Procedures for Termination, Non-Reappointment, and Violation of Academic Freedom Cases

Approved 1994

University of Nebraska at Kearney
Academic Freedom and Tenure Committee

February 10, 1994

    Section 1.
    All faculty members are entitled to enjoy and to exercise, without penalty for such exercise, all the rights of an American citizen and the rights of academic freedom as these rights are specified in section 4.2 of the Bylaws of the Board of Regents. These rights carry with them attendant responsibilities as specified in section 4.1 of the Bylaws of the Board of Regents. A tenured faculty member is qualified to serve the University throughout his or her academic career, and an untenured faculty member serving on a term appointment is qualified to serve the University throughout the term appointment, unless the record, by a preponderance of the evidence, establishes adequate cause for dismissal. Adequate cause for dismissal shall be related, directly and substantially, to the fitness of the faculty member in his or her professional capability and performance as a member of the academic community. Failure to renew a probationary or term appointment is not a dismissal. A tenured faculty member, or an untenured faculty member serving a term appointment, may not be dismissed involuntarily, or prior to the expiration of the term appointment, unless the charges against that faculty member and the defense against those charges are subjected to a full review as set forth in these procedures.
    Section 2. 
    When a question arises concerning dismissal of a faculty member, that faculty member shall not be suspended from previously assigned institutional academic duties during the time necessary to resolve such question, unless continued discharge of those duties clearly constitutes a threat of physical harm to self or others, or of serious disruption of University programs. In such event' the Chancellor shall reassign the faculty member to other duties that seem appropriate, if there be any available. Suspension is appropriate only pending a hearing; a suspension which is intended to be final is a dismissal and shall be dealt with as such. The faculty member shall be continued on salary while all proceedings are pending, but a person on probationary or term appointment shall not be continued on salary past the term of appointment.
    As used in these Procedures, terms are defined as follows:
    1. "Bylaws" shall refer to the Bylaws of the Board of Regents of the University-of Nebraska.
    2. "Faculty member" shall mean any staff member of the University of Nebraska at Kearney holding the academic rank of assistant professor or above. Professional staff serving in dual capacities as administrators shall be included under this procedure only insofar as it relates to their academic position as distinguished from their administrative status.
    3. "Academic freedom" shall refer to the principles contained in the Bylaws, Section 4.2.4.
    4. "Committee" shall mean the Committee on Academic Freedom and Tenure of the Faculty Senate of the University of Nebraska at Kearney or the hearing committee thereof established to act in a particular case. The term "Grievance Committee" shall mean the Grievance Committee of the Faculty Senate of the University of Nebraska at Kearney.
    5. "President" shall include the authorized representative of the President, but such authorization to act shall not be extended to the Chancellor or a staff member of the University of Nebraska at Kearney, or to the Chancellor or a staff member of any other campus of the University of Nebraska.
    6. "Chancellor" shall mean the Chancellor of the University of Nebraska at Kearney and shall include the authorized representative of the Chancellor, but such authorization to act shall not be extended to a Dean with collegiate or divisional responsibility or to a staff member of any such college or division.
    7. "Tenure" and "tenured faculty member" shall refer only to persons holding continuous appointment acquired in accordance with the Bylaws.
    8. "Association" shall mean the legally recognized bargaining agent of the faculty, the University of Nebraska at Kearney Education Association.
    Section 1.
    When a faculty personnel question arises, it is expected that there will be mutual efforts at the departmental, school, divisional,. or college level to resolve satisfactorily the problem.
    Section 2.
    If the informal efforts (Section 1) have failed to resolve satisfactorily the dismissal question, the matter should proceed to a higher administrative level. The Chancellor may seek a personal conference or conferences with the persons involved. Prior to any such personal conference and within fifteen (15) days of notification of the matter, the Chancellor shall transmit in writing to the faculty member:
    1. A clear statement of the facts which have given rise to the question, and
    2. An invitation to the faculty member to attend a personal conference at a time, place, and date stated, and that he or she may, but is not required to, appear with such counsel or Association advisers as the faculty member deems necessary, and
    3. A copy of these Procedures together with an admonition that any statement or arguments made in informal conferences may later be used as admissions at a formal hearing, and
    4. A statement that a personal conference can be successful only if a bona fide effort is made to find a solution to a common problem. To this end, the Chancellor will present the University views and welcome the views of the faculty member.
    5. Either party to the informal conference may request that a record of the conference be made.
    Section 3.
    If the matter is concluded by mutual consent, the Chancellor shall set forth the settlement within fifteen (15) days in a letter sent to the faculty member, unless the parties mutually agree that this is not necessary.
    Section 1.
    When the informal procedures have been exhausted or waived by either party, the President shall initiate formal procedures in keeping with section 4.14.2 of the Bylaws.
    Section 2.
    A formal dismissal proceeding shall be started by sending a formal communication from the President to the faculty member and to the Chairman of the Committee on Academic Freedom and Tenure in the manner specified in the Bylaws, section 4.14.2 (b) (3) and (c) (1-6).

