The Firing of Tenured Professor Mark McPhail, Indiana University-Northwest
Here is the Mark McPhail IUN story as taken from the American Association of University Professors report, “Academic Freedom and Tenure: Indiana University Northwest,” which is careful, balanced, and specific in its details.
Mark McPhail was hired as Executive Vice Chancellor of IUN, but didn’t get along with the Chancellor and resigned to just be a tenure professor of communications. He complained about racism (McPhail is Black) and objected to a major administrative hire being made in violation of university rules. He then was told that his teaching had been reviewed some years earlier, unknown to him, and his tough grading and low student evaluations showed he was such a bad teacher that he couldn’t be allowed to teach, and would have his salary cut 75%.
Next, two campus police travelled 150 miles to his house in Wisconsin (his teaching had been cancelled, recall) to tell him he was banned from campus because he had made threats of violence, though they could not tell him where and when. Later, when McPhail phoned someone to try to find out what was going on, he was told he was in violence of the no-trespassing notice. Eventually, they told him they had received reports he had said that the way to end racism would be to kill all the white people and that someone had told Dean Klamen he should stay away from McPhail because he was very angry, but they wouldn’t tell McPhail who said he had said these things, because they wanted to protect them from him.
After the salary cut and the firing, instead of before as the rules specified, a faculty committee investigated McPhail’s teaching and conduct. The committee said that the Administration was completely in the wrong and that McPhail should be reinstated with back pay, but the Chancellor chose to ignore the committee’s findings. The committee did find out details on the supposed threats. McPhail had a conversation with a faculty friend where he said that if the Indians had killed all the white settlers in the 1600’s there wouldn’t be a problem of systemic racism. In another conversation with a friend, where he was so upset that the friend suggested Dean Klamen avoid talking with him— though the friend told the committee McPhail made absolutely no threats of violence.
The American Association of University Professors dug up these facts despite complete lack of cooperation from the IUN Administration in their investigation and fears by faculty members that they would be penalized for talking to the AAUP. The AAUP governing council accepted the recommendation of the three professors deputized to investigate IUN and of its academic freedom committee, and issued an official censure of IUN in March 6, 2023, saying, “AAUP censure informs the academic community and the public at large that conditions for academic freedom and tenure at the institution are unsound.” Note that IUN is part of the larger Indiana University system, of which Indiana University-Bloomington is the flagship, and the President of the system and its legal department are in Bloomington, which bodes ill for academic freedom at IU- Bloomington since they backed up the Chancellor at IUN.
McPhail sued, and was on his way to winning, in my opinion, when he settled out of court with the university. The settlement included a requirement that McPhail not speak about the settlement or the university— the university bought his silence. Such nondisparagement and nondisclosure agreements ought not to be made by public universities, since their obvious purpose is to cover up wrongdoing when the university is losing a lawsuit. Personally, I think the agreements are probably unenforceable, and maybe even subject to public disclosure under the Indiana Access to Public Records Act— and I know a lot of law.
Indiana University’s official legal position on what tenure means is astounding, and far exceeds any threat made by the new SB 202 bill introduced in the Indiana legislature to control the politicization of state universities. See Indiana University’s “Response in Opposition to Plaintiff’s Motion for Partial Summary Judgement.” IU’s official position is that in hiring a professor with tenure it has no obligation to follow any of its official academic policies, only whatever is stated in the letter. Whatever has been passed by the university faculty and approved by the Administration is non-binding on the Administration. The Administration is free to say whenever it likes that a professor’s conduct violates academic ethics and he is fired, with no faculty review. The Administration can also change the rules any time it likes, in any way, without asking faculty consent or even notifying them. The University posts lots of rules and procedures that look like they protect faculty rights, but all that is completely optional on the University, with no legal obligation, and if the University chooses to ignore those rules, the faculty member has no right to go to court and complain. If you find this had to believe, look at my quotations below from official IU legal arguments.
