academic freedom and tenure: queensborough community college (cuny)

Academic Freedom and Tenure: Queensborough Community College (Cuny)Source: AAUP Bulletin, Vol. 59, No. 1 (Mar., 1973), pp. 46-54Published by: American Association of University ProfessorsStable URL: http://www.jstor.org/stable/40224672 .

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jtlxademic Freedom and Tenure:

QUEENSBOROUGH COMMUNITY

COLLEGE (CUNY)1

Introduction

Queensborough Community College of the City University of New York, located on a thirty-four-acre site in the Bayside section of Queens, was opened in September, 1960. It was originally established under the auspices of the State University of New York, which still provides some financial support. From an initial enrollment of 312 students with twenty-seven faculty, the two-year College has grown to enroll approximately 12,800 students (who pay no tuition, if they are qualified residents of New York City), and it has about 520 faculty members. Dr. Kurt R. Schmeller, the current President, assumed his position on August 1, 1967, becoming the fifth chief administrative officer of the young institution in seven years. Dean of Faculty John O. Riedl served as Acting President for the eight months prior to President Schmeller's arrival on campus.

The City University of New York, established in 1961, consists of eighteen four-year colleges and two-year community colleges, in addition to a graduate center and a medical school. The Board of Higher Education, composed of twenty-four members appointed by the Mayor of New York, is the board of trustees for the City University. At the time of the events to be discussed, the Board di- vided its responsibilities so that for each institution there was a college committee which considered matters with respect to staff, buildings, fees, and other affairs of the college and reported its recommendations to the Board for final action. According to the bylaws of the Board,

the Chancellor of the City University is the chief educational and administrative officer of the system; his duties include the administration of the Board's overall policy, with the understanding that the presidents of the indi- vidual colleges have authority, functions, and appellate powers with regard to educational administration and dis- ciplinary affairs within the college. At the time of the events in question, Dr. Albert H. Bowker served as Chancellor.

On Friday, April 18, 1969, after Dr. Donald J. Silber- man, Assistant Professor of English at Queensborough Community College, was notified that he would not be reappointed for the 1969-70 academic year, a student sit-in in support of his retention began in the institution's administration building. Professor Silberman participated in that sit-in, together with Dr. Steven H. Faigelman, Assistant Professor of English, and Dr. Robert K. MacDonald, Assistant Professor of Social Sciences. On the following day, President Schmeller wrote to the three professors that if their "outrageously unprofessional conduct" persisted they would "be summarily dismissed" from their positions. The sit-in recommenced on Monday, April 21, and the three professors again participated. President Schmeller mailed letters to the professors on the next day, informing them of their summary dismissal, effective immediately.

The Association's Washington Office wired a statement of concern on April 30, and there followed a series of meetings and exchange of communications between Association staff members and members of the administration of Queensborough Community College and of the central administration of the City University. A lack of apparent progress in achieving resolutions of these cases led the General Secretary to authorize an investigation. The undersigned ad hoc committee was appointed for this purpose, and plans were made for it to visit the College in July, 1969. Before the visit was undertaken, however, the Washington Office was informed by administrative

1 The text of this report was written in the first instance by the members of the investigating committee. In accordance with Association practice, the text was sent to the Associa- tion's Committee A on Academic Freedom and Tenure, to the teachers at whose request the investigation was conducted, to the administration of Queensborough Community College, and to other persons directly concerned in the report. In the light of the suggestions received, and with the editorial assistance of the Association's Washington Office staff, the report has been revised for publication.

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officers that the affected professors would be reinstated, that back salary would be paid, and that a full hearing would be offered to Professor Silberman, who had alleged that his nonreappointment was for reasons violative of his academic freedom. Accordingly, it was agreed that the investigating committee's scheduled visit would be deferred.

On August 20, President Schmeller wrote to the three professors informing them of their reinstatement with back payment of salary. His letter went on to state, however, that charges constituting grounds for their dismissal had been filed with the Board of Higher Education and that each of the professors was suspended from duties and precluded from entering upon the College's property. As a result of the suspension, and after significant progress towards resolving the issues at hand did not emerge dur-

ing the weeks that followed, the General Secretary decided to proceed with the announced investigation. Accordingly, the undersigned ad hoc committee visited the campus of

Queensborough Community College and the central office of the Board of Higher Education on December 1 and 2, 1969. The committee interviewed a large number of administrative officers and faculty members, compiled several hundred pages of testimony and corroborating evidence, and was received by all parties with courtesy and cooperation. Proceedings relating to the cases at issue went on within the City University after the investigating committee's visits, continuing through the year 1970 and into 1971.

The Events

Professor Donald J. Silberman completed his under- graduate work at Princeton University, received a master's degree from Cornell University, and his doctorate from the State University of New York at Buffalo. Professor Silberman had been an instructor at SUNY-Buffalo for seven years when, in 1965, he joined the faculty of Hunter College-in-the-Bronx (now known as Herbert H. Lehman College), a four-year unit of the City University of New York.

