BY HANK REICHMAN

Over two years ago, on November 3, 2017, I posted an item to this blog about the ordeal of Georgette Fleischer, a Barnard College adjunct writing instructor who was summarily dismissed from her position after 17 years of successful teaching.  Here, from that post, is the background:

For seventeen years Georgette Fleischer taught first-year English, now first-year Writing, at Barnard College in New York.   For most of those years she found Barnard a “wonderful place to work.  We felt like our work was appreciated, and that meant a great deal,” she told a reporter in September.  That changed, however, under the administration of former president Debora Spar when Barnard refused to reappoint her to first-year seminar for the 2014-15 academic year, citing negative evaluations by some of her students.  Fleischer tried to file a grievance under the school’s faculty internal grievance policy but was told that as a part-time lecturer she wasn’t eligible to do so because she was not a member of the “faculty.”

On May 16, 2014, the AAUP wrote to Spar pointing out that by denying Fleischer the right to grieve Barnard was in violation of longstanding AAUP-approved principles of due process rights.  The AAUP recommended that Fleischer “be retained for an additional academic year with opportunity to appeal the decision that was made.”  But it took a law suit and the support of an attorney willing to work pro bono for her to win the right even to grieve.  In April 2015 New York State Supreme Court Justice Alexander Hunter ruled that Fleischer was indeed a faculty member and entitled to file a grievance.  The decision marked, as the Chronicle of Higher Education noted, “a rare effort by the courts to define adjunct instructors’ status and rights at the colleges that employ them.”

That apparent victory was, however, only the start of Fleischer’s continuing ordeal.  By then she had started organizing Barnard Contingent Faculty Local 2110 of the UAW to represent the school’s non-tenure-track instructors.  In October 2015 over 91% of Barnard’s contingent faculty who voted chose to unionize.  Fleischer was elected to the bargaining committee, receiving more votes than any other nominee.  She served in that capacity for 16 months, before resigning in February [2017] because she objected to provisions of the proposed contract, including what she saw as weak protection for academic freedom.  The contract was signed two months later, but two weeks after that two faculty members on the cusp of becoming post-probationary were dismissed.   In May seven long-term members of the local were terminated.  Fleischer was among them.

While the other faculty members have apparently accepted severance offers, Fleischer is heroically fighting her dismissal with the support of her union, which filed a grievance under the contract charging violations of articles covering discrimination, academic freedom, and appointments.  On August  28 [2017], however, Barnard Provost Linda Bell rejected the grievance and the process has moved to arbitration.

On August 19, 2019, some 27 months after Fleischer first filed her grievance, arbitrator Ralph S. Berger finally rendered his verdict, upholding Barnard’s decision to deny her reappointment.  The ruling was based on the claim that Barnard acted in response to concerns about Fleischer’s teaching, in particular her ability to adapt to a new approach to writing instruction implemented by a recently named director of the writing program, whose decision it was not to renew Fleischer’s contract.  These concerns were allegedly validated by student input, specifically two cherry-picked responses on anonymous online student evaluations.

Fleischer has provided me with the text of Berger’s 64-page ruling, which she has extensively annotated, as well as with the briefs submitted to arbitration by both the college and the union.  Although a thorough analysis of these documents is well beyond the scope of this blog — and may be inappropriate, given that Fleischer is bravely seeking judicial review of the ruling — I can say that they make for highly disturbing reading.

For one thing, the fact that this case was allowed to drag on for so long is itself outrageous.  For over two years Fleischer, the single mother of a young child, was deprived of her principal source of income while a slow-moving arbitrator — whose prior association with a notorious anti-labor law firm that represented the college made his neutrality suspect — took his sweet time with her case.  The first hearing was held on April 25, 2018, nearly a year after the grievance was filed on June 5, 2017 and over 7 months after it went to arbitration, with a final hearing held on March 29 of 2019.  The verdict came, as I previously mentioned, after 27 months of extended “due process,” during which time Fleischer was left to fend for herself.

But perhaps the delay and sacrifice might have been worth it had the arbitrator reached a decision better grounded in both the facts of the case and widely accepted principles of pedagogical assessment.  Unfortunately, his opinion not only rejected Fleischer’s arguments but set very damaging precedents that call into question whether Barnard’s adjunct instructors have any real protection for their academic freedom in the classroom, even with a union contract.

