October 10, 2024
Since our last AAUP Report was posted in January the Bloomington campus has experienced
what may be the most tumultuous period in its long history. The April police actions at Dunn
Meadow, the many overwhelming votes of no confidence in the administration, and the
imposition of a new IU policy on expressive activity that is likely unconstitutional in its
constraint of free speech, have, along other events added to those we described in our Spring
Report, created an atmosphere of unprecedented stress and alarm. The necessity for
Bloomington faculty to join together to advocate effectively for the academic well-being of
IU as an educational institution has become more critical than ever before. We envision our
century-old AAUP chapter as the vehicle to unite campus colleagues holding a full range of
diverse viewpoints in promoting our fundamental mission of defending academic freedom,
supporting shared governance, and promoting the well-being of our profession.
— Executive Committee of the Bloomington AAUP
In This Issue
What Is Your Tenure Worth? Is Indiana University Bound to Follow Its Own Policies?
Ken Dau-Schmidt, Maurer School of Law
Indiana University’s New Free Speech Policy and the Surrender of Academic Freedom
IUB AAUP Executive Committee
IU as a Case Study in University Corporatization – Bob Eno, EALC (retired)
About the AAUP
AAUP Fall Forum
Academic Freedom and Job Security
Tuesday, October 22, 4:00-5:30, Maurer School of Law Moot Court Room
The themes of this issue of the AAUP Report will be the subject of this year’s Fall
Forum. Presentations will be followed by Q&A and open discussion. All members
of the IUB academic community are welcome.
What Is Your Tenure Worth? Is Indiana University Bound to Follow Its Own Policies?
The faculty of Indiana University consider themselves governed by an elaborate set of “university
policies” established at both the university and campus levels. These policies are promulgated by
faculty governing bodies and administrators, and are sometimes approved by the Trustees. The
policies establish standards for conduct, promotion, and tenure, and establish rights and procedures
to be followed in disciplining errant faculty. Our administrators purport to follow these policies
and cite faculty violation of these rules in justifying the suspension or dismissal of faculty, but is
the University contractually bound by these policies? Are they bound by the promise and
protections of tenure set forth in detail in those policies? Would it surprise you to know that in
recent litigation the counsel representing Indiana University argued in court that the university was
NOT bound to follow these or any other academic personnel policies?
In recent litigation surrounding IU Northwest’s 2022 discharge of tenured professor Mark McPhail
(a case which attracted a national AAUP investigation and censure of IU), counsel representing the
University argued for summary judgment stating “IU’s policies do not create any employment
contracts and did not confer contract rights on Plaintiff. . . . At all operative times, IU
unambiguously disclaimed that its policies created any employment contract rights.” So what are
your tenure protections worth? Didn’t the Dean tell you that you had tenure? Didn’t the Trustees
approve your tenure? You might have gotten an appointment letter that expressly says you have
tenure. Is the University bound by their policies and if not what does your “having tenure” mean?
And if the protections faculty believe tenure provides are illusory, what type of job security do
IU’s academic personnel policies provide to any member of the faculty?
The practice of setting out policies for employee conduct, benefits and discipline in “employee
handbooks” is common among employers well beyond R1 universities with tenured professors.
Until recently, such employee handbooks were treated under archaic legal doctrines at odds with
modern contract theory. Even though such handbooks constituted a clear statement of terms and
conditions of employment, proffered to induce people to work for the employer, they were held to
be merely “aspirational statements” that were unenforceable because they lacked “clear intent to be
bound, special consideration, and mirror image mutuality” (more like smoke and mirrors).
However, in the 1980’s, most jurisdictions began to bring the enforcement of employee handbooks
into modern contract theory. Using unilateral contract theory (or promissory estoppel, or contract
in fact) beginning with New Jersey, jurisdictions began to hold employers liable for the reasonable
expectations created by their employee handbook in their employees so that today the courts in the
vast majority of states hold an employer contractually bound by those expectations. Nevertheless,
the courts left for the employer the option of dissipating any “reasonable expectations” on the
employee’s part by including in the handbook a “clear and prominent disclaimer.” Accordingly, in
most jurisdictions an employer can set out policies in an employee handbook, detailing acceptable
conduct and methods for discipline to encourage employment, and hold the employee to the
standards set out in the handbook, but escape any obligation on his or her own part by clearly and
prominently stating “this handbook does not constitute a contract and creates no contractual
rights.”
