Ten Years On: The Kirstein Suspension Case, Shared Governance and Academic Freedom

By Peter N. Kirstein, Professor of History, Saint Xavier University, Vice President IL Conference, Chair IL Committee A on Academic Freedom and Tenure

I think it is judicious to define succinctly what shared governance means. While the AAUP Statement of Government of Colleges and Universities is a well-developed exploration of shared governance, it is comprehensive and not concise. Ironically, a good place to glean a concise definition is from the University of Colorado brief before the Colorado State Supreme Court in Churchill v University of Colorado. The case arose from the firing of tenured Ethnic Studies Professor Ward Churchill in 2007. This complex, multi-layered case was a crossroads of academic freedom, the 9/11 attacks, alleged egregious research misconduct, due process and shared governance. The university’s brief states:

Institutions of higher education are different from many workplaces, particularly in the relationship between the leadership and faculty. The Board of Regents implemented a system of shared governance based on the “guiding principle that the faculty and administration shall collaborate in major decisions affecting the academic welfare of the University.” Accordingly, the...faculty “takes the lead in decisions concerning selection of faculty...academic ethics, and other academic matters.” The Regents cannot dismiss a tenured professor unless a panel of faculty members determines that the professor is guilty of professional misconduct.

Many believe shared governance was not sufficiently adhered to when the Colorado Board of Regents fired Churchill despite faculty-recommended sanctions that recommended suspension, forfeiture of salary but absent a consensus for dismissal.

Ten years ago I was suspended, perhaps not coincidentally, on Veterans Day, November 11, 2002. Departmental replacement instructors took over my classes a mere three weeks before final examinations. The suspension resulted from an e-mail response on Thursday, October 31, 2002 to an Air Force Academy cadet’s e-mail sent to dozens of professors to recruit a student audience for an assembly event at the academy:

You are a disgrace to this country and I am furious you would even think I would support you and your aggressive baby killing tactics of collateral damage. Help you recruit. Who, top guns to rain death and destruction upon nonwhite peoples throughout the world? Are you serious sir? Resign your commission and serve your country with honour. No war, no air force cowards who bomb countries without AAA, without possibility of retaliation. You are worse than the snipers. You are imperialists who are turning the whole damn world against us. September 11 can be blamed in part for what you and your cohorts have done to Palestinians, the Viet Cong, the Serbs, a retreating army at Basra. You are unworthy of my support.

My e-mail denounced war and the cadet in personal terms and I do not deny it was acerbic, impassioned and caustic. It was motivated from a long-exercised radical commitment to peace and a loathing of war and violence. This was during the inexorable run-up to an immoral, unprovoked, preemptive criminal invasion of Iraq that began a few months later on March 19, 2003. My e-mail was intended as private communication. I did not cc or forward it. It was neither a public scolding of the cadet nor a public denunciation of the military and those who train to kill humans at our militaristic service academies. An enraged cadet wing at the taxpayer-subsidized academy forwarded my e-mail to family and friends. They contacted right-wing media outlets and it went viral among military networks throughout the American empire. Within a few hours, e-mail started arriving at the inbox of President Richard Yanikoski who requested a meeting on Monday, November 4, 2002. I knew this was going to be a tough battle once I started getting e-mail complaints going to the president. The cowards chose to get even for speaking truth to power in denouncing the barbarity of war.

Over the weekend prior to this emerging as a full-blown national academic-freedom case, the Air Force Academy, the cadet and I exchanged apologies. Mine was for that portion of the e-mail that was personal in nature. Their apology was for disseminating the e-mail as a form of retaliation. Ironically, Air Force Captain Jim Borders, who was the faculty coordinator of the assembly event at the academy, defended my academic freedom more than any administrator at my university. After reading the contrite e-mail exchanges, Yanikoski, an Air Force veteran, e-mailed me on Saturday, November 2 that “It looks like as though you have found a pen pal.” Later that day he sent me another e-mail: “I am happy to hear that things are looking up. Your letter to the cadet was the Peter I know.” At a brief meeting on Monday, he told me the e-mail incident was resolved, to go to class, and move on. I told the president that this was merely the beginning of a national campaign against me and that he would be pressured to impose sanctions to satisfy the right wing of the culture wars. He stated he would not bow to such pressure and even requested “[to] let me know if anyone tries to damage your reputation.”

I was right. The Wall Street Journal denounced me in two editorials. Jed Babbin, deputy undersecretary of defense during the George H. W. Bush administration, accused me of libel in The Weekly Standard and despite lacking knowledge of my teaching, attempted to orchestrate a parental boycott of my courses: “Whatever your college student may be taught in Kirstein’s class, it certainly won’t be history.”