During the course of the 1967-68 academic year, Dr. Silberman was recommended by the Department of Eng- lish at Queensborough for a position at the College as an Assistant Professor. The administration balked at the

department's recommendation, members of the department have stated, because with the appointment Dr. Silber- man would have had a claim to tenure through serving beyond the maximum three-year probationary period then allowed by the regulations of the City University.2 In addition, Dean Riedl voiced an objection to the recommendation because Professor Silberman was reported as

having stated that he had no interest in research or publication. In any event, on March 19, 1968, Professor Silberman wrote to Professor Arnold Smithline, chairman of Queensborough 's Department of English, that he had

resigned his position at Hunter College in order "to free Queensborough of the technical obligation to grant me tenure as an assistant professor." Professor Silberman was then given a one-semester appointment to the faculty of Queensborough Community College, effective in Sep- tember of 1968, at the rank of Lecturer but at an Assistant Professor's rate of pay. Under the City University's regulations, holding the position of Lecturer carries no credit towards tenure.3

The professor on leave subsequently received an exten- sion of his grant, leading to Professor Silberman 's appointment for a second semester, this time as an Assistant Professor. On January 9, 1969, the English Department Personnel and Budget Committee, meeting in the morning, and the College Personnel and Budget Committee, meeting in the afternoon, recommended that Dr. Silberman be reappointed as an Assistant Professor for the following academic year. A controversy then ensued between the administration and the department on the availability of a budget line to allow for the appointment.

On February 18, Professor Silberman addressed a letter to the local chapter of the American Association of Uni- versity Professors in which he alleged that the administration had declined to accept the department's recommendation for reasons violative of his academic freedom. In support of his allegation, he asserted that the administration had expressed its concern over his having served, while an instructor at Hunter College, as faculty advisor to the local chapter of Students for a Democratic Society and over his having participated in a sit-in protesting the Hunter College administration's submission of the class ranking of students to the Selective Service System. During February and March, Professor Smithline con- tinually inquired about Professor Silberman's reappointment. President Schmeller stated that he viewed the matter as a question of an initial appointment, since it was the first time that Professor Silberman was being proposed for a regular full-year appointment. In any event, by March 27 all English departmental appointments for the 1969-70 academic year, with the exception of Pro- fessor Silberman's (which carried the department's strongest recommendation), had been approved by the administration. On April 1, President Schmeller wrote to Profes- sor Silberman advising him, without reference to any

2 The maximum probationary period for faculty members at the City University of New York was subsequently extended to five years, for persons with initial appointments beginning after October 1, 1969.

3 At the time of these events, the New York Public Em- ployment Relations Board had decided upon two University- wide faculty units for purposes of collective bargaining - one composed basically of faculty eligible for tenure and the other of those not eligible, primarily Lecturers. Subsequently, the Legislative Conference, a then independent faculty organiza- tion, was certified to represent that first unit, and the United Federation of College Teachers, an affiliate of the American Federation of Teachers, was certified as the representative of the second unit. The UFCT agreement, executed in October, 1969, for a three-year period, contains an article headed "Job Security" providing for an "administrative certificate of con- tinuous employment" for members of the second unit. Such service, however, is apparently not transferable for the award of statutory tenure, for which members of the first unit are eligible.

SPRING 1973 47



further negotiation or prospects, of the termination of his

appointment as of August 31, 1969. On the same date the Personnel and Budget Committee of the Department of English sent a memorandum to President Schmeller requesting that it be allowed to exercise its choice in selecting Professor Silberman in place of any other reappointment in the department, in the event budget lines sufficient for all reappointments were not made available.

Concern beyond the department and the administration over Professor Silberman's situation had been growing steadily throughout this period. On April 15, the Griev- ance Committee of the Legislative Conference, the representative under collective bargaining for faculty members

eligible for tenure, met with President Schmeller to discuss the situation. On April 16, a student rally was held in the Social Sciences auditorium in support of Professor Silberman's appointment. On the following day, the College Personnel and Budget Committee, composed of the institution's department chairmen, met with the Presi- dent, who proceeded to appoint a subcommittee to study budgetary lines, with any decision on Professor Silber- man's reappointment to be deferred until its report was submitted. The appointment of this subcommittee apparently infuriated those active in Professor Silberman's cause, who interpreted the move as a delaying tactic.

On April 18, 1969, student supporters of Professor Silberman began a sit-in on the fourth floor of the Queens- borough administration building. Professor Silberman participated in the demonstration, as did two of his colleagues, Professors Faigelman and MacDonald. After the three faculty members and several students refused to comply with a request to leave, the police were called and the building was peacefully vacated. On April 19, Presi- dent Schmeller wrote to Professors Silberman, Faigelman and MacDonald : "By reason of your outrageously unprofessional conduct at Queensborough Community College you are hereby warned that if you persist in this or similar conduct you will be summarily dismissed from your position as assistant professor. ..." The demonstration recommenced, and on April 21 the police were called again. On the following day, the President wrote as follows to Professors Silberman, Faigelman and MacDonald:

This is to inform you that you have again conducted your- self in an outrageously unprofessional manner on Monday, April 21, 1969, in spite of my verbal and written warning to you, copy attached, sent by special delivery, registered mail on April 19.