So what does all this mean for the enforceability of faculty rights in university policies? Well,
there’s bad news, and then there’s worse news. In 1988, the administration inserted in the
university’s Academic Handbook the following disclaimer: “Statements and policies in this
Handbook do not create a contract and do not create any legal rights.” At that time, the Handbook
was a print publication, infrequently updated, and IU was anticipating a major change in its retirement policies. The disclaimer went on to state, “In the event of differences between this document and the original documents cited therein, the wording in the original documents or master contracts shall obtain.” This makes clear that the disclaimer concerned the Handbook specifically, not the underlying policies.
IU’s current handbook disclaimer has recently been revised to read, “The academic policies posted
on this website (formerly set forth in the Academic Handbook) do not and shall not be construed to
create a contract of employment between Indiana University and persons with academic
appointments.” Whether this disclaimer is “clear and prominent” might be disputed since we now
access the policies online and there are several means of accessing the policies that do not include
this disclaimer. For example, the copy of the policies you access through the Vice Provost for
Faculty Affairs website does not include the disclaimer. Moreover, the introduction to the
Bloomington Faculty Policies proudly announces that these policies create “important rights and
responsibilities.” However, the disclaimer in the University Faculty Policies may be irrelevant as
to the enforceability of those policies since Indiana is one of the minority of jurisdictions that has
not yet updated its legal analysis of employee handbooks and has extant Indiana Supreme Court
and appellate court decisions stating that, in general, employee handbooks are not enforceable
because they are not a “clear promise” with an “intent to be bound.” Based on your appointment
letter, ratification by the trustees, and “academic custom” you may be able to prove in court that
you “have tenure”, but as to what that means, what rights and procedures are owed to you, the
university has a good argument that it is not bound by its own policies. In Indiana, if the faculty
and the university want the rights and procedures set forth in our policies to be mutually binding, it
is important for those policies to state upfront that they are intended to create legally enforceable
contractual rights and responsibilities.
How have our peer schools dealt with this problem? Reviewing the policies of the eighteen Big
Ten schools, only one, Michigan, has a general disclaimer that resembles IU’s, although it more
clearly distinguishes between the handbook, which does not “directly” establish obligations, and
the underlying policies which the handbook specifies are authoritatively collected in other
repositories, which themselves include no disclaimers. No other school resembles IU in explicitly
and categorically disavowing any obligation to follow its own academic personnel policies, a
position that the IU General Counsel asserted in the strongest terms in the McPhail case discussed
above.
Purdue has no general disclaimer, but specifies that in the case of tenure, it is “a matter of policy
and not a legal obligation binding on the University.” Others, like Ohio State University, have
policies that they neither disclaim nor assert as enforceable, leaving it to the courts to enforce the
parties’ “reasonable expectations” based on the policies. Some peer institutions, however,
expressly embrace legal enforcement through an express statement included in the policies. For
example, the University of Minnesota’s “Policy on Faculty Tenure” expressly states “These
regulations are part of the contract between the Board of Regents and faculty members.” Finally,
some states, like Illinois and New Jersey, handle the problem by establishing statutory standards
and procedures for tenure and discipline. In this regard, the Indiana legislature may have
(ironically?) done the Indiana faculty a great service in enacting SEA 202 which includes the
following definition of “tenure”:
Sec. 7. “Tenure” means a status of continuous employment granted to a faculty member of
an institution in which the faculty member may not be dismissed except for good cause or
in accordance with one (1) or more of the following:
(1) The policies and procedures adopted by the institution.
(2) An employment agreement entered into between the institution and faculty
member.
Based on this definition, a faculty member might argue that by granting him or her “tenure”, as per
direction of the legislature, the university must be bound by its own policies and procedures.
However, a fast-talking university lawyer might argue that, under subpart (2) Indiana University
does have an employment agreement with each faculty member and, because of the disclaimer, it
does not include the university policies. This latter possibility would be eliminated if IU simply
removed the disclaimer from its online policy guide, allowing the legislature’s recognition of the
contractual nature of tenure to prevail.
