ACADEMIC FREEDOM AND TENURE Yeshiva University1

ACADEMIC FREEDOM AND TENURE

Yeshiva University1

Immediately prior to the commence-ment of the 1978-79 academic year, the administra-tion of Yeshiva University sent letters to fivetenured faculty members notifying them that theirappointments were to be terminated immediately.The faculty members were told that they wouldreceive severance pay for the forthcoming year butwould not have any academic responsibilities. Twoof the notices were subsequently rescinded. Thethree remaining affected faculty members—Profes-sors Shelly Koenigsberg, Charles Patt, and DorothySievers—asked the Association for advice and assis-tance. After discussions between the Association'sstaff and the administration of Yeshiva Universityfailed to achieve a resolution, the undersigned adhoc committee was appointed to investigate thecases of concern.

The members of the ad hoc investigating commit-tee visited Yeshiva University on January 16-17,1980. Vice President for Academic Affairs BlancheD. Blank and members of her staff conferred withthe committee and answered a limited range ofquestions. The committee interviewed the threefaculty members whose appointments were termi-nated, two former deans, the faculty members'departmental chairmen and other faculty col-

1 The text of this report was written in the firstinstance by the members of the investigating committee.In accordance with Association practice, the text was sentto the Association's Committee A on Academic Freedomand Tenure, to the teachers at whose request the investi-gation was conducted, to the administration of YeshivaUniversity, and to other persons directely concerned inthe report. In the light of the suggestions received, andwith the editorial assistance of the Association's staff, thereport has been revised for publication.

leagues, professors active in the Faculty SteeringCommittee of the Faculty of Arts and Sciences, andleaders of the organization which had been electedto represent the faculty for purposes of collectivebargaining, the Yeshiva University Faculty Associ-ation.2 In addition, the investigating committeelistened to recorded hearings on the cases held byan ad hoc committee of the Faculty of Arts andSciences in September, 1978, and it examined theextensive file on the cases that had been compiledby the Association's staff.

Yeshiva University is a private university locatedin New York City. Its origins are in a day school,founded in 1886, offering instruction in Jewish andGeneral Studies. Ten years later, a theologicalseminary was established. Yeshiva College wasestablished in 1928 and awarded its first baccalaure-ate degrees in 1932. The name Yeshiva Universitywas adopted in 1945, and the Middle States Associ-ation of Colleges and Secondary Schools first ac-credited the University in 1948. Yeshiva Universityretains strong ties to the Orthodox Jewish commu-nity although it is considered nonsectarian and assuch became eligible for New York State aid to

2 In February, 1980, the U.S. Supreme Court decidedthat the provisions of the National Labor Relations Actfor collective bargaining were inapplicable to the Yeshi-va University faculty (see Academe, May, 1980, pp. 188-197). The election for collective bargaining and thesubsequent litigation have no particular relationship tothe cases that are the subject of this report. It will berecalled, however, that the Court based its decision onfindings that the faculty of Yeshiva University had suchsubstantial roles in academic governance that they mustbe considered managers and they are ineligible forprotection under the National Labor Relations Act.

186 / ACADEME August 1981

independent secular institutions (commonly called"Bundy money") in 1970.

The University enrolls approximately 7000 stu-dents in four basic academic centers. The maincampus, in the Washington Heights section ofManhattan, includes the men's undergraduate divi-sion, Yeshiva College, the Erna Michael College ofHebraic Studies, and the James Striar School ofGeneral Jewish Studies. This campus also housesthe Rabbi Isaac Elchanan Theological Seminary, theBernard Revel Graduate School, the Harry FischelSchool for Higher Jewish Studies, and the site ofthe former Belfer Graduate School of Science (to bediscussed below.) A midtown center, on LexingtonAvenue and 36th Street, is the site for SternCollege for Women and the Teachers Institute forWomen. The Graduate Center, on lower FifthAvenue, houses the Ferkauf Graduate School ofHumanities and Social Science, the WurzweilerSchool of Social Work, and the recently establishedCardozo School of Law. Finally, the Albert EinsteinCollege of Medicine and the Sue Golding GraduateDivision of Medical Sciences are located at theUniversity's Bronx Center.

The president of Yeshiva University is Dr. Nor-man Lamm; he assumed his office in August, 1976,following the thirty-three-year presidential term ofthe late Rabbi Samuel Belkin. At the time of hisappointment, President Lamm was professor ofJewish philosophy at the University and also rabbiof a prominent Orthodox Jewish congregation inManhattan. A year later, he announced a reorgani-zation of the administrative structure by disciplineinstead of by individual schools, and he named anumber of new administrative officers. Dr. BlancheD. Blank became vice president for academic af-fairs. Dr. Morton Berger became dean of the Fer-kauf Graduate School and university dean for thebehavioral and social sciences. In January, 1978, Dr.Arthur Komar was succeeded as dean of the BelferGraduate School of Science by Dr. David Finkel-stein, who left the University one year later toaccept a deanship elsewhere. Dr. Finkelstein's re-sponsibilities were then assumed by Dr. KarenBacon.

