June 4, 2007
Hurricane Katrina and New Orleans Universities
By O'Neil, Robert M; Cook, Norma C; Finkin, Matthew W; Henry, Myron S; Et al
Yet Hurricane Katrina was different in far more than sheer magnitude of damage, although that measure alone would distinguish it from any previous calamities. No earlier disaster destroyed virtually an entire community, not only depriving affected institutions of usable facilities, but also depleting severely the student population, leaving faculty and staff without homes, teaching hospitals without patients, and so on through an unprecedented litany of woes. One could not in good conscience undertake such an inquiry as this one without acknowledging the uniqueness of the experience from which New Orleans's universities are only now beginning to recover.
Part of what made Katrina so disruptive to higher education was the impossibility of anticipating its force and effect. Since intense storms are all too familiar along the Gulf Coast, the community was theoretically prepared even for a Category Five hurricane, including water that might breach the levees-but not for the complete destruction of critical sections of those levees. Although most New Orleans universities had adopted and disseminated plans for closure by the eve of the storm's landfall, and some had even begun to evacuate students to higher ground, the worst that seemed likely was a brief period of disruption. Tulane University, for example, announced the weekend before the hurricane that it would be closed through the following Thursday, apparently planning a return to normal operations within the week. Even the day after the storm had hit and severe initial damage was manifest, Tulane continued to express publicly the hope that classes could resume by September 7.
What actually befell New Orleans higher education on August 29 far exceeded even the worst fears. While facilities at the two "uptown" private institutions (Tulane University and Loyola University New Orleans) suffered less physical damage than did the inundated buildings at Southern University at New Orleans, the Louisiana State University Health Sciences Center, the University of New Orleans, Xavier University, and Dillard University, electricity and communications were down throughout the city. Although most of the universities had made some provision for remote backup of electronic data systems, gaining access to those records and files proved a daunting task well after the water had subsided.
Gradually it became clear that the affected campuses would have great difficulty reopening in the near future. By the end of the first week of September, both Tulane and Loyola (the two most nearly intact campuses) announced that they would not reopen for any part of the fall semester. Students were encouraged to enroll elsewhere, if possible; dozens of campuses in adjacent states and much farther afield did find places for New Orleans students-though usually on the understanding that when their home institutions reopened they would return. Roughly a month after Katrina, the Gulf Coast prepared for another disaster as Hurricane Rita neared shore, but this time the New Orleans area was mercifully spared; major damage was confined to the coastal region of western Louisiana and east Texas, notably the several campuses of Lamar University.
The impact and cost of Katrina can be quantified, although numbers fail to capture the many other dimensions of devastation. Louisiana's Commissioner of Higher Education, Dr. E. Joseph Savoie, reports that 84,000 students and 15,000 faculty members were initially displaced by the hurricane. The state's public institutions of higher learning suffered between $500 and $600 million in damage, lost more than $150 million in revenue and tuition, and suffered $75 million in immediate budget cuts. Another assessment reported a total direct revenue loss of $229 million by Louisiana's public colleges and universities, virtually all of it in the immediate New Orleans area. Although the monetary losses of the private institutions are harder to quantify, comparable estimates emerged in the ensuing months.
The far deeper harm defies quantification or physical description. For faculty and staff who lacked not only telephone and Internet access but also places to live after their homes had been destroyed, the measure of loss seems incalculable. For scientists who eventually returned to their flooded laboratories only to find that years-even decades-of research had been destroyed, the impact of the storm is well beyond even the most sympathetic conjecture. Throughout the first year following the hurricane, a brave hope that as many as 60 percent of former residents of the city had remained or returned eventually yielded to the grim reality that only two- fifths were present. And for those who had remained or returned, much of the city still lacked electricity and even water, making survival a challenge and postponing indefinitely any prospect of a return to normal, prestorm conditions.
Nothing approaching the magnitude of Hurricane Katrina may ever have affected American higher education, and the Special Committee fervently hopes there will never again be a comparable challenge. Still, disaster and devastation can hardly be dismissed from the planning process. Whether it is tornadoes in Ohio and Minnesota, earthquakes and fires in California, hijacked aircraft destroying buildings in New York, or floods along the Gulf Coast and in Florida, the threat is inexorable. Many institutions of higher learning have taken note of these disasters, and have undertaken some form of emergency planning. Typically such plans focus chiefly on the physical and financial effects of natural or man-made catastrophes. The Special Committee's concern, however, is more with the academic and personnel consequences to which substantially less attention seems to have been devoted. In that spirit, and with the benefit of what the committee has learned about the experiences of the New Orleans institutions, at the outset it offers a few suggestions that may be helpful to other colleges and universities as they prepare for contingencies one hopes they will never face.
First, each institution of higher learning-whether or not it could be termed "disaster prone"-should develop and periodically review an emergency plan. Such a plan should presuppose the total breakdown of all traditional communications and information systems, as well as mandatory evacuation of campus facilities. Copies of the plan should be retained by members of the governing board, senior administrators, and faculty and student leaders.
Second, the development of such plans should provide an occasion for renewal of the institution's, the board's, and the administration's commitment to academic freedom and due process, including a recognition of the stresses and pressures upon those abiding values that may result from a major disaster or emergency. Thus the reaffirmation should include a "notwithstanding" or "no matter what" corollary.
Third, the disaster plan should specify the steps that might become prudent or unavoidable in the event of a prolonged inability of the institution to function. The circumstances that might occasion major changes in programs or personnel should be anticipated and potential changes should be examined in the context of existing university policies-thus reducing the need that, as will be seen, some of the New Orleans administrations apparently felt to abandon preexisting policies without indicating why they could not adhere to emergency procedures that were already on the books. Wherever the existing policy fails to provide adequate guidance to address a major crisis, revision should be undertaken in more tranquil times.