Some free advice from an aging employment lawyer: if the faculty and university want to make
sure that both the faculty and university are bound by the university’s policies concerning tenure,
discipline, and all academic personnel matters, it is best to affirmatively state that those policies
are enforceable, like the University of Minnesota, not to disclaim the policies.
Ken Dau-Schmidt
Ken Dau-Schmidt is the Willard and Margaret Carr Professor of Labor and Employment
Law in the Maurer School of Law. He is a former elected member of the Bloomington
Faculty Council (BFC) and of the Faculty Board of Review.
Indiana University’s New Free Speech Policy and the Surrender of Academic Freedom
This fall, faculty, students, staff and community members have been gathering every Sunday at
10:30 to hold a candlelight vigil for free speech at the Sample Gates. Each week, a few members
make statements and all join in a single traditional protest song. The following day some are
notified by the Vice Provost for Academic Affairs that a complaint against them has been lodged
for violation of IU’s new Policy on Expressive Activity (UA-10). They are called in for interviews
and notified of potential sanctions, with the ultimate threat of dismissal or expulsion.
How did we get here?
Background: At the end of the Spring 2024 term the institutional traditions of the Bloomington
campus were abruptly discarded when the IU President and Bloomington Provost unilaterally and
without notice altered the free-speech policies governing Dunn Meadow on the eve of an
announced pro-Palestinian protest. State police in riot gear were summoned to be, as the President
termed them, “our law enforcement partners,” in order to implement the new policy, resulting in
more than a score of student and faculty arrests, a comparable number added in a second raid two
days later, on charges rapidly and summarily dismissed by the county prosecutor. Images of
snipers stationed on the Union rooftop quickly became a national meme and a new emblem for IU.
These actions came on the heels of a campus faculty vote of no confidence in administration
leaders and prompted a wave of further such votes in school after school, with nearly universal
faculty participation and agreement at levels of ninety percent and higher. Former administrators,
news reports, and, earliest of all, this AAUP chapter all quickly documented an ignorance of IU
policy, tradition, and values that lay behind the administration’s actions. In the wake of this
response the administration paused police enforcement of its new policy.
However, two months later the Bloomington Faculty Council was told by IU General Counsel that
the Board of Trustees had required that a new policy on free speech (“expressive activity”) be
adopted by August 1, superseding the 1969 policy governing Dunn Meadow. (The claim that any
timetable had been set by the Board was later revealed to be false.) “Stakeholder” groups were
asked to devise some ad hoc summer process and quickly submit comments on a draft prepared by
General Counsel, to be considered by the Board at its scheduled mid-July meeting. The IUB
AAUP Executive Committee strongly objected to this rush to overhaul free speech policy without
appropriate faculty governance consultation; nevertheless, the new policy was approved by the
Board in a rare 6-3 split vote and quickly implemented.
What has changed? From 1963 to Spring 2024 expressive activity on the Bloomington campus
was regulated by Trustee policy (provisional from 1963-68) and by customary practice, the latter
based on general acceptance of recommendations in a 1989 faculty committee report that was not
proposed as policy. Trustee policy stipulated that expressive activity on campus generally would
be limited by ordinary restrictions on interfering with classes or “traffic,” with facilities use
conforming to normal approval procedures. For Dunn Meadow, however, the emphasis was
entirely on informality and spontaneity: “Here, members of the University community may express
themselves freely on all subjects, within the limits of applicable laws and regulations, with or
without advance notice.” From 1989 on, however, it was campus practice to require that no
structures be left overnight without prior permission, to “routinely be granted provided there are
reasonable arrangements for safety, sanitation, and repair of any damage to the meadow.”
Expressive activity in Dunn Meadow was otherwise unlimited, day or night, apart from the Trustee
expectation that “all persons will respect the rights of free speech and assembly that are enhanced
by this action, and will maintain courtesy and good order during such speaking and assembly as
may take place.”
Under the current administration’s new policy, UA-10, all university areas are governed by a
single “enterprise-wide” policy governing time, place, and manner restrictions on speech.