You are, therefore, summarily dismissed from your position as assistant professor in the Department of English at Queensborough Community College effective immediately. [Department of Social Science in the case of Dr. MacDonald.]

On advice of counsel, if despite this dismissal you never- theless appear on this campus you will be subject to arrest for criminal trespass in the second degree.

The institution's Public Relations Office distributed a news release announcing the summary dismissals.

The administration of the College secured two court orders against the people who had been demonstrating in

the Queensborough building, including the three faculty members. The first directed the demonstrators to show cause why they should not be compelled to cease the demonstration; the second ordered them to stop the demonstration pending a hearing. Demonstrations continued, however, and contempt charges were brought. Several of the demonstrators, including Professor MacDonald, served brief jail sentences as a result of these actions.

During the course of the demonstrations, several members of the faculty urged the President to reinstate the three faculty members and proceed in accordance with academic due process. According to what was later told to the investigating committee, the President maintained that he had already consulted the appropriate body, the College Personnel and Budget Committee. President Schmeller stated that he declined to call a general faculty meeting because of the "explosive" situation on campus; rather, he called a special meeting on April 25. The President and the three dismissed faculty members spoke to the meeting, and the faculty members present voted to pass resolutions to censure the President, to reinstate the three faculty members, to reappoint Dr. Silberman, to lift the suspensions of students, and to call police on campus only when life or property is threatened.

On April 30, the Association's Deputy General Secre- tary sent a telegram regarding the actions of April 22 to President Schmeller, with copies to Chancellor Bowker and the Chairman of the Board of Higher Education, stating that "it would appear that a serious denial of academic due process is presented under the 1940 Statement of Principles on Academic Freedom and Tenure and the 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings and we would accordingly urge in the strongest terms that any summary dismissal be rescinded and that, should a dismissal with respect to any faculty member be contemplated, the terms of the afore- mentioned Statements constituting generally accepted standards in American higher education be adhered to." On the same day, President Schmeller addressed a memorandum to department chairmen, stating that "Dr. Silber- man's dismissal applied to his present academic appointment. No action has been taken on the recommendation that he be appointed for his first full year contract effective 9/1/69."

Two Association staff members visited the Queens- borough campus on May 6, and talked to most of the parties involved, including President Schmeller, Oean Riedl, the three affected faculty members, the chairman of the English Department, and an ad hoc group of faculty members who had established themselves as a committee to mediate in the crisis. As it happened, when the staff members arrived on campus, the entire administration building was occupied by student supporters of the three professors. A picket line had been formed outside the entrance to the college by students, who were urging other students and faculty to strike. As on April 18 and 21, the police were called and the building was cleared without violence. There was again a total occupation of the ad-

48 AAUP BULLETIN



ministration building on May 8, and again the police were called to clear the building. On that evening, the three

professors were arrested for having violated a temporary restraining order which had enjoined them and others from congregating in such a manner as to disrupt the normal activities of the College.

The three faculty members have maintained that students had initiated the sit-ins and the strike and that they had decided to support the students. The three have asserted that the nonreappointment of Professor Silber- man was a political act and that the students had no real alternative but to demonstrate. They have also taken the position that their role with the students was conciliatory and that they prevented some of the students from

engaging in seriously disruptive behavior. Further, they have maintained, the demonstrations were peaceful and, save for the period from May 6 to 8, not disruptive. Even the occupation of the administration building, they say, which occurred after the summary dismissals, did not dis- turb the educational functions of the College, and at no time were classes halted or disturbed : fire aisles were kept open and the sit-in area was regularly cleaned.

It should be noted that these events at Queensborough Community College occurred at the same time major dis-

ruptions were taking place at other units in the CUNY

system, the City College of New York and Queens Col-

lege, and at a disruptive time for many other colleges and universities. President Schmeller, in his comments to staff members and the investigating committee, took the position that the demonstrators - students and faculty members alike - were provocateurs who enlisted support from radicals at other colleges and would continue their dis-

ruptive behavior if not stopped. He stated that he had been compelled either to take action to remove them from the campus or to shut down the College. The President has described the demonstrations as violent and disruptive.

President Schmeller has further stated that he took the action of summary dismissal because of the absence of

procedures governing the dismissal of nontenured faculty members in the City University. He has pointed out that on May 8, because of the lack of available procedures, he offered the three faculty members an opportunity to have the dispute submitted for a binding decision by an arbitrator selected by the American Arbitration Association, with all costs to be paid by the College. Under the terms of the offer of arbitration tendered by President Schmeller, the faculty members would have been obliged themselves to desist from further participation in the sit-in and to

"encourage all students to leave and desist from taking any part in the sit-in." The three rejected the President's offer, stating that it required them, in effect, to admit that of which they were accused.

On May 9, 1969, an Association staff member wrote to President Schmeller to urge him to reinstate the faculty members and then to initiate proper dismissal proceedings if he believed them necessary. This letter stated:

It is the position of this Association and others who support the principles of academic freedom and tenure as defined in the 1940 Statement that the need for due process is greatest

in those situations when the charges are most serious. You said in our discussions that you could not go through the channels of due process because of the "emergency situation" in which you were attempting to keep the college open. You also said, and I trust my recollection is accurate, that if any of these people want to challenge you, they can go to the court to get redress. We urge you to reconsider this position. The real test of a system of due process comes during an "emergency" situation. It is at this time when it is most necessary to call upon an agency which is capable of rationally sifting charges, counter-charges, and denials.