THE CASES OF THE THREE FACULTY MEMBERS

The structural reorganization of Yeshiva Universitythat had been announced by President Lamm wasthe subject of extensive discussions during thecourse of the 1977-78 academic year. Its effect onmembers of the faculty was that, with the excep-tion of the professional schools, the academic

organization of the University would be by disci-pline, although the separation of the Universityinto various colleges would remain, and facultymembers who previously had taught exclusively atthe graduate level could therefore be expected toteach at Yeshiva College or Stern College. In eachof the cases to be discussed, the stated reason forreleasing the faculty members was academic reor-ganization.

Belfer Graduate School—The Termination of theAppointment of Professor Charles Patt

The Belfer Graduate School of Science offereddegrees in physics, chemistry, and mathematics. OnJune 27, 1977, President Lamm sent a letter to eachmember of the Belfer faculty announcing his deci-sion to close the Graduate School in light of thefinancial needs of the University, declining enroll-ments, and the high costs of operation. Presentgraduate students were to be afforded the opportu-nity to complete their studies, but new admissionswere suspended. The president indicated that somefaculty members would be reassigned to under-graduate teaching but that the appointments ofothers would be terminated under procedures con-sistent with the January 14, 1974, Statement ofTenure and Appointment Policy of Yeshiva Uni-versity. He stated that it was the University'sintention to complete the reassignment or termina-tion of appointments of faculty by June 30, 1978.

As far as the undersigned investigating commit-tee can determine, the basic decision to close theBelfer Graduate School was made by the presidentand his vice presidents; the long-time dean of Bel-fer, Dr. Arthur Komar, was not consulted in alldetails, and the Belfer Faculty Welfare Committeewas not consulted at all.

Pursuant to the decision, Dean Komar madeplans to transfer some graduate faculty members inmathematics to undergraduate mathematics teach-ing, utilizing them to expand undergraduate com-puter science courses. He expected that most of theaffected faculty members who wished to remain atthe University could do so, since he anticipated theresignation of a number of senior faculty memberswho would seek graduate teaching positions atother universities.

In January, 1978, Dean Komar was replaced byDr. David Finkelstein. One of Dean Finkelstein'sfirst acts, on January 19, was to remove Dr. CharlesPatt, a tenured associate professor of mathematics,from his part-time administrative position as assis-tant dean of the Belfer Graduate School. Professor

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Patts affiliation with Yeshiva University was oflong standing. He did his undergraduate workthere, received his Ph.D. from the University in1962, then served as a research associate for threeyears and then was appointed as an assistantprofessor. Tenure was granted in 1972, and he waspromoted to associate professor in 1976. He hadserved on a part-time basis as an administrator inthe Belfer School from 1962 to 1970 as assistant tothe dean and after that as assistant dean. DeanFinkelstein stated that it was his desire, for reasonsof efficiency, to discontinue using faculty membersfor administrative tasks. Professor Patt's administra-tive duties were assumed by someone who was nota member of the faculty.

Dean Finkelstein also moved to reduce the num-ber of faculty positions. Several senior facultymembers who were on leave were sent inquiries asto whether they planned to return to YeshivaUniversity for the fall semester of the 1978-79academic year. In several cases no answer wasreceived. The reticence in responding may in parthave stemmed from the provision in Yeshiva Uni-versity's Faculty Handbook that faculty memberswhose appointments were terminated would re-ceive one year's salary as separation pay, whilethose who resigned would not. Despite informalassurances from the mathematics chairman that theindividuals would not return, the dean acted onthe supposition that they would, thereby eliminat-ing positions for less senior faculty. In the absenceof resignations, he proceeded over the summer of1978 to revise the schedules for undergraduatecourses in mathematics and computer sciencewhich had been drawn up in June by the depart-ment chairman. In the chairman's schedules,courses had been provided for Professor Patt andtwo other mathematics professors who were subse-quently to receive notices of termination of ap-pointment. Professor Patt was scheduled to teachInformation Science I, Introduction to ComputerLanguages; and Information Science 5 and 5 L,Introduction to Computer Science, with laboratory.Dean Finkelstein decided over the summer torevise the program in computer science and ap-point a new faculty member with that specialty.Courses originally scheduled were rearranged, sothat a senior professor was assigned to teach thecourses planned for Professor Patt and othercourses in computer science were to be taught bythe new person. The total number of positions inmathematics was cut by three, effective August 29.The affected faculty members were released in the

order of seniority prescribed by the Yeshiva Uni-versity regulations. At the same time, at the hear-ings which were held in September, 1978, the deanstated that he thought it in the interests of theUniversity to terminate the appointments of theseparticular tenured faculty members. According tothe tape recording of the hearings, the dean statedthat Yeshiva University required individuals whowere more research-oriented than the terminatedfaculty.

