Rules Regulating Proceedings to Terminate for Cause the Service of a Tenured Member of the Teaching Staff, Pursuant to Title I, Section VI, of the Statement in Regard to Academic Freedom and Tenure6
(Titles III and IV were adopted by the University Board of Trustees on October 24, 1960 and have been amended through December 8, 1986.)
I. Initiation of Dismissal Proceedings
1. Whenever the President and Chancellor or the Provost, or the dean of a college, school, or division of the University with the assent of the President and Chancellor or the Provost shall deem such action is warranted, that person shall initiate proceedings to terminate for cause the service of a tenured member of the teaching staff. He or she shall formulate, or cause to be formulated, the charges in writing. A copy of such charges, together with notice of proceedings for termination of his or her service for cause, shall be mailed by registered mail to the person involved (“the respondent”).
2. The respondent shall serve a written answer upon his or her dean and the President and Chancellor of the University within twenty days after service of the charges and notice upon him or her admitting or denying each of the allegations contained in the charges and setting forth any defenses to the charges. The time for service of the answer may be extended by the President and Chancellor or the Provost in the interests of substantial justice.
3. Upon receipt of the answer of the respondent, the dean shall forward to the chairperson of the Faculty Tenure Committee copies of the written charges and of the answer to such charges.
4. If the respondent fails to serve a written answer within twenty days, or any extension of such time, the dean shall nevertheless forward the charges to the chairperson of the Faculty Tenure Committee with a statement showing that no answer has been served by the respondent.
5. Within fifteen days after submission of the charges and answer, or of the charges alone, as the case may be, to the Faculty Tenure Committee, the chairperson of such committee shall set a time for the commencement of a hearing, which shall not be more than thirty days thereafter unless further time is granted by the chairperson upon request of either party.
II. The Faculty Tenure Committee and Its Hearing Panels
1. The Faculty Tenure Committee shall have jurisdiction, under the “Statement in Regard to Academic Freedom and Tenure” published by the Board of Trustees of New York University, to establish a hearing panel to hear the charges against a tenured faculty member in proceedings for termination of his or her service for cause. Its powers are confined to such cases and do not extend to grievances concerning the terms of special contracts of employment, promotion, salary, conditions of work, or similar questions.
2. The Faculty Tenure Committee shall consist of a faculty representative from each school or college in the University. The representative shall be a former elected senator who is still a full-time teacher in the University and is not a dean or the incumbent of a comparable administrative position. The former senator whose term has most recently concluded shall be named first, and in his or her absence by reason of leave, illness, or other inability to serve, the next most recent former senator, and if he or she be unable to serve, then the next most recent former senator, and so on until the list of former senators has been exhausted. If two or more senators had their term of office expire on the same date, lots shall be cast to determine the former senator who shall first be eligible to serve. If there be no available and properly qualified member of the faculty of any unit, then a representative who is eligible to be an elected member of the Senate shall be elected by the faculty of the unit in the manner in which a member of the Senate is elected. The Faculty Tenure Committee shall, when the Committee is called upon to consider a case, elect a Committee chairperson who shall serve until a hearing panel has been selected and has elected its own chairperson.
3. Whenever a case has been referred to the Faculty Tenure Committee, the Committee shall designate from its membership a hearing panel of five members to hear and decide the case. One member of the panel shall be the faculty representative from the same school or college as the respondent. The remaining four members shall be selected by the Faculty Tenure Committee, and such selection shall proceed notwithstanding the unavailability to serve of any former senator from one or more schools or colleges. The hearing panel shall select its own chairperson. Once identified to serve in a particular case, the members of the hearing panel shall continue to serve until the completion of all proceedings, except as otherwise provided by these rules.
III. Conduct of Hearings Before the Hearing Panel of the Faculty Tenure Committee
1. An arbitrator who is an attorney shall be the presiding officer at the hearing on the charges. The arbitrator shall be chosen from a list of 12 qualified attorney-arbitrators compiled by the American Arbitration Association. The charging party and the respondent each may strike up to four names from the list and each shall rank, in order of preference, the names of those whom they have not stricken. The Association shall then designate as the arbitrator the available person with the highest degree of joint preference of the parties. Should more than one available person have an equally high joint preference, the Association shall select the arbitrator by lot from those with the highest joint preference.