The Chancellor, replying to the Deputy General Secre-

tary's April 30 telegram, wrote on May 12: "We understand your concern with due process and are making every effort to accord these faculty members their rights of due

process although their actions are directly related to the present emergency at Queensborough Community College."

President Schmeller responded to the May 9 letter on June 10. He cited the provision in the 1940 Statement that termination for cause should "if possible [emphasis President Schmeller's] be considered by both a faculty committee and the governing board of the institution," and

language in the headnote to the 1958 Statement on Pro- cedural Standards in Faculty Dismissal Proceedings: "The exact procedural standards here set forth, however, 'are not intended to establish a norm in the same manner as the 1940 Statement of Principles on Academic Freedom and Tenure, but are presented rather as a guide. . . .' "

[emphasis again President Schmeller's]. He continued, "these sec- tions of the AAUP's own statements indicated that there will be situations where it will not be feasible to follow any set guidelines." The President then stated:

As for the matter of hearings, you will understand that New York State statutes do not guarantee hearings for non-tenured professors of the instructional staff and that hearings for the mere sake of hearings is futility. The purpose after all of a hearing is to insure that the officer charged with making a decision is possessed of all the facts. When these facts occur in the presence of such officer and he is knowledgeable of the allegedly extenuating circumstances such as "provocation" or "protest" the officer possesses all the facts he needs upon which to make a judgment.

President Schmeller's response crossed in the mail with a letter from the Association's staff informing him that the General Secretary had authorized the appointment of an ad hoc committee to conduct an investigation. On June 16, 1969, two members of the Association's staff met with Chancellor Bowker. According to the staff members, the Chancellor reported that arrangements would be made to reinstate the three faculty members, to fur- nish them with compensation for the period they had been

summarily dismissed, and to provide them with statements of cause and access to dismissal proceedings in accordance with those recommended by the Association. The Chancellor was understood to agree that Professors

Faigelman and MacDonald had valid appointments for 1969-70, and that Professor Silberman was entitled to a

hearing on his allegation that his failure to receive re-

appointment was for reasons violative of his academic

SPRING 1973 49



freedom. An Association staff member pointed out to the Chancellor that there would be problems in bringing charges against Professor Silberman without a concur- rent appointment (his existing appointment was due to

expire on August 31). In subsequent discussions, the Chancellor's staff informed Association staff members that Professor Silberman would be offered a hearing under

Regulation No. 10 of the Association's Recommended Institutional Regulations on Academic Freedom and Tenure,4 without the need for the informal preliminary consideration provided for in that section.

In the weeks ahead, the Association's Washington Office staff awaited official confirmation of the reinstatement of the three faculty members and the establishment of procedures for hearings. Several letters and tele-

phone calls elicited the response that the letters of reinstatement would be forthcoming, but that there had been delays such as President Schmeller's unavailability to

sign certain documents because of his absence on vacation. In late July, Dr. J. Joseph Meng, Executive Assistant to the Chancellor, informed the Association's staff that the three faculty members had received their back salary. On the basis of this development, President Schmeller was informed by letter of July 28, 1969, that the planned visit to the campus of the investigating committee would be deferred. The decision to defer the visit was based on the assumption that the payment to the three faculty members of back salary, which had been stopped as of the date of the summary dismissal, would be accompanied by letters of reinstatement. Following these developments, and in response to statements of concern received from many faculty members in the City University, the Gen- eral Secretary wrote the following letter on July 23, 1969, to members of the faculty of the City University of New York:

Dear Faculty Member: Re: Three Summary Dismissals at Queensborough Com-

munity College The Washington Office of the AAUP was informed of the

three summary dismissals at Queensborough Community College in late April, 1969, and immediately sent a telegram to President Kurt R. Schmeller urging that the dismissals be rescinded and that the faculty members be rein-

stated. The telegram also emphasized that any dismissal actions against the faculty members should be taken in accordance with accepted principles of academic due process.

Following further communications to the administration, members of the AAUP staff visited the College in an at- tempt to find a basis for settlement. When the matter seemed unresolved, the General Secretary authorized the appointment of an ad hoc investigating committee to report to the Association's Committee A on Academic Freedom and Tenure on the three cases.

After informing the administration of the investigation, the Washington Office received a call from Chancellor Bowker's Office asking representatives of the Association to meet with him. As a result of these discussions, the following arrangements have been or will be made:

1. The three faculty members will be reinstated as of the date (April 22, 1969) of their summary dismissals;

2. Their full salaries have been sent to them; 3. The two faculty members whose appointments for

1969-70 had been rescinded will have those appointments recognized;

4. Dismissal proceedings for the two professors mentioned above will be held according to the standards for academic due process recommended by this Association;

5. The faculty member who is not being reappointed will receive a full hearing on his allegation that reasons violative of his academic freedom were responsible for the decision not to reappoint him;

6. The Board will recommend that in the future the basic AAUP statements on due process be followed by the City University.

