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Tenure values raised after Marder's dismissal

The University of Wisconsin Board of Regents, raising issues of the value of tenure and collective bargaining rights, fired a tenured public university professor last summer.

John Marder, a journalism professor at the University of Wisconsin-Superior was fired on June 8, by the Board of Regents by an 11-3 vote. He was charged with “unprofessional behavior toward students” and “uncollegial behavior” toward his department colleagues.

The Association of University of Wisconsin Professionals, a union for public university faculty, disagrees with the decision, citing errors in due process. It is also concerned about the standard the board used to fire Marder. The board used the Safransky standard, which means an employee can be fired if he or she has as a deficiency in performance or prevents group efficiency.

Such a low standard for tenure can be applied to any faculty member who isn't meeting university standards of performance or efficiency, former TAUWP Pres. Raymond Spoto said.  

Aaron Halstead, Marder's lawyer, said the Safransky standard is too broad and not relevant to this case. Safransky deals with a suspected homosexual, who didn't have tenure, and was fired for making comments alluding to homosexuality.

Halstead is appealing Marder's dismissal based on two factors. The first states "[t]he Chancellor failed to conduct a proper investigation." Halstead said some of the claims don't warrant dismissal. The second claim states that due process was violated.

For example, Halstead said the board allowed the chancellor to present his argument in a closed session outside of Marder’s presence.

In addition, the chancellor didn't meet with Marder to get his response before deciding his dismissal, as required by law, according to a letter by state staff member for TAUWP Ed Muzik

 “If Chancellor Erlenbach ignores due process, that means tenure doesn’t exist,” said Gloria Toivola, a faculty member at UW-Superior and regional representative for TAUWP there.

According to the board’s conclusions of law, the chancellor did consult with Marder and the committee.

The teachers’ organization is currently helping Marder appeal the case in court and lobbies for faculty benefits, although it doesn’t have collective bargaining rights. It hopes to gain those rights from the state Legislature as a result of this case. State universities rely on shared governance to handle these matters by appointing faculty committees to hear testimony for dismissal cases.  

“If a chancellor wants to fire somebody, the standard gives a lot of latitude to fire somebody with tenure as we currently understand due process,” Spoto said, identifying with former accusations that due process was allegedly violated.

Such a latitude in termination may compromise faculty positions, causing a loss of academic freedom. The American Association of University Professors defines academic freedom as "Teachers are entitled to freedom in the classroom in discussing their subject," according to their statement of principles on academic freedom.

Spoto said the administration has gained more control of  classroom structure and subject matter since the decision of this case. 

Yet, the board believed it had found sufficient evidence to fire Marder based on his past behavior. According to the board’s conclusions, there was evidence Marder displayed "unprofessional and exploitive behavior" by distributing information to students about departmental issues not concerning them and playing a tape recording of a department meeting to a class. After playing the tape he distributed course evaluations to students in the middle of the semester.

The board agreed that “the evidence established that he (Marder), alone, was responsible for the problems.”

However, the Faculty Terminations Committee found “Professor Marder through his behavior and conduct has contributed significantly to its breakdown (of the department). But other faculty and staff members in the department are also responsible for the breakdown to some degree.”

“None of them seemed to get along,” Regent Jonathan Barry said of the Communicating Arts Department.

The Terminations Committee agreed there wasn’t enough evidence to dismiss Marder. It was disappointed that the administration brought insufficient evidence to “exact its most severe punitive action.” The committee recommended he seek counseling and that the department mediate its issues, including finding a third party to evaluate Marder’s annual evaluations.

Chancellor Erlenbach chose to appeal the decision to the Board of Regents, in a letter listing charges such as engaging in behavior that resulted in moving his office to a different building. He further stated that mediation had failed and “coerced counseling is not likely to be effective.”

The matter was transmitted to the Personnel Matters Review Committee that found there wasn’t enough evidence for dismissal. The board accepted the committee’s findings three times before it changed its mind on June 8.

“They didn’t like our recommendation,” Regent Barry said, who chaired the committee. “The Board of Regents chose to write its own findings of fact.”

Regent Roger Axtell said the board wanted more details so all the members could have more information.

On June 8, after listening to testimony from the chancellor, the board voted 11-3, one abstaining, to dismiss Marder. The only regents voting against were those on the Personnel Matters Review Committee.

Toivola said the Board of Regents has lowered the standard of tenured faculty in the UW-System. “In this situation it would seem that we’re just subject to the whim of the administration,” she said.

She said there is a need for collective bargaining rights that would include sitting down with management and writing a contract with working conditions such as salary. Other university employers such as secretaries and groundskeepers have collective bargaining rights.

Toivola said faculty are dependent on other states’ unions to gain benefits such as dental plan after six months of employment and wait for the state Legislature to add those items to faculty benefits.

However, some officials personally disagree that faculty should have collective bargaining rights.

Axtell said, “The faculty already has shared governance by state law which in my opinion is just as strong as collective bargaining rights.”  

Spoto disagrees, identifying that Minnesota has both shared governance and collective bargaining rights which help resolve grievances in a shorter time period according to their contract. TAUWP isn't allowed to vote for collective bargaining rights, Spoto said.

Spoto said the case has eroded tenure, which guarantees academic freedom for teachers to argue issues with administration without fearing dismissal. 

Some students at UW-Superior were awaiting the board’s decision in June before registering for fall classes. Stephanie Hilton, student body president, said she said she didn't register for a journalism class until the board’s decision. After the decision, she registered for the class Marder had taught at UW-Superior. She said students, especially women, “felt very uncomfortable taking his classes.”

Although Hilton said there were tensions between faculty, students are more enthused about taking journalism classes this year. They’re receiving quality education from new staff, and they feel safe asking them for advice.

“It’s a healthy atmosphere for students now that he’s not on campus anymore,” she said.

While Marder attempts to come back on campus, TAUWP is gathering bi-partisan support for collective bargaining rights from Senate Majority Leader Chuck Chvala and Republicans. Eight university governance bodies have asked the Legislature to grant those rights. Until it changes the statutes, the Board of Regents will continue to maintain shared governance as the mechanism to handle personnel affairs.