BY JOHN K. WILSON
On October 22, I testified as an expert witness on academic freedom at a hearing to dismiss Lars Jensen, a tenured math professor at Truckee Meadow Community College (TMCC) in Nevada. Because I wasn’t able to make my full argument about Jensen’s case (the attorney for the administration opposed my testimony, prohibited me from discussing legal matters, objected when I quoted the campus policies on academic freedom, and filed a brief after the hearing asking for my testimony to be ignored), I want to analyze it here.
The effort to fire Jensen is an extremely disturbing attack on academic freedom and evidence of how easily even tenured professors can be subjected to retaliation for criticizing the administration and face the threat of dismissal.
The reasons used to justify termination of Jensen are shocking in how little justification they provide for any discipline. The AAUP wrote a letter to TMCC administrators expressing alarm about the case, as did FIRE and the Academic Freedom Alliance. Even if Jensen’s job is saved by the committee evaluating his case, the chilling effect at TMCC is powerful, and the appalling abuse of power by the administration needs to be condemned.
The trivial reasons given for the termination of Jensen, along with his outspoken public criticism of the administration for seeking to lower academic standards in math classes, clearly indicate that this disciplinary action is an illegitimate form of retaliation against Jensen for his views in violation of his academic freedom.
Jensen received two consecutive unsatisfactory ratings on his annual evaluation, which under TMCC’s rules can result in the firing of a tenured professor. It’s a terrible procedure, but even under this policy TMCC is obligated to follow the normal academic standards for terminating a tenured professor. And the reasons for Jensen’s unsatisfactory ratings are wholly illegitimate. Despite receiving positive evaluations from his chair, the dean twice gave Jensen an “unsatisfactory” rating for insubordination.
The first unsatisfactory rating in 2019-20 was based on two factors: First, Jensen was attacked for his practice in his class of refusing to let students take the final exam if they were failing the class, to make sure students were working hard throughout the semester. The dean asked Jensen to alter his policy, and he eventually agreed to do so. The second part of the first unsatisfactory rating came from a 2020 campus Math Summit, when Jensen distributed a handout criticizing the administration during a break and the dean told him that he couldn’t (which I’ll address in a second post).
The second unsatisfactory rating in 2020-21 was based on even more trivial reasons, that Jensen was late in completing training for teaching online while he was busy reworking his courses online. Then he was blamed for missing a department meeting to take the training. Then there was a back-and-forth disagreement about his annual plan. Absolutely nothing in this minor bureaucratic dispute could justify an unsatisfactory evaluation for “insubordination” and certainly not the termination of a tenured professor. An unsatisfactory rating must be based on an overall evaluation of the professor and their core professional responsibilities in teaching, research, and service, but the dean’s evaluation mentions none of these things. The fact that an annoyed dean finds a professor’s responses unsatisfactory cannot justify an overall unsatisfactory rating that leads to termination.
An AAUP report noted that “the AAUP has long opposed insubordination as a ground for dismissal” and that it’s rare for colleges to use insubordination as a basis for dismissing faculty. That’s because insubordination is a term so broad, vague, and ill-defined that it can easily be abused, as in this case, to target faculty critics of the administration, and this corporate hierarchical model of professors as “subordinates” is a terrible way to describe the role of faculty. If a college makes the mistake of banning insubordination, it still needs to carefully define and fairly enforce any insubordination clause.
The Nevada Board of Regents policies provide absolutely no definition of “insubordination” in the rules for punishing faculty. However, I searched the entire Board of Regents handbook and found a very interesting definition of insubordination in the Nevada System of Higher Education By-Laws. Section 3.e.14.c.4 allows college presidents to be disciplined for “Insubordination, which is defined as disobedience of a lawful written order.”
It should be much easier to discipline a college president than a tenured professor. Presidents don’t have tenure as presidents, they represent the institution, and there are higher expectations for their behavior. So the definition of “insubordination” for tenured faculty must be less restrictive, or no worse than the same, as the definition for college presidents. If we use the Nevada Board of Regents definition of insubordination, any claim must meet all four of these conditions: 1) It must be an order. 2) That order must be lawful. 3) That order must be written. 4) That order must be intentionally disobeyed. None of the charges against Jensen come close to meeting this standard for insubordination.
With regard to Jensen’s grading policies, in her evaluation Dean Flesher twice says that she “requested” that Jensen change the syllabus, not ordered him, but requested. And twice she admits that Jensen fulfilled “the letter of my request.” There can be no insubordination when there is not an order. And there can be no insubordination when a request is obeyed. But even if Jensen had been ordered to change the syllabus (which he wasn’t), and even if he had refused to change (which he didn’t), it still could not be insubordination because it would not be a legal order; academic freedom protects the right of teachers to determine the reasonable pedagogical practices of their classes under the Nevada System of Higher Education Code which incorporates the AAUP approach to academic freedom in Section 2.1.2, stating “Academic freedom is essential to these purposes and is applicable to both teaching and research. Freedom in teaching is fundamental for the protection of the rights of the teacher in teaching and of the student in learning,” and Section 2.3.4, which states that “A faculty member speaking, writing or acting as a citizen shall be free from institutional censorship or discipline.”