The letters of notification were dated August 29,but the recipients were to be personally notified byAcademic Vice President Blank, and difficulty inlocating persons over the holiday period delayedthe actual receipt of notice for several days. Consis-tent with Yeshiva University policy, the facultymembers were considered on leave of absence withpay for the 1978-79 academic year and without payfor an additional year.

The opening of the semester was a period ofconfusion for the mathematics program because ofthe failure of senior faculty members to returnfrom leave and the pressure of student enrollments.One of the three faculty members, who had not yetreceived written notice, was reinstated immedi-ately. A second, while being paid his regular salaryas separation pay, was engaged as an adjunct toteach fifteen hours on overload pay. In November,1978, the termination of his appointment wasrescinded and he was returned to his full-timetenured position at the University. The third,Professor Patt, was appointed to an adjunct positionteaching computer science during the fall semester.The laboratory for which he was originally to havebeen responsible was monitored by two advancedundergraduates. Denied a full-time position at Ye-shiva University, he obtained employment with afirm in the computer industry. Despite the addi-tional experience he thus acquired and a continu-ing need for courses in computer science, he wasorally offered a full-time position for academic year1979-80 only on a one-year temporary basis, with-out restoration of tenure. He concluded that hecould not return to Yeshiva University for only atemporary position. The Yeshiva University admin-istration has not offered to restore him. to histenured position.

Ferkauf Graduate School—The Termination of theAppointments of Professors Shelly Koenigsbergand Dorothy SieversIn addition to the actions at the Belfer GraduateSchool, the appointments of two tenured faculty


members were terminated following changes at theFerkauf Graduate School of Humanities and SocialScience. The actions at Ferkauf were apparentlymotivated by the administration's efforts to reducecosts in the face of declining student enrollmentsand a decline of support through outside grants.During the academic year 1977-78, Dr. MortonBerger assumed the position of dean of the FerkaufSchool and university dean for the behavioral andsocial sciences. He received a mandate from Presi-dent Lamm to effect the reductions necessary tosave Ferkauf from the fate of Belfer. By the end ofthe spring semester of that academic year, the deanhad informed departmental chairmen that therewould be some reductions in program with apossible loss of positions. By the end of thesemester final plans had not been formulated.Nonetheless, letters from President Lamm datedAugust 29 were sent to two tenured faculty mem-bers in education notifying them of the termina-tion of their appointments.

Under the structural reorganization that hadoccurred, Dean Berger was responsible for pro-grams in the behavioral and social sciences notonly at Ferkauf but at Yeshiva College and SternCollege. Associate Professor of Education ShellyKoenigsberg had been appointed initially to thefaculty of Stern College in 1966, and receivedtenure in 1973. In addition to teaching undergrad-uate education courses, she served for ten years asthe administrator of the education program at SternCollege. During the 1976-77 academic year she wason sabbatical leave. She spent the 1977-78 academicyear on unpaid leave to complete a book. In thespring and summer of 1978 she made repeatedefforts to learn her course assignments from theeducation chairman, from Vice President Blank,and from Dean Berger in order to plan her pro-gram. The dean advised her in May, 1978, thatreorganization of Ferkauf was under way and thatthe number of faculty might have to be reduced,but that no final decision had been made as towhich faculty members would be affected. In mid-July, he again informed her that no decision hadyet been made.

President Lamm's August 29 letter of notificationto Professor Koenigsberg stated that the reorganiza-tion of the Ferkauf Graduate School resulted in theconsolidation of four department units in educationinto two and the phasing out of a doctoral pro-gram. Professor Koenigsberg's immediate inquirieselicited the information from her chairman thatreorganization and curtailment of certain graduate

education courses meant that a more senior tenuredprofessor had to be moved to undergraduatecourses at Stern College and that there were notenough remaining courses to make up a programfor Professor Koenigsberg. Her courses had beencombined with courses taught by another facultymember, nontenured according to Professor Koe-nigsberg, to fill out a program for this individual.The investigating committee gained the under-standing that the administration considers Profes-sor Koenigsberg not to be qualified for certain ofthe course offerings because of state certificationrequirements. The administrative responsibilitieswhich Professor Koenigsberg held prior to her twoyears on leave were not returned to her, and she,like the others who received the August 29 notices,was placed on a year's leave with pay and anadditional year without pay.

Professor Koenigsberg conferred with AcademicVice President Blank and asked whether somecombination of undergraduate teaching and anadministrative assignment could be arranged forher. She also offered to do administrative workexclusively. The vice president told her that nosuitable administrative position was available, thatthere was no teaching for her to do since hercourses had been reassigned to someone senior toher, and that therefore no restoration was possible.The Yeshiva University administration has notmade any subsequent offers to place ProfessorKoenigsberg in any type of position.

