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January 31, 2014

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Academic Freedom

TWBB I agree that tenure protects faculty members from dismissals without cause and due process. That's exactly right. Just cause requires universities to establish legitimate grounds for dismissal - financial exigency would be a valid ground. But again, it appears that Albany Law School is not in a situation of financial exigency. If it argues otherwise, then it must prove it and not use bogus financial concerns as a pretext for firing faculty. There are effective ways of dealing with anticipated lower enrollment (whether lower enrollment is by design or not) that would not require breaches of contract, lawsuits, and bad publicity. And to be clear, if a tenured faculty member is satisfactorily performing his or her duties (i.e. there is no "just cause"), then whether you like it or not, a university IS required to keep that person on the payroll if it is financially able to do so.

TWBB

Remember, "financial exigency" is a requirement that the AUUP has tried to put on universities, but that's just because the AUUP's job is to attempt to maximize the privileges enjoyed by its members. I don't think anyone would argue that every single one of a union's demands should be automatically met.

As uncomfortable as this fact makes law professors, downsizing a department has long been established as just cause to eliminate even tenured positions. The idea that someone is entitled to be paid even if their position is no longer needed is a little bizarre, and I think there are very few courts that will order schools to support a faculty twice as large as is needed for the student body because of "tenure."

As for breaching contracts, I would be surprised if the vast majority of law professor contracts did not contain a clause allowing termination in the case of financial difficulty (not necessarily "exigency"). Anyway most law professors I would suspect have long adhered to the principle of efficient breach as lacking moral approbation would not suddenly reverse this position because they are personally disadvantaged by the notion?

Academic Freedom

I would imagine that most law school handbooks incorporate just cause/financial exigency language. If financial difficulties were the standard, then tenure would be meaningless... and I think that law professors would have noticed that a long time ago.

TWBB

I'm sure whatever language they incorporate, it doesn't require law schools to run a perpetual loss and burn through their assets to support unnecessary faculty members for decades. And as a practitioner, I can pretty safely assure you that no court is going to require them to.

Barry

BTW, this was discussed over on Lawyers, Guns and Money (http://www.lawyersgunsmoneyblog.com/2014/01/albany-law-school-to-fire-tenured-faculty-based-on-merit-evaluations/comment-page-1#comment-901606).

A good case was made that Albany has moved from $3.5 million profit to $3 million losses, sufficient to burn through their reserves within three years.

Given that law school class sizes will not rise any time soon, it makes sense to cut now.

Paul Campos

The AAUP document linked in comments appears to seriously understate the extent to which tuition revenues at the school are falling. It's possible to calculate precisely how much (pre-discount) tuition revenue Albany is getting in FY2014, and to make a close estimate of how much the school will bring in next academic year. The latter figure is likely to be around $5.3 million lower than the FY2012 figure. The AAUP document characterizes a $3.5 million decline in tuition between FY2012 and FY2014 as a worst case scenario, but this is actually a slight underestimate, and doesn't take into account that next year will likely feature another severe decline. (Applications to Albany have fallen by nearly half over the past two years).

This means the school is on the verge of running a substantial annual operating deficit. On the other hand:

(1) The percentage of Albany's operating revenue that goes to compensation for faculty seems to be lower than average. This suggests the operating budget is poorly managed.

(2) In that vein, per the hiring thread at Prawfs, Albany appears to have been interviewing at the meat market this fall. That seems like a remarkably poor decision under the circumstances.

(3) The board's suggestion that firing tenured faculty is on the table smacks of posturing, designed perhaps to squeeze a couple more buyouts out of the senior faculty.

James Grimmelmann

The, or at least a recent, Albany Law School Faculty Handbook is at http://intra.albanylaw.edu/faculty/fac-handbook/Part-I.pdf It says, at 14, "A tenured faculty member may be dismissed only for adequate cause or financial exigency." There's more about cause and procedures, as well.

John Thompson

Assuming Campos' research into Albany's financials is correct:

1. Albany derives 85% of its revenue from tuition.

2. In 2009, Albany had a payroll of $18M and $35M in total revenues, but an operating surplus of only $3M. $30M of that revenue came from tuition. In 2012, Albany reported only $28M in tuition.

3. In 2009, Albany had a 1L class of 255; in 2013, it was 187. For unstated reasons, Campos believes that there will be about 50 fewer matriculants this fall than there were last year. In light of the overall decline in law school applications and Albany's status in the hierarchy of law schools, it doesn't seem implausible to assume.

4. Historically, Albany offered about a third of its students 50% discounts on tuition, and there will likely to be pressure to continue offering that many discounts or more to attract students to Albany over its competitors.

5. Albany will probably be operating a couple of million dollars in the red this year. While it has substantial assets ($90M in assets and $24M in liabilities), it is not clear how readily Albany can convert its assets to cash and thus cover an expected operating loss.

Albany Law may not be actually insolvent as yet, but I have a hard time understanding how the above does not constitute a state of financial exigency if true.