During the next several weeks, further inquiries were made from the Association's Washington Office to the Chancellor's office on the status of the three cases. The Association's staff was informed on each occasion that the letters of reinstatement and proper charges would be forthcoming. By letters of August 20, President Schmeller informed Professors Silberman, Faigelman, and MacDon- ald of their reinstatement, and he set forth charges which he described as constituting grounds for dismissal.5 At the same time, however, he informed them of their immediate suspension, with pay, an action which prohibited them from entering the campus until final determination of the dismissal charges. In the cases of Professors MacDonald and Faigelman, salary was to continue under the terms of their new appointment, effective September 1, 1969; Professor Silberman was to continue to receive salary only until his existing appointment terminated eleven days hence, on August 31.

Immediately upon learning of the August 20 actions, the Washington Office sent a telegram to President Schmeller expressing concern over the suspensions because the administration had not made an appropriate showing of the threat of immediate harm to the faculty members themselves or to others, the only grounds specified in the 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings as permitting suspension

4 Regulation 10 (1968 text) reads as follows: "If a faculty member on probationary or other nontenured appointment alleges that considerations violative of academic freedom sig- nificantly contributed to a decision not to reappoint him, his allegation will be given preliminary consideration by the [insert name of committee], which will seek to settle the matter by informal methods. His allegation shall be accompanied by a statement that he agrees to the presentation, for the consideration of the faculty committees, of such reasons and evidence as the institution may allege in support of its decision. If the difficulty is unresolved at this stage, and if the committee so recommends, the matter will be heard in the manner set forth in Regulation 5 and 6 [dismissal proceedings], except that the faculty member making the complaint is responsible for stating the grounds upon which he bases his allegations, and the burden of proof shall rest upon him. If he succeeds in establishing a prima facie case, it is incumbent upon those who made the decision not to reappoint him to come forward with evidence in support of their decision."

5 The charges were "neglect of duty" (absence from classes at the time of the demonstrations and until the summary dismissals) and "conduct unbecoming a member of the staff" (organizing, directing, and participating in the demonstrations until the summary dismissals, and continuing to do so afterwards despite a court order; failing to use "normal procedures of appeal"; and, during one day of the demonstrations, vio- lating a Fire Department order).

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pending a hearing. The telegram urged, absent such a showing, that the three suspensions be revoked.

On August 25, the Chairman of the Queensborough College Committee of the Board of Higher Education wrote to Professor Silberman that the action to dismiss him could be reviewed if he so desired by a three-person faculty panel. According to Mr. Meng of the Chancellor's office, similar offers were extended to Professors MacDonald and Faigelman. The review panel, to be chosen by the University Faculty Senate, was to consist of faculty members of the City University of New York, but no faculty members from Queensborough Community College could be selected. Additionally, Dr. Silberman was informed that the charges against him were to be

dropped as of September 1 , the day after the expiration of his existing appointment, but he would have the opportunity to appeal the nonreappointment, pursuant to his

allegation that it was for reasons violative of his academic freedom, to the same faculty panel which was to review the termination of his services.

The issue of suspension and questions concerning the

proper composition of a hearing panel apparently served to prevent agreement on the initiation of proceedings. The three faculty members sought a hearing panel com-

posed of their faculty colleagues at Queensborough, while the administration insisted upon a panel to be selected by the executive committee of the CUNY Faculty Senate on which no Queensborough faculty member would serve. Efforts were made during September and October, 1969, to resolve these issues, but to no avail. By letter of October 1, 1969, the General Secretary informed Presi- dent Schmeller that the ad hoc committee he had authorized would initiate its investigation. The Chancellor, replying on October 8, requested further postponement on the grounds that a resolution seemed to him to be in

sight. On November 12, a member of the Association staff wrote to President Schmeller and to Chancellor Bowker, setting forth dates for the ad hoc committee's visit. The letter to the Chancellor noted comment in the Gen- eral Secretary's October 1 letter on "inordinately long delay in finding appropriate local means of resolving the issues," and went on to point out that another six weeks had passed since that date.

Subsequent to the December 1 and 2 visit of the Asso- ciation's ad hoc committee, a five-person faculty hearing panel for the cases at Queensborough, chaired by a professor from Herbert H. Lehman College, was appointed by the executive committee of the CUNY Faculty Senate. The executive committee recommended terminating the

suspensions of Professors Faigelman and MacDonald, and this was done on January 26, 1970. Professor MacDonald

thereupon taught at Queensborough Community College for the second semester of the 1969-70 academic year, but on March 20, 1970, he was informed by President Schmeller that he would not be reappointed for the academic year 1970-71. Professor MacDonald had received the endorsement of his departmental Personnel and Budget Committee for reappointment, but the College-wide Per- sonnel and Budget Committee did not concur. Professor

MacDonald then filed a grievance under the terms of the City University's collective bargaining agreement with the Legislative Conference, asserting that the denial of reappointment was arbitrary and discriminatory, but the grievance was not pursued through the final step of arbitration.

