Emergencies and Due Process

This is a guest post by Gerry Turkel, a contributor to the newest issue of the Journal of Academic Freedom. Turkel is a professor of sociology and legal studies at the University of Delaware, teaches courses in social theory, law and society, and politics and society. He has published articles in numerous journals, including Law and Society, Humanity and Society, Journal of Law and Society, Studies in Law, Politics, and Society, and Current Perspectives in Social Theory. He has authored Dividing Public and Private: Law, Politics and Social Theory and Law and Society: Critical Approaches. 

In 2010 the University of Delaware administration placed two faculty members on emergency involuntary leave with pay. In both instances, the university acted after concluding that the two faculty members posed a potential danger to themselves or to others. The faculty members were required to not perform the work that had been previously assigned to them and to refrain from coming to the campus.

While these actions were being taken, administrators and faculty officers in the university faculty senate and in the chapter of the American Association of University Professors discussed these unusual cases and the rationales for the decisions placing the two faculty members on involuntary paid leave. Among the concerns raised by faculty officials were the lack of due process for faculty members when decisions and actions about them were made in emergency situations, the lack of record keeping, and the criteria for determining whether an emergency existed. The university administration, leaders of the university faculty senate, and the University of Delaware chapter of the AAUP (UD/AAUP), which represents the faculty in collective bargaining, all recognized and agreed that the university acted in the absence of any specific policy. Over the next year and a half, a policy was established that aims to define emergency situations in which faculty members pose a threat and to provide due process and confidentiality.

The policy that was put in place, Emergency Involuntary Leave of Absence with Pay, provides definitions of emergency situations, due process rights for faculty members, and confidentiality. The essay presents background on the University of Delaware and the governance structure through which the policy was formulated and approved. It summarizes the cases that precipitated the policy and how the policy was formulated, including the role of national AAUP documents and guidance from national AAUP staff. The essay summarizes the discussion and approval of the policy by the university faculty senate, the provisions of the policy, and how the policy seeks to fulfill potentially conflicting values of security and faculty rights in emergency situations involving threats posed by faculty members. It concludes by discussing the broader context within which the policy is located and may be appreciated.

Note: A fuller discussion of this topic may be found in the 2014 issue of the Journal of Academic Freedom in Emergencies and Due Process: Developing an Involuntary Emergency Leave Policy at the University of Delaware,” an essay by Richard F. Teichgraeber III.

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