TalkingHead

I'm going to guess that apart from any claim of financial exigency, there are likely many opportunities for the law school to remove people due to cause. It's regrettably a persistent problem that tenure is treated not as a safeguard of academic freedom but of laziness and incumbency. It's hard to account for 40 hours of work a week without engaging in scholarly publication, especially when a faculty member has been teaching the same courses for decades and prep is therefore not as demanding. Faculty salaries are typically the largest fixed cost of any law school, and this tenured faculty member would not shed many tears if the university decided to enforce the "for cause" provisions against laggards.

PaulB

It doesn't seem that Albany's budget situation as based on the 2012 Form 990 is in extreme condition, but there's been significant deterioration since then. As a standalone university, Albany can not wait to be in as bad a situation as law schools that are part of a larger university. I think Paul Campos' conclusion, that this is being thrown out to the faculty as a first offer in order to make them accept some combination of pay cuts and retirements is the most likely explanation, as Seton Hall did when it said it would lay off untenured tenure track professors, then withdrew that threat after several senior faculty members agreed to retire.

TWBB

Whether the faculty handbook is considered binding in a contractual sense is not necessarily a settled matter in New York. In this case, reliance may be misplaced because the introduction notes that "nothing in this handbook constitutes a contractual obligation solely because of its inclusion herein." It also notes that the trustees can change the manual.

I will also note that "financial exigencies" is not defined in the manual, but running a multimillion dollar loss with no relief seen in the future would likely qualify as a financial exigency.

Finally, I will note that the kind of extremist rhetoric utilized by the AAUP chapter here is exactly why so many of us in the legal field are fed up with the law professorate. The idea that faculty, many of them minimally qualified to teach law (a non-research degree like a JD and a year should have every single prerogative, privilege, perk, and advantage two decades of USN&WR gaming has got them in perpetuity undiminished, and that everyone else -- administrative staff, students, taxpayers, alumni -- should face the sacrifice to insure this, is profoundly abhorrent on an ethical and moral level. The kind of insular, echo chamber mentality in a lot of law schools is indicative that a lot of professors don't realize how they come off to everyone else, and are due for a rude awakening when they appeal for sympathy from the public or the courts.

please explain

Can someone explain in more detail the idea of 'buyouts' in a law school context? Obviously, faculty aren't equity partners in a business.

At the same time, to get them to leave if they're entitled (by tenure) to stay may sometimes require a carrots of sorts.

Are there any more nuances to the idea that this?

Are there constraints places on this idea by the non-profit status of schools or anything else?

TWBB

"Buyouts" are like severance pay; just a way to get them out the door gracefully without causing the time and expense of litigation or endless administrative hearings.

anon

perplexed - As for deadwood, how about those who don't publish, don't participate in any scholarship and are on the law school premises for a few hours a week? certainly even you would have to agree that is deadwood.

TexasT

The predictable charge of AAUP extremism rings hollow. The AAUP standards do not require anything like maintaining "every prerogative, privilege, perk, and advantage" of academic employment. Recognizing the importance of academic freedom and the too-common assaults of administrations upon it, they simply insist that a university administration respect contracts and due process, and utilize every available means short of dismissal (notably hiring and salary freezes, attrition, or enticements to retire) to address bona fide financial crises. Many schools like Albany have had salary freezes in place for years (and did not have high salaries to begin with)--indeed as has been noted here and elsewhere, Albany devotes a smaller proportion of its budget to faculty salaries than most schools, suggesting administrative bloat rather than a pampered professoriate. Faculty associations often offer concessions such as reduction in benefits during these situations and may have at Albany too. And let's not forget that administrations control admissions numbers and can create their own financial crises if they choose to impose arbitrary admissions caps in a down admissions market. Where is Albany's dean in all this?

perplexed

twbb - one might add those who practice law full time. If faculty rules define those failings as cause, and there is due process in establishing them in a particular case, then you've got cause. No one is disputing that faculty may be dismissed with cause.

kortheli67

Good question.

Willy Wonka

It's too bad that this situation has surfaced in such a manner. But it's time for this conversation. Let's make one thing clear: there is NO fiscal crisis at Albany Law School. There is a management crisis. This storm is about the Dean, not about the faculty, the finances, or the future. All of The "f-words" are just fine. Really.

Disclosure - I am not a faculty member - nor am I currently affiliated with the law school - but I have given money to the law school for decades, and I live in the region. I know many people in higher education in the region - including ALS alumni, board members and faculty. I've heard about all of this for months. It's time to set the record straight in an open, honest, thoughtful manner.


a) It is no secret that many law schools are having financial challenges. Fewer applicants = smaller pool of qualified applicants. Reducing the class size is smart. The school needs to maintain an academic standard and that was the right decision - made several years ago at Albany Law School. They have good faculty, good students, and by all measures - their graduates fare well in the marketplace and are well prepared for successful careers. Albany Law School (ALS) is not Harvard, but it's a good school and will remain so.

b) The conversation about "Financial Exigency" is a distraction. A distraction because it was never a viable option to solve a problem - but it has been floated, rumored and discussed. I suspect that this is because the Dean didn't know how to manage a faculty that didn't respond to her "command and control" leadership style and she saw no other arrows in her quiver.