    The Chair of the Committee on Academic Freedom and Tenure shall send to the faculty member:

    1. A copy of the pertinent University regulations governing the faculty member's rights, including (1) the Bylaws of the Board of Regents, (2) a copy of the procedure and membership of the Committee and its powers, (3) the Bylaws of the University of Nebraska at Kearney Faculty Senate, and (4) a copy of any governance documents for the UNK college in which the faculty member's appointment resides.
    2. A statement that the Committee will conduct a hearing on the complaint.
    3. A statement that the time and place of hearing will be set forth by the Committee and will be communicated to the faculty member and to the President. This statement shall specify that the faculty member will have not less than thirty (30) days to prepare a defense.
    4. A statement that the faculty member is invited to attend the hearing accompanied by Association, academic, or legal counselors.
    Section 3.
    Upon written request of the faculty member, a separate copy of the complaint shall be sent by the President to appropriate academic or professional organizations, accompanied by a formal invitation for the organization to send an observer to the proceedings, if it should so choose.
    Section 4.
    in compliance with Section 4.14.2 (c) of the Bylaws, not less than twenty (20) days from the date of service of the complaint, the faculty member shall submit to the President and to the Committee a written answer to the charges or a statement that he or she desires no hearing to be held.
    Section 5.
    Prior to the date set for the hearing, the faculty member shall submit a written answer to the charges to the appropriate academic or professional organizations that previously had received a copy of the complaint, or a statement to such organizations that he or she desires no hearing to be held.
    Section 6.
    If evidence is tendered during the hearing which is objected to on the ground that it is not within the issues raised either by the complaint or by the answer, the Committee may allow either to be amended, and shall do so freely, especially when the presentation of substantive issues will thereby be facilitated. Whenever an amendment has been allowed, and the other party so requests, the Committee shall grant the other party a reasonable time within which to prepare a response to the new issue or issues raised.
    Section 7.
    If the faculty member fails to answer the President's complaint, or states that he or she desires no hearing be held, the Committee shall find in favor of the University by default.
    Section 8.
    If the faculty member submits an answer to the complaint as provided in Section 4, then the procedures that shall be followed are:
    1. The President or the faculty member may by written request to the Chair of the Committee ask, at least one week before the hearing is scheduled to begin, that certain named Committee members or alternates be disqualified from sitting on the case because there are reasonable grounds to believe that they are biased in the particular case, or have a personal interest in the case or its outcome. In addition, any Committee member or alternate may ask to be excused from participating in the case for the same reasons. After a hearing on this question of cause, the Committee shall determine whether reasonable cause has been shown, and such determination shall be made at least one day prior to commencing the substantive hearing on the complaint. If reasonable cause is found, and the number of non-challenged regular members is reduced below five, then the challenged members shall be replaced by alternates chosen by lot from prior elected Committee members still-resident at UNK.
    2. The Committee at its discretion shall call either of two types of prehearing conferences. In one type of conference the Committee confers with all parties concerned in an effort to delimit the specific charges to be heard. In the other type of conference both parties are offered a final opportunity to informally settle or withdraw the complaint.
    3. The faculty member, at least one day before the hearing is scheduled to begin, may ask the Committee that the hearing be private, and upon the showing of good cause, the Committee shall grant such request. In the absence of such a request, however, the hearing shall be public. If the hearing is closed, the record of the hearing shall be public and available for inspection after the disposition of the case.
    4. The President or the faculty member, and their respective lawyers or advisors, shall have the right to be present at the hearings at all times, as may any observer who has been sent by a previously invited academic or professional association.
    5. The Chair of the Committee shall preside over the hearing. The hearing shall proceed As follows: (1) the evidence submitted by the President in support of the complaint; (2) the faculty member's evidence in support of his or her answer; (3) the rebuttal evidence in support of the complaint; (4) closing arguments. However, in rare cases, if the Committee decides that a clearer and more orderly way of exploring the issues can be achieved by varying the normal order of proceeding, it may so order.
    6. Testimony of witnesses and other evidence shall` be received by the Committee in accordance with Section 4.14.2(c) of the Bylaws. The University shall cooperate wit the faculty member, and his or her lawyers and advisers, in obtaining pertinent information, in requesting the presence of witnesses, and in producing other evidence relevant to the issue of the hearing. The testimony of witnesses not available for the hearing may be presented by depositions taken in accordance with the statutory provisions applicable in the Civil Courts in the State of Nebraska. Other taking of depositions shall be decided upon by the Committee in prehearing conferences. In all prehearing matters, the Committee may, on its own motion, or at the request of any party, enter such orders in its discretion as justice requires to protect any party from annoyance, expense, embarrassment, or oppression.