That a tenured professor can have his salary cut 75% and then be fired without due process seems ridiculous, and makes mockery of the concept of “tenure”, but that is what Indiana University claims is what tenure means— and this is not just for IUN, but for IU-Bloomington and all the rest. Maybe Purdue claims the same. I think IU’s legal position is wrong, and it has not been confirmed by the courts, though IU does cite a number of cases in the brief I quote from below that they say supports their position. The McPhail case settled before the judge had a chance to say IU was wrong.
For links to more information, court documents, media articles, etc. on the McPhail affair, see Eric Rasmusen’s Mark McPhail webpage.
S. B. 202 would help. Consider Chapter 2. Tenure, Promotion, Employment, Complaints, and Disciplinary Actions Sec. 2(c):
(c) In determining whether a faculty member has adequately met the criteria under subsection (a), the board of trustees of an institution may not consider the following actions by a faculty member:
(1) Expressing dissent or engaging in research or public commentary on subjects.
(2) Criticizing the institution's leadership.
(3) Engaging in any political activity conducted outside the faculty member's teaching or duties at the institution
This is directed at what a university can do in post-tenure review, and in determining tenure, and, presumably, any other attempt to discipline a faculty member. McPhail expressed dissent and criticized the institution’s leadership. S.B. 202 would have helped his case, though it was a strong one anyway.
More legislation is needed to protect university faculty. The faculty complain about AAUP, but they’re straining at a gnat when being whacked with a log. An abusive Administration is far, far more dangerous to a professor than a Trustee or a State Senator.
Below I have detailed quotations to back up what I have written above. First, Indiana University’s “Response in Opposition to Plaintiff’s Motion for Partial Summary Judgement”:
Plaintiff’s first argument in support of his breach of contract claim is that his appointment letter, which he views as a contract, allegedly incorporated IU’s employment pol icies. (Dkt. No. 37, Plaintiff Memo, pp. 14-15). This argument fails as a matter of law. Plaintiff bases this argument on the following sentence in the appointment letter,which merely directs Plaintiff to non-binding and changing sources of general information: “Comprehensive information concerning academic policies, appointments and responsibilities can be referenced by following this link: http://policies.iu.edu/policics/categories/academic-faculty-studnets/index.shtml.” (Plaintiff’s Ex. 4). Notably, the appointment letter does not state that the policies referenced in the link are binding on Plaintiff, nor terms of any contract with him.
IU has maintained an Academic Handbook (“Handbook”) first in paper form and then on its website with the conspicuous introductory statement: Statements and policies in this Handbook do not create a contract and do not create any legal rights. In the event of differences between this document and the original documents cited therein, the wording in the original documents or master contracts shall obtain.
Since at least 2008, predating Plaintiff’s 2015 employment, IU has maintained the position that its academic policies do not create a contract of employment between IU and persons with academic appointments
To the extent Plaintiff suggests that he viewed policies on IU’s website in 2015, he would have seen policy effective dates and revision dates, most of which listed revisions dates. (Ex. G, ¶ 8; Ex. J, ¶ 3). The obvious meaning of the revision dates is that the policies would periodically change without his or any other individual faculty member’s consent, preventing Plaintiff from reasonably believing that the policies at a moment in time constituted a contract between him and IU.
Above all and in any event, Plaintiff’s appointment letter did not explicitly incorporate IU policies. Plaintiff notes the letter said that certain terms were “required” by University policy or “in accordance with” University policy (Dkt. No. 37, p. 14); however, this is not a “clear promise” to include all policies in his appointment letter going forward (and particularly those generally referenced at a link).
Plaintiff’s arguments fail, as a matter of law, to establish that IU had a contractual obligation to Plaintiff to comply with its academic policies.