Fourth, simulated previews of emergency conditions might be undertaken, perhaps on an annual basis. The governing board should participate in reviewing and responding to plausible case studies of such eventualities, thus preparing for the real challenge they would very much hope to avoid. The administration and the essential faculty consultative bodies should preview their respective roles in coping with such a challenge, anticipating how they would interact in the event that such consultation might be needed under the worst imaginable conditions. While one cannot doubt the need for prompt and decisive action by the New Orleans universities in the days after Katrina, the course actually followed in each case will be seen as having had a regrettably hit-or-miss quality that might have been avoided by such simulation.
Fifth, emergency communications and in\formation systems should be in place ahead of any critical need for their use. The Special Committee was favorably impressed with Loyola's electronic database backup in Chicago, while noting the unexpected difficulty of accessing that resource with telephone lines and other communication systems so gravely disrupted by Katrina. Whether the solution is satellite-based communications or generator-driven support systems, each institution should have an emergency alternative in readiness.
Sixth, the Special Committee would urge colleagues across the country to study carefully the experiences of the New Orleans universities as they will be recounted here, and consider how each of our own institutions would respond, could respond, and should respond to a comparable challenge. Faculty consultative committees, for example, should review their assigned roles in exigent times, including emergency communication channels through which to reach the chief academic officer and other university officials with whom contact would be vital.
The foregoing suggestions look to the future and to steps that colleges and universities could take in advance of a calamitous event. The central concerns of this report, however, relate to the actions taken by the governing authorities of New Orleans universities in response to Hurricane Katrina. The Special Committee recognizes and acknowledges that the unique and catastrophic circumstances brought about by the hurricane required immediate, drastic, and far-reaching actions. At the same time, there were choices to be made and alternative ways to proceed. The choices actually made are not immune from examination, evaluation, and criticism. The Special Committee does not accept the view stated or implied by various administrators that, given the crisis, they were justified in everything they did, and that to question any of their actions is to fail to observe the best interests of the institutions and higher education in New Orleans. As will be seen in each of the individual reports that follow, there is much to examine, question, and criticize.
Faculty members at New Orleans institutions initiated contact with the Association very soon after the hurricane. General Secretary Roger Bowen made two trips to the area and met during the fall and winter with groups of affected professors. In March 2006, Committee A chair David Hollinger authorized appointment of this Special Committee to address both the particular responses of each of the affected universities (most especially the impact of those responses on faculty rights and interests) and broader issues that had arisen in the storm's aftermath. The goal of such an inquiry would include gaining a better understanding of what had been a traumatic experience for the New Orleans academic community, recommending potentially ameliorative and preventive measures, and assessing the extent to which the responses of the universities adhered to the values and standards of the academic profession. A broader hope was to offer to the American academic community useful guidelines for preserving academic freedom and due process under the most adverse conditions.
The Special Committee first met in Washington, D.C., on May 24, 2006, to review the scope of its daunting task and to assign responsibility for specific activities. In the ensuing weeks, a large and growing quantity of information was analyzed. Arrangements were made for committee members to go to New Orleans in mid-August, two or three at a time and accompanied by staff, to hold more than fifty interviews with faculty members from the various universities. Information gleaned from the interviews, added to previously available documentation, correspondence with administrative officers, and other written accounts, presented concerns relating to academic freedom and tenure of sufficient magnitude to warrant authorization by the Association's general secretary of formal investigations. He authorized investigation, with members of the Special Committee serving as the investigators, in the cases of the Louisiana State University Health Sciences Center, the University of New Orleans, Southern University at New Orleans, Loyola University New Orleans, and Tulane University.2 Specific investigations were not undertaken either at Xavier University or at Dillard University, although at both institutions catastrophic damage occurred and a significant portion of faculty and staff lost their positions. At Xavier, where AAUP inquiries revealed that after the hurricane the president took the extraordinary action of releasing all members of the faculty and then reinstating those whom the administration wished to retain, and where the Special Committee became aware of deficiencies in appeal procedures and in shared governance that preceded Katrina and have been allowed to continue, no specific case emerged that could be pursued to investigation. No one at Dillard sought the Association's assistance.
The full Special Committee met in New Orleans during the final week in August, as that community marked the first anniversary of Katrina. It began its stay with a lengthy tour, arranged by Commissioner Savoie and conducted by the Louisiana National Guard, of the most severely devastated areas of the region. This experience was deeply sobering for those of us who were able to participate. Over the course of two days, the committee assessed the results provided by its individual members and staff of their interviews with faculty members from the city's universities, and the committee spent a most productive evening hearing from the leaders of the Louisiana MUP state conference and of the MUP chapters in New Orleans and nearby about what the region's universities and their faculties had endured. Through the good offices of Commissioner Savoie, the Special Committee on its final day met with the chancellors of the University of New Orleans, the LSU Health Sciences Center, and Southern University at New Orleans, along with attorneys and several other officials of the statewide Board of Regents, of the LSU System, and of the Southern University System, as well as one community college representative. The presidents of the two private universities authorized for investigation, Loyola New Orleans and Tulane, declined proposed meetings with the Special Committee before receiving the committee's report.
Following the Special Committee's New Orleans meetings, subgroups prepared separate reports on issues and findings at the five universities where investigations had been authorized. The five included the city's three public universities: the LSU Health Sciences Center, the University of New Orleans, and Southern University at New Orleans.
The statewide coordinating body for public higher education is the Louisiana Board of Regents, with Commissioner of Higher Education Savoie as its chief executive officer. The board of regents oversees four systems, each governed by its own board of supervisors: Louisiana State University (which includes its flagship component in Baton Rouge and its two New Orleans components, the LSU Health Sciences Center and UNO); Southern University (the historically black system, which includes its flagship component, also in Baton Rouge, and its New Orleans component, SUNO); the University of Louisiana (consisting of eight institutions at various Louisiana locations); and the Louisiana Community and Technical College System. The current president of the Louisiana State University System is William L. Jenkins, and Ralph Slaughter currently serves as the Southern University System's president.