Professor Dorothy Sievers was associate professorin the Department of Special Education of Fer-kauf Graduate School. She was first appointed tothe Yeshiva University faculty in 1965 and receivedtenure in 1972. Professor Sievers has New YorkState certification in psychology and extensiveprevious experience in psychology on a teachingand clinical level, in addition to her specialtyinvolving special educational programs for thehandicapped. She taught courses in human devel-opment as well as special education. In the summerof 1978, she was responsible for chairing thesupervision of three doctoral dissertations and wason the committee for four others.

As part of the reorganization of the FerkaufGraduate School that summer, the Departments ofSpecial Education and Psychology were consoli-dated, and it was announced that the doctoralprogram in special education was being phased out.Warned by her department chairman of possiblestaff reductions, Professor Sievers conferred onJune 20 with Dean Berger. He told her then that he


was unable to say whether a position would beavailable for her in September. As with the otherfaculty who were given notice, she received a letterdated August 29 from President Lamm informingher of the termination of her appointment with ayear of paid leave and another year of unpaidleave. The letter was postmarked September 6, andon that same day she was informed of her situationby telephone by Dean Berger. According to Profes-sor Sievers, he told her that her appointment hadbeen terminated because declining student enroll-ments had necessitated retrenchment and themerger of the two departments, and that she wasthe least senior tenured faculty member in theDepartment of Special Education. A senior col-league in special education was, however, sched-uled for retirement after one more year. In asubsequent discussion with the dean on September12 the possibility of a future administrative posi-tion was suggested, but nothing ever materialized.Students who would have been in ProfessorSievers's courses in human development in theDepartment of Special Education were placed indevelopmental courses in the Department of Psy-chology. At the time that notice was given toProfessor Sievers, there were nontenured facultymembers in the Department of Psychology whowere retained in the merged new department.

Subsequent Developments

Shortly after the issuance of the letters notifyingthe faculty members of termination of their ap-pointment, a review was conducted by the ad hoccommittee from the Faculty of Arts and Sciences.The ad hoc committee held hearings in whichrepresentatives of the administration participatedand submitted a report at a meeting of the Facultyof Arts and Sciences on October 6. Faculty membersfrom all components of Yeshiva University wereinvited except for the schools of law, medicine, andsocial work. The committee's basic findings were asfollows:

The University did not follow the generally acceptedguidelines on tenure as formulated by the AAUP nor,even more narrowly, its own promulgated rules oftenure as stated in the Faculty Handbook of 1974.(a) Neither the fauclty as a whole nor its elected repre-

sentatives were engaged in any way in arriving atthese decisions.

(b) No evidence can be found that any serious attemptson the part of the university were made to findalternate solutions to breaking tenure.

Following discussion, the faculty members present

at the October 6 meeting approved the followingresolution:

(1) The faculty endorses the findings of the ad hoccommittee to investigate the firings of five tenuredfaculty members.

(2) The faculty censures the administration for the firing,without academic due process and without inescap-able and compelling reasons, of the five tenuredfaculty.

(3) The faculty demands the immediate reinstatement ofthese five faculty members with their tenure unbro-ken.

(4) The faculty directs that this resolution be forwardedto the Board of Trustees and other interested parties.

During the course of the 1977-78 academic year,members of the Yeshiva University faculty, andparticularly faculty members from the Belfer Grad-uate School, had kept the Association's staff in-formed of developments. After notice was issued tofive faculty members, three of them met promptlywith the staff of the Association's Northeast Re-gional Office.3 Shortly after the October 6 meetingand the adoption of the faculty resolution, the staffdiscussed the matter on the telephone with VicePresident for Academic Affairs Blank. This wasfollowed by a detailed letter, dated October 31,1978, presenting the staff's basic understanding ofthe situation and discussing it in the context ofapplicable standards supported by the Association,and suggesting departures from these standards inthe administration's actions.

The staff's October 31 letter led to a meetingbetween the staff and Vice President Blank, withthe University's counsel present for a portion of it.The position of the administration conveyed to thestaff was that extensive consultation with the fac-ulty had occurred through the various deans andthat the administration acted consistently withYeshiva University's own policies, policies whichthe administration depicted as in some respectsbetter than the Association's. The staff subse-quently discussed the cases of concern respectivelywith Dean Finkelstein and with Dean Berger. Thestaff then wrote to President Lamm, emphasizingthat "the fundamental catalyst for the Association'sinquiry to the administration remains unresolved."The letter reviewed the issue, discussed in themeetings with the vice president and the deans, asto whether the administration had followed the

3 In the case of one of these three, and of one otheramong the five, the notices were not implemented andthey remain on the Yeshiva University faculty.


University's own regulations (which were acknowl-edged as varying significantly from the Associ-ation's recommended standards). The letter wenton to state that

The letters of termination which were sent to the twofaculty members in Education, Professors Koenigsbergand Sievers, rely primarily on departmental reorganiza-tion as the basis for termination. Professor Patt's letter oftermination speaks to "consolidation" and "reorganiza-tion." The faculty has, of course, questioned both theextent of the consultations and the extent of the effort tofind other positions within the University.

