COLUMBIA — MU's Faculty Council will make a recommendation Thursday to Chancellor Brady Deaton about a step in the tenure removal process that no MU professor has reached in 37 years — until now.
The case of Greg Engel, a suspended College of Engineering associate professor, brings up a critical question about tenure: At what cost does it protect academic freedom?
Different parties feel so strongly about their answers that Deaton, the council and Provost Brian Foster have spent weeks mulling over one detail: defining how strong evidence against a tenured faculty member must be to recommend the chancellor move the case for dismissal forward.
Foster's request for a second hearing indicates that he thinks the standard at this point should be the lowest possible burden of proof.
Many council members said they think the bar should be, at a minimum, defined. Many think it should be the highest possible standard because careers could be on the line.
Regardless of what happens, Engel's case has raised old ghosts about what it takes to remove a tenured professor, or a senior academic with a guarantee that the university will not fire him or her without just cause.
In December 2010, College of Engineering faculty charged Engel with faculty irresponsibility, citing student complaints about discrimination and lack of respect. He was suspended from teaching duties.
An ad hoc faculty committee convened in such instances found there was not "clear and convincing" evidence to support the faculty irresponsibility charges.
Foster requested that Deaton send the case back to the committee to be heard again with a lower standard of evidence, on the grounds that the faculty bylaws never define the burden of proof as "clear and convincing."
At the MU Faculty Council's Feb. 9 meeting, voting members — who are all tenured or tenure-track — expressed discomfort that the burden of proof for the committee is not defined.
"I think that's our duty to actually determine that," council member Leona Rubin said at the meeting.
The faculty committee's decision is an early step on a long road toward dismissing a tenured professor. Its ruling serves simply to advise the chancellor on whether he has a case to present to a second committee, the Campus Faculty Committee on Tenure. That committee does have a defined burden of proof: It must be "convinced" the evidence presented warrants dismissal.
There's the kicker. For Deaton to make an informed decision about whether the case against Engel would hold in the second committee, he needs to know whether it would stand a test of convincing evidence. The first committee has advised him it wouldn't.
So Foster's request and the debate it has caused within Faculty Council are, for practical purposes, senseless, according to one expert.
"You can’t have two different standards; that would make no sense," said University of Illinois law professor Matthew Finkin, author of "The Case for Tenure."
The standard Foster proposed, "preponderance of evidence," means the committee must find that it's more likely than not that charges are warranted. Finkin said that standard is probably too low for a case where a professional career is on the line.
"You want a higher level of certainty the more that's at stake," he said.
What about the students?
Faculty Council Vice Chairman Joe Parcell said he's struggling with what he thinks the burden of proof should be. He said he thinks it's possible a tenure removal process can be too complex, to the point where it's almost impossible to dismiss a tenured professor.
"I’m not naive to the fact that there could be instances that it could be appropriate to remove a faculty member," he said.
Parcell said he does not want to make removing tenure so difficult that it's a disservice to students.
"We owe it to constituents and students to make sure that we’re putting the best faculty in the world before them," he said.
Four female students accused Engel of race and gender discrimination in November 2010. The charges came after he accused three of the students of plagiarism on a lab report and gave them each a "zero" grade.
The three students, who are Chinese, said they had been under the impression that working together on the report was allowed, and that Engel refused to communicate with them after he charged them with plagiarism.
A student grievance committee handling the discrimination accusations against Engel concluded the charges weren't justified but asked him to apologize to the students.
The faculty irresponsibility charges against Engel say that after he received tenure, his teaching "took a decided turn for the worse."
After the discrimination charges came out of a 17-student electrical engineering course, some students in that class said Engel's classes were often shorter than the 50 minutes allotted, according to the charges. Some of the students said class often lasted as little as five to 10 minutes.
The charges say the reported shorter class periods are evidence that Engel "has abdicated his responsibility to '(seek) above all to be an effective teacher and scholar.'"
Then again: What about the professors?
The behavior Engel is being accused of doesn't merit the removal of tenure, said MU math professor Stephen Montgomery-Smith, a member of the Faculty Council and vice president of the MU chapter of the American Association of University Professors (AAUP).
"I think that's a popularity contest," Montgomery-Smith said. "He’s not popular in his department."
The charges of faculty irresponsibility might be "retribution" for Engel's objection to being removed as principal investigator of the research project, for which he earned a $2 million grant, Montgomery-Smith said.
A professor has to have the right to give students the grades he believes they deserve without fear of them complaining and having him removed, Montgomery-Smith said.
Instances in which a professor misbehaves outrageously and can't be fired because it's so difficult to remove tenure are the exception, not the rule, he said.
Finkin said that if a professor's "fitness for office" is questioned and his or her behavior is truly out of line — offering higher grades in exchange for sex, for example — the professor will usually resign before the process reaches a hearing.
Engel is the first MU professor to have had a hearing with the faculty responsibility committee since the current faculty bylaws were written in 1974. In the 1970s, MU was blacklisted by the AAUP when it fired tenured professors for protesting the Vietnam War.
The censure was removed after MU came into compliance with the AAUP's standard tenure removal process, which is used by almost all four-year universities and liberal arts colleges, Finkin said.
In January, Engel filed a lawsuit against the University of Missouri System Board of Curators and three engineering professors for $5 million in damages.
The professors created "a hostile and offensive work environment, harassment, retaliation, and deprivation of his constitutionally protected interests," according to the petition for damages.
MU's Faculty Council hopes its move Thursday will affect Deaton's decision on whether to move Engel forward on the long road toward dismissal, Parcell said. Deaton and new UM System President Tim Wolfe will attend the meeting.
The chancellor can decide to accept the committee's decision to stop pursuing Engel's case. He can also modify the decision, reverse it or, as Foster has requested, send it back to the committee for re-hearing.
If Deaton moves the case forward to the Campus Faculty Committee on Tenure, that committee's decision will go through Deaton, Wolfe and the curators before dismissal can occur. Only the Board of Curators has the power to remove tenure.
The council's suggestion on what the burden of proof should be does not change the faculty bylaws — to make the change officially, all MU faculty would have to take a vote.
"I suspect we may get to that point," Parcell said.
In any case, he said he thinks it’s good to have a discussion about the process to remove tenure in the interest of future generations of faculty.
"If we can make our bylaws stronger," Parcell said, "then I think we should."