The chief administrative officer at the LSU Health Sciences Center at the time of Hurricane Katrina was Chancellor John Rock. Shortly thereafter he was succeeded in that office by Chancellor Larry H. Hollier, who also continued to serve as dean of the School of Medicine. Chancellor Timothy P Ryan, who previously had been dean of the College of Business, has headed the UNO administration since October 2003. The SUNO administration when Katrina struck was headed by Interim Chancellor Robert B. Gex. He was followed in January 2006 by Chancellor Victor Ukpolo, who had been the Southern University System's vice president for academic and student affairs.
As will be seen in the chapters that follow, the LSU Health Sciences Center, UNO, and SUNO all had institutional regulations governing financial exigency and the resulting termination or interruption of faculty appointments that provided many, though by no means all, of the procedural safeguards called for in applicable AAUP-recommended standards. Common to all three was the abandonment following Katrina of the existing financial exigency regulations in favor of new regulations under which procedural protections were sharply reduced. In the cases of the LSU Health Sciences Center and SUNO, this was done through adoption by their respective boards of supervisors on the same day (November 18, 2005) of virtually identical declarations of "force majeure" (to be discussed in detail in the chapter on the LSU Health Sciences Center that immediately follows), with implementing regulations superseding what were in existing board bylaws and faculty handbooks. In the case of UNO, the regulations were changed five months later, when on April 21, 2006, the LSU System's board of supervisors, rather than declare "force majeure" for that institution, adopted a "Declaration of Financial Exigency" with implementing procedures that superseded the existing financial exigency provisions. Whether under the rubric of "force majeure" or financial exigency, a faculty appointment could be disrupted through "termination" (permanent separation), "layoff" (termination pending potential recall), or "furlough" (temporary unpaid leave that, however, as with "layoff," could become permanent). At all three of these public universities, the involuntary separations were im\plemented through placement on "furlough," which at least at the LSU Health Sciences Center and SUNO are apparently destined in significant number to be permanent. A more detailed treatment of these general terms will be found below in chapter III on the University of New Orleans.
The two private New Orleans institutions where investigations were authorized are the Jesuit Roman Catholic Loyola University New Orleans with the Reverend Kevin W. Wildes serving as its president and the nonsectarian Tulane University under the presidency of Scott S. Cowen. A prominent feature first at Tulane and then at Loyola (and also at UNO in the public sector) was an administration- sponsored master plan for renewal and long-range development. Common to Loyola and Tulane was the retention of existing faculty regulations rather than their replacement as was done at the three public-sector institutions. As will be seen in the following reports, the Tulane regulations largely but not entirely track AAUP- recommended standards in key respects, and the Loyola regulations adhere fully to these standards. The differences between the Tulane and the Loyola situations are considerable, however. At Loyola, unlike Tulane, financial exigency was not declared or seriously argued, and appointments were subjected to termination on grounds of discontinuance of programs because of educational considerations. How closely the Tulane administration has adhered to the institution's own regulations is an issue occasioning debate, while the Loyola administration has provided scant evidence or argument in support of its assertions that it has abided by the applicable university regulations. Another noticeable difference is in the faculty's attitude toward the administration. While the Special Committee did not discern widespread faculty support for the actions of the Cowen administration at Tulane, it was struck by the massive faculty opposition at Loyola, punctuated by successive "no confidence" votes, regarding the administration of President Wildes.
Each of the report's chapters on the individual institutions includes available information on the numbers of full-time faculty subjected to layoff or furlough. With isolated exceptions, information on the numbers of adversely affected part-time faculty has been elusive to obtain, and the Association has not been advised of any specific New Orleans cases involving a part-time appointment and potential AAUP concern. The Special Committee is well aware, however, that the damage to academic careers resulting from Katrina extended in no small measure to part-time faculty members and indeed to academic staff members in positions not carrying faculty status.
The five chapters, which now follow, begin with the three public universities (the LSU Health Sciences Center, UNO, and SUNO) and end with the two in the private sector (Loyola and Tulane). They have been reviewed and approved for publication by the Special Committee and by Committee A, which under its regular procedures will in turn report on them to the Association's next annual meeting in June 2007. They form the core of this general report.
II. LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER
The Louisiana State University Health Sciences Center in New Orleans houses the medical school and other health-related programs of the state's flagship public university. Its oldest and by far its largest component, the School of Medicine, was founded in 1931. The present organizational structure of the Health Sciences Center, which dates to 1965, consists of five additional schools-Dentistry, Nursing, Allied Health Professions, Graduate Studies, and Public Health-and nine Centers of Excellence, including centers for neuroscience, aging, and molecular and human genetics. According to the institution's mission statement, the Health Sciences Center's purpose is "to provide education, research, and public service through direct patient care and community outreach," which includes the provision of medical services to "the indigent and uninsured," particularly through the operation of several public hospitals throughout Louisiana. Prior to the late August 2005 onslaught of Hurricane Katrina, student enrollment was approximately 2,800. Data provided the Special Committee by the chancellor's office indicate that at that time the full-time Health Sciences Center faculty numbered approximately 1,000, of whom 678 held appointments in the School of Medicine. The full-time medical school faculty, which will be the focus of this chapter, consists of both scientific personnel and those with primarily clinical responsibilities, with categories of appointment including non-tenure-track, tenure-eligible, and tenured positions.
Funding for the LSU Health Sciences Center has come from multiple sources. State of Louisiana appropriations have accounted for approximately 40 percent of income, while a significant portion has come from patient fees generated by the faculty for the university through work in New Orleans hospitals. Other funds have come from tuition, from research contracts, and from gifts and grants.