In his response, dated January 15,1979, PresidentLamm wrote that the University scrupulously ad-hered to its tenure policy. He added:

It is painful indeed to lose any deserving member ofour staff, tenured or otherwise, and whenever such stepsare taken it is only after a long and thorough investiga-tion of our problems. Our study of such problems alwaysincludes faculty consultation.

The decisions to terminate faculty were not easy tomake, and were not undertaken lightly. I believe thatany unprejudiced and objective study of the situationwill confirm that the University conducted itself withfairness and probity.

Several additional conversations occurred be-tween the Association's staff and the Yeshiva ad-ministration, but the dimensions of the differencesdid not change appreciably. The staff inquired as tothe possibility of reinstatements of the releasedfaculty members for the 1979-80 academic year, andit asked several questions about the funding ofProfessor Sievers's position. In reply, Vice Presi-dent Blank reiterated the administration's positionthat the University's regulations had been fol-lowed. She stated in conclusion: "Since we havealready discussed all the issues in great detail andshared all relevant facts and exchanged points ofview, there is really nothing more that I can say."The General Secretary then authorized this investi-gation.

THE ISSUES

This discussion of the issues involved in thetermination of the three appointments will firstaddress the actions in light of Yeshiva University'sstated policies and then in terms of the standardsset forth in the 1940 Statement of Principles onAcademic Freedom and Tenure, the 1958 Statement onProcedural Standards in Faculty Dismissal Proceedings,and the Association's Recommended Institutional Regu-lations on Academic Freedom and Tenure.

The Yeshiva University administration's position

is that the terminations were carried out in accor-dance with the University's 1974 Statement onTenure and Appointment Policy. There has, how-ever, been some dispute between faculty represen-tatives and administrators as to exactly what sec-tions of the policy were applicable and what thesesections meant. Neither an earlier version of thepolicy, dated 1962, nor the revised 1974 versionhad been approved by the faculty or its representa-tives, although texts formulated and approved bythe administration and Board of Trustees had beenshown to the Faculty Welfare Committee for com-ment.

The 1974 provisions dealing with termination ofthe appointments of tenured faculty for reasons offinancial exigency require substantiation of theexigency. They also require the president to "con-fer with the dean and the Welfare Committee . . .regarding the policy to be followed in the reduc-tion of staff before such action is taken." A pre-ferred eligibility list for recall during a two-yearperiod after termination is also provided. Unlikethe provisions on financial exigency, which requireconsultation with the Faculty Welfare Committee,the provisions on departmental reorganizationmake no reference to faculty consultation. They doprovide for an order of termination in the eventthat departmental or program reorganization per-manently eliminates a position. Nontenured facultymembers were to be released before any tenuredfaculty member's position was affected; tenuredfaculty members were to be released in inverseorder of their rank. If practicable in the opinion ofthe president, tenured faculty members were firstto be reassigned to new duties.

In the event of termination of appointmentbecause of financial exigency or department reorga-nization, the University's policy provides that "atenured faculty member who suffers a nondiscrim-inatory discontinuance of his tenured position shallbe considered to be on leave with pay for one yearfrom termination of the position and without payfor one additional year."

The administration has stated that it was workingunder the provisions on departmental reorganiza-tion in the 1974 text. A chairman of the Ad HocFaculty Steering Committee and former member ofthe Belfer School Welfare Committee has assertedthat the applicable text might be that in the 1962document (in effect at the time tenure was grantedto the facility members whose appointments wereterminated) which provided that in the event ofdepartmental reorganization "a tenured faculty


member shall first be reassigned to a new set ofduties whenever the same is possible, and suchfaculty member who has reason to believe that hehas been improperly reassigned may have theaction reviewed by the faculty review committeewhich shall make its recommendations to thepresident for final decision."

The investigating committee has reviewed anumber of documents relating to the financialcondition of the University. As revealed in publicstatements, at times the condition appeared precar-ious. The doctoral programs in mathematics andphysics at Belfer Graduate School and in educationat Ferkauf Graduate School did have decliningenrollments. It is significant, however, that theadministration of the University did not claim astate of financial exigency. It attributed its actionsagainst the tenured faculty members not to finan-cial exigency but to departmental reorganization,although it may well have moved to consolidatecertain programs as a prudent financial measure.The representatives of the faculty, however, re-sponded to the administration's actions with asharply different focus. To them, the actions weretaken " . . . without academic due process and with-out inescapable and compelling reasons." If noth-ing else, this difference indicates a failure by theadministration adequately to convey to the facultyits sense of the situation facing the University.

The concerns raised by the Yeshiva Universityadministration's actions are exacerbated when theactions are measured against the standards enunci-ated in the 1940 Statement of Principles on AcademicFreedom and Tenure and the Association's derivativeRecommended Institutional Regulations on Academic Free-dom and Tenure.