Plaintiff’s performance issues are not a reflection of his failure to meet minimum levels of performance. To the contrary, the summary judgment record indicates that Plaintiff made deliberate choices to disregard critical aspects of his job leading IUN to conclude that he engaged in a violation of the academic ethics covered by ACA-33
The administrative decision regarding Plaintiff’s teaching assignment and pay constituted ethics violations under ACA-33, which states in pertinent part as follows:
The University’s educational mission is promoted by professionalism in faculty/student relationships. Professionalism is fostered by an atmosphere of mutual trust and respect. Actions of faculty members and students that harm this atmosphere undermine professionalism and hinder fulfillment of the University’s educational mission.
Second, here is the story in more detail, excerpted from the American Association of University Professors (AAUP), “Academic Freedom and Tenure: Indiana University Northwest,” (January 2023):
“On September 14, 2021, police officers showed up at my house in Wisconsin and delivered a letter from the [Indiana University Northwest] chief of police saying that I could not enter university property and that doing so would result in criminal prosecution for trespass. On September 16, police officers again arrived at my door and delivered to me a letter from Executive Vice Chancellor for Academic Affairs Vicki Román-Lagunas saying I had made a ‘threat of physical violence’ and that my employment was therefore terminated.”1 Thus wrote Dr. Mark McPhail in appealing his dismissal from his tenured professorship in the Department of Communication at Indiana University Northwest. After the police left his home following the second visit, Professor McPhail reports that he fell to the floor, sobbing and shaking. At the time that he was deemed a “threat” to the IUN community, he was 150 miles from campus.”
Professor McPhail emailed Ms. Aneesah Ali, director of IUN’s equal opportunity and affirmative action office, to convey his concern that Dean Klamen had been appointed without a search or any transparency about the action, in violation of institutional policies and federal Equal Employment Opportunity Commission (EEOC) guidelines.
At the close of that academic year, in July 2021, Dean Klamen conducted an annual performance evaluation of Professor McPhail.4 He claimed that Professor McPhail’s teaching had been rated as “inadequate” in a 2017 evaluation, based on low enrollments and a DFW rate (the percentage of students who receive a D or an F, or who withdraw) that was considerably higher than the department average.
Professor McPhail claimed that he had not received or even been informed of any previous faculty evaluation, and he asked that copies of his evaluations be shared with him.5 He averred that “all of the students who failed [his] courses did so because they did not submit required work,” even after “numerous reminders,” and that many students who received low grades had not availed themselves of opportunities to correct or resubmit work. Professor McPhail also offered brief remarks about the inadequacy of student evaluations as a measure of teaching effectiveness,
Dean Klamen stated that Professor McPhail’s response was “not sufficient to mitigate the serious and ongoing concerns expressed in the evaluations and ratings” and that, in “attempt[ing] to shift blame to students for [his] own professional shortcomings,” Professor McPhail had violated the Indiana University Code of Academic Ethics. He added, “I am recommending to the Executive Vice Chancellor that you teach no classes this upcoming semester. This recommendation is based on the teaching deficiencies noted. I also note that when you were given additional opportunities and time for training that [were] not otherwise provided to other faculty, you were still unable to carry out your teaching responsibilities in a professional manner.” Dean Klamen added that he would also recommend that Professor McPhail’s salary for the semester be reduced by 75 percent, “commensurate with the removal of [his] teaching responsibilities.”
On the morning of September 14, three IUN police officers came to Professor McPhail’s home—150 miles away in Wisconsin—to deliver a trespass notice, which informed him that he was the subject of a campus police investigation, barred him from IUN’s campus, and threatened him with arrest and prosecution for entering any university property. After he made a telephone call that evening to the office of a colleague in Bloomington, police officers notified him that his call had violated the trespass notice. Two days later, IUN police officers delivered a letter from Executive Vice Chancellor Román-Lagunas, dated September 14, stating that, based on reports that he had made “on more than one occasion, a threat of physical violence,” the administration “had no reasonable alternative but to proceed with dismissal.”
“The bases for Prof. McPhail’s termination were that he not only had significant problems with his teaching, service, and commitments to the University as previously documented for him but that he had also made a threat of physical violence, stating words to the effect that ‘the only way to end racism is to kill all the white people.’”