B. The Impact of the Hurricane
Along with virtually everything else in New Orleans, the LSU Health Sciences Center was forced to suspend its operations in the aftermath of Hurricane Katrina. The storm forced students and faculty to abandon their homes and offices. The basements of all the Health Sciences Center's buildings and all first floors were flooded following the storm, causing severe damage to electrical, mechanical, and communications equipment, and the lack of air conditioning and refrigeration that resulted from this damage ruined perishable and other sensitive items. Of New Orleans's nine hospitals, Charity and University Hospitals, which served as the main training grounds for medical school residents, closed as a result of the hurricane's effects. Three others closed temporarily, and two more operated on a reduced schedule. The massive exodus of the city's population following the storm dispersed students, staff, and faculty over a large area and led to a sharp decline in the patient pool that required the Health Sciences Center's services, with an attendant, immediate, and sharp loss of revenue. Despite these obstacles and harsh realities, the Commission on Colleges of the Southern Association of Colleges and Schools, the regional accrediting body, renewed the LSU Health Sciences Center's accredited status for the ensuing ten years after receiving an updated report.
Within four weeks of Katrina, many of the instructional activities of the Health Sciences Center were back in operation in Baton Rouge and in hospitals elsewhere in Louisiana. Faculty were instructed to be available for work and, when necessary, to be prepared to commute to Baton Rouge or other worksites. Faculty who did not return when instructed to do so were warned that they faced the prospect of being discharged, but those who did return were not assured of being retained. (As was the case at other New Orleans universities, communication with the dispersed faculty took place through e-mail announcements, an emergency Web site, and the cooperation of outside organizations.) The majority of the Health Sciences Center's schools resumed classes in New Orleans within six months, and after one year, all but the School of Dentistry, which suffered the most severe damage from the storm, were operating again, though at lower levels than before the hurricane. With the continuing closure of Charity and University Hospitals, medical school residents had been training at a variety of clinical locations throughout Louisiana, but the partial reopening of University Hospital at the end of November 2006 promised, according to media reports, the return of students and medical residents to New Orleans. The administration estimated that at least 90 percent of the students returned or were expected to return to the Health Sciences Center.
C. Declaring "Force Majeure" and Placing Faculty on Furlough
Salaries and benefits continued to be paid to all faculty in the wake of the hurricane while the university was closed and when it was only partially reopened in September, October, and into November 2005. On November 22, however, three months after Katrina, the LSU Board of Supervisors approved a "force-majeure exigency plan" for the Health Sciences Center to address "circumstances arising directly or indirectly as a result of those hurricanes [Katrina and Rita]." Citing the disruption of "revenue streams which no longer exist because they were generated by hospitals and clinical practices in New Orleans which have been destroyed, closed, or are nonoperational," the plan declared the administration's right in an emergency situation to abrogate the protections associated with tenure and the institution's own regulations regarding standards for notice of termination of appointment and of nonreappointment.
According to the board's "findings":
The Regulations previously adopted by the Board and upon which all related employment contracts are predicated recognize that the time periods for notice of termination or non-re-appointment are predicated upon ordinary circumstances ("ordinarily") and are not controlling during a circumstance such as that in which [the Health Sciences Center] finds itself as a result of the effects of Hurricanes Katrina and Rita [emphasis added].
The plan described the "procedure for program modification": "The Chancellor shall determine how many and what type of positions are currently needed, can be funded, and have work to be done"; in making these decisions, he "shall consult with the deans, department heads and, as reasonable under the circumstances in his determination, faculty members." In large part, these determinations meant deciding which faculty members would be placed on "furlough" status, defined as "temporary leave without pay" th\at "may lead to eventual termination."
The administration proceeded to place on furlough status members of the Health Sciences Center's School of Medicine faculty, some tenured and some nontenured but all prior to the expiration of their existing appointments, removing them from the payroll as of December 1, 2005.3 The placements on furlough were confined to the School of Medicine. The numbers the Special Committee has received from the chancellor's office reveal that fifty-one full-time medical faculty (and another thirty-four part-time) were furloughed as of December 1, 2005, and an additional ten (plus two parttime) were furloughed subsequently.
Faculty members report having received written notification of their furloughs only days before, and sometimes on or after, the effective date of December 1, providing them with virtually no notice of the impending termination of their positions, salaries, and health benefit payments by the university. The letters notifying faculty members that they were to be furloughed were worded alike:
As you well know, these are challenging times for the School of Medicine. Hurricane Katrina has had a devastating effect on our New Orleans campus and operations. Moreover, the financial impact of the storm and lost revenues with the closure of many school and clinical facilities and programs in the metropolitan area and with the economic downturn in the entire state of Louisiana is unparalleled in the history of the school. As a consequence, each department has worked with the school leadership to develop a plan for financial remediation.
You will be placed in a furlough status effective December 1, 2005; it is not clear at this time how long you might remain in this status or if you will eventually be terminated. We made the decision to place you on furlough after careful deliberation. The reason that you will be furloughed is due to the absence of the existence of a revenue stream dedicated to or based on your work, and also from the loss of revenue from both clinical and residency supervision funding.
You do have the right to have this decision reviewed. The review process is outlined in detail in the Force Majeure Exigency Plan approved by the LSU Board of Supervisors on November 18, 2005, and is posted on the [Health Sciences Center] Emergency Website. There are deadlines to observe for both levels of potential review, so please note the date that you received this communication. You will also need to make your request for review in writing to the Vice- Chancellor for Academic Affairs, Joseph M. Moerschbaecher, PhD. Mail your request to his attention at [Health Sciences Center], 2323 Kenilworth Parkway, Baton Rouge, LA 70808.
Additionally, as furlough status will likely affect your benefits, you should contact Human Resource Management at 225-334- 1614 or 225334-1622; in particular, you should pay attention to the circumstances that may arise relative to your health insurance coverage. You will receive an individualized benefits summary from HRM under separate cover.
As these letters implied, the "force-majeure" plan allowed for brief windows of appeal to the chancellor and then to the system president, whose decision would be final. A faculty member put on furlough status who wished to contest the decision had only five working days from the receipt of notice to request a review of the decision by the vice chancellor for academic affairs and the appropriate dean. The vice chancellor would review the appeal and make a recommendation to the chancellor, who would decide either to uphold the furlough or rescind it. If the faculty member wished to appeal the written decision of the chancellor, he or she had three working days to apply for a review by the LSU System president. Even under the limited appeals procedure provided by the administration's plan, faculty members report what appeared to them to have been perfunctory action in upholding of furlough decisions by Chancellor Hollier (who was also, previously, the dean who had issued many of the furlough notices). Five of the furloughed professors provided the Association with copies of letters of intent to appeal that they went on to address to LSU System president Jenkins.
