Whenever Daniel Kirschenbaum picks through his wallet, he feels like a professor. Northwestern University recently renewed his faculty identification card. But looking at his bank account, he’s less sure. The university hasn’t cut him a salary check since September, 1992, about the time NU locked him out of his office on its Near North Side medical-school campus.
“That’s when things started to get messy,” said Kirschenbaum, a clinical psychologist, sitting in an office he has rented only a few blocks from his former NU address.
In 1992, Kirschenbaum had been awarded the brass ring of every professor’s dreams: tenure, a position regarded as the academic world’s equivalent of a lifetime job guarantee.
The fact is, Northwestern agrees that Kirschenbaum is a tenured professor. But the school says that doesn’t mean it has to pay him.
Those drastically different views of what tenure involves are at the heart of a lawsuit Kirschenbaum has filed against the university. In a larger sense, they also reflect a hotly debated issue in the academic world: As university officials struggle to contain costs, they are increasingly calling into question the very concept of tenure, which up to now has been the enduring, if expensive, bedrock of university life.
A few colleges have even eliminated tenure, prompting a flurry of legal actions that could reshape the nature of faculty life and student instruction on America’s campuses.
In Kirschenbaum’s case, Northwestern has left no doubt of its position in the current tenure debate.
“Tenure does not guarantee a professor a salary from his or her academic institution,” Northwestern’s lawyers have said in court, arguing that there is no merit to Kirschenbaum’s suit.
But Judge Margaret S. McBride was no less puzzled by the school’s logic than Kirschenbaum had been.
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“It also appears that the plaintiff was led to believe that tenure assured him a lifetime guarantee of employment,” she said in Cook County Circuit Court. “The term `employment’ usually indicates that an employer is providing a salary.”
Accordingly, she ruled that the 47-year-old Kirschenbaum is due his day in court. The case is scheduled to go to trial this spring.
Kirschenbaum’s lawsuit comes at a time when tenure is under attack nationally, as college administrators are increasingly tempted to balance budgets by getting rid of higher-paid senior faculty. Each year, a handful of professors caught in this squeeze play between the ideals and economic realities of higher education take their cases to court. Usually, such suits are filed by faculty members who feel unfairly denied tenure or unjustly stripped of it. Even tenure has its limits and a professor who fails to perform teaching or research assignments can be sacked, if a university can prove the dereliction.
Kirschenbaum vs. Northwestern appears to be a unique case, though.
Officials at the American Association of University Professors, the faculty watchdog group, can’t recall a parallel situation.
First of all, nobody disputes Kirschenbaum’s competency. He is a much-published expert on eating disorders. Just when Northwestern was cutting him off its payroll as part of a cost-cutting effort by a new department head, Kirschenbaum was named to the prestigious position of president of the division of Exercise and Sport Psychology of the American Psychological Association.
Nor does NU claim to have dismissed Kirschenbaum for cause–or any other reason. When he originally went to court saying the university had denied him due process by stripping him of tenure, NU pleaded innocent, saying he’s still one of their faculty members. Look in the faculty directory, and you’ll find him listed, albeit with a rather vague university address: “2nd Floor, Institute of Psychiatry.”
In a pretrial deposition, Donald Nutter, vice dean of the medical school, said that Kirschenbaum remains eligible to teach courses. He’d just have to do it on a voluntary basis. According to its legal briefs, Northwestern intends to ask the court to rule that there is more than a semantic difference between “appointment” as a tenured professor and “employment” as a faculty member.
And only the latter gets paid, in the university’s view.
Northwestern’s lawyers might have trouble getting a trial judge to focus on such subtle distinctions. During her pretrial deposition, Roxie Ruhlman Smith, then the university’s associate provost, confused “appointment” and “employment,” saying one word when the logic of the school’s position required the other. Afterward, she exercised her legal right to correct the transcript of her testimony.
“The university is changing its story to match its defense,” said Thomas Cunningham, Kirschenbaum’s attorney.