Professor Faigelman was abroad when his suspension was withdrawn and the second semester began, but he did return and appear before the faculty panel selected to hear the charges against him and Professor MacDonald. The faculty panel held open hearings during February, March, and April, 1970, meeting for the equivalent of ten full days. Both sides were represented by counsel, and a transcript of the hearings was prepared. The

faculty panel's report concluded

that neither professor misused his position on the faculty, that none of the charges of personal misconduct has been proven, and that neither professor exhibited, by virtue of his participation in the sit-in and occupation, a defect of moral character such as would make his presence on campus a liability to the educational process at Queensborough Com- munity College.

We therefore unanimously recommend that both Pro- fessor Steven Faigelman and Professor Robert MacDonald be acquitted of the charge of having engaged in conduct unbecoming a member of the staff.

The Board of Higher Education considered the faculty panel's report at its meeting on May 25, 1970. It then issued a statement which said in conclusion "that Drs.

Faigelman and MacDonald have evidenced by their behavior a clear refusal to conform to the norms that this Board has established to maintain the integrity of the

University, did engage in conduct unbecoming a member of the staff and did neglect their duties as faculty members." In a letter to the chairman of the faculty hearing panel sent on May 26, the Chairman of the Board of

Higher Education, Mr. Frederick Burkhardt, stated that "the Board passed no formal resolution regarding the

Report nor has it taken any new action on the matter of the dismissals. In view of their position on the Panel's

Report, the Board members did not feel any further action on their part was called for."

The members of the faculty panel and several other

faculty members of the City University of New York communicated with the Association regarding the position taken by the Board of Higher Education. An Asso- ciation staff member, writing on June 16, 1970, to the Chairman of the Board, expressed concern that requisite academic due process, as enunciated in the 1958 State- ment on Procedural Standards in Faculty Dismissal Pro- ceedings, had not been afforded. He noted the provision in the 1958 Statement that "The decision of the hearing committee should either be sustained or the proceeding be returned to the committee with objections specified." The Vice-Chairman of the Board of Higher Education, replying on June 30, took the position that the Board, persuaded by the Association and its own staff, had provided a procedure substantially in accord with the 1958 Statement and that it was curious for the Association to continue to urge exact adherence to its every detail, espe-

SPRING 1973 51



cially since the introduction to the 1958 Statement describes it as a guide rather than a norm.

On January 8, 1971, the executive committee of the City University Faculty Senate expressed dismay to the Board of Higher Education over its rejection of the faculty panel's conclusions, describing the Board's position in terms of erosion of the principle of peer judgment. The Senate's executive committee also criticized the Board for refusing to permit the chairman of the faculty panel to

participate in or observe the Board's deliberations on the two cases, while counsel for the administration of the

College was permitted to attend. The faculty panel has held hearings on the matter of

Professor Silberman's nonreappointment but, in the wake of the Board's action in the cases of Professor Faigelman and Professor MacDonald, it has not prepared its report.

The Issues

The Summary Dismissals of April 22

These dismissals, following a warning issued on April 19, were described and publicized by the administration as actions summarily taken and immediately effective. The actions were attributed to "outrageously unprofessional" conduct by the three faculty members, but specific charges were not at that time directed against them, nor were they then afforded any opportunity for hearings on the matter. The April 22 actions thus denied the three faculty members the basic protections of academic due process, set forth in the 1940 Statement of Principles on Academic Freedom and Tenure and the 1958 Statement on Pro- cedural Standards in Faculty Dismissal Proceedings.

In his letter of June 10 to the Association, President Schmeller took the position that a hearing on the dismissals was not required for nontenured faculty members under the statutes of the State of New York, that the purpose of a hearing is to insure that the responsible administrative officer is aware of all the facts, and that a hearing "is a futility" when this officer has witnessed the events in question, is familiar with their background, and thus "possesses all the facts he needs on which to make a judgment." President Schmeller stated the following December to the Association's investigating committee that he did not move to offer the three faculty members a hearing because he had been advised by counsel that it was not necessary to do so, but that in retrospect he believes that he should have devised an ad hoc hearing procedure prior to effecting the dismissals. Whatever the President's retrospective opinion, his summary action violated due process/5

The Suspensions in Effect as of April 22 and Reaffirmed on August 20

In being dismissed on April 22, the three faculty members were relieved of all duties and banned from the campus of Queensborough Community College. Suspen-

sion from teaching is warranted only when a hearing is pending and, in the words of the 1958 Statement on Pro- cedural Standards, "only if immediate harm to himself or others is threatened" by the faculty member's continuance, and the suspension should be with pay.

The sit-ins of April 18 and 21 which occasioned Presi- dent Schmeller's April 22 action, despite his characteriza- tion of the faculty members' part in them as "outrageously unprofessional conduct," offer no evidence discernible to the investigating committee of threat of "immediate harm" to anyone. The sit-ins of May 6 and 8, which might be considered disruptive, occurred two weeks after the faculty members had been separated from their duties. Even with the events of early May, however, Professors Silberman, Faigelman, and MacDonald were hardly viewed as constituting a menace. Professor MacDonald's substitute resigned within a fortnight, whereupon, with the administration's consent, Professor MacDonald returned to campus to grade the examinations and term papers and to prepare the final, course grades. He did this without accepting compensation proffered to him. Professors Faigelman and Silberman carried out similar functions, apparently with full recognition by the Dean of the Faculty of what was occurring, and the Registrar at Queensborough Community College accepted the course grades submitted by the three professors. Their services were accepted despite their having been told by the Presi- dent that if they appeared on campus they would be subject to arrest for criminal trespass.