In addition to the short or nonexistent notice and the absence of severance pay in lieu of notice, furloughed faculty were told, effective immediately, to give up their offices, their access to e- mail accounts, their parking permits, and indeed the right to unescorted access to their previous office space. The administration has stated that the advantage to faculty members of furlough was that they could continue health benefits, by paying both the employee's and the university's shares of premiums due. The apparent advantage to the employer was the relief from the obligation to pay its share of the benefits without having to issue notice of termination.
Faculty members had been called upon to defend their programs to an accrediting team from the Accreditation Council for Graduate Medical Education visiting the university in mid-November. They did so successfully, and were nonetheless given furlough notices within days thereafter. No programs were eliminated. Affected faculty members called on only shortly beforehand to speak on behalf of their programs state that they had no reason to believe that their jobs were in jeopardy.
The furloughed medical school professors who communicated with the AAUP, some through the Association's statewide Louisiana Conference and others by calling on the national staff directly, provided the staff with accounts of their own cases and a good deal of written material about the events at the Health Sciences Center and the administration's actions. Subsequently the staff engaged in extensive correspondence with the administration.
The Special Committee has had access to all of these communications. Members of the committee met in New Orleans with approximately a dozen members of the Health Sciences Center's faculty, including officers of the local AAUP chapter and both furloughed and retained individuals, and a fortnight later the committee met with Chancellor Hollier.
D. A Benchmark for Evaluating the Placements on Furlough
Prior to the devastating events of August 2005, the LSU Health Sciences Center had rules and procedures concerning faculty obligations and rights that were set forth in detail in the faculty handbook. Key provisions for the present discussion are those concerning termination or reduction of the appointment rights of faculty members in the face of financial exigency and program modification or discontinuance. These are the provisions rendered inoperative by the invocation of "force majeure," and they merit close reading:
[The Health Sciences Center] may terminate or reduce the contractual rights of faculty members when the Chancellor, upon authority of the President and Board of Supervisors, determines that it is necessary (1) to alleviate a financial exigency within the Health Sciences Center or subunit thereof, or (2) to effect a reorganization or elimination of an academic program of the institution. Financial exigency is defined as the critical, pressing, or urgent need on the part of the University to reorder its monetary expenditures in such a way as to remedy and relieve the state of urgency within the University [emphasis added].
In the event of financial exigency or the need to reorganize or eliminate an academic program, the Chancellor of [the Health Sciences Center] will appoint an ad hoc committee of faculty and administrators to institute an orderly and consistent plan of retrenchment. Dismissal of faculty will only be initiated after all alternative means of alleviating the financial crisis have been exhausted or deemed inadequate. This retrenchment plan may be administered on a school-wide, departmental or program basis.
Termination of faculty members in order to alleviate a financial exigency shall be in the following order:
.. Faculty on term appointments, starting with the most recently appointed and then proceeding in reverse order of seniority.
.. Tenured faculty on continuous appointments, starting with the most recently appointed, and then proceeding in reverse order of seniority.
For the purposes of this retrenchment plan, seniority shall mean total years of service at [the Health Sciences Center] as determined by the retirement system.
EXCEPTIONS TO THE RETRENCHMENT PUN
Department Heads or other administrators who wish to make specific exceptions to the Retrenchment Plan can appeal to the Dean of the appropriate school, who will act upon a recommendation made by an ad hoc committee of faculty members appointed by the Dean of the School.
[The Health Sciences Center] shall provide written notice no fewer than thirty (30) calendar days prior to the intended date of termination. This written notice shall specify the cause of the termination, or reduction of time, provide a summary description of the facts relied on by the Health Sciences Center to make the decision, and a reference to the faculty member's rights to file an appeal pursuant to Handbook Section 10.10. Written notice shall be sent by certified U.S. mail, return receipt requested.
Faculty members whose employment time is terminated or reduced due to retrenchment will be eligible to transfer to any vacant [Health Sciences Center] faculty position for which he is qualified, subject to the terms and conditions of employment attendant to that position. A faculty member's qualification for a vacant position shall be determined by the Dean of the appropriate school, after consultation with the Department Head involved, and approved by the Chancellor. A faculty member who exercises the rights accorded under this section and who is determined by the Dean of the school to be qualified for a vacant position will have a preem\ptive right to the position consistent with the retrenchment plan.
If vacancies become available, faculty terminated under the retrenchment plan will be recalled in the reverse order of dismissal. Faculty will be eligible for recall up to one year after dismissal. Exceptions to this order can be appealed by the Department Head to the Dean of the appropriate school, who will act upon a recommendation made by an ad hoc committee of faculty members appointed by the Dean of the school.
The "force-majeure" plan, as noted above, declared that the university's financial exigency regulations "are predicated upon ordinary circumstances," but the clear language of those regulations belies that declaration. They state that a "financial exigency is defined as the critical, pressing, or urgent need on the part of the university to reorder its monetary expenditures in such a way as to remedy and relieve the state of urgency within the university." Plainly this text does not describe "ordinary circumstances," and just as plainly the effects and impact of the hurricanes fit within these "criteria," placing the university as they did in a "state of urgency."
The Special Committee notes that the university's existing financial exigency policy already limited the rights of faculty when compared to applicable AAUP-supported standards. Regulation 4c of the Association's Recommended Institutional Regulations on Academic Freedom and Tenure provides procedures supplementing the provision in the 1940 Statement of Principles on Academic Freedom and Tenure that termination of an appointment because of financial exigency should be demonstrably bona fide. Regulation 4c calls for the meaningful participation of faculty in the declaration of a financial emergency, for the right of a faculty member notified of termination to a full hearing before a faculty committee, for the right of first refusal of a suitable new position for a period of three years, and for severance pay or notice based on length of service, from a minimum of three months for a first-year faculty member to at least one year following eighteen months of service. But why even the procedures and protections already provided in the institution's regulations for alleviating a financial crisis were completely bypassed in favor of a declaration of "force majeure" has not been explained by the administration and is not apparent to the Special Committee.
