October 31, 1996

To: The Honorable Wendell R. Anderson
The Honorable Julie A. Bleyhl
The Honorable William E. Hogan II
The Honorable Jean B. Keffeler
The Honorable Hyon T. Kim
The Honorable Warren C. Larson
The Honorable H. Bryan Neel III
The Honorable William R. Peterson
The Honorable Jessica J. Phillips
The Honorable Thomas R. Reagan
The Honorable Stanley D. Sahlstrom
The Honorable Patricia B. Spence

Dear Ladies and Gentlemen:

Below please find my recommendations and rationale in regard to the tenure code proposals currently before the University.

A side-by-side comparison of the three major proposals was sent to you on October 29, 1996. My recommendations and rationale refer to those proposals (and to the revised version of the "Sullivan proposal" where it differs from the original.)

I am gratified that the differences among the proponents of the various proposals have been reduced in recent weeks. This sustains me in my belief that agreement can be reached concerning a tenure code for the Law School, within the constraints of the status quo order, that will make the University of Minnesota as competitive in recruiting and retaining faculty members as any university in the country--a goal I know we all share.

My comments have been divided into four major sections:

1.

• Ensure that the University of Minnesota will be highly competitive in recruiting and retaining outstanding faculty members.

This requires that we provide a tenure code that clearly protects academic freedom and that has broad acceptance among our faculty members. The Faculty Senate's proposal, with interpretive language negotiated between the faculty leadership and the administration, and recommended to the Board in June/July, meets this requirement.

The "Regents' October proposal" was rejected by a vote of 121-1 by the University Senate on October 24, 1996.

The earlier version of the "Sullivan Proposal" has support among faculty leaders who have seen its specific language. In my view, the revised "Sullivan proposal" is an acceptable further development of the "Faculty Senate's proposal."

2.

• Ensure that high faculty productivity is encouraged, rewarded, and supported, and that unsatisfactory performance and malfeasance can be dealt with effectively.

This requires that the tenure code provide for careful evaluation of faculty performance before and after tenure is granted.

The "Faculty Senate's proposal" concerning extension of the probationary period and post-tenure review meets this requirement, and those recommendations have been incorporated into the October "Regents' proposal" and the "Sullivan proposal." Thus, apart from some procedural issues addressed under No. 4 below, this requirement is not an issue.

3.

• Ensure that the University will be able to make necessary changes in academic programs and/or organization.

This requires that the tenure code provide an appropriate balance between provisions that encourage faculty to support change and provisions that allow redirection of faculty effort.

Termination of tenured faculty because of changes in academic programs and/or organization does not encourage faculty to support change.

It is also important to note that termination of tenured faculty by institutions where it is allowed for reasons other than financial exigency (permitted also under the "Faculty Senate's proposal") has hardly ever been used, and where it has been used, it has been of only very marginal importance.

It is my view that termination of tenured faculty is an ineffective management tool, and that it actually may inhibit change because it raises the specter of violation of academic freedom.

To insist on a termination policy that may in fact be counterproductive, in the face of massive faculty opposition, is unwise. I strongly oppose such a provision.

The Faculty Senate's proposal makes appropriate provision for reassignment and retraining of faculty as needed, including outplacement to other institutions, to accommodate changes in academic programs and/or reorganization.

The "Sullivan proposal" adds a provision concerning "temporary reduction or postponement in compensation" under "financial stringency that does not amount to a fiscal emergency," on the recommendation of the president and with the approval of the Faculty Senate and the Board of Regents.

The "Regents' October proposal" provides for layoffs in the event of program discontinuation, if it is not practicable to reassign or offer retraining.

I recommend the "Faculty Senate's proposal," and I find the additional provision of the "Sullivan proposal" acceptable.

4.

• Ensure that effective disciplinary procedures are maintained to protect faculty members in their legitimate pursuit of research, teaching, and outreach, and to take action against those who do not perform or are involved in malfeasance.

This requires a tenure code that provides procedures based on peer participation and due process.

The "Faculty Senate's proposal" provides such procedures. The "Regents' October proposal" contains some additional changes in procedures, including changes in the role and functioning of the Judicial Committee, the definition of "cause," and suspension without pay.

The revised "Sullivan proposal" makes some procedural modifications which will enhance the administration's ability to more effectively deal with disciplinary matters, while ensuring full due process. These revisions in the "Sullivan proposal" are more fully discussed in the attached memorandum from Professor Daniel Farber. For your convenience, I am also attaching a copy of Dean Sullivan's revised proposal.

Conclusion:

I recommend that the "Faculty Senate's proposal" as modified by the revised "Sullivan proposal," be adopted for the Law School, within the constraints of the status quo order.

It is high time that we put this issue behind us. Indeed, I strongly encourage the Board to publicly declare a moratorium of at least two years in regard to further revisions in the Law School's tenure code.

Cordially,

Nils Hasselmo
President

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Attachments

c: Steven Bosacker, Executive Director and Corporate Secretary