2. A calendar of hearing dates in a proceeding for dismissal shall be fixed by the chairperson of the hearing panel after consultation with the parties to the proceeding and the arbitrator; the calendar shall be read into the record on the opening day of the hearing; it shall be adhered to unless the hearing panel orders exceptions for due cause. Whenever the interests of substantial justice appear to so require, the hearing panel may direct either or both parties to submit a summary of the evidence, a first list of witnesses to be called, or both. If the statement of the charges, or the answer thereto, appears to the hearing panel to be indefinite or obscure, the hearing panel may require a more definite statement. Where the respondent has failed to serve an answer to the charges and where it further appears that the respondent is unable to understand the charges and to participate meaningfully in the proceeding, the panel shall obtain the services of a qualified person to represent the respondent. In the absence of such circumstances or other good cause, upon the failure of the respondent to serve an answer prior to the commencement of a hearing or to appear at the hearing, the panel may, in its discretion, preclude the subsequent assertion of any defense or the introduction of evidence on behalf of the respondent.
3. The arbitrator shall conduct the hearing and rule on all procedural matters, including the admissibility of evidence, subject to the right of each party to appeal to the panel. Upon such appeal, the decision of a majority of the panel members shall control. The panel shall have the power to enlarge the time appointed in these procedures for doing any act or taking any proceedings, where the interests of substantial justice appear to so require.
4. The hearings shall not be restricted by the rules of procedure or of the admissibility of evidence which prevail in the courts of law. Subject to the provisions of section 3 of this article III, each member of the panel, at the hearing, may inquire into whatever is believed relevant to the inquiry. Whenever the proceedings originate from a finding of scientific misconduct in accordance with the separate rules governing such proceedings, the hearing panel shall deem the report of the earlier committee to constitute the facts as to the existence of such misconduct.
5. The respondent may be assisted by counsel of his or her choice, as may be the charging party. Counsel for both sides shall cooperate at all times with the panel and the arbitrator.
6. A request by either party to present witnesses shall be made to the panel, which may limit the hearing of witnesses at its discretion. If witnesses are called, each party shall have the right of cross-examination.
7. Each party may introduce exhibits, which shall constitute part of the record of the case. They shall be retained in the custody of a suitable person designated by the chairperson unless, after appropriate precautions to preserve a record of their purport, the chairperson shall order otherwise.
8. A stenographic record shall be made of all proceedings at the hearing. However, on order of the chairperson, procedural matters may be discussed in executive session, the minutes of which need not be included in the transcript of the record of the hearing. This transcript shall be available to all parties to the hearing.
9. Each party shall have equal opportunity at the final session of the hearing for the summation of the case, either in person or by counsel, but no new evidence or testimony may be introduced during such summation.
10. All five members of the hearing panel shall be present at the hearing. If, after the commencement of the hearing, a member of the panel becomes unable to continue to serve, he or she shall be excused from further service. Should a member of the panel repeatedly fail to carry out his or her obligations as a member of the panel, he or she may be discharged from further service upon the vote of a majority of the remaining members of the panel. In no event, however, may the hearing panel proceed with fewer than three members, and should the number of panel members be reduced to fewer than three, the Faculty Tenure Committee shall designate a new hearing panel which shall commence a de novo proceeding. The members of the original panel who remained on the panel at the time that it ceased to function shall be eligible to serve on the successor panel. The affirmative vote of a majority of the panel shall constitute any action by the panel. Subject to the foregoing, the panel may adopt rules not inconsistent with the provisions herein set forth.
11. Upon completion of the hearing, the panel shall deliberate and make its report. The deliberations shall be conducted in executive session and shall be attended only by the members of the hearing panel. The decision of the panel must be supported by a majority of its members and no recommendation of dismissal shall be made based solely upon the failure of the person involved to answer the charges or appear at the hearing.
IV. Report of the Hearing Panel of the Faculty Tenure Committee
1. The report of the hearing panel of the Faculty Tenure Committee shall be in writing and shall consist of (a) a transcript of the record of the hearing and the exhibits offered or introduced into evidence by the parties; (b) such findings, conclusions, and proposed sanctions as the panel shall make, including a statement of the facts deemed essential to the findings; (c) a memorandum setting forth the reasons for any recommendations, including any recommendation for severance pay where dismissal for cause is recommended; and (d) any memorandum submitted by any member of the panel, at his or her own discretion, with reference to his or her opinion as to the matters in controversy.
2. Each finding, conclusion, and recommendation shall be reported with the numerical vote of the members of the panel but not with the names of the members who voted for or against the same.
3. Complete copies of items (b), (c), and (d) described in section 1 of this Article IV shall be transmitted to the President of the University and to the parties to the hearing. Either party may take an appeal from the findings, conclusions, and recommendations of the hearing panel by filing a written notice of appeal with the President of the University within ten days of the receipt of the aforesaid items. In the event of an appeal, the full report as described in section 1 of this article IV shall be submitted to the Tenure Appeal Committee as described below.