Most grievous in this regard is the arbitrator’s cavalier treatment of student evaluations.  Although Berger conceded that “consistent reappointments by the College and praise for [Fleischer’s] teaching” from colleagues, former students, and outside expert observers might suggest a rather different verdict, he nonetheless concluded that “her tenure evidences a pattern of student complaints and negative feedback in end of semester course evaluations.”  Evidence for this was scanty, most of it effectively contested by Fleischer and her union advocate.

Moreover, as AAUP members well know, the value of such evaluations as assessments of teaching effectiveness is, at minimum, highly controversial.  So, as John Lawrence reports at the start of a 2018 article in Academe, one encyclopedic review of the literature on student evaluations concluded, “The common practice of relying on averages of student teaching evaluation scores as the primary measure of teaching effectiveness for promotion and tenure decisions should be abandoned for substantive and statistical reasons: There is strong evidence that student responses to questions of ‘effectiveness’ do not measure teaching effectiveness.”  Particularly pertinent to Fleischer’s case, considering that her grading practices were also at issue, Lawrence cites psychologist Wolfgang Stroebe’s findings that “students tend to rate more lenient professors more favorably.  Moreover, students are more likely to take courses that they perceive as being less demanding and from which they anticipate earning a high grade.”  In this year’s Journal of Academic Freedom, Jason Rodriguez argues that “Student evaluations of teaching (SETs) can be weaponized to justify undermining academic freedom and subjecting untenured and contingent faculty to surveillance and bullying.”

Let Fleischer’s experience stand as one horrific example.

Arbitrator Berger heard testimony from two experts on student evaluations, one from each side in the dispute, but he appeared to rely mainly on the administration’s expert, a chemist who has published nothing on the use of teaching evaluations and never served as an expert witness on this subject before.  By contrast, the union’s expert is a psychologist and an expert in the use of teaching evaluations who has published for decades in peer-reviewed journals on the subject and served twice before as an expert witness.  In addition, in his ruling Berger cherry-picked a handful of quotations from student evaluations that were hostile to Fleischer, failing entirely to place these within any broader context or to rebut the many counter-examples found in the union’s brief.

Ultimately the arbitrator agreed with Barnard that Fleischer’s non-reappointment “was based on ‘legitimate, non-discriminatory’ reasons, which included the number of ‘serious and credible complaints and concerns’ raised by Grievant’s students.”  He concluded that under Article 7, Section 1 of the collective bargaining agreement, “the Employer is vested with the sole discretion, through the Management Rights provision of the Agreement, to decide ‘who does the teaching,’ and to ‘determine the processes and criteria by which Unit Members’ performance is evaluated’.”

His opinion added further,

In point of fact, the Employer was under no contractual obligation to take any particular steps or use any specific metric in determining not to reappoint Grievant.  While the Union and the Grievant may not agree with the College’s assessment of her abilities as an adjunct professor and whether she improved her performance . . . , it is within the College’s discretion, pursuant to the Agreement’s Management Rights provision, to make a final decision regarding an appointment using the assessment method of its choice.

However, as both Fleischer and her union pointed out, that sweeping management prerogative should properly be limited by the language of Article 9 of the contract, which is designed allegedly to protect academic freedom.  That article provides that adjunct instructors “enjoy the academic freedom to express themselves without unreasonable restriction and to be judged as a teacher on the basis of legitimate intellectual and professional criteria.”  In addition, Section 3 of that article provides adjunct instructors with “the same rights as all other College faculty to establish standards of behavior in the classroom and determine appropriate methods of evaluation, assign grades . . .” etc.

Apparently, arbitrator Berger didn’t think this language applied here, since he failed to address it at all, which raises a very troubling concern: how well can collective bargaining agreements for adjunct faculty that do not provide the kind of employment security associated with a tenure system protect academic freedom, even if they include provisions that purport to guarantee academic freedom?  As David Robinson, executive director of the Canadian Association of University Teachers, has pointed out with respect to union contract protections for academic freedom, arbitrators often fail to “appreciate that the university is a workplace, but a workplace of a special type.”  Union contracts vary considerably and are necessarily products of compromise.  Hence it is hardly for me to judge the effectiveness of the agreement signed by the UAW on behalf of Barnard adjunct faculty.  But it is clear that if, after 17 years of teaching at least two courses each semester, Fleischer had the tenure protection her years of service should have merited it would have been far more difficult to dismiss her almost solely on the basis of two cherry-picked questions on anonymous online student evaluations and the contested claims of management.

In any event, Fleischer remains unemployed, pondering her options, and the adjunct work force at Barnard — nearly 40% of its faculty — has learned a lesson: cater to student evaluations or risk your job, union or not.