Smith, who has since moved to Columbia University, declined to comment, as did other Northwestern officials, and Sidley & Austin, the law firm representing NU. A university spokesman said the school feels Kirschenbaum’s suit lacks merit since he’s done well at the private practice he set up after being taken off NU’s payroll. “Even if there is some liability,” said Alan Cubbage, NU’s vice president for university relations, “he has not suffered any loss of salary. He’s actually making more now.”
That question of who should get paid and who should get laid off is, of course, being widely discussed in this age of corporate downsizing. But in a campus setting, the debate forces academe to chose between one of its most hallowed traditions and contemporary bottom-line realities.
On the one hand, tenure has long been considered the prerequisite of intellectual freedom. If professors have to worry about job security, this line of thinking goes, they might be tempted to follow their deans’ and presidents’ party line rather than pushing their own ideas to their logical conclusion.
On the other hand, with tuition skyrocketing, university administrators are being pressed to hold the line on costs–of which faculty salaries are the principal component. Accordingly, universities have been hiring part-time and temporary instructors by the bushel, paying them a fraction of a tenured faculty member’s salary. Each year, the balance between non-tenured and tenured faculty tilts more in the former’s favor. Financially speaking, many a college dean must dream of the day when, by doing away with tenure altogether, he’d be free to move all higher-paid senior faculty off his payroll.
Bennington College in Vermont did just that in 1994. Faced with declining enrollment, its administration abolished tenure and fired 26 faculty members, many of whom had tenure. Nineteen of the sacked Bennington faculty members are in the midst of a court suit arguing that the school acted in bad faith when it pleaded financial exigency in the layoffs.
“Our contention is that the administration simply wanted to get rid of those it considered faculty troublemakers,” said Richard Cassidy, attorney for the dismissed Bennington professors.
In 1995, the University of Southern California announced a reorganization of its medical school–including 25 percent salary reductions for its non-physician faculty members. A group of those affected have filed suit, arguing that those pay cuts constitute an infringement of their tenure rights.
“USC’s view is that they have no obligation to offer faculty members any particular level of salary,” said Jeffrey Kramer, lawyer for the USC professors. “But when the American Association of University Professors defined tenure, it said that economic security is the underpinning of intellectual freedom.”
Kirschenbaum vs. Northwestern similarly originated in a medical-school reorganization. Six years ago, the department of psychiatry, to which Kirschenbaum was attached, got a new head, who came in with a mandate to reduce costs. According to Kirschenbaum, most of his junior colleagues were soon terminated. Concerned about how his eating-disorder program might be affected by the new regime, Kirschenbaum sought a meeting with his new chairman.
After many delays, he finally was told to report to his boss in the cafeteria, pronto.
“I had my list of 12 items, and he was spilling chili on it,” Kirschenbaum said. “I had been around the block a few times, so I could see it coming.”
In the summer of 1992, Kirschenbaum was told that his contract would not be renewed. When he protested that he had tenure, NU explained that, while this was true, his salary was an entirely different issue. NU noted that, as a professor, he was on the staff of the university, but his salary was being paid by Northwestern Medical Faculty Foundation–a separate corporation. Still, his checks were issued by NU, and the university was reimbursed by the foundation.
“That’s just too cute, by half,” said Matthew Finkin, professor of law at the University of Illinois, and an expert on tenure. “Medical schools are notorious for setting up dual books like that. But a university can’t duck the issue that way: A tenured professor is clearly owed economic support.”
Finkin, author of “The Case for Tenure,” has been studying such disputes for decades and reports that academia is in the midst of one of a periodic series of attacks on tenure. This year, a proposal by the board of regents to abolish tenure at the University of Minnesota was only narrowly defeated. He expects more such dustups.
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“It’s like the 17-year locust,” he said. “Every couple of decades, the deans and college presidents go to conferences and decide that higher education’s problems would be over if they could only abolish tenure.”