    7. The Committee shall have the right to summon and question witnesses. All parties, their representatives, and their counsel shall have the right to question all witnesses and to present other evidence relevant to the issues.
    8. The Committee, in its discretion, may exclude witnesses from the hearing room except to testify.
    9. If the charge is professional incompetence, individual testimony of cognate colleagues within and without the University may be admitted as evidence. If the faculty member so requests, formal departmental reports by colleagues in cognate departments within the University may also be admitted in evidence. All departmental reports shall include both majority and minority opinions. If the charges include classroom incompetency, testimony from students taught by the faculty member may be received. Any judgment by the Committee of professional incompetency must be restricted to, and based upon, the evidence presented at the hearing, and not on any other consideration.
    10. The Committee may proceed independently to secure the presentation of evidence at the hearing by directing the parties to produce evidence on specific issues that it deems significant.
    11. The burden of proving the charges shall rest on the party bringing them, and proof of each charge shall be by a preponderance of the evidence relevant to each charge.
    12. A verbatim record of the proceeding shall be kept by a court reporter or by tape recording and a full transcript shall be made available to the Committee and to the parties. The cost of such a record and transcription shall be borne by the University.
    13. The Committee may, in its discretion, adjourn the hearing from time to time to permit the parties to obtain further evidence.
    14. The Committee may request written briefs from the parties, and shall accept them if they are offered.
    15. The Committee shall have the right to select and hire a lawyer to assist it in conducting hearings. The lawyer selected must be agreed to by the General Counsel of the University, the President of the Faculty Senate (or designee), and the Chancellor of UNK (or designee).
    Section 9.
    All Committee decisions shall be based solely upon the record made at the hearings, except as specified in D, Section 10. All deliberations shall be conducted in executive session with only members of the Committee, and if the Committee so decides, its lawyer.
    Section 10.
    The Committee shall await the availability of the verbatim record of the hearing before proceeding to its decision, unless the Committee believes that it can render a just decision in the absence of such a record. In all cases, the Committee shall render its decisions with full consideration of the fact that the burden of proof rests upon the party bringing the charges.
    Section 11.
    In all cases the Committee shall provide specific findings of fact to support its conclusions on each of the charges submitted as grounds for dismissal. A copy of the opinion setting forth the Committee's disposition of each issue in the case with its accompanying reasons to justify such disposition shall be made available to each of the parties, and to any invited observer of a professional association, at the time when the Committee announces its decision in the case.
    Section 12.
    The filing of Committee reports and recommendations and their disposition by the Board of Regents shall be in accordance with Section 4.14.2 paragraphs (e), (f), (g), and (j) of the Bylaws. The Committee shall not reconsider the case unless new evidence is presented. Before any such reconsideration is granted, the requesting party must show that additional relevant evidence has been discovered or has developed that was not available and which could not have been produced at the prior hearing.
    Section 13. 
    Except for such simple announcements as may be absolutely required, such as the time and place of meetings and similar matters, no public statements by involved parties about the case shall be made until after the final decision has been rendered.
    The University has wide discretion to terminate an untenured faculty member at the end of the contractual term. If a faculty member without tenure is given notice of termination or failure to achieve tenure, and if, by written communication to the Chancellor with a copy to the Chairman of the Committee, the untenured faculty member alleges that a decision to terminate or to deny tenure is caused by considerations that violate academic freedom, then the following procedures shall apply.
    Section 1.
    The faculty member shall prepare a statement for consideration by the Committee providing reasons and evidence to support the allegation.
    Section 2.
    The matter shall be submitted to informal review as governed by the procedures set forth under Section C.
    Section 3.
    If the informal review does not resolve the issue, the faculty member may then request a formal hearing before the Committee.
    Section 4.
    The Committee shall call a prehearing conference to determine whether sufficient evidence exists to constitute a case of infringement of academic freedom as defined in section 4.2 of the Bylaws.
    Section 5.
    If the Committee determines that sufficient evidence exists, The Committee chair shall notify the President that the faculty member should be afforded a formal hearing governed by the procedures set forth under Section D, except that the faculty member shall be responsible for stating the grounds on which the allegations are based, and the burden of proof shall rest upon the faculty member. In all other respects, procedures shall be as outlined in Section 4.14.2 of the Bylaws.