Laura Ingraham’s Shut Up and Sing: How Elites from Hollywood, Politics, and the UN Are Subverting America sarcastically referred to me in provocative quotation marks as a “‘teacher’ of American history, God help us.” Roger Kimball, editor and publisher of The New Criterion, in an article, “Tenured Adolescents,” hailed my suspension as “good news,” and the “administrative reprimand that will be placed in his file.” Kimball followed up in the American Legion magazine with a McCarthy-era charge of “anti-American,” and lamented I was not fired: “[H]e presumably will soon be back molding young minds.” David Horowitz covered this case extensively in Frontpagemag.com and included me in his book: The Professors: The 101 Most Dangerous Academics in America. He even came to my university, after my suspension ended, and debated me for two hours on war and academic freedom. The Chronicle of Higher Education extensively covered my case with consistently objective reportage.

I received a telephone call on Saturday evening, November 9, 2002, from Vice President for Academic Affairs Christopher Chalokwu informing me that the president had returned early from a fundraising trip to the East and wanted the three of us to meet on Monday. Surprised and concerned about this unexpected phone call, I asked not once but twice, “is this a disciplinary hearing?” Chalokwu repeatedly said: “Oh my no! No, no. No, no. This is merely a conversation.” However, despite his repeated denials of a disciplinary hearing, he did not assuage my concerns due to the mounting national campaign to silence me. The Chicago Tribune and Chicago Sun-Times were on the story which brought the national outcry to the president’s door. But that is what I was told and I immediately called AAUP Chapter President-elect Richard Fritz to inform him about the putative Monday “conversation.” After my last class I arrived at the president’s office. I knew instantly I had been set up. The president looked exhausted and solemn. The vice president for academic affairs was silent. The greeting was non-verbal and tense. The wave of persecution and intolerance of university professors who challenge the empire engulfed the president. I was subjected to a two-hour unannounced disciplinary hearing that was threatening, demeaning and unprofessional. I was not accompanied by counsel. I had no faculty adviser.

I was given an inaccurate agenda. I was lied to about the purpose of the meeting or if one prefers, I was either given information that was purposefully false or the academic vice president had been misled about the purpose of the meeting. At some point, however, Chalokwu knew the meeting was not merely a “conversation” about the controversy but avoided informing me what was to occur.

The president stated he was removing me from the classroom because the controversy was creating too much stress for effective teaching. I looked at him and argued, “What? How do you know! I have not been accused of ineffective teaching? I am teaching with considerable effectiveness. Of course this is stressful but I have been in these battles since graduate school.” I then listened to what seemed an endless list of sanctions for an impassioned e-mail opposing war, genocide and American imperialism. He imposed sanctions ranging from suspension (he described it as “reassignment to other duties”), a reprimand and ominously a threat of more extreme punishment were I to precipitate additional controversy. He did not specify the punishment or what he meant by controversy but I construed it as a threat to terminate my continuous tenure if there were additional controversies. He also declared there would be contract addenda each year to remind me of my restrictions on conduct. Those never appeared and I would have ignored them anyway and crossed them out when I signed my contract.

I was given until Thursday to submit a letter that no grievance or any challenge to these sanctions would occur. With regard to the reprimand, this violated AAUP Recommended Institutional Regulations on Academic Freedom and Tenure Regulation 7 that requires an administration to allow a challenge prior to the issuance of a reprimand. If a challenge is unsuccessful a grievance can be pursued “pursuant to Regulation 16.” I was allowed the former in a subsequent meeting but not the latter. In other words, a university president in the United States of America ordered me not to file a grievance or pursue any remedy after the imposition of sanctions. Two days later, in fear of losing my tenure and before the Foundation for Individual Rights in Education (FIRE) came to the rescue, I wrote the president, “I do not intend to file a grievance or contest this action.”

The AAUP chapter sent an e-mail and later a hard-copy letter to Yanikoski and the faculty the following spring and fall. I was on a previously awarded sabbatical the spring term following my suspension. The AAUP chapter letter was leaked to History News Network (HNN), a major website for historians, that criticized the administration for its lack of shared governance:

Due process must precede any sanctions or punishments. Faculty members should be notified in advance of a disciplinary hearing. They should be informed in writing of the nature of the charges and of any sanctions being considered. Faculty members should also be notified in advance of the agenda and format of the hearing. (See Recommended Institutional Regulations on Academic Freedom and Tenure, Section 5, Dismissal Procedures). President Yanikoski’s list of sanctions also included a bizarre, ad hoc three-person “Evidentiary Committee” to investigate my teaching. I had not been accused of any wrongdoing by a Saint Xavier University student, had previously won the university Teaching Excellence Award, and the president told me that his daughter enjoyed her class with me. There was no linkage between my e-mail and the quality of my teaching. Extramural utterances rarely suggest an incapacity to teach effectively. In fact it elevated my teaching for twelve days prior to my suspension: I used it as an example of antiwar protest in my class on Vietnam and America. Yet the thunder on the right was bombarding a feckless university with diatribes that I should not be allowed to teach and that the e-mail proved I was unfit as a professor.