What was the problem she was trying to solve? I think that she wanted to get rid of overpaid, "dead weight" and/or insubordinate tenured faculty.

Nobody would argue with this intention. Yes - one can argue with how certain faculty members might be identified for inclusion in these categories or even argue with WHO is characterized as meeting WHICH criteria for "overpaid," "dead weight" or "insubordinate." Such people exist in every institution - and it is well established in academia that this is an unintended consequence of the tenure tradition. When finances abound, a certain level of this is tolerated and even celebrated as maintaining the unique flavor of an academic institution. As finances become more carefully managed, it's a proclivity that no institution can afford. This is not unique to ALS. Students know it, faculty know it, and alumni know it. Some "culling" in this form is always a good thing, if done carefully and thoughtfully. Indeed - it can be done in a way that preserves the integrity of the individuals and by extension the institution. Every academic administration does this. It takes finesse, vision, and a clear definition of goals and criteria - so that the faculty understand how they are being measured. The last thing that a Dean wants is a group of paranoid faculty who don't feel that the administration understands them. Such a faculty will race for greener pastures (you lose the good ones) and a union (you keep the bad ones). This is predictable, obvious, and preventable.

Let's be clear: the Dean is a smart, charismatic, accomplished leader.

She is not the right leader for the law school right now.

She abhors the processes that are in place at the law school (yes - this is ironic for a lawyer), prefers to define and dictate rather than discuss, and when she met resistance, works to find a way to punish those who resist, rather than leverage other leadership levers toward the shared goal: success of the institution in its primary mission: educate students.

This is not easy for me to say publicly - as I want the best for the school. I have met her and I like her. But she doesn't have the management skills to help the school through this transition. She seems to make decisions emotionally and reflexively - and while the Board APPEARS to support her (as any board will/should do - since they MUST publicly support their leader), I am hopeful that they understand that the faculty are the more important asset to protect and maintain - and this Dean has burned too many bridges in her short time in Albany.

c) What needs to happen next?

- Someone from ALS needs to say out loud that there is no "Financial Exigency" and that tenured faculty are safe from unprincipled dismissal. I'd be surprised if we didn't see a formal statement to this effect within a week. This will calm the faculty - who have been living for months under a shroud of fear that some number of them would be fired. The Dean's inability to understand the fear (and its consequence - unionization and wasted energy/time/emotion) is a key component of why it is so clear that she is unqualified to manage this school at this time of its life-cycle. Another time? Perhaps. As I said above - she is a good person. She's not the right hand at the tiller for this phase of the institution's development.

- The Dean needs to announce her resignation - effective immedately. This is what's best for the institution, and will go a long way toward reestablishing a collaborative relationship between the faculty and the Board, which is essential. She should stay and teach and continue to offer her knowledge and insight to the students and the local community until she can find another opportunity. Nobody wants her to suffer. Indeed, we should hope for her success - and this time at the helm of this flailing ship has been terribly painful for her, I am sure. Successful leaders find "flow" with their teams, align with them through shared vision, shared goals, integrity, honesty and (yes) kindness. It must be hard (and lonely) for her to be so disconnected from her team. Time for that to end. This is about what's best for the institution, and not the ego of one person. I challenge her to demonstrate the integrity that I know she has and do what's best for ALS. Step down. This isn't a good fit and everyone knows it. Delaying the event will only prolong the suffering on both sides.

- The school needs to heal. This means that the Administration, the faculty, the students and the Board must join together, forge a clear, structured, SHARED strategic vision for the future of ALS. This is not only achievable, it is self-evident that this will happen! Legal education is at a crossroads: after decades of massive growth, followed by a few years of consolidation, the future is bright. With healed relationships, a re-energized team, and (yes) some of the bad, lazy or overpaid actors finessed out the door, Albany Law School will flourish. I look forward to witnessing this Phoenix. Let's shift the conversation away from rumors and ugly accusations - and toward the brilliant future that will be.

anon

Willy Wonka: This is clearly a heart felt post. However, you are blaming one person for a problem that you don't seem to admit exists. As such, I would say the "brilliant future that will be" can only come about when there is recognition of the sentiments expressed in part by TWBB above, which stem from the recent folly in law school administration and hiring.
You say "Legal education is at a crossroads: after decades of massive growth, followed by a few years of consolidation, the future is bright."
Truly, this is sort of absurd happy talk.

MacK

Saying I told you so is actually very enjoyable. I repeatedly in the past pointed out the entire financial exigency issue and many of the points professors are now making about AAUP contracts, handbooks, etc. and was roundly mocked, insulted and called ignorant. And here we are.... the very points I made coming to be those bring explored here.

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