Activities in Dunn Meadow no longer enjoy more liberal freedoms. Expressive activity of any sort
are banned overnight, from 11:00pm to 6:00am. The use of structures such as tents or signage of
any kind that is not carried by an individual, day or night, requires advance permission and tendays notice, and criteria for approval (as the AAUP has already discovered) are far from clear. Any
planned expressive activity must conform to complex approval procedures specified in IU’s
“Event Management” policy (UA-19) and consistency with its policy on “Political Activities”
(GR-01) must be ensured. All these policies and procedures carry warnings that violations make
faculty, students, and staff subject to sanctions under IU’s misconduct regimes. For UA-10, any IU
community member “reasonably believed” to be in violation is subject to immediate action,
“including but not limited to citation, trespass, and/or interim suspension from campus.”1
Broader issues. In the year since the onset of the Gaza War higher education leadership has been
tested more stringently than at any time since the 1960s and it would not be a difficult to argue that
no institution has failed that test more spectacularly than the IU on the Bloomington campus. From
the suspension of Associate Professor Abdulkader Sinno to the cancelation of artist Samia
Halaby’s long-planned museum exhibition to the police actions in Dunn Meadow, IU administration has repeatedly chosen to stifle academic freedom and First Amendment rights rather than allow faculty and student to voice pro-Palestinian positions that could provoke the displeasure of national and state political forces. The heavily armed police actions of April, initiated in direct violation of IU policies, introduced levels of violence never seen before on the Bloomington campus, and placed the safety of peaceful protesters in serious jeopardy. Regardless of the diverse views of the Gaza War that members of the IU community may hold, the suppression of any one view by the administration should be anathema to all.
And it is, moreover, clearly illegal. As a state institution, IU is bound to honor the speech
guarantees granted by the First Amendment. In April, the administration transparently engaged in
impermissible viewpoint discrimination by altering policy on the eve of an announced
demonstration. And in its attempt to insulate itself from the danger of future unwelcome speech,
the IU administration has designed and unilaterally imposed a policy that is so sweeping in its
restrictions that, as the American Civil Liberties Union has noted in one of its three recent lawsuits
against IU, UA-10 threatens citation, arrest, and potential dismissal or expulsion to faculty
members and students who dare to appear on campus after 11:00pm “standing silently either alone
or with others, displaying a message on a sign or even a t-shirt, discussing a political issue with a
companion.” The new policy is not only misguided; it is amateurishly unprofessional. It seems
inevitable that it will have to be significantly altered to meet minimal compliance with the
Constitution—and when it is, it seems equally inevitable that the administration will announce the
alterations as a display of IU’s magnificent dedication to free speech.
Indiana University was, in fact, once among the strongest university protectors of free speech.
Herman Wells’s defense of Alfred Kinsey’s academic freedom in the face of fierce political and
social attacks in 1947 is surely the best known example. But it’s also the case that after American
universities succumbed to pressures of extreme anticommunism in the 1950s—as did the AAUP—
Wells, a seventy-year member of our chapter, actively supported his friend and IU colleague,
Ralph Fuchs, who, as the Association’s General Secretary, charted the path that restored the
AAUP’s role as national leader in the defense of academic freedom. Former Bloomington
Chancellor Robert O’Neil, the Association’s General Counsel and Chair of Committee A and IU
English Professor Mary Burgan, AAUP General Secretary for a decade, also carried IU’s tradition
of defending free speech to the national level.
When we see colleagues, students, and staff gathering each Sunday evening to protest the new
Expressive Activities Policy, it is they and not the administration who are representing, at personal
and professional risk, what Indiana University has meant to American higher education. As every
week some are singled out for sanctions while others are not, it becomes clearer how the
administration’s vague and unlawful policy is deployed, arbitrarily or selectively, to target
individuals, chill leadership, and enforce a new order alien to this institution. It is our intention to
strengthen our chapter in defense of the values of academic freedom, shared governance, and the
well-being of our profession, as it has since 1919.
Bloomington AAUP Executive Committee
Because chapter member views of the war that frames the imposition of UA-10 are divided and
strongly held, we will be creating an occasional series, “Bloomington AAUP Voices,” to provide a
forum for members to express controversial views in a chapter context. The initial issue will be devoted to different perspectives on the pro-Palestinian protests that nevertheless share a view on UA-10.