E. The "Force-Majeure" Policy
A first major consequence of the "force-majeure" provisions put in place in November 2005 was the replacement of the long- established and mandated role of faculty in decisions regarding educational policy and faculty competence with the virtually total discretion of deans and the chancellor to decide which members of the faculty and what academic programs to retain in the reemergent Health Sciences Center.
These new procedures gave no heed to key aspects of the institution's own regulations in the following respects:
1. Essentially no consultation with the faculty about the nature and extent of the financial crisis
2. Furlough decisions, potentially leading in some instances to de facto termination, made without faculty consultation and apparently without deference to length of service and tenure
3. Decisions made without acknowledgment of eligibility of potentially furloughed faculty to a preemptive right to transfer to other positions for which they were qualified
4. Decisions made without acknowledgment of rights of furloughed faculty to be recalled as positions became available in the next year
Under the "force-majeure" provisions, assuming that termination of faculty appointments was required, how should the deans and chancellor have decided who was to be furloughed and who retained? The "force-majeure" document specifies two unassailable general criteria: the needs and requirements of the institution and the value an individual provides toward meeting these. Presumably these have traditionally been the bases for recruiting, promoting, and, where appropriate, granting tenure to individuals, as well as for identifying and developing programs and curricula. Not relying on these, the "force-majeure" document added seven other criteria (here stated in somewhat abbreviated form ):
1. The existence of a revenue stream dedicated to or based on the work of the particular individual
2. The individual's specific clinical, research, or teaching skills
3. The individual's recent performance and productivity
4. The individual's history of productivity
5. The individual's long-standing commitment and contributions to the institution
6. Evidence of the individual's "outstanding" service in the immediate aftermath of the hurricane
7. Other relevant and compelling considerations
The Special Committee was subsequently informed by the chancellor's office that additional criteria considered included the individual's ability to contribute to the recovery of the LSU Health Sciences Center and his or her geographic location (in-state or out- of-state) after Katrina.
Here the devil is in the details. Because no weights are assigned to the criteria, which replaced the presumptions based on tenure and seniority, the discretion of the administrator is, in fact, unlimited: anyone with less than perfect performance on any one of these criteria could be furloughed or, alternatively, have that deficiency overlooked in favor of other criteria.
The criteria themselves are suspect. Some introduce considerations, such as past and recent performance and productivity, that call for judgment about the relative merit of faculty members, thereby raising the prospect of furloughing professors on the grounds of fitness of performance and thus their release for cause. Others seem to allude to considerations that defy specification (for example, one's "long-standing commitment to the institution"), while one criterion-evidence of "outstanding" service after the hurricane struck-seems to be wholly impressionistic.
It is perhaps not surprising that Dr. Hollier, who seems to have had major responsibility for most of the furlough decisions in his roles as dean of the School of Medicine and then as acting chancellor, referred to a different formulation. He told the Social Committee that his decisions about who was to be furloughed were based on three considerations:
1. If a faculty member did not want to come back to work (this apparently was inferred if the faculty member did not show up when instructed to be available for assignment)
2. If there was no longer work for the faculty member to do, owing to the decreased demand caused by the closing of hospitals
3. If there was work, but no funding
While here nominally relying on financial considerations, the dean still had considerable discretion regarding who could be designated for furlough. For example, if the Health Sciences Center had the need and sufficient funds to support six faculty members with given skills, and ten fully qualified individuals were available, any four of the ten could be designated as redundant.
The Special Committee is unable to determine the actual bases for the furlough decisions that were made because it does not have a full list of those furloughed and because no specific reasons were given to the individuals furloughed at the time of their notice. The lack of stated reasons for the furloughs seriously complicated the task of anyone contesting the decision in his or her case.
The individual professors who met with committee members offered a variety of speculations about the reasons for the decisions. In the limited number of cases about which the Special Committee has specific information, no single consistent pattern is discernible. Faculty speculations, untested in any hearing procedure, do little more than testify to the overall unsatisfactory nature of the process employed. The unfettered discretion of a few administrators in a matter of days replaced the years of considered decision- making in shaping the nature of the university's faculty and curriculum.
F. The Necessity and Propriety of Invoking "Force Majeure"
Beyond the issue of the effect of the "force-majeure" policy on faculty appointments is the issue of whether invoking the policy was at all necessary, an issue to which the Special Committee now turns.
The "force-majeure" policy, emanating from the office of the LSU System's general counsel, employs a legal term derived from French contract law but which has close counterparts in the United States and in other developed legal systems. In brief, "force majeure" refers to a doctrine that releases a party from a contractual obligation when an unforeseen event renders a contract impossible to perform. As one commentator explains,
little, if anything, is abstractly unforeseeable ... [a fire, a hurricane, a strike, legislation].... The test which is applied is that the event must have been unforeseeable by a reasonable person at the time of the contract and in the circumstances in which it was made.4
As a result, contracts often contain "force-majeure" clauses to deal with such contingencies.
The LSU Health Sciences Center policy rested upon the principle that employment contracts, including contracts of tenure, are "predicated upon ordinary circumstances." Even though hurricanes and floods are a foreseeable occurrence in New Orleans-witness the several institutions that had purchased insurance against those contingencies-the impact of Katrina was physically to disable the university's medical facilities and significantly to depopulate the city. Consequently, instruction in neither the basic sciences nor in clinical practice could proceed in those facilities nor, to the extent that the medical faculty were compensated out of patient fees, were adequate funds being generated. The performance of many of the faculty's contractual obligations had been rendered largely impossible by this event.