In the judgment of the ad hoc investigating committee, President Schmeller did not have adequate cause for his action on April 22 to relieve the three professors of all duties and ban them from the campus, and he had still less justification for informing them on August 20 of continuance of their suspension, while resuming payment of their salaries and purportedly reinstating them. The Association's staff had been assured in June and July by Chancellor Bowker and his staff that full due process would be provided in these cases, and the pursuance of the Association's investigation was accordingly deferred. No suggestion has been offered of any threat of immediate harm on or about August 20, long after the demonstrations of the spring had terminated and weeks before the beginning of a new academic year. In the case of Pro- fessor Silberman, whose appointment was to expire eleven days hence, reaffirmation of his suspension was gratuitous. The May 8 Offer of Arbitration

President Schmeller offered in May to submit the question of the April dismissals to binding arbitration, if the three professors would agree to refrain from participating further in the sit-in and to encourage the students to stop participating. The three declined the offer, asserting that the conditions of acceptance would in essence imply ad- mission of guilt.

The investigating committee believes that the submission of the matter to arbitration would not have been appropriate. Aside from the objection voiced by the three professors, the President presented, as a threshold issue for the arbitrator to decide, "Whether President Schmeller

°In commenting on the text of this report prior to its publication, President Schmeller took the position that it deals inadequately with court findings with respect to the conduct of the three faculty members and with respect to the administration's exercise of its legal authority.

AAUP BULLETIN



was justified in the summary dismissal" of the three named individuals. The investigating committee understands it to be a fundamental policy of the Association, and a pillar of academic due process, that the summary dismissal of a

faculty member is not justified under any circumstances. A less unacceptable standard for arbitration could have been proposed, of course, one which would have served to substitute the judgment of the arbitrator on the facts at issue for the judgment of a faculty hearing committee, with requisite procedural safeguards for the individuals faced with dismissal. Negotiation with President Schmeller on the substance and form of the proposed arbitration

conceivably could have resulted in such an arrangement. It is the opinion of the investigating committee, how-

ever, that quick resort to arbitration as a technique for

dealing with cases of faculty dismissal would unwisely erode the longstanding right and responsibility of faculty members to judge and be judged by their academic peers, with the entire record of performance as teachers, scholars, and colleagues to be taken into account. The investigating committee finds it anomalous that the President would

point to the absence of applicable institutional regulations as prohibiting a faculty hearing advisory to the Board under Association standards, while offering, in the equivalent absence of applicable regulations, to bind the institution to the decision of an outside arbitrator.

The Roles of the Chancellor's Office and of the Board of Higher Education

The inadequacy of the substance of the August 20 letters to the three professors was compounded by the delay which preceded their issuance, and academic due process was allowed to suffer further by the subsequent delay over the refusal by the administration to agree to a hearing panel including faculty members from Queensborough Community College as would normally be expected, with insistence instead upon a panel composed of City Uni-

versity faculty from campuses other than Queensborough. The investigating committee believes that responsibility for these delays rests primarily with the Chancellor's office. Two months after the dismissals of April, the Association's General Secretary authorized an investigation. It was only then that the Chancellor's office initiated discussions which led to the deferral of the investigation and to the General

Secretary's July 29 progress report to faculty members of the City University of New York. When the General Sec-

retary announced on October 1 that the investigating committee's visit would now be scheduled, he properly emphasized the "inordinately long delay in finding appropriate local means of resolving the issues. ..." A week later, the Chancellor asked for yet more time, stating that he believed a resolution to be in sight. Almost two months afterwards, when the investigating committee undertook its visit to the campus, it found little evidence of visible activity by the Chancellor's office in working towards a resolution.7

If the Chancellor's office contributed to a delay in justice in these cases, the Board of Higher Education contributed in the end to a denial of it. In January, 1970, the Board lifted the suspensions of Professors Faigelman and MacDonald, upon recommendation of the faculty hearing panel, pending the results of the hearings. The Board subsequently declined to accept the faculty panel's conclusions that the charges against the two professors were unfounded, however, and they were neither offered further appointment nor did the Board heed requests that it remand the matter, as called for in the 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings, to the faculty panel for further consideration. The Board's rejection of this provision of the 1958 Statement (that "the decision of the hearing committee should either be sustained or the proceeding be returned to the committee with objections specified"), coupled with its reported view of this provision as a mere detail, reflects a miscon- ception of the proper relationship between the faculty and the governing board.8

The Termination of Professor Silberman's Services

The faculty hearing panel, charged with deciding whether Professor Silberman's nonreappointment was based on factors violative of his academic freedom, apparently considered it futile to prepare a report after the faculty panel's report on the Faigelman and MacDon- ald cases was rejected by the Board without objections specified or opportunity given for further faculty delibera- tion. Professor Silberman's contention relating to academic freedom accordingly remains unresolved.

