After 250 hours of hearings held over 46 days, the accused was found guilty. As punishment, he lost his tenure -- and his job.
But that was only the beginning of a long legal battle between Rutgers University and Joseph San Filippo, Jr., a former professor of chemistry.
The jury that found Mr. San Filippo guilty was a Rutgers faculty panel, convened back in 1987. It determined that he had taken part in numerous unethical activities: pressuring visiting Chinese scholars to do yard work at his home, harassing them by threatening to send them back to China, and deducting money from their salaries for health insurance that was never provided. The committee also found that he had filed fraudulent employment reports and told one visiting scholar to identify himself as someone else so the scholar could receive medical benefits to treat injuries he received after falling off a ladder at the professor’s home.
Rutgers, which hadn’t fired a tenured professor since 1953, hoped that its handling of the case would satisfy the powerful faculty union that due process had been provided. As Rutgers saw it, nobody could say Mr. San Filippo hadn’t had his day in court; he had had 46 of them.
But Mr. San Filippo, who denied abusing the scholars and said his actions had been wrongly characterized, sued Rutgers in 1988. He claimed that its definition of unethical activity was too vague, and that he had been punished for filing grievances and lawsuits against Rutgers on unrelated issues. The professor and Rutgers have spent the last six years filing pretrial motions in various courts. The case has yet to go to trial.
Dismissing a tenured professor “for cause"--meaning an offense serious enough to end the tenure contract -- can be a lengthy, expensive, and bitter process. Such cases require enormous time commitments from the faculty members called upon to judge them. (See story on Page A20.)
They can cause divisions among colleagues. And they can lead to lawsuits by ousted professors, who complain that academe’s sacred tradition of giving accused professors a trial by their peers violated, rather than protected, their rights.
As a result of such cases, some universities have been forced to examine what constitutes improper faculty behavior, what tenure was designed to protect, and whether current tenure-removal policies are superfluous.
“Tenure is in essence a lifetime contract that can only be terminated for specific reasons,” says David Scott, university counsel at Rutgers. “The reasons have to be extraordinary, so the question boils down to, Were these extraordinary-enough actions to terminate the contract?”
Rutgers believes the answer in Mr. San Filippo’s case is Yes. Other colleges that have recently tried to fire professors think their actions were also justified. The Universities of Kansas, Miami, Minnesota, and Wyoming are conducting or have recently concluded tenure-removal cases.
But proving their cases has not been easy.
Last year the University of Kansas fired a law professor accused of unethical behavior and sexual harassment. The professor, Emil A. Tonkovich, has argued that the incidents were part of a casual, friendly style of interacting with students, and says he plans to sue. He says he was punished for behavior that was neither improper nor forbidden under the faculty conduct code. He accuses Kansas of pursuing a “witch hunt” and of manufacturing a case full of legal and procedural flaws.
Another case -- one of several at Minnesota -- involves a religion scholar who simultaneously held tenured jobs there and at the University of North Carolina at Charlotte without telling either employer about the other. Minnesota believes the scholar, Tzvee Zahavy, was dishonest. A faculty panel is now considering his case. Mr. Zahavy has argued that he did nothing unethical, since he was doing his job and since Minnesota’s conduct code doesn’t specifically prohibit scholars from holding two jobs.
An official involved in a pending case has no patience for accused professors who claim guidelines are too vague. “In 99.9 per cent of employment settings, murder and burglary aren’t listed as grounds for termination, either,” he says.
Since its founding in 1915, the American Association of University Professors has argued that tenure is essential to protect academic freedom. Under the association’s guidelines, which are widely followed in academe, universities can break tenure contracts only under certain conditions: if they find “cause,” such as misconduct or incompetence; if they can show that they face a financial emergency; or if they close a program and cannot find jobs for displaced professors.
Tenure experts estimate that about 50 tenured professors nationwide are dismissed each year for cause. Only about half are thought to go through formal dismissal procedures, says Jordan Kurland, the A.A.U.P.'s associate general secretary. In such cases, accused professors have the right to ask for a faculty hearing.
Many other cases are decided quickly and quietly, with the accused professor agreeing to leave.
Mr. Kurland thinks abrupt firings of professors for political reasons -- precisely the problem tenure was designed to prevent -- are a bigger threat to academe. That is especially true at some small private colleges that don’t follow the due-process procedures in place at many large universities, he says.
Nonetheless, when a university and an accused scholar decide to fight it out, the result can be a battle that drags on for years.