I was able to avoid the three-ring circus in assessing my teaching, and bargained at the two-hour disciplinary hearing for an earlier than normally scheduled post-tenure review. I was responsible for incorporating post-tenure review in Article V of our by-laws. It was a preemptive measure to counter the growing national trend to use post-tenure review to eliminate non-conformist tenured faculty or starve them out through denial of merit pay. Saint Xavier’s handbook affirms that post-tenure review is formative, and is intended to enhance the quality of teaching. It cannot serve as a new probationary-period assessment to threaten tenure: “The purpose of the review is to enhance and improve the tenured faculty member’s overall performance. The review process shall be formative and shall preserve academic freedom and tenure.”

Actually, post-tenure review is rarely conducted on my campus despite a five-year review requirement. The AAUP chapter condemned the post-tenure review that was scheduled initially during my sabbatical:

Post tenure review must not be used as a punitive process...The procedures specified in the Faculty Policies Section of the Faculty Handbook regarding post-tenure review must be respected at all times. It is not the prerogative of either the faculty member or the administration to alter, amend, or revise these procedures.

A suspension or reassignment to other duties that results in removal from the classroom is a major sanction. A university president feeling the wrath of prowar veterans groups and right-wing media must not impose sanctions to satisfy the cries of retribution. Yanikoski stated that my e-mail went beyond AAUP academic-freedom protection. Yet the university violated many AAUP recommended procedures and policies. The AAUP Redbook in numerous documents reiterates the specific circumstance under which a suspension may be imposed: the ninth “1970 Interpretive Comment” of the 1940 Statement of Principles on Academic Freedom and Tenure, the 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings and the revised, 2009 Recommended Institutional Regulations on Academic Freedom and Tenure.

The imposition of a suspension is permissible “if immediate harm to the faculty member or others is threatened.” The administration did not rely on this rationale but instead used press releases and interviews to justify suspension for the content of the e-mail to Cadet Robert Kurpiel. While I was paid during the suspension, the AAUP affirms that financial compensation alone does not justify this major sanction. In the St. John’s University case, AAUP addressed the issue of suspension with compensation. The following is from the AAUP Bulletin that Associate Secretary Robert Kreiser quoted in a letter to DePaul University during the ideological persecution of the Norman Finkelstein tenure travesty: The profession’s entire case for academic freedom and its attendant standards is predicated upon the basic right to employ one’s professional skills in practice, a right, in the case of the teaching profession, which is exercised not in private practice but through institutions. To deny a faculty member this opportunity without adequate cause, regardless of monetary compensation, is to deny him his basic professional rights. . . . In the case of teachers at St. John’s, denial of their classroom was, in itself, a serious injury. To inflict such injury without due process and, therefore, without demonstrated reason, destroys the academic character of the University.(AAUP Bulletin, Spring 1966, pp. 18, 19)

AAUP intervention was narrowly applied in resisting at the margins Yanikoski’s demand that I accept the reprimand in writing. Yet it was FIRE that urged me to negotiate a sunset and the reprimand was removed in three years. Associate Secretary Jonathan Knight, the ultimate gatekeeper for Committee A on Academic Freedom and Tenure, wielded absolute power in determining when AAUP intervenes in such matters. I did speak to him several times on the phone and for about ten minutes in his office as I pursued greater intervention. He wrote the AAUP chapter endorsing their call for future pre-sanction due process and shared governance but declined to support the chapter in its opposition to the sanctions. AAUP never challenged my suspension, never investigated the university for the denial of my academic freedom and never contacted Yanikoski.

I received over 10,000 generally critical e-mails. A recent one from July 27, 2012 expressed an ironic common theme that the military that I criticized protected Americans so they “can express their opinions freely and without fear of retribution.” Yet a suspension and reprimand would challenge that theme. In any event, I was deleting scores of e-mail quickly to preserve my sanity but I noticed one kept reappearing with a supportive subject: “We want to help.” I opened it. Alan Charles Kors, the founder of the conservative FIRE, was the sender. He is Henry Charles Lea Professor of European History at the University of Pennsylvania and a President George H.W. Bush appointee to the National Endowment for the Humanities.