In the evaluation of Jensen, Dean Julie Ellsworth twice writes that she “requested” that Jensen change his syllabus, not ordered him, but requested. And twice she admits that Jensen fulfilled “the letter of my request.” There can be no insubordination when there is not an order. And there can be no insubordination when a request is obeyed. But even if Jensen had been ordered to change the syllabus (which he wasn’t), and even if he had refused to change (which he didn’t), it still could not be insubordination because academic freedom protects the right of teachers to determine the reasonable pedagogical practices of their classes. TMCC has no official policy on this matter, and these teaching methods are protected by the academic freedom of faculty to teach.
But this pedagogical dispute was a side issue to the real story of why TMCC is trying to fire Jensen, which I’ll address in part 2.
John K. Wilson was a 2019-20 fellow with the University of California National Center for Free Speech and Civic Engagement, and is the author of eight books, including Patriotic Correctness: Academic Freedom and Its Enemies.
A few years ago I testified at a disciplinary hearing for a faculty member at a Cal State campus charged with “insubordination.” Professor L disregarded a request (or was it an order; doesn’t really matter) from Dean C not to communicate to students her decision not to approve a faculty-led summer program abroad. Prof. L disagreed with the decision and his notification to students reflected that disagreement. I still have my written testimony at the hearing. Here’s some of it:
“Prof. L is not ‘subordinate’ to Dean C, who under widely accepted standards of academic governance and academic freedom has no authority whatsoever to regulate or issue any ‘directive’ concerning with whom and what a faculty member may communicate to students or others, including via email, with the exception, of course, of confidential personnel decisions. To be sure, Prof. L might have been well advised to wait until his department chair informed the students of the dean’s decision before he weighed in on the matter. This might well have been a more ‘courteous’ approach. But Prof. L had no obligation whatsoever to do so. Indeed, had Dean C wished this information to come solely from the chair she could simply have informed only the chair and not conveyed this information to Prof. L and others. Once she did so she had no authority to control what other faculty members did with the information she provided.
“An important principle is at stake in this case: While faculty may be subject to disciplinary action by administrators in accordance with the terms of the Collective Bargaining Agreement, it must be crystal clear that faculty are neither subordinate to nor do they report to members of the administration. The faculty’s role in curricular matters and aspects of student life related to the curriculum is and must be independent of the administration. It is therefore not the role of faculty members to obey administrative ‘directives.’ Of course, Dean C certainly had the authority to approve or disapprove of the proposed . . . program, but she did not have authority to direct Prof. L or any other faculty member not to speak about her decision with regard to that program or to determine when and how he or others would be authorized to communicate about that decision — to students or to anyone else.
“Even more troubling is Dean C’s contention in her letter of reprimand that she and, by implication, the administration in general may determine for the faculty what are ‘appropriate ways to express disagreement with decisions.’ In fact, it is clear from her letter that the reprimand she seeks to impose is directed not solely or perhaps even mainly at the timing of Prof. L’s email to students but at its content and, specifically, the fact that by implication he did not agree with her decision. She even takes him to task for being “misleading because he concealed the reasons” why she made the decision. But, again, he had no obligation at all to communicate the dean’s views to students; that is the dean’s job. In fact, that Prof. L did not apparently communicate any overt critique of the decision if anything suggests restraint on his part. Actually, one can’t help but wonder whether the dean would have written a letter of reprimand at all had Prof. L sent his email in advance of the department chair’s “official” communication to the students, but in a manner that endorsed her judgment.
“For all I know, Dean C may have made a wise and correct decision in failing to approve the proposed program and Prof. L’s response might well have been motivated solely by frustration or even anger. But so what? It is Prof. L’s right as a faculty member not only to disagree with administrative decisions but to criticize them, either explicitly or implicitly, without fear of retaliation or reprimand.”
UPDATE: On November 24, 2021, a faculty committee at TMCC rejected the conclusions of the hearing officer and recommended that Jensen should not be fired. The president of TMCC accepted that recommendation, and Jensen’s job is safe, for now. But the threat to academic freedom from these kinds of investigations and hearings, and the chilling effect on the entire campus, is still a serious concern. I spoke about the Jensen case and the larger issues of academic freedom at a Nov. 23 Faculty Forum organized by the Nevada Faculty Association-University of Nevada at Reno: https://unr.zoom.us/rec/play/YmRxfdO8pi0OKPyRxjtYbqw5JnnQymqvyD96ViRlQKUBFiUv3omHGr9Bdz_i3qVaYzl1uVhGPhD43EhW.rY0r3TrLWIP-QpnK?continueMode=true&_x_zm_rtaid=wX55JbhPT3Kvo63S2b1rPQ.1637844904521.312e7b084418720a3879ecf46fd66af0&_x_zm_rhtaid=852