Under the 1940 Statement of Principles, tenurecontinues until retirement for age unless it isterminated for adequate cause or as the result of afinancial exigency that is demonstrably bona fide.The Association's Recommended Institutional Regula-tions also recognize, as a basis for termination oftenure, discontinuance of a program or a depart-ment of instruction not mandated by financialexigency and medical reasons. Adequate cause fordismissal, retirement for age, and medical problemsare clearly not germane in these three cases. Al-though administrators did cite financial consider-ations as a factor contributing to their actions, theyspecified to the investigating committee, referringto the University's stated policies, that they actedon the basis of "Departmental Reorganization" andnot "Financial Exigency," defined in Regulation

4(c) of the Recommended Institutional Regulations as"an imminent financial crisis which threatens thesurvival of the institution as a whole and whichcannot be alleviated by less drastic means."

There remains under the standards supported bythe Association one basis for terminating tenure,that set forth in Regulation 4(d) of the RecommendedInstitutional Regulations, "Discontinuance of Programor Department Not Mandated by Financial Ex-igency." This provision includes the followingessential points, none of which was met by theYeshiva University administration in its actionsagainst the three faculty members.

First, "The decision to discontinue formally aprogram or department of instruction will be basedessentially upon educational considerations, as de-termined primarily by the faculty as a whole or anappropriate committee thereof." During the criticalperiod when the reorganization was being plannedand implemented by the Yeshiva University ad-ministration, faculty participation in the academicgovernment of the University was in a weak state.Faculty-administration relations were affected ad-versely by the struggle over the potential unioniza-tion of the faculty. After the arrival of PresidentLamm, the representative faculty bodies of formertimes, the School Welfare Committees, ceased to beactive. Vice President Blank stated in the hearingson the cases of concern held in September, 1978,that she felt it was not required to consult withthese committees, and she did not consult withthem. At the same time, the full-time Arts andSciences faculty throughout the University orga-nized itself into a committee of the whole. Neitherthat body nor its steering committee was consultedby the administration. Deans did talk with depart-mental chairmen about impending changes, andsome of this discussion appears to have found itsway back to departmental faculty meetings. In nosense, however, was the faculty asked to study thefinancial situation or the administration's propos-als, nor was it requested to make recommendationsor express its view in any comprehensive fashionon the administration's course of action.4

4 Vice President Blank, commenting on a draft of thisreport sent to the administration prior to publication,stated that Dean Berger had met extensively with facultymembers in the Ferkauf School to discuss the educationaland economic issues facing the School. According to Dr.Blank, "It was the faculty of the School that developedthe reorganization plan that was adopted. Indeed, it wasthe faculty that determined the particular programs that


Early in September, 1978, the faculty of Arts andSciences selected an ad hoc committee to holdhearings on the terminations of tenured appoint-ments. Vice President Blank and Deans Berger andFinkelstein, as well as members of the faculty,testified at these proceedings. The ad hoc commit-tee's conclusions, which were endorsed by thefaculty as a whole at an October meeting, includedfindings that the faculty members being releasedwere denied academic due process, that their rightsunder principles of academic freedom and tenurewere violated, that no effort was being made by theadministration to reassign them to other teachingor administrative duties, and that neither the fac-ulty as a whole nor its elected representatives hadhad the opportunity to participate in the decisions.A faculty of Arts and Sciences vote to censure theadministration resulted. On July 11, 1979, theFaculty Senate of Yeshiva University's Albert Ein-stein College of Medicine also passed a resolutioncensuring the administration for its actions. OnFebruary 7, 1980, the faculty of Arts and Sciencesagain voted to condemn the administration for itsactions in the cases of concern and for its failure toreinstate the released faculty members.

A second essential provision in Regulation 4(d)of the Recommended Institutional Regulations is that theinstitution is required, before notice of terminationof appointment is issued, to

. . . make every effort to place the faculty memberconcerned in another suitable position. If placement inanother position would be facilitated by a reasonableperiod of training, financial and other support for suchtraining will be proffered. If no position is availablewithin the institution, with or without retraining, thefaculty member's appointment then may be terminated,but only with provision for severance salary equitablyadjusted to the faculty member's length of past andpotential service.