Prior to the April demonstrations, it will be recalled, Professor Silberman had been recommended for reappointment by the English Department and the President had not concurred on grounds that a tenure-bearing budget line for the appointment was not available. Members of the English Department had ranked Professor Silberman as the best of all those being recommended for reappointment, and they alleged that budget lines were available to the President if he wished to use them. The investigating committee was told by several people during its visit to

campus that two or three lines can almost always be made available, and it cannot give great credence to the assertion that the lack of an available budget line was the primary reason for rejecting the departmental recommendation. The rescission of Professor Silberman's dismissal, but not of his suspension, eleven days prior to the expiration of his appointment and with no action to reappoint him,

7 Dr. Albert H. Bowker, the Chancellor of the University at the time, stated in offering prepublication comments on this

paragraph that he did not have the authority himself to insist that the Association's recommendations be followed, and that the delay in implementing the recommended procedure resulted first from resistance by the President of Queensborough Community College and later from difficulty in gaining the concurrence of the Board of Higher Education.

8 The Chairman of the Board of Higher Education, commenting on this paragraph prior to the publication of this report, has stated that the Board was charged with making its decision under the prevailing provisions of the State Educa- tion Law and returning the matter to the faculty panel "would have served no purpose."

SPRING 1973 53



meant in effect that a summary dismissal was allowed to stand, in the face of assurances to the Association from the Chancellor's office that Professor Silberman would be afforded full academic due process.

Finally, and although the matter is ancillary to the basic issues treated in this report, the investigating committee believes it necessary to question whether Professor Silberman was in fact properly subject to notice of non-

reappointment, whether he instead should have been afforded the protections which accrue with tenure.

Professor Silberman had served the stated maximum

probationary period of three years at Hunter College-in- the-Bronx, and his next full-year appointment within the

City University of New York should properly have been with tenure. He resigned from the Hunter position "to free Queensborough of the technical obligation" to appoint him with tenure. His first-semester appointment at Queensborough was at the rank of Lecturer (although with the salary of an Assistant Professor), a non-tenure- bearing rank under University policy. His second-semester

appointment was as a full-time Assistant Professor. Re- gardless of his title, he was serving in his fourth academic year as a full-time faculty member in the City University of New York, beyond the University's maximum period of probation. Professor Silberman may well not have been offered an appointment at Queensborough Community College if it was understood that the appointment had to be with tenure. Still, the Association has held that length of full-time faculty service in teaching or research, re- gardless of academic rank, determines the maximum probationary period,9 and it does not acknowledge waiver of tenure through such devices as a letter of resignation pre- ceding acceptance of further appointment.

Even if the termination of Professor Silberman's appointment had been for cause tested through affordance of full academic due process, he received inadequate notification of termination under the provisions in the 1940 Statement of Principles on Academic Freedom and Tenure calling for a year of notice both for tenured faculty members and for faculty members who are not to be continued in service after the expiration of the probationary period.

Conclusions

1. The administration of Queensborough Community College, together with the office of the Chancellor of the

City University of New York, acted in violation of the 1940 Statement of Principles on Academic Freedom and Tenure in the several actions of suspension and dismissal taken against Professors Donald J. Silberman, Steven H. Faigelman, and Robert K. MacDonald. The summary dismissals, without adequate notice, charges, and opportunity to be heard, were in departure from fundamental standards of academic due process. The subsequent suspension of the three faculty members over the summer, without evidence or statement indicating in what respect their continuation in academic performance would threaten immediate harm to themselves or others, served to violate their academic freedom and was inimical to academic due process.

2. The Board of Higher Education of the City Uni- versity of New York acted in basic disregard of the 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings and of accepted norms of academic due process when, having declined to accept the findings of the faculty hearing body, it declined to return the proceeding, with the Board's specified objection, to the faculty body for its further consideration

David R. Kochery (Law), State University of New York at Buffalo, Chairman

Ralph Mansfield (Mathematics), Loop College, City Colleges of Chicago

Howard Schless (English), Columbia University Investigating Committee

Committee A on Academic Freedom and Tenure has by vote authorized publication of this report in the AAUP Bulletin.

William W. Van Alstyne (Law), Duke University, Chairman.

Members: Walter Adams (Economics), Michigan State University, ex officio; Ralph S. Brown, Jr. (Law), Yale University; Clark Byse (Law), Harvard University; Bertram H. Davis (English), Washington Office, ex officio; Stephen R. Goldstein (Law), University of Penn- sylvania; Sanford H. Kadish (Law), University of Cali- fornia; William J. Kilgore (Philosophy), Baylor Univer- sity; Jordan E. Kurland (History and Russian), Washington Office; Hans A. Linde (Law), University of Oregon; Walter P. Metzger (History), Columbia Univer- sity; John R. Phillips (English), Western Michigan Uni-

versity; Winton U. Solberg (History), University of

Illinois; Judith J. Thomson (Philosophy), Massachusetts Institute of Technology.

°See the Report of the Special Committee on Academic Personnel Ineligible for Tenure and Interpretive Comment No. 5 of the 1940 Statement of Principles.

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academic freedom and tenure: queensborough community college (cuny)

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