IU as a Case Study in University Corporatization
The problems raised in this issue of the AAUP Report reflect changes at IU and other
universities that, for at least four decades, analysts have referred to as a trend towards the
“corporatization” of higher education. Although certain features of this trend began as
commonsense reforms, it has long been clear that the sprawling emulation of corporate culture at
universities is corroding the mission, values, and quality of higher education in America. Faculty
committed to higher education need to be able to articulate the damage corporatization is doing.
But even more critical is that faculty develop practical long-term strategies to mobilize support
for a new approach to change the current dynamic.
Corporatization has steadily supplanted the administrative norms that marked US education in
the mid-20th century, which prioritized academic freedom guaranteed by earned tenure and
shared governance. The effects on public institutions have been greatest. In the wake of
economic disruptions, state fiscal support for public universities began to fall in the 1980s. To
replace lost income, schools began a steady increase in real tuition costs; and administrations and
governing boards began to borrow private for-profit sector strategies, stressing cost-management
to reduce budgets.
There is nothing intrinsically wrong with introducing professionalized accounting and cost-management strategies into university administrations. As long as budgetary and organizational
decisions are made in service of educational priorities, higher education is well served by closely
tracking budget trade-offs, keeping non-essential costs low to ensure that teaching and research
are as well funded as possible. But the adoption of for-profit corporate models has had cultural
impacts on campuses far beyond the goal of efficiency in pursuit of a mission. Its influence is
reflected in the reshaping of academic programs to appeal competitively to “customers” (students
or parents) or “shareholders” (taxpayers or legislatures). The meaning of higher education itself
has shifted from goals concerning broad analytic and aesthetic skills to be applied in increasingly
specialized practical contexts towards narrower ones focused principally on career training or
workforce development that can be more easily marketed to a non-academic public. It mistakes
part for whole, reducing education to an impoverished metaphor. Our students are like customers
in some respects, but they are also like our “clients” in some respects, or our patients, or
sometimes perhaps even like our children. What they actually are is students.
Corporatization also refers to managerial organization, and the model that has most influenced
public universities today emphasizes vertical organization where decision making is centralized
and top-down, the administration controls information flow to minimize obstacles to quick action
in a competitive environment, and internal rules are clear, detailed, and enforced to reduce
unpredictable autonomy below upper management levels. Administration is treated as an area of
authoritative expertise. Trustee board members are largely drawn from a business sector
accustomed to this type of structure. And presidents are appointed to be CEOs of a competitive
enterprise, rather than stewards of an educational institution and mission. As in the corporate
sphere at large, presidents who meet board expectations are often treated as celebrities: the
model of the lavishly rewarded rock-star president isn’t confined to IU’s Beyoncé.
Bloomington was slower to be swept up in this transition, and through the early years of the
century this was a self-identified trait of the campus, whose leadership stressed the traditions and
horizontal style of the Wells administration. All vestiges of that approach have disappeared with
the coming of the Whitten administration, which seems singularly devoted to eliminating IU’s
distinguishing institutional traditions and remaking the university on a corporate model.
Three elements of corporatization robustly manifest in the events of the past year on this campus
are at the focus of this issue of the AAUP Report: the administration’s treatment of faculty as
flexible labor; the prioritization of risk avoidance reflecting a growing role of the Office of
General Counsel; and the replacement of academic communication with the voice of corporate
public relations.
Flexible labor. One widespread feature of corporatization has been the shift away from tenured
faculty positions and the reduction of contractual obligations that may limit a university’s
financial flexibility by constraining its freedom to terminate faculty employment. Corporate
views of tenure focus on the cost of committing indefinite compensation to senior faculty. The
limited vision of this approach does not recognize the massive benefits to higher education that
the prospect of job security and intellectual freedom provides in recruiting talented people into
academics and the creativity which that security can enhance.
At IU, the quest for “labor flexibility” now goes beyond the gradual conversion of faculty
positions to non-tenure track status. As Ken Dau-Schmidt explains, through its “handbook
disclaimer” the IU administration has pointedly undermined the security that tenure offers and
simultaneously has taken advantage of Indiana’s legal framework to free itself of virtually all
contractual obligations to tenured and non-tenured faculty alike, other than those specifically
enumerated in appointment letters. This positions the administration to treat faculty as effectively
subject to dismissal at will. The proliferation of academic policies that includes threats of severe
sanctions or termination for violation reminds us that while IU asserts that its policies create no
obligations for the university, they are absolutely binding on faculty.
