexual orientation, gender identity, national or ethnic origin, age, status as an individual with a disability, protected veteran status, genetic information or other protected classes under the law. Such discrimination is unlawful.

Harassment based on one of the factors listed above is verbal or physical conduct or conduct using technology that is so severe or pervasive that it has the purpose or effect of unreasonably interfering with an individual's work performance or educational program participation, or that creates an intimidating, hostile, or offensive work or educational environment.

A person's subjective belief that behavior is intimidating, hostile, or offensive does not make that behavior harassment. The behavior must be objectively unreasonable. Expression occurring in an academic, educational or research context is considered a special case and is broadly protected by academic freedom. Such expression will not constitute harassment unless (in addition to satisfying the above definition) it is targeted at a specific person or persons, is abusive, and serves no bona fide academic purpose.

        http://harassmentpolicy.uchicago.edu/page/policy#III.%20Unlawful%20Harassment%20and%20Discrimination

    In February, 2017, a committe convened to investigate allegations of administration overreach and infringements on academic freedom, chaired by Northwestern Law School Professor Andrew Koppelman, stated that the committee "...concluded that both reveal that Northwestern should modify certain policies for the sake of academic freedom," and they endorsed verbatim the the University of Chicago Policy Harassment policy quoted above.  

NU's new policy has exactly the opposite assumptions and protections of the U of C policy.  

    NU has a well-earned reputation for clamping down on academically protected speech, retaliating against critics of administration policies or trustees, and incentivizing faculty who will play along.  Instead of restricting the adminsitration's ability to do this, this policy enhances it.

    Do NU faculty deserve radically lower protections of our academic freedom than U of C faculty? Does the NU administration deserve more authority over its faclty than the U of C administration?

        B.  Fitness for Duty change gives carte blanche to ban any faculty.  It is broader than current policy and gives emergency powers for events that are either not emergencies or could and should be handled by the police.  Also, we are advised a new NU policy for the Fitness for Duty protocols are being developed.  It seems backwards to propose changing definition of Fitness for Duty without knowing the procedures by which the new substantive criteria will be administered and can be challenged.

        Current Faculty Fitness Policy

The Faculty Fitness Panel Policy addresses issues of significant impairment, disruptive behavior, or inability to perform essential functions of a faculty member’s professional role. If concerns arise about a faculty member’s ability to fulfill his/her/their professional obligations, this policy is intended to be used as a last resort once all other means of resolution have been exhausted. The faculty member’s dean, school administrators, and the Associate Provost for Faculty should first seek to resolve potential issues informally before recommending or referring cases to the Faculty Fitness Panel.

Determinations of whether to mandate a fitness evaluation, the review process, the fitness evaluation, and the follow up to the fitness evaluation will be conducted pursuant to the Faculty Fitness Panel Policy.

Other issues of faculty performance or discipline should be addressed through the disciplinary processes as outlined in this Faculty Handbook. Threats of violence to self or others should be referred first to the Behavioral Consultation Team (see “Temporary Suspension” section below) and then to the FFP.

        Proposed New Policy - adds "disruption" and other vague criteria. New Faculty Fitness Panel Policy yet to be disclosed 

Fitness for Duty

The Faculty Fitness Panel Policy addresses issues of significant impairment, disruptive behavior, or inability to perform essential functions of a faculty member’s professional role. If concerns arise about a faculty member’s ability to fulfill his/her/their professional obligations, this policy is intended to be used as a last resort once all other means of resolution have been exhausted. The faculty member’s dean, school administrators, and the Associate Provost for Faculty should first seek to resolve potential issues informally before recommending or referring cases to the Faculty Fitness Panel.

Determinations of whether to mandate a fitness evaluation, the review process, the fitness evaluation, and the follow up to the fitness evaluation will be conducted pursuant to the Faculty Fitness Panel Policy.

Other issues of faculty performance or discipline should be addressed through the disciplinary processes as outlined in this Faculty Handbook. Threats of violence to self or others should be referred first to the Behavioral Consultation Team (see “Temporary Suspension” section below) and then to the FFP.

Temporary Suspension

If, in the judgment of the provost1 and the faculty member’s dean,2 after consulting with the chair (or chair’s designee) of the University’s Behavioral Consultation Team, a faculty member poses an immediate threat of harm to his or her own safety, to the safety of others, and/or to Northwestern, the faculty member may be temporarily suspended from service pending ultimate determination of the faculty member’s case (a “temporary suspension”).

Situations calling for temporary suspension are exceptional, and the scope and duration of any temporary suspension must be narrowly tailored to the nature of the potential harm posed so that the faculty member’s rights and privileges are not summarily abrogated more broadly than reasonably necessary. The faculty member’s dean will consult with the provost and the Chair of the Committee on Cause concerning the length and other conditions of any temporary suspension. Salary and faculty privileges unrelated to the alleged behavior will continue through the period of the temporary suspension.

1 Any reference to the provost in this section also refers to the provost’s designee.

2 Any references to the dean in this section also refer to the dean’s designee.

        "Disruptive" - definition (American Heritage Dictionary):

1. Relating to, causing, or produced by disruption.
2. Radically reconfiguring a particular field of business, as by implementing new technologies or a more competitive business model: potential high returns from investing in disruptive companies.

    Should the NU Faculty Handbook use as a criterion for suspension or termination behavior that has as its only example in the dictionary relied on by the courts activity the University encourages us to pursue?

II. There are very important employment law implications of these changes.  In brief, the broader the authority given to the University, the more difficult it is to obtain damages if they exceed it according to either internal or external reviews.  This is a problem that having fair-minded colleagues will not fix and it means that adminstrators have no disincentive to retaliate against those exercising speech they find distasteful or critical of the administration or unlawful actions of the trustees.

The AAUP has excellent language that protects faculty.  Unfortunately, our Faculty Senate leadership has been taking its guidance from the administration and its corporate attorneys and not the attorneys who prioritize academic freedom and our faculty.

III. Procedural

    A.  Document not distributed to Faculty or even Faculty Senators with sufficient time and documentation to review

        1.  Is the main function of "representatives" rubber-stamping selected committee reports put forward on behalf of a committee that itself is not unanimous or clear on how the Committee chair and President intend to proceed.  This process leaves the most important faculty employment and academic freedom rights to a handful of faculty and University administrators and attorneys.

           a. Committee had entire summer to review feedback, make proposed changes, and circulate a full report including the feedback to the prior proposal and their rationales for disregarding much of this feedback.  Instead, Faculty Senate reps receive a document just over 48 hours before the meeting, with no time to review the document much less circulate to their colleagues for review.  

            b.  There are a number of important changes, some of which are related to underlying policies that themselves are not yet established, including the Fitness for Duty protocols and new language on academic freedom.  Why not divide these into separate changes and systematically review and change so that Faculty Senate representatives and faculty have time to review? 

            c.  Seven departments or programs do not have representatives at present, including four in Communications and Weinberg.

        2.  What is the emergency?  Why not allow for a full and proper review, including public discussions with interested faculty? 

        3.   There was no involvement or consultation with representatives of the NU chapter of the American Association of University Professors (AAUP), despite requests for this.  The AAUP has extensive expertise in Faculty Handbook language that protects faculty governance rights and academic freedom.