At Rutgers, many observers thought Mr. San Filippo’s behavior was outrageous. In a 1990 ruling, a federal judge called his actions “alien to any concept of how civilized professionals should comport themselves.” But she ruled that Rutgers had not specified that such ethical lapses were grounds for dismissal. The judge blamed the faculty union for blocking efforts to tighten the dismissal standards -- something Rutgers has since done.
An appeals court later ruled that the regulations were not too vague. In 1993, the same lower-court judge dismissed the case, saying Rutgers “should now, finally, be rid of plaintiff.”
Mr. San Filippo appealed. He claimed his dismissal was retaliatory because he had clashed with his department over raises and critical comments he had made about research policies. This past summer, the appeals court ruled that because of the grievances he had filed, he had a First Amendment right to sue. Rutgers is appealing to the U.S. Supreme Court.
Mr. San Filippo, who now works outside academe, couldn’t be reached. His lawyer, Leon Friedman, a Hofstra University law professor, says the courts will provide the due process that the internal hearings did not.
The A.A.U.P.'s national office decided that Mr. San Filippo’s case didn’t deserve its support. But the Rutgers A.A.U.P. chapter, which has a history of stormy relations with the university, has backed the professor. Wells H. Keddie, a Rutgers union leader who served as Mr. San Filippo’s counselor during the hearings, thinks his former colleague was fired for being “abrasive.” He adds: “People have an absolute right to know in advance what behavior is prohibited.”
Questions about faculty behavior were also a central part of the Kansas case. As at Rutgers, a faculty panel was asked to decide whether Mr. Tonkovich, the accused professor, should be dismissed. The panel held 33 hearing sessions throughout academic 1992-93. By a 3-to-2 vote, it recommended that Kansas dismiss Mr. Tonkovich for “moral turpitude.” Kansas did so.
The university had accused Mr. Tonkovich of violating ethical standards in 18 instances, which it said added up to a pattern of unethical behavior. The charge that led to his dismissal involved an accusation by a former law student named Tammee McVey, who said Mr. Tonkovich had pressured her to perform oral sex. She testified that she had done so because Mr. Tonkovich implied that refusing might hurt her grade.
Mr. Tonkovich has always denied that any sex act ever took place. But the panel, by a 4-to-1 vote, found him guilty of moral turpitude in that incident. The panel cleared him of misconduct in most of the other charges, but found that he had nonetheless engaged in a pattern of unethical behavior.
Despite the time spent on the case, Mr. Tonkovich says he was denied due process. “If you have a politically hot issue like sex harassment, it’s impossible to get a fair hearing at a university,” he says.
Is there a better way to determine whether a tenured professor should be fired?
Robert Jerry, who until recently was dean of the Kansas law school, thinks academe needs to find one. He gave 30 hours of testimony in Mr. Tonkovich’s case. “The nation elected a president and had an entire cabinet appointed in the time this took,” he says. “Murder trials are completed in much less time.”
He adds: “One has to consider what tenure is designed to protect. It’s designed to protect academic freedom. I think academia needs to consider fairly carefully whether full-fledged tenure-revocation procedures are even required for termination of appointments for reasons that have nothing to do with tenure in the first place.”
That observation has not escaped critics of the tenure system, who argue that tenure protects lazy and incompetent professors.
But Fred Morrison, a law professor at Minnesota, says it is wrong to assume that employees in other settings could be booted out of their jobs at any moment. He notes that many government agencies and union contracts require employers to follow detailed procedures before firing someone.
And job security in the private sector, where fired workers often receive severance packages, is stronger than many people think, he says. “No well-run company fires people on the spot,” he says. “The notion of employment at will is a thing of the past.”
As for improving existing policies, Mr. Keddie, the union official, thinks the Rutgers panel needed a “neutral professional” to lay out procedures. He thinks the panel acted unfairly when, during the hearings, it limited the time devoted to the remaining testimony.
When the Kansas panel finished its work, the chairman wrote faculty leaders with suggestions for improving the process. His letter also noted, though, that Kansas could consider bypassing internal hearings and fighting it out in court.
E.P. Johnsen, who sat on the Kansas panel, hopes that won’t become a trend. He says he stands by the system in which accused professors are judged by their peers.
“Like other democratic processes, it was tedious, time-consuming, and expensive,” he says. “It’s not a perfect process, but it’s better than a lot of others.”