Risk aversion and the role of IU General Counsel. Commercial corporations are careful to
avoid risks that could reduce profitability. Not-for-profit public educational institutions are
committed to non-financial missions, and they have traditionally accepted risks that could have
negative financial outcomes if those serve the institutional mission. One feature of the
corporatized university is assessment of risks in terms that ultimately relate to financial concerns,
such as unfavorable reactions of “customers” or “stakeholders,” rather than in terms of
educational values. All universities rely on legal counsel and risk analysts to advise them in
terms of various types of risk exposure. Growing influence of these offices, however, is a sign of
corporatization, and at IU this applies particularly to the Office of General Counsel, which has
been singularly devoted to imposing and enforcing limits on any faculty freedom of action that
reduces administration control and increases risks to its agenda of financial stabilization. (The
Bloomington AAUP called attention to this in its Spring Report, in connection with the
cancellation of the Halaby art exhibition.)
Ben Robinson’s discussion of the new Expressive Activities Policy (UA-10) illustrates just one
way the IU administration has unilaterally created policy to limit academic freedom and free
speech that some members of the public and the Indiana legislature might find objectionable. In
2023, the Office of General Counsel’s restrictive use of IU’s policy on political activities (GR01) to sanction elected faculty leaders for addressing campus faculty on issues with political
dimensions undermined both academic freedom and shared governance. Corporations may be
entitled to constrain employees in this manner: the traditional norms that govern American
higher education are not relevant to them. IU appears to be adopting this corporate disregard,
limiting risk by controlling normal and essential activities of the academic community.
The Orwellian university. Within hours of a summer decision by the Board of Trustees to
discard IU policies and practices that had successfully protected free speech in Dunn Meadow for half a century, the university launched a barrage of publicity declaring that the new Expressive Activity policy strengthened IU’s commitment to free speech. Physical signs, website
banners, paid advertisements, and online videos all mischaracterized and celebrated the
restrictive new policy.
When President Whitten and Provost Shrivastav described the process by which they unilaterally
and without notice altered policy and practice concerning Dunn Meadow, calling in state police
in riot gear and rooftop snipers, they claimed they had been “modernizing” policy. When the
administration made the unprecedented decision to cancel an art exhibition because it could have
been controversial in the context of the Gaza War, it used the pretext of unspecified “safety”
concerns to evade answerability; and despite numerous press requests and student
demonstrations President Whitten declined to acknowledge the issue, avoiding even a “no
comment.”
These are just a few of many cases where the administration has used happy talk, newspeak, and
silence to evade answerability for its actions and avoid the educational imperative to make the
university a venue for critical thinking and reasoned debate. Yet almost every weekday, the
university community receives a deluge of “news” items in its email Inboxes, the product of IU’s
robust Office of Communications and Marketing, substituting advertising for information. With
a staff of over one hundred and fifty, Communications and Marketing presents a rosy picture of a
harmonious university and campus in dynamic growth. IU’s distorted pattern of public relations
both models and encourages cynical disregard for intellectual integrity. While intellectual
integrity may be a luxury in the context of corporate culture, it is indispensable to the mission of
a university.
The corporatization of the university is a widespread national transformation of higher education,
and it goes well beyond what I’ve been able to outline here. IU has gone from being a holdout,
honoring the tradition of Herman B Wells, to being in the vanguard of these changes. For the IU
faculty, the first step is to recognize how corporatization has changed the university mission and
the faculty’s role. The harder work is to join together to devise effective steps to help redirect
change and create a post-corporate university that can resituate core values in new contexts that
will protect them.
Bob Eno, EALC
Bob Eno is a retired Associate Professor of East Asian Languages and Cultures. He was
President of the IUB-AAUP in 2000-2001 and 2023-2024, and President of the BFC,
2001-2003.
- Some of these features were present in a pre-existing policy on free speech (UA-14) imposed unilaterally by the administration in 2022. UA-14 takes no notice of the 1969 Dunn Meadow policy and was not cited by the administration in connection with its sudden policy change in April. ↩︎
Full PDF of statement below:
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