The LSU System, as h\as been noted, did have in place a policy designed to deal with financial exigency. Its provisions, like the "force-majeure" policy, allowed for furloughs and layoffs as well as termination and, also like the "force-majeure" policy, gave the administration considerable discretion in deciding whom to separate. Moreover, adopting a concept deeply rooted in the 1940 Statement of Principles, the invocation of financial exigency would have brought in its train such common understandings as a requirement that there be no less drastic alternative to separation, a significant role for the faculty in adopting and applying criteria governing separation, a strong presumption in favor of the tenured faculty in deciding whom to retain, full due process to ensure the fairness of the decisions, and significant post-termination economic protections. The effect of the "force-majeure" policy was to obviate the applicability of these common understandings and of parallel university policies. Thus the question is not whether Katrina rendered some contracts for professorial service impossible to perform, but whether it rendered impossible the observance of existing rules that would seem to apply to just such a situation.
The legality of reliance on a "force-majeure" declaration is of course a matter for judicial determination. Whatever the outcome of any litigation, however, it is unlikely to undo the damage to the status and the careers of many of those faculty members most directly affected. Necessarily, the Special Committee is called upon to address this question not as a matter of law but from the perspective of academic policy and sound practice.
Under the 1940 Statement, a bona fide financial exigency allows for the termination of faculty appointments during their term under "extraordinary circumstances" where no less drastic action will suffice. Similarly, under the LSU financial exigency policy, "furlough, layoff, or termination of tenured faculty, nontenured faculty [or others] before the end of their contract term will be handled in accordance" with this policy. (Emphasis added.) The text would seem rather plainly to apply to post-Katrina action.
Further, financial exigency is defined by LSU's policy as the lack of the resources necessary to support the "existing programs and personnel... without substantial impairment" of the campus's ability to maintain the quality of its programs. This may be the consequence of lack of funds or "the substantial threat of deterioration of faculties due to a lack of resources," among other things. The list of conditions that might result in the inadequacy of facilities and the lack of funds does not mention natural disaster; but, obviously, the list of the reasons for a financial exigency is not exhaustive, nor could it be. The policy merely supplies some possible reasons why there might be such lack of work or lack of funds as to allow terminations without being preclusive of others. It is the critical lack of work or funds that the financial exigency policy addresses. In essence, the university's provision for financial exigency is a "force-majeure" policy.5
At the time the "force-majeure" announcement was circulated for consideration and approval, Chancellor Rock, in a November 14, 2005, memorandum to Vice Chancellor for Academic Affairs Joseph Moerschbaecher, expressed his strong disapproval of the furlough of tenured faculty without pay. He recognized that furloughs would likely lead to ultimate separation, and he suggested the availability of alternative ways to compensate for the losses in revenue. He further emphasized the need for transparency and due process in an effort to maintain a scholarly environment.
The Special Committee does not find that the former chancellor's views have been persuasively refuted, or that the wholesale bypassing of the existing rules has been justified. The crisis, to the university and to New Orleans and its population, was indeed devastating, and it required an orderly and adequate response. But there were available alternatives, and the administration seems to have chosen one that was antithetical to the institution's own rules and the traditions of faculty involvement in university governance and decisionmaking. Indeed, this committee cannot discount the view, expressed by a number of Health Sciences Center faculty, that the "force-majeure" plan seems to have provided the opportunity to use the genuine need for prompt action as an excuse to restructure and reconfigure the university and its faculty in ways that were desired by the small number of administrators with the newly conferred authority to do so.6
G. Steps toward Recovery
As hospitals reopen, as students return, and as outside groups respond to the disasters of the hurricane with gifts, grants, and other assistance, a situation that once, perhaps, threatened the continuing viability of the LSU Health Sciences Center now seems much more hopeful. This is reflected in news stories about the university, in the statements made by the administration in its internal publications and announcements, and in formal actions. General Counsel Lamonica has informed the Association of an announcement at the final board of supervisors meeting for 2006 that, while the "force-majeure" exigency plan remains in effect, no more furloughs under the plan will be imposed. The Health Sciences Center administration has notified the Association that, despite a faculty sharply reduced from its preKatrina size (as of early January 2007, a total of 752 fulltime faculty and 218 part-time), nine furloughed School of Medicine professors have been reinstated to active faculty service, a tenth has been brought back to a nonfaculty position, and discussions on reinstating seven to ten additional furloughed professors are proceeding or planned. Others who were furloughed have retired or resigned. Remaining on involuntary furlough as of early January 2007, however, were twenty- two full-time (and twenty-four part-time) members of the faculty.
1. The administration of the Louisiana State University Health Sciences Center discarded the institution's existing financial exigency procedures, without adequately explaining why it deemed them inadequate, in favor of a new "force-majeure" plan. It thereby set aside standards in closer conformity with those set forth in the 1940 Statement of Principles on Academic Freedom and Tenure. It did so without having consulted with the faculty, thus depriving the faculty of its appropriate role as called for in the Association's Statement on Government of Colleges and Universities and in Regulation 4c of its Recommended Institutional Regulations on Academic Freedom and Tenure.
2. The administration proceeded under the "forcemajeure" plan to place a large number of professors on furlough with virtually no notice. In selecting those to be furloughed and in implementing the furloughs, the administration acted at odds not only with applicable Associationsupported standards but also with the existing Louisiana State University procedures on financial exigency: it unilaterally decided whom to furlough; it paid scant if any deference to tenure rights and length of service; and it paid no discernible heed to rights to relocation in an alternative suitable position.
3. Some amelioration of the damage inflicted by the furloughs has been achieved through instances of reinstatement. In those cases where the actions are likely to be permanent, however, the administration has effectively terminated the appointments of the furloughed professors without having respected tenure rights and afforded academic due process as called for in the 1940 Statement of Principles on Academic Freedom and Tenure and the Association's derivative Regulation 4c.
