Demonstrated Incompetence at Brooklyn Law School

I am always amazed how some administrations defend themselves, as Brooklyn Law School Dean Nicholas Allard does, by claiming that the AAUP has somehow authorized their dubious actions. Allard claims that the school’s new policy on “demonstrated incompetence” is a “long-recognized and widely accepted regulatory term supported by the AAUP and others.”

Brooklyn Law School’s new policy defines the term as: “Demonstrated incompetence, including but not limited to, multiple unsatisfactory performance reviews or complaints from supervisors; multiple complaints from students or multiple unsatisfactory student evaluations; sub-standard academic performance; lack of collegiality.”

Because the AAUP allows for the firing of “incompetent” professors, Brooklyn Law School’s administration thinks that it call anything “incompetence” and fire anybody at any time. That’s not how it works.

In the AAUP’s Recommended Institutional Regulations, it notes: “Adequate cause for a dismissal will be related, directly and substantially, to the fitness of faculty members in their professional capacities as teachers or researchers.” So Brooklyn’s “lack of collegiality” really cannot be a factor at all in demonstrating “incompetence” because it does not directly relate to teaching and research ability.

It is true that the AAUP has never, as far as I know, clearly defined “incompetence” and is more focused on proper procedures. Nevertheless, in the 1999 report on Post-Tenure Review, the AAUP makes it clear that the standard of “incompetence” is radically different from mere “unsatisfactory performance.” (By using the word “substandard,” the trustees seem to suggest this is their approach.)

The AAUP report adds, “The lengthy demonstration of competence that precedes the award of tenure is required precisely so that faculty are not recurrently at risk and are afforded the professional autonomy and integrity essential to academic quality.”

One thing is quite clear: the mere existence of “multiple complaints” (multiple meaning two or more) from students or others about a professor cannot even come close to showing incompetence, since everybody gets complaints.

But there’s one important element not mentioned in the InsideHigherEd report. Brooklyn Law School’s new definition refers to Demonstrated incompetence, including but not limited to…” these various factors. This means that, as bad as the Brooklyn Law School list of factors is, it can fire people for any other reason it wants to under the term “incompetence.” According to Brooklyn College, it can fire anyone for incompetence even if no one has ever made a complaint about them and the professor has never been given an unsatisfactory review.

This isn’t defining a “vague term” as the administration claims; this is taking a vague term and declaring that it means anything the administration wants it to mean, thereby making it much more vague.

The AAUP calls for a much better system of dealing with alleged incompetence: warn professors if their work might be considered incompetent; help professors improve their work; and only if a professor fails to change, file formal charges of incompetence that are evaluated by a highly-qualified group of peer scholars who can determine if the charges meet the extraordinarily rare standard of “professional incompetence” by a tenured professor previously proven competent, and then what punishment is deserved.

Given the multiple complaints about this new policy, the administration and Board of Trustees at Brooklyn Law School must regard themselves, according to their own definition, as having “demonstrated incompetence.”

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