Dean Klamen was also advised confidentially by a colleague that he should avoid Prof. McPhail for fear that an “incident” may result and that he should be very concerned if he were to encounter him in person. Each of these reports was separate and distinct, and the individuals involved were not the same. However, in both cases, each person reported that Prof. McPhail was very angry. Based on these reports, the names of the reporters have been kept in confidence and immediate steps were taken in the interest of protecting the IU community.
The FBOR in the next quote is the Faculty Board of Review, the faculty committee.
On November 29, the FBOR reported its findings on Professor McPhail’s appeal of the suspension. . . . The FBOR concluded that Professor McPhail’s suspension was unjustified and recommended that his salary and benefits be reinstated retroactive to the date of his suspension. . . . It also stated that it would recommend that another administrator replace Dean Klamen in supervising Professor McPhail because of an “evident break in communication and collegial trust” between them.
In a December 27 letter, Vice Chancellor Román-Lagunas notified Professor McPhail that she had rejected the FBOR recommendation.
In the ensuing months, the FBOR conducted its review of Professor McPhail’s dismissal appeal. It should be noted that the board did not conduct a dismissal proceeding: the administration did not present formal charges or evidence beyond what was contained in the administration’s communications with him and, crucially, it did not assume the burden of proving adequate cause for Professor McPhail’s dismissal. Consequently, the FBOR limited itself to attempting, through interviews with faculty members and administrators, to piece together the administration’s justification for its action.
Professor Hobson told the FBOR that he had spoken with Professor McPhail on the telephone at some point after his suspension. Professor Hobson said that Professor McPhail had not made any threats and that if he had, Professor Hobson—a human resources expert—would have filed a police report. However, Professor Hobson stated that he had contacted the administration after the call because he was concerned that Professor McPhail was distraught and in need of support from the administration. The FBOR’s report states that “Hobson said that he had discussed the history of racism in the US with McPhail and had heard McPhail state his view that if indigenous people had killed all the early white settlers, racism would not have established itself in the Americas. Hobson said that he mentioned McPhail’s view to the EVCAA to impress upon her how deeply McPhail felt about systemic racism in the US.”
Dr. Bala Arshanapalli, the associate executive vice chancellor for academic affairs, told the FBOR that he had spoken with Professor McPhail on the telephone after the suspension and described him as “upset, frustrated, and angry” during that call. Dr. Arshanapalli later spoke to Dean Klamen about the conversation and advised him to avoid Professor McPhail because, he told the FBOR, he feared that a meeting between the two might lead to an “unpleasant conversation.” He also informed the FBOR that Professor McPhail had not said “anything inappropriate” and had not made “any threats against [Dean] Klamen or anyone else” during the call—a statement he also made to the IUN police.
The FBOR also interviewed Dean Klamen and Dr. Cynthia Roberts, dean of the IUN school of business, who had spoken with Professor Hobson and Dr. Arshanapalli about Professor McPhail’s alleged threats.
Dr. Roberts’s recollection of her conversation with Professor Hobson differed substantially from his. She told the FBOR that Professor Hobson had asked her to arrange for him to meet with the chancellor and the executive vice chancellor for academic affairs because the situation with Professor McPhail was “potentially explosive.” She said that Professor Hobson was concerned that Professor McPhail’s “state of mind could lead to ‘harm to self or others’” and that he had told her that “McPhail had said that the solution to racism is to kill all white people.” She informed the FBOR that she had provided a similar oral report to an inquiring IUN police detective.
Dean Klamen told the FBOR that Associate Executive Vice Chancellor Arshanapalli on two occasions had “warned” him not to have contact with Professor McPhail and had described Professor McPhail’s manner during their telephone call as “very angry” and “extremely agitated,” adding that he at times was “screaming” and “incoherent.” Dean Klamen told the committee that Dr. Arshanapalli did not say that Professor McPhail had made any threats. However, Dean Klamen said, a “different colleague” had contacted him to say that he had “heard rumors that Klamen was not safe and McPhail had threatened him.