He gave me a number to call. He courageously defended my academic freedom as my world was falling apart. FIRE skillfully deployed talk radio on WGN’s “Extension 720 with Milt Rosenberg,” websites, letters and e-mail to Yanikoski that threatened legal action if additional sanctions were imposed. In addition, Stephen Balch, founding president of the conservative National Association of Scholars, offered words of encouragement by phone and published a letter in the Wall Street Journal that challenged the paper’s demands for sanctions and asserted academic freedom protected the harsh, antiwar e-mail that he personally found objectionable. President George W. Bush awarded him the National Humanities Medal in 2009.

Yanikoski received some pushback for his unilaterally imposed sanctions. While the faculty was divided between those who supported and opposed my sanctions, which argues for more not less institutionalized due process, I had the strong support of my department chair, Raymond Taylor and the AAUP chapter. I was still president during this controversy until January 2003 but Dr. Fritz ran the chapter during this lame-duck period. Dr. Yanikoski sent me while still under suspension a “personal and confidential” e-mail on December 2, 2002 anticipating national AAUP intervention in my behalf:

[T]o offer some comment on this matter...For the record, I have been doing a lot of waiting. Not a single faculty member at this University, nor any faculty body (department, school, Senate, FAC, AAUP, Rank & Tenure Committee, etc.), has offered any formal advice to me since this event first began...This abdication of faculty responsibility is an unfortunate footnote to recent events.

The president was defensive about the lack of shared governance and blamed the faculty for not engaging this issue. Perhaps his criticism was justified but the point is Saint Xavier had no shared-governance procedures in place to guide a sanctioning process. No faculty ad hoc committee was constituted; no pre-sanction process other than dissembling late-night phone calls on a weekend existed; no effort to adhere to much less take cognizance of AAUP guidelines existed. Unfortunately, the president had no reason to fear AAUP intervention because Knight refused to contact directly the administration.

The Faculty Affairs Committee (FAC), the union of full-time faculty, belatedly criticized in August 2003 the lack of shared governance and due process in the levying of sanctions: Sanctions should be determined with appropriate consultation with faculty leaders and/or groups that exist for the support of faculty, such as the Faculty Senate, Faculty Affairs, or AAUP, among others. It was not possible for faculty to provide such consultation without first being informed that specific sanctions are to be imposed. Asking for faculty input would not only be beneficial for the faculty member, it could be helpful to the administration in avoiding subsequent appeals of decisions.

Jacqueline Battalora, professor of sociology, followed Fritz as AAUP chapter president and, with great skill, resolutely engineered major by-laws revisions that include shared-governance procedures prior to sanctioning a faculty member. The faculty approved them in 2008 and the Board of Trustees in 2009. The bylaws specifically cite the AAUP Recommended Institutional Regulations on Academic Freedom and Tenure as a primary source for its provisions. Battalora also developed some novel structures unique to the institution. Here are some of the highlights of this creative and comprehensive pre-sanction due process that are part of the bylaws:

1) A Faculty Committee for Pre-Sanction Review (FCPR) is established that acts as a pre-sanction hearing body. It is to consist of five members including a representative from the AAUP chapter.

2) The administration prior to implementing “severe” sanctions ranging from assignment to other duties, dismissal, or suspension from service for a period, must first consult the FCPR whose opinion on the levying of sanctions is not binding upon the president. Administrative imposition of severe sanctions is preceded by:

1.) Discussions between the faculty member and appropriate administrative officers looking toward a mutual settlement;

2.) Informal inquiry by the FCPR which may, failing to effect an adjustment, determine whether in its opinion severe sanctions should be undertaken, without its opinion being binding upon the president;

It defined what could precipitate a severe sanction:

The committee will consider that adequate cause for an administrative-imposed sanction will be related, directly and substantially, to the fitness of faculty members in their professional capacities as teachers or researchers. Sanctions will not be used to restrain faculty members in their exercise of academic freedom or other rights of American citizens.

I am particularly gratified with the incorporation of AAUP policies on suspension that was examined earlier:

1.) Status. Pending a final decision by the FCPR, the faculty member will be suspended, or assigned to other duties in lieu of suspension, only if immediate harm to the faculty member or others is threatened by continuing current duties. Before suspending a faculty member, pending an ultimate determination of the faculty member’s status through the institution’s hearing procedures, the administration will consult with the FCPR concerning the propriety, the length, and the other conditions of the suspension. A suspension that is intended to be final is a dismissal, and will be treated as such. Salary will continue during the period of the suspension.

For the past decade I have published and spoken widely on this case. I have done so with an emphasis on institutional process and how this case can induce reform to protect faculty in the future who may experience sanctions arising from extramural utterances or other precipitating matters.

This paper was originally presented at the AAUP Shared Governance Conference and Workshops, Washington, D.C. on October 27, 2012. I appreciate the helpful comments of panel respondent Joe Berry.