25 August 2004
TO: E. E. Eck, Dean, School of Law
R. G. Natelson, Professor, School of Law
FROM: G. M. Dennison, President
SUBJECT: Decision Concerning Grievance
I have received and reviewed the findings and recommendations of Mr. Donald C. Robinson, Esq., who served as Hearing Officer to preside over the evidentiary hearing conducted on 23-24 July 2004 in response to the grievance filed by Professor Robert G. Natelson against Dean E. Edwin Eck (copy of the Robinson findings and recommendations attached). As described by Mr. Robinson, the grievance grew from a dispute that
involves rules and policies of The University of Montana Law School with respect to: (1) the interim appointment of an adjunct professor of law to teach the course of Constitutional Law for the 2004-2005 school year, and (2) the Dean of the Law School’s reliance upon the Faculty Appointments Committee adoption of a policy governing the selection of a permanent teaching position for the Constitutional Law course at the UM Law School during the 2005-2006 academic year, which policy would require that any present faculty member of the UM Law School desiring to teach that course be required to submit his/her name for consideration based upon a national search of applicants for that position.
For purposes of clarity, as noted subsequently in Mr. Robinson’s report, the Faculty Appointments Committee recommended the policy in question to the entire faculty, and the faculty voted to adopt it. In addition, the policy as adopted applies to all tenure-track appointments henceforth made in the School of Law, not just to the appointment to fill the vacancy caused by the resignation of Professor Mark Kende, who had previously accepted appointment to a tenure-track position following a national search to teach Constitutional Law. These clarifications do not affect the logic and rationale of Mr. Robinson’s findings and recommendations.
I will not repeat the facts leading to the development of the grievance, since Mr. Robinson has outlined them and the parties have not differed about the facts. The differences result from interpretations of existing practices within the School of Law and law schools generally. As Mr. Robinson noted in his report, Professor Natelson argues that, as a custom or practice, the School of Law had previously allowed tenured faculty members, albeit not very many, to change their teaching assignments by volunteering to do so when the faculty member charged with teaching a course retired or resigned. Dean Eck disagreed with that interpretation, indicating that the School had no such practice or custom, but had abbreviated searches in the past in certain instances when the faculty agreed that a current faculty member had qualifications superior to any others on the market. However, in response to Professor Natelson’s request to assume the responsibility to teach Constitutional Law, the Dean opted instead to consider either an adjunct or an emeritus faculty member on a temporary basis pending the outcome of a national search to fill the position on a permanent basis. Moreover, as Mr. Robinson noted, the Dean took this action after Professor Natelson had indicated his desire to make the transfer.
Mr. Robinson found that the School of Law had accorded some preference in the past to a few faculty members seeking internal transfers, a practice or custom he identified as the result of collegial preference. Nonetheless, he found no justification for holding either the Dean or the School of Law hostage to a practice or custom, however limited or extensive in use, they chose for good reason to change. Directly to the point, he found no basis for such a holding in his review of the American Association of Law Schools’ Handbook for Deans or in the policies of The University of Montana. He did, however, find that a decision to change such a practice or custom, however limited in prior use, once invoked by a faculty member constitutes an unfair denial of a reasonable expectation of fair and equitable treatment. In this instance, the Faculty Appointments Committee and the faculty at large voted to adopt a written policy – after Professor Natelson requested consideration for a transfer – requiring a national search, except when the faculty as a group agrees that a current member of the faculty has qualifications equal to or superior to those of any person on the market. Mr. Robinson found this a deliberate effort to prevent Professor Natelson from having the benefit of the prior practice or custom.
Professor Natelson alleges that the actions of the Dean and the faculty constituted discrimination on the basis of his political beliefs and positions. While noting the existence of personal animus on the part of a number of people against Professor Natelson, Mr. Robinson did not find political discrimination. Instead, he noted concerns about some of the student evaluations of Professor Natelson’s teaching – especially in the required Property Law courses – Professor Natelson’s seeming unwillingness to shoulder an equitable share of the service burden of the School of Law, and Professor Natelson’s lack of civility and collegiality with students and colleagues. In addition, Mr. Robinson noted that the Dean based his decision about the assignment of the Constitutional Law course on 1) Professor Natelson’s assignment to teach other courses required for the same cohort of students, 2) Professor Natelson’s scheduled sabbatical leave for FY 2004-2005, and 3) the resultant domino effect of changing course assignments if Professor Natelson moved to Constitutional Law, thus leaving Property Law uncovered, and similar effects of other course assignment changes that would necessarily follow. Finally, as support for this discretionary authority, Mr. Robinson cited the statements from the AALS’s Handbook for Deans and the policies of The University of Montana supporting the Dean’s authority to assign courses to faculty members to teach.
With regard to the “new rule” or “policy” requiring national searches in the event of vacancies, Mr. Robinson made no finding, except that the imposition of the “rule” or “policy” in response to Professor Natelson’s request for consideration under the pre-existing if little-used practice or custom in the School of Law violated a legitimate and reasonable expectation, absent evidence of incompetence. Certainly, any Department or School can adopt such a policy, and many have, subject only to University policy. Some do so to avoid in-breeding, and others to assure the infusion of new perspectives and ideas. However, internal transfers and national searches can co-exist, if the School or Department in question initially reaches a conclusion about the qualifications and competencies of the existing faculty prior to determining the objects of the searches. Finally, a School or Department may, for reasons it finds sufficient, adopt such a universal policy for prospective implementation, even if doing so may increase costs and impose inconveniences. Any such policy must comply with University and University System policies.
I have accepted Mr. Robinson’s findings on these points. In addition, I have accepted the following components of his proposed remedy, with some modifications:
I urge the parties to work in good faith to implement this resolution in the best interest of the School of Law and the University. As you perhaps realize, this memorandum will become public information shortly after your receipt of it. Therefore, feel free to share it with others as you deem appropriate.
Thank you for your patience and cooperation.
c: D. M. Robinson
L. Muir, Provost
D. Aronofsky