III. UNIVERSITY OF NEW ORLEANS
Founded by the Louisiana legislature as a branch of Louisiana State University with a liberal arts program for commuting undergraduates, the institution that rapidly became the University of New Orleans opened its doors in 1958 on an abandoned U.S. Navy air station on the shore of Lake Pontchartrain. By the eve of the events to be discussed, UNO had grown into a comprehensive metropolitan university, the largest campus after Baton Rouge in the LSU System. It enrolled 17,250 students and had a full-time faculty numbering 560 members.
Hurricane Katrina's damage to campus buildings was substantial, estimated at more than SlOO million, but not nearly as severe as the devastation in the immediately adjacent areas where students, faculty, and staff resided. The Federal Emergency Management Agency had promised to have 489 trailers available for housing by late January 2006, when the main campus reopened, but it took until the end of the spring before most of them were in place and functioning. Despite these adverse conditions, UNO managed to organize and operate some classes during that fall 2005 term, offering online courses as early as October and using facilities just outside the city together with space on the Baton Rouge campus, thereby continuing the education of approximately 7,000 students. In contrast to the payless furloughs imposed that fall at the other public New Orleans universities, all full-time UNO faculty members continued to be paid, regardless of the closing down of classrooms and laboratories.
The administration's ability and willingness to keep salary commitments was apparently not an indication of financial health, however. UNO's income from state funding was considerably less than that received by other Louisiana public universities. In dollar terms, according to one estimate, UNO was slated for 2006 to receive $21.5 million less than the average amount for a university under the statewide formula funding level. UNO had barely reopened on its main campus in January, with a student enrollment of 11,600 rather than the 16,000 who would normally have enrol\led for the spring semester, when its administrative officers, while anticipating a balanced budget for the 2005-06 academic year, warned of the need for drastic reductions for 2006-07.
Long-range planning for UNO, dating back to 2004, gave way to the administration's University of New Orleans Restructuring Plan 2006- 07. A draft text dated February 27, 2006, gained wide circulation among the faculty. It called for specific cuts in programs and particular sums to be saved through resulting personnel cuts. Many professors could see from the draft that they were destined for release, and indeed administrative superiors told them so. Accompanying the Restructuring Plan was another document, UNO Exigency Guidelines for Hurricane Katrina Disaster. The LSU Board of Supervisors would have to declare a state of financial exigency and approve recommended changes in academic programs before the documents would become operative.
Several UNO faculty members sent copies of the documents to the Association, seeking advice and assistance. After discussing aspects of the documents with those who provided them, the staff on March 31 wrote at length to Chancellor Ryan to convey a number of concerns. The concerns included a criterion for deciding who was to be released of "meritorious performance, of which tenure may be an indicator," thus allowing release to be determined through a perception of relative merit and assigning to tenure the weight of only one among a number of factors to be considered. Other concerns were silence in the documents regarding notice or severance salary in terminating appointments and a review procedure with no provision for a hearing before a faculty committee but only for a meeting with the administrators who contributed to the decision and with the burden resting on the notified faculty member to convince those administrators that their decision was inappropriate.
The administration invited comments from the faculty and others on the documents, and a somewhat revised draft of the Restructuring Plan was issued on April 25. The review panel in a contested case of release would no longer be confined to administrators but would now consist of two faculty members together with the provost, the dean, and the department chair.
B. Declaring Financial Exigency and Imposing Furloughs
On April 21, on the recommendation of Chancellor Ryan, the LSU Board of Supervisors approved a "Declaration of Financial Kxigency" at the University of New Orleans, stating that "the financial resources of the UNO campus are not sufficient to support the existing programs and personnel of the campus without substantial impairment of the ability of the campus to maintain the quality of its programs and services." The declaration projected that UNO would lose about $10 million in tuition revenue from reduced enrollment (estimated at under 15,000) for the fall 2006 semester, and it noted that the state of Louisiana in December 2005 had permanently reduced its annual operating budget for UNO by $6.47 million. The combined losses, according to the declaration, meant a total reduction of approximately $16.5 million in the university's financial resources, representing a loss of 12.8 percent of preKatrina revenues.
Chancellor Ryan provided the board of supervisors with the Restructuring Plan on May 3, and on or about May 16 the administration issued notifications of placement on furlough to selected members of the faculty, the large majority of them with tenured appointments, who served in programs "slated for elimination or modification."
As to defining the actions as a "furlough," the April 21 Declaration of Financial Exigency provided that faculty and staff members in a program being modified or discontinued could be "furloughed, laid off, or terminated." As stated in the declaration,
1. "Furloughed" means the employee is placed on temporary leave without pay status before the end of the employee's contract term.
2. "Layoff" means the employee is temporarily dismissed before the end of the employee's contract term.
3. "Terminate" means the employee is permanently separated from the institution. Both furloughs and layoffs may lead to eventual termination.
"Termination" differs from the first two categories in requiring action by the LSU Board of Supervisors under established procedures before it can be implemented, while the final authority in implementing a furlough or layoff rests with the LSLI System president. Under the Declaration of Financial Exigency at UNO, furloughs and layoffs both required three months of notice before going into effect (the mid-May notifications of placement on furlough led to removal from the payroll in mid-August, or in late September for those who pursued the appeal process to the LSU System president), and the procedures for appeal were identical. Any practical difference between furlough ("temporary leave without pay") and layoff ("temporarily dismissed"), at least at UNO, is not apparent to the Special Committee.7
As to the number notified of placement on furlough, an initial estimate attributed to the administration, based on the cuts specified in the draft Reconstruction Plan dated February 27, had been a reduction by eighty-three positions from the 560 full-time pre-Katrina faculty positions. Chancellor Ryan was quoted in the April 20, 2006, Times-Picayune as stating that seventy-eight professors would have to be laid off and that thus far twenty-nine had left voluntarily. An unexpectedly large number of faculty resignations and retirements occur-red that spring and into the summer, leading to advertising in several instances for new faculty appointments. The Special Committee appreciates that the random nature of those voluntary departures could have decimated some academic areas and thus necessitated new appointments. Still, one would have thought the unexpected departures would be grounds for reconsideration in many instances of intended notifications of pl