V. The Tenure Appeal Committee of the University
1. The Tenure Appeal Committee shall have jurisdiction, under the “Statement in Regard to Academic Freedom and Tenure” published by the Board of Trustees of New York University, to hear an appeal from the findings, conclusions, and recommendations of a hearing panel of the Faculty Tenure Committee in a proceeding for the termination for cause of a tenured faculty member. Its powers are confined to such cases and do not extend to any other matter concerning the award or the termination of tenure.
2. The Tenure Appeal Committee shall consist of three persons, none of whom hold a full time appointment in the same school as the respondent, as follows: the chairperson of the Faculty Council; the chairperson of the Academic Affairs Committee of the Board of Trustees; and a person designated by the President of the University, ordinarily a dean, having the status of a tenured faculty member. In the event that either of the first two persons is unable to serve in a given case, a substitute person shall be designated, respectively, by the Faculty Council and the Board of Trustees. Any substitute for the chairperson of the Faculty Council shall be a member of the Faculty Council and any substitute for the chairperson of the Academic Affairs Committee of the Board of Trustees shall be a trustee of the University.
VI. Action by the Tenure Appeal Committee
1. Upon the request of either the respondent or the charging party, the Tenure Appeal Committee of the University shall consider the findings, conclusions, and recommendations of the hearing panel of the Faculty Tenure Committee on the record made at the hearing before the panel. If the Tenure Appeal Committee deems the record not complete, it may refer the matter back to the panel for further data, findings, and recommendations.
2. An opportunity for argument before the Tenure Appeal Committee shall be afforded to each of the parties or their representatives before the final vote on the merits of the controversy.
3. Upon appeal a tenured member of the teaching staff shall be removed for cause only by a vote of a majority of the Tenure Appeal Committee to affirm the findings of the hearing panel in support of one or more of the charges. A recommendation for dismissal for cause made by the hearing panel shall be upheld only if the Tenure Appeal Committee determines: (i) that the findings against the respondent on one or more of the charges are supported by substantial evidence in the record as a whole; (ii) that the hearing was conducted fairly and in substantial compliance with the rules set forth above for the conduct of such hearings; and (iii) that the sanction of dismissal is appropriate. If the Tenure Appeal Committee does not determine that the findings in support of one or more of the charges are supported by substantial evidence in the record as a whole, or determines that the hearing was not conducted fairly or was not conducted in substantial compliance with the governing rules, or that the sanction of dismissal is not appropriate it shall, as the interests of substantial justice shall require: (i) dismiss the charges; (ii) remand the case for a new hearing before the same or a new hearing panel; or (iii) reduce the sanction, provided however that any decision to reduce the sanction must be upon the unanimous vote of the Tenure Appeal Committee.
4. Where the hearing panel has sustained one or more of the charges but has not recommended dismissal for cause and has instead recommended a lesser sanction, the Tenure Appeal Committee shall, upon appeal, similarly review the findings, conclusions, and recommendations of the panel. The Tenure Appeal Committee is empowered to make the final determination with respect to the appropriate sanction to be imposed provided, however, that any decision to increase the sanction recommended by the hearing panel must be upon the unanimous vote of the Tenure Appeal Committee. Where the hearing panel has not sustained any of the charges, the Tenure Appeal Committee shall, upon appeal, again review the findings, conclusions, and recommendations of the panel, and where it determines that the findings are not supported by substantial evidence in the record as a whole or that the hearing was not conducted fairly or was not conducted in substantial compliance with the governing rules to the detriment of the charging party, it may, in its discretion, remand the case for a new hearing before a new panel of the Faculty Tenure Committee.
5. After the conclusion of its deliberations, the Tenure Appeal Committee shall prepare a report setting forth its findings and conclusions, stating the reasons therefor, including the dissenting views of any member of the Committee.
6. The secretary of the University shall provide a copy of the report of the Tenure Appeal Committee to the parties and to the President of the University.
7. The final disposition of the case shall be made public only after the parties to the hearing have been officially informed of the decision of the Tenure Appeal Committee. Until that time no information concerning the hearings shall be disclosed to the public.
VII. General Provisions
1. The members of the Board of Trustees, the President and Chancellor of the University and other officers of administration, the members of the Tenure Appeal Committee, the members of the Faculty Tenure Committee, the dean and members of the faculty, and all witnesses and other participants in any hearing shall be absolutely privileged as to statements or publications made in connection with the hearings, and shall have complete immunity for any decision, statement of fact, or comment relating thereto.