In Professor Part's case, both Dr. Komar, the deanwho was in office at the time the reorganizationwas announced, and his department chairman had

were to be discontinued. In view of the fact that thefaculty was not merely consulted but given a determina-tive role, the accusation of a lack of adequate consulta-tion seems totally unfounded." Dr. Blank also stated thatat the Belfer School there was consultation through theparticipation of some Belfer faculty members on variousadvisory committees. "The difficulty, however," accord-ing to Dr. Blank, "was that in this instance, consultationdid not produce consensus. Consensus, however, is notthe requirement of the rules."

indicated to him that reassignment to a teachingposition in computer science courses was a possibil-ity. Professor Patt had already taught some coursesin that area, and in June, 1978, he was scheduled toteach a full load of such courses in the fall semesterof the 1978-79 academic year. The courses, how-ever, were assigned to a newly engaged nonten-ured faculty member. The possibility of a part-administrative/part-teaching position also existedfor Professor Part, and he had in fact held such aposition up to January, 1978, when he was removedfrom his administrative post by Dean Finkelstein.Instead of seeking to continue Professor Part in asuitable position, which in the investigating com-mittee's view would have been quite possible, theadministration acted so as to eliminate any possi-bilities. If he was considered to have been less thanfully qualified in computer science, he was notoffered additional training to strengthen his capa-bilities. Professor Part certainly acquired additionalknowledge and experience in computer scienceduring the 1978-79 academic year through theposition he held in industry, but the administrationnonetheless was unwilling to reinstate him to apermanent position.5

For ten years prior to her being away on leave ofabsence for the academic years 1976-77 and 1977-78, Professor Koenigsberg held a position at SternCollege comprised partly of teaching undergrad-uate education courses and partly of administeringthe education program. No discernible effort wasmade by the Yeshiva University administrationeither to reassign or retrain her. When she was leftwithout a full load of courses in the undergraduatedivision, her request for some combination ofteaching and administrative work or even a full-time administrative position was not accepted bythe Yeshiva administration. The investigating com-mittee, while taking note of her background andexperience, did not identify a specific suitable

5 Commenting on the prepublication draft of the re-port, Vice President Blank stated that " . . . the committeeseems to wish to brush aside what it could not help inrecognizing was the real reason for Dr. Patt's choice notto continue with the position offered him by the Univer-sity, namely, that Dr. Patt . . . left to accept an offer of an-other position. . . . " The investigating committee believesthat the offer to Professor Patt would have been muchmore appropriate if the administration had informed himthat the new position was viewed as reinstatement, andthat as a tenured faculty member he could expect tocontinue at Yeshiva University.


alternative position for which she would have beeneligible.

Professor Sievers's background in psychologyand special education would appear to have pro-vided a number of possibilities for reassignmentwithin the University, but neither reassignmentnor retraining was offered by the administration.Professor Sievers, who had tenure, was told thatthe consolidation of the Departments of SpecialEducation and Psychology rendered her position asa faculty member superfluous, while nontenuredfaculty members in psychology were retained. Inthe opinion of the investigating committee, shecould have taught courses in psychology and mighthave been retrained to do other work in that field,but the administration made no discernible effortstoward finding a suitable position for her.6

A third essential provision of Regulation 4(d) isthat a " . . . faculty member may appeal a proposedrelocation or termination resulting from a discon-tinuance and has a right to a full hearing before afaculty committee . . . . " Yeshiva University's 1974policy (in contrast with the 1962 policy) has no

6 Vice President Blank, in her comments on the draftreport, asserted that any course in psychology whichProfessor Sievers was qualified to teach was taught by amore senior tenured faculty member, and that othersuitable teaching opportunities did not exist even with areasonable amount of retraining. She stated that

... the undergraduate courses in psychology were taught bymore senior tenured faculty (apart from introductory coursestaught by adjuncts involving three or [fewer] credits per year).As for graduate courses, Professor Sievers has never taught on agraduate level, and had no background whatsoever in graduatepsychology. Indeed, Professor Sievers had not taught anypsychology course at any level for at least fifteen years and hadhad even previously no regular teaching experience.. .."

The investigating committee does not accept the sugges-tions that introductory courses are the preserve of ad-junct faculty and that introductory courses should not beassigned to full-time tenured faculty members. Thecommittee suspects that an undergraduate program alsomight have been made available to Professor Sieverswith some rearrangement of the schedules of moresenior faculty members. In addition, the committeewishes to note that Professor Sievers's doctorate, earnedat Northwestern University in 1955, is in psychology,and that for the ten years after earning her degree andbefore becoming a faculty member at Yeshiva Universityshe served as a diagnostic and clinical psychologist atthree institutions. At the time her appointment wasterminated, Professor Sievers was the chairwoman offour doctoral dissertation committees and served on threeother dissertation committees.

such provision, and the administration did notoffer to arrange for hearings. The faculty didprovide for ad hoc proceedings, through the creat-ing of an Ad Hoc Committee To Investigate theFirings of Five Tenured Faculty Members. Theproceedings were tape recorded and members ofthe administration participated. The administration,however, offered no direct response to the findingsof the committee that the actions against the facultymembers were improper or to the resolution ap-proved by the Faculty of Arts and Sciences thatdemanded their immediate reinstatement.

As has been noted earlier, the three facultymembers whose appointments were terminatedwere denied the opportunity to teach during the1978-79 academic year and thus were involuntarilysuspended upon being issued notice of termination.The 1970 Interpretive Comments on the 1940 State-ment of Principles caution that "A suspension whichis not followed by either reinstatement or theopportunity for a hearing is in effect a summarydismissal in violation of academic due process,"and the Recommended Institutional Regulations empha-size that "suspension which is intended to be finalis a dismissal, and will be treated as such."

The Yeshiva University administration con-tended to the investigating committee that theUniversity's policy of paying faculty members for ayear, while assigning them no institutional respon-sibilities, is an advance over the Association'srecommended policy. The investigating committeedoes not concur. The denial of the right to teachcan be an inherent commentary, intended or not,on the affected faculty member's competence. Un-der the provisions of the joint 1958 Statement onProcedural Standards in Faculty Dismissal Proceedings, itis appropriate to suspend a faculty member whiledismissal charges are pending only if the facultymember's continuation in the classroom presents athreat of immediate harm to himself or others. TheYeshiva University administration has not sug-gested that any such threat existed in the cases ofProfessors Patt, Sievers, or Koenigsberg. Paymentof salary for at least a year in lieu of a year ofnotification may in certain circumstances be thepreferred choice of faculty members who are com-pelled to seek new positions, but the choice ofmaintaining continuity of professional life shouldrest with them. A release from duties that isunilaterally imposed by the administration suggestsa dismissal for cause which, when unaccompaniedby the procedural safeguards of academic dueprocess, raises basic concerns for academic freedom


and tenure under the 1940 Statement of Principles.Finally, the payment of one year of terminal salaryto tenured faculty members released because ofdiscontinuance of program is of questionable ade-quacy under Regulation 4(d) of the Association'sRecommended Institutional Regulations. The Regulationprovides, in cases where a tenured faculty membercannot be reassigned after a program is discontin-ued, that " . . . the faculty member's appointmentthen may be terminated, but only with provisionfor severance salary equitably adjusted to the fac-ulty member's length of past and potential service."The investigating committee questions the ade-quacy of one year of severance salary in the casesof concern.

CONCLUSION

The administration of Yeshiva University, in termi-nating the tenured appointments of ProfessorsCharles Patt, Shelly Koenigsberg, and DorothySievers, acted contrary to the applicable provisionsof the 1940 Statement of Principles on Academic Freedomand Tenure and the Association's Recommended Insti-tutional Regulations on Academic Freedom and Tenure.

The administration terminated the appointmentsof the three faculty members, and suspended themfrom further teaching responsibilities upon issu-ance of notice to them, without having affordedthem the safeguards of academic due process as setforth in the 1940 Statement of Principles on AcademicFreedom and Tenure. The lack of opportunity for ameaningful faculty role in the decisions to consoli-date programs and of procedures to release tenuredfaculty members is inconsistent with the provisionsof Regulation 4(d) ("Discontinuance of Program orDepartment Not Mandated by Financial Exigency")of the Association's Recommended Institutional Regula-tions on Academic Freedom and Tenure, as is the failureof the administration to assume responsibility fordemonstrating its case at an appropriate hearing.

The administration did not arrange suitable con-tinuing assignments for the affected faculty mem-

bers although such assignments appear to havebeen possible in two cases. The administration didlittle to seek suitable alternate positions for thefaculty members elsewhere within the institution,particularly in the face of apparent opportunitiesfor relocation. The Yeshiva University administra-tion's failures in this regard indicate a lack ofcommitment to the rights which the three facultymembers possessed under generally accepted prin-ciples of academic tenure.

Roger Wines (History) Fordham University,Chairman

Alvin M. Halpern (Physics), Brooklyn CollegeInvestigating Committee

Committee A on Academic Freedom and Tenurehas by vote authorized publication of this report inAcademe: Bulletin of the AA UP.

Matthew W. Finkin (Law), Southern MethodistUniversity, Chairman.

Members: Jesse H. Choper (Law), University ofCalifornia, Berkeley; Bertram H. Davis (English),Florida State University; Mary W. Gray (Mathemat-ics), American University; Walter P. Metzger (His-tory), Columbia University; Peter O. Steiner (Law),University of Michigan; Victor J. Stone (Law),University of Illinois; Mary K. Bonsteel Tachau(History), University of Louisville; Judith J. Thom-son (Philosophy), Massachusetts Institute of Tech-nology; Julius G. Getman (Law), Yale University, exofficio; Jordan E. Kurland (History and Russian),Washington Office, ex officio; Irving J. Spitzberg , Jr.(Education and Policy Studies), Washington Office,ex officio; Henry T. Yost, Jr. (Biology), AmherstCollege, ex officio; Ralph S. Brown, Jr. (Law), YaleUniversity, Consultant; Clark Byse (Law), HarvardUniversity, Consultant; Carol Simpson Stern (Inter-pretation), Northwestern University, Consultant;William W. Van Alstyne (Law), Duke University,Consultant.


ACADEMIC FREEDOM